M.A. No.463 of 2004

28th January, 2010

Petitioner Counsel: M/s. SACHCHIDANAND CHOUDHARY, LOVEKUSH KUMAR

Cases Cited:
Bhagwan Dass Vs. Kamal Abrol, 2005(5) ALL MR 756 (S.C.)=(2005)11 SCC 66 [Para 5,11]
Km. Rakhi Vs. 1st Additional District Judge, Firozabad, AIR 2000 Allahabad 166 [Para PARA6]
Mst. Somwati Tiwari Vs. People in General, AIR 2003 Madhya Pradesh 278 [Para PARA7,10]

JUDGMENT

-Heard learned counsel for the appellant.

2. The appellant has filed the present appeal against the order dated 4-9-2004 passed by the 5th Additional District Judge, Patna in Succession Case No.17/04 by which the succession case was dismissed for want of territorial jurisdiction.

3. The case of the applicant-appellant Sona Devi is that her husband late Ajay Kumar Mehta was employed as Assistant Engineer, Patpur Nirman Shakha, Jal Nigam at Balia in U.P. and died at his village home situated in the district of Patna which is also his fixed place for permanent residence. It was stated that the service of her deceased husband was transferable in nature but he was a permanent resident of State of Bihar in the district of Patna where he has his ancestral property, houses, etc. After describing movable properties located in various Post Offices and Banks in different places a prayer was made by filing an application under Section 372 of the Indian Succession Act before the District Judge, Patna to grant succession certificate to the applicant-appellant Sona Devi stating that there was no legal heir and representative of the deceased husband who died on 13-12-2002.

4. The learned Court below after considering the various averments made in the application of the appellant came to the conclusion that the husband of the appellant was employed in Balia in U.P. at the time of his death and therefore in terms of Section 371 of the Indian Succession Act, 1925 the deceased must be treated as ordinary resident of U.P. at the place where he was last posted in his transferable job, namely, at Balia. It was further held by the Additional District Judge that under Section 371 of the Indian Succession Act an application can only be filed within the jurisdiction of the District Judge where the deceased ordinarily resided at the time of his death and only if he had no ordinary place of residence the second part of Section 371 would come into play and the application would be filed at the place where any part of the properties of the deceased would be found. For the said reason it was held by him that a mere existence of property at village & P.O. Parev, P.S. Bihta, District Patna and the deceased being a permanent resident in a village in the district of Patna cannot come into play for invoking jurisdiction under Section 371 of Act for grant of succession certificate.

5. Learned counsel for the appellant submits that the learned Court below has failed to correctly interpret the provisions of Section 371 of the Indian Succession Act and thereby wrongly dismissed the succession case on the ground of lack of territorial jurisdiction. It is submitted by learned counsel that the term 'residence' or 'ordinarily residing' must be considered in the context in which it has been used in the light of what has been laid down by the Supreme Court in the case of Bhagwan Dass and another Vs. Kamal Abrol and others : (2005)11 SCC 66 : [2005(5) ALL MR 756 (S.C.)]. Learned counsel further contends that the phrase 'ordinarily resided' as used in Section 371 of the Act must be construed as including the permanent residence of the person concerned. Thus the residence of the deceased being in the District of Patna the succession case was rightly filed at Patna and ought to have been entertained by the Court below.

6. In support of the aforesaid stand learned counsel relies upon a decision of Allahabad High Court in the case of Km. Rakhi and another Vs. 1st Additional District Judge, Firozabad and others : AIR 2000 Allahabad 166, in paragraphs 34 and 35 of which it has been held as follows :

