Madhvi Amma Bhawani Amma & Ors. Vs. Kunjikutty Pillai Meenakshi Pillai & Ors.
EmailAppeal: Civil Appeal No. 1544 of 1990
(From the Judgment and Order dated 26.9.89 of the Kerala High Court in S.A. No. 618 of 1983)
(From the Judgment and Order dated 26.9.89 of the Kerala High Court in S.A. No. 618 of 1983)
Petitioner: Madhvi Amma Bhawani Amma & Ors.
Respondent: Kunjikutty Pillai Meenakshi Pillai & Ors.
Apeal: Civil Appeal No. 1544 of 1990
(From the Judgment and Order dated 26.9.89 of the Kerala High Court in S.A. No. 618 of 1983)
(From the Judgment and Order dated 26.9.89 of the Kerala High Court in S.A. No. 618 of 1983)
Judges: A.P. MISRA & M.B. SHAH, JJ.
Date of Judgment: Apr 27, 2000
Appearances:
Mr. P.S. Poti, Mr. T.L.V. Iyer, Senior Advocates, Ms. Malini Poduval, Mr. Manu Krishnan, Ms. Lansinglu Rongmei, Mr. Ramesh Babu M.R., Mr. N. Sudhakaran, Advocates with them for the appearing parties.
Head Note:
HINDU LAW
Indian Succession Act, 1925
Sections 370-390 – Code of Civil Procedure 1908, Section 11 – Succession Certificate – Proceedings for issue of – Nature and scope of such proceedings – Effect of issue of Succession Cer-tificate – Whether an order granting Succession Certificate oper-ates as res judicata to a suit for partition between same parties . Held mere grant of Succession Certificate cannot be considered to be a decision on an issue finally decided between the parties. Use of words “Good faith” in Section 381 shows that decision in such proceedings are not final. Therefore any deci-sion made in proceedings for grant of Succession Certificate would not bar any party to the said proceeding to raise the same issue in a subsequent suit. Held in the instant case High Court erred in applying the principle of res judicata.
Held:
The grant of Succession Certificate falls under Part X of the aforesaid Act. Its range is between Sections 370 to 390. It is significant to refer here Section 387. This declares the effect of decisions made under this Act and the liability of holder of such certificate. It lays down that any decision made under this Part, (Part X) upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. It further records that nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security to account therefor to the person lawfully entitled thereto.(Para 15)
Thus any adjudication made under Part X of this Act which in-cludes Section 373 does not bar the same question being raised between the same parties in any subsequent suit or proceeding. This provision takes the decisions under Part X of the Act out-side the purview of Explanation VIII to Section 11. This gives protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceedings. (Para 16)
No doubt Explanation VIII to Section 11 enlarges the field of res judicata, by including in its field the decisions on the same issue, between the same parties even by a court of limited juris-diction even though such court may not have the competence of deciding such an issue in a suit. But as we have held above this grant of certificate would not fall within the field of Explana-tion VIII to Section 11. (Para 17)
So we have no doubt to hold that any decision made in the pro-ceeding under Section 372, for the grant of Succession Certifi-cate under the Indian Succession Act, would not bar any party to the said proceeding to raise the same issue in a subsequent suit. Hence, the High Court fell into error in applying the principle of res judicata to the second appeal of the appellant arising out of aforesaid suit. Thus even if no appeal is preferred by the appellant against the decision of the trial court arising out of proceedings for the grant of Succession Certificate, the princi-ple of res judicata would still not apply.(Para 19)
Cases Reffered:
1. Pawan Kumar Gupta v. Rochiram Nagdeo, (JT 1999 (3) SC 191)
2. Mt. Charjo and Anr. v. Dina Nath and Ors., (AIR 1937 Lahore 196 (2))
3. Kalipada De and Ors. v. Dwijapada Das and Ors, (AIR 1930 PC 22)
JUDGEMENT:
MISHRA, J.