"34. That apart such application is to be filed within the jurisdiction of the District Judge where the deceased originally resided. In the present case, both the Courts below have found that the death took place at Kanpur where he was on account of his treatment. Admittedly, the deceased was posted at Allahabad. He was a railway employee and used to be transferred from one place to other. Thus Kanpur where the deceased had been staying for the purpose of his treatment cannot be said to be his place of ordinary residence. He had been in Kanpur for his treatment which is for a particular purpose which is not an ordinary purpose. An ordinary resident means that he had resided voluntarily and ordinarily and not for any particular purpose. Admittedly, the address of the deceased was at Firozabad. This was shown in the records of his service. The document contained in Annexure-9 to this petition also mentions that address of the deceased was at Firozabad. Thus from the document, on which the petitioner had intended to rely, disclosed that the deceased was an ordinary resident of Firozabad which was his permanent or fixed place of abode. Therefore, his stay at Kanpur at the time of his death for the purpose of his treatment cannot be treated to be his ordinary reside or that the deceased used to ordinarily reside at Kanpur at the time of his death within the meaning of Section 371 of the Succession Act. On that ground it cannot be contended that the Courts at Firozabad did not have territorial jurisdiction. Though the deceased was at Kanpur for the purpose of his treatment but his residence was at Firozabad, which is his permanent or fixed place of abode, is to be taken as the place of his ordinary residence. It is claimed by the applicant that she had resided with him at Firozabad while it is claimed by the petitioner that she had resided with him at Firozabad, though on account of his employment, he used to be posted at diverse place. By reason of entertainment of the application by the Courts at Firozabad, it cannot be said that it had inflicted any injustice on the petitioner.

35. In the case of Rameshwari Devi Vs. Raj Bali Shah, AIR 1988 All 68, it was held that in ordinary circumstances the jurisdiction falls within which the deceased ordinarily resided at the time of his death. If at that time if he had no fixed place of abode then the jurisdiction would fall within which the property is situated. The second branch would not be attracted until and unless the first branch is exhausted. The second branch is an alternative provision which is attracted only in those cases in which the deceased at the time of his death had no fixed place of residence. The permanent residence is necessarily a fixed place of abode. The permanent residence mentioned by a person, on a transferable job, is the fixed place of abode. However, by reason of employment one is transferred from one place to another or he is staying at a different place at the time of his death in that event, it cannot be said that he ordinarily resided at the place where he was staying for his treatment nor it could be said that he was ordinarily residing at the places where he was serving by reason of his transferable service."

7. Learned counsel also relies upon a decision of a learned single Judge of M. P. High Court in the case of Mst. Somwati Tiwari and others Vs. People in General : AIR 2003 Madhya Pradesh 278, in paragraph 4 of which it has been held as follows :

"4. In the present case there was documentary evidence to the effect that Somwati Tiwari was permanent resident of village Marhi District Satna. He was in Government service and he was being transferred from one place to the other. It is the permanent place where he resided that could also be considered to be the place of his ordinary residence. The word "resides" is a flexible one and has many shades of meaning. It must take its colour and content from the context in which it appears. If a person is a permanent resident of a particular place, there can be no doubt that he is ordinarily resident of that place. Similarly, if he is posted at a different place in connection with his service that place can also be termed as ordinary place of his residence for the purpose of Section 371 of the Act. The Court at both the places would have concurrent jurisdiction to entertain the application under Section 372 of the Act for grant of succession certificate when there was no opposition by anyone. It is true that the application was not properly drafted and it was not specifically stated therein that the permanent residence of the deceased was village Marhi, District Satna. But as already stated, that is established from the material on record. Now an application has been made before this Court under Order 6, Rule 17, CPC for amendment in the original application under Section 372 of the Act to make up that drafting deficiency. That application is allowed in the interest of justice. The amendment be incorporated in the original application before the Court where that application was submitted. The Courts should be sympathetic to the plight of the heirs who have applied for succession certificate. They should extend to them their helping hand in their misfortune. The approach of the Courts should be pragmatic. The trial Court could direct the applicants to mention specifically in the application how the Court has territorial jurisdiction instead of taking a very strict view and rejecting it. It is borne out from the application that the heirs of the deceased are residing at Satna. Therefore, they should not have been directed to go to Bhilai, a distance place, to obtain the succession certificate in respect of the dues which were payable on the death of the deceased by his employer."