1. This appeal is directed against the High Court order dated 26th September, 1989 in second appeal. The short question raised in this appeal is, whether an order granting Succession Certifi-cate under Section 373 of the Indian Succession Act 1925 would operate as res judicata to the suit for partition filed in a civil court between the same parties.
2. The short facts are: the appellants are the defendants in suit no. 20 of 1974 which is filed by respondent no. 1 Velu Pillai since deceased claiming to be the only legal heir as brother to the estates of one Kizhangumvilayil died intestate. The suit was for declaration, partition and recovery of possession of the plaint schedule properties. The said respondent also filed O.P. No. 33 of 1974 in the same court for obtaining Succession Cer-tificate for receiving money from Life Insurance Corporation. The plaintiff case in the suit is that he along with Ramakrishna Pillai and the said deceased Thankappan Pillai were the children of one Parameshwaran Pillai and Karthiyayani Amma. Since the deceased Thankappan Pillai had no other legal heir to succeed his estates, he is entitled to be declared as a legal heir to the estates of the said deceased.
3. Defendants-appellants contested the said case. They pleaded that plaintiff was only their uterine brother and thus was not entitled to succeed as legal heir. In fact, they are in posses-sion of the suit property which could not be disturbed except by any legal heir. Both, the suits and the said proceeding under the Indian Succession Act were tried together and decided by a common judgment by the trial court. The trial court held, there was no evidence to show that the marriage between Karthiyayani Amma and Parameswaran Pillai had been dissolved. The presumption is that Thankappan Pillai was born to Karthiyayani Amma and Parameswaran Pillai. The plaintiff being the real brother of the deceased Thankappan Pillai is entitled to inherit his property. Thus the trial court decreed the suit declaring the plaintiff as a sole heir and also allowed the said application O.P. No. 33 of 74 by granting the Succession Certificate to the plaintiff. The appellate court set aside both the judgment of the trial court in suit and grant of the Succession Certificate, holding that there was no valid marriage between Karthiyayani Amma and Parameswaran Pillai. The High Court in second appeal set aside this appellate court judgment as findings were not supported by pleadings in the case hence remanded the case back for reconsideration. After remand, the appellate court dismissed the appeal of the appellant by confirming the trial court judgment. Thereafter the appellant filed the second appeal.
4. Submission for the respondent-plaintiff before the High Court was that since appeal was not preferred against the order of the appellate court arising out of the proceeding for the grant of the Succession Certificate, it became final, thus it operates as res judicata. The High Court by its impugned order, upheld this contention. Thus High Court dismissed the second appeal on this limited ground which is impugned before us.
5. The learned counsel for the appellants submits that proceeding for the grant of Succession Certificate is a summary proceeding and the same cannot operate as res judicata to a proceeding in a regular suit filed in the civil court even if, it is between the same parties or issues are the same. The grant of Succession Certificate under Section 373 has only the effect that it is conclusive as against the person owing such debts or liability on such securities (as in the present case LIC) and it affords full indemnity to such debtor against all such future claimant, when it tenders the amount to such person holding Succession Certifi-cate. The submission is, this is merely a summary proceeding in which adjudication is made prime facie as to whom such payment is to be tendered by such debtor. In other words leaves the battle if any inter se between claimants to be adjudicated in a regular proceeding. Thus any decision under it has this limited effect, but it in no way put any legal embargo on the parties to prove to the contrary in any subsequent suit or proceedings. On the other hand learned counsel for the plaintiffs-respondents submits, as both, the suit and the application for the grant of Succession Certificate were heard and decided by the same court, both at the trial stage and the first appellate stage and when the appellant did not prefer any appeal against the order passed by the first appellate court in the connected proceeding arising out of the proceedings for the grant of Succession Certificate, the said decision becomes final and it would operate as res judicata to the pending proceedings in the second appeal arising out of the suit. The learned counsel for the respondents also placed strong reliance on Explanation VIII to Section 11 of C.P.C. which is quoted hereunder:-
“Explanation VIII – An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstand-ing that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”
6. Submission thus is even the court deciding the question of grant of Succession Certificate, may have limited jurisdiction and also may not have jurisdiction to decide the regular suit for partition, yet issues decided therein would fall within the ambit of res judicata in view of the Explanation VIII.
7. Within the said parameter now we proceed to examine the ques-tion raised in this appeal. The principle of res judicata as enshrined in Section 11, is evolved from the maxim “nemo debet bis vexari pro una et eadem causa”. This principle enunciates that no man should be vexed twice over for the same cause. This principle gradually developed further by bringing within its compass more such litigations. Thus with the passage of time this principle is gradually expanded. This shows that sphere of res judicata as enshrined in Section 11 C.P.C. is not exhaustive, it is ever growing. One such example of its growth is exhibited by the incorporation of Explanation VIII in Section 11 by means of Amending Act in 1976. The submissions made are broadly under two heads. Firstly, under the broad and general principle of res judicata in view of Explanation VIII and secondly, whether in a proceeding for the grant of Succession Certificate, any adjudica-tion or issue decided therein would operate as res judicata to a suit proceeding. In order to apply the general principle of res judicata court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceeding, was it between the same parties, and was it decided by such court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, if incidentally any finding is recorded it would not come within the periphery of the principle of res judicata.
8. In Pawan Kumar Gupta v. Rochiram Nagdeo (JT 1999 (3) SC 191 = (1999 (4) SCC 243) this Court observed that the rule of res judi-cata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which has been directly and substantially in issue in a former suit between the same parties, and has been heard and finally decided by that court. It holds, it is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata.
9. For the respondent reliance was placed in Kalipada De and Ors. v. Dwijapada Das and Ors. (AIR 1930 PC 22). The reliance is that this decision holds, where a question of relationship bet-ween the parties has been decided in a court of limited jurisdic-tion also operates as res judicata to a subsequent suit between the same parties involving the same question of relationship. Though we shall be referring later, the effect of various provi-sions of the Indian Succession Act on this question, but suffice it to say that this decision renders no help to the respondent, as in our case there was no issue, in the earlier proceeding, whether uterine brother would be entitled to inherit the estate of the deceased in the proceeding under Section 372 of the Indian Succession Act, which is the foundation of challenge by the appellant to the claim of the plaintiff as the legal heir of the deceased. Even for applying this decision it has to be shown that the claim of the plaintiff to inherit the questioned proper-ty in the suit was raised through such an issue in earlier pro-ceeding i.e. in Succession Certificate proceedings. No such issue could be pointed by the learned counsel for the respondent.
10. As this Court has held in the case of Pawan Kumar Gupta (supra), it is only the decision on an issue and not mere find-ing on any incidental question to reach such decision, which operates as res judicata. So, even if there be any finding regarding any relationship for grant of such certificate in the absence of any issue it would be of no help to the plaintiff.
11. Next we proceed to examine the other head of submission viz. whether decision on any issue in a proceeding to grant Succession Certificate would operate as res judicata to the issue raised in the subsequent suit. First we proceed to examine the various provisions under the Indian Succession Act. Section 372(1) refers to the application to be made for the grant of Succession Certificate. Sub-section (1) gives the detail and the manner of making such an application. Sub-section (3) gives the sphere of such application viz. it to be in respect of any debt or debts due to the deceased creditor or in respect of portions thereof. Sub-section (3) is quoted hereunder:-
“Sub-section (3): Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.”
12. Under Sub-section (1) of Section 373 if the court is satis-fied that there is ground for entertaining the application, he fixes a date of hearing after notice. Sub-section (2) decides the right of the applicant, whether entitled for a grant of the certificate. Under Sub-section (3), if such Judge cannot decide such right, as the question raised both on fact or law are in-tricate and difficult then in a summarily proceeding it can still grant such certificate, if it appears to the court, that the person making such application has a prima facie title thereto. Sub-section (3) of Section 373 is quoted hereunder:-
“Sub-section (3): If the Judge cannot decide the right to the certificate without determining questions of law or fact which seems to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.”