8. I have considered the submissions of the learned counsel for the appellant, for proper appreciation of which Section 371 of the Indian Succession Act, 1925 is quoted below:

"S.371 - The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or if at that time he had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found, may grant certificate under this part."

9. On a consideration of the aforesaid provisions it is evident that it provides for alternative places where the application for succession certificate may be filed. The first place would be in the Court of the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death and the second would be the District Judge within whose jurisdiction any part of the property of the deceased may be found. However, the second jurisdiction is to be considered only if at the time of death of the deceased he had no fixed place of residence. Thus, even the interpretation of the words "ordinarily resided" in the first part would be coloured by what has been stated in the second part, namely, "had no fixed place of residence". It is evident in the context in which the two phrases have been used that the term "ordinarily resided" has not been used only for the purpose of finding out as to where the deceased was residing for the time being on a regular basis when he died. In the case of a person employed in transferable job the place where a person resides keeps shifting from time to time upon his transfer and thus his ordinary residence can also be said to shift from one place to another according to the orders passed by his employer. However, the said aspect has to be considered along with the use of the expression that at the time of death "he had no fixed place for residence". The said expression shows the intention of the Legislature to include any other place of residence which the deceased may have had on a permanent basis which would be particularly so in the case of a person in a transferable job. Thus, the permanent residence would definitely come within the scope of the meaning of the phrase "fixed place of residence" and it cannot be said that only the place where the deceased was working for the time being in his transferable job was his fixed place of residence to the exclusion of the permanent place of residence. It thus appears that the term "ordinarily resided" has been used in a wider sense to include in the case of a person serving in a transferable job the actual place where he was last posted and resided but without excluding his permanent residence which may be anywhere within the country and not necessarily confined to the State where he was in employment.

10. The decision of the Madhya Pradesh High Court in the case of Mst. Somwati Tiwari (supra) also supports the above conclusion that in the case of death of a person who was in a transferable job, the application for grant of succession certificate can be filed at either the place where he was last posted or where the accused had his permanent residence. This Court is in respectful agreement with the said decision.

11. The Apex Court also has clearly held in Bhagwan Dass's case [2005(5) ALL MR 756 (S.C.)] (supra) that the meaning of the word residence, whether permanent or temporary, has to be ascertained having regard to the context and other relevant factors in the facts and circumstances of the case. The purpose of fixing the jurisdiction of Courts which are to entertain an application for grant of succession certificate is to ensure that such applications are not filed at a distant place so as to prevent any close relation of the deceased from coming to know about the filing of such case. It also appears to have been so framed as to make it convenient for the heirs and successors of the deceased to file the case at and before a proper forum. For the said reasons also it must be held while interpreting the provisions of Section 371 of the Act that the jurisdiction to grant succession certificate would be both with the District Judge where the deceased was last posted in the case of transferable job as also with the District Judge within whose jurisdiction the person concerned may have his permanent residence.

12. The later part of the Section really comes into play in the case of those persons who do not have any fixed place residence within the territory of India, which may include such individuals also who may not be a resident or even citizen of this country and yet they have properties here.

13. Thus Section 371 of the Act cannot be held not to apply to the permanent place of residence of the deceased in some part of the country so as to exclude the District Judge having jurisdiction over such place from entertaining the application and restrict the power to give certificate only to the District Judge within whose jurisdiction the deceased may have last resided for some time in a transferable job without any intention to make it his permanent place of residence.

14. In the light of the aforesaid discussions, the order dated 4-9-2004 of the 5th Additional District Judge, Patna cannot be sustained and it is, accordingly, set aside. The appeal is, thus, allowed.

15. Let the lower court records be sent back forthwith to the Court concerned. The Court below is directed to proceed expeditiously in the matter and dispose of the same within a period of four months from the receipt of records.

Appeal allowed.