13. This Sub-section reveals two things, first adjudication is in a summarily proceedings and secondly if the question of law and fact are intricate or difficult, it could still grant the said certificate based on his prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it cannot be construed that mere grant of such certificate or a decision in such proceeding would constitute to be a decision on an issue finally decided between the parties. If that be so how could principle of res judicata be made applicable to a case in a subsequent suit?. The effect of such certificate is also laid down in Section 381 which is quoted hereunder:-
“Section 381:
Effect of certificate: Subject to the provisions of this Part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, notwithstanding any contravention of Section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted.”
(Emphasis supplied)
14. So, this certificate merely affords full indemnity to the debtor for the payment he makes to the person holding such cer-tificate. Thus when the debtor pays the debts or the securities as specified in the certificate, to the holder of such certifi-cate, then on such payment, he is absolved from his obligation to pay to any one else as it conclusively concludes his part of his obligation and such payment is construed to be in good faith. This safeguards such debtor or person liable to pay that he may not be later dragged into any litigation which may arise subse-quently inter se between the claimants. The use of words “good faith” in Section 381 reinforces that decision in these proceed-ings are not final. When statute recognises such payment to be in good faith gives clear under current message that there may be in future better claimant but that would not effect the indemnifica-tion of the debtor. Thus we find accumulatively because of the grant of Succession Certificate being for a limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, leads to only one conclusion that any decision made there-in cannot be treated to be final adjudication of the rights of the parties, except such declaration being final for the purpose of these proceedings. If that be so, the amount received by the holder of such certificate can yet be questioned, and in subse-quent proceeding it may hold it to belong to other claimant, including the contesting party.
15. This can be examined from another angle. The grant of Succes-sion Certificate falls under Part X of the aforesaid Act. Its range is between Sections 370 to 390. It is significant to refer here Section 387. This declares the effect of decisions made under this Act and the liability of holder of such certificate. It lays down that any decision made under this Part, (Part X) upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. It further records that nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security to account therefor to the person lawfully entitled thereto. Section 387 is quoted hereunder:-
“Section 387:
Effect of decisions under this Act, and liability of holder of certificate thereunder: No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.”
(Emphasis supplied)
16. This leaves no room for doubt. Thus any adjudication made under Part X of this Act which includes Section 373 does not bar the same question being raised between the same parties in any subsequent suit or proceeding. This provision takes the deci-sions under Part X of the Act outside the purview of Explanation VIII to Section 11. This gives protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceedings.
17. No doubt Explanation VIII to Section 11 enlarges the field of res judicata, by including in its field the decisions on the same issue, between the same parties even by a court of limited juris-diction even though such court may not have the competence of deciding such an issue in a suit. But as we have held above this grant of certificate would not fall within the field of Explana-tion VIII to Section 11.
18. As for back as in 1937, this principle was upheld and recog-nised. In Mt. Charjo and Anr. v. Dina Nath and Ors. AIR 1937 Lahore 196(2)
“The enquiry in proceedings for grant of succession certificate is to be summary, and the Court, without determining questions of law or fact, which seem to it to be too intricate and difficult for determination, should grant the certificate to the person who appears to have prima facie the best title thereto. In such cases the Court has not to determine definitely and finally as to who has the best right to the estate. All that it is required to do is to hold a summary enquiry into the right to the certifi-cate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent their being time-barred, owing (for instance) to dispute between the heirs inter se as to their preferential right to succession, and, on the other hand, to afford protection to the debtors by appointing a representa-tive of the deceased and authorising him to give a valid dis-charge for the debt. The grant of a certificate to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se.”
19. So we have no doubt to hold that any decision made in the proceeding under Section 372, for the grant of Succession Cer-tificate under the Indian Succession Act, would not bar any party to the said proceeding to raise the same issue in a subsequent suit. Hence, the High Court fell into error in applying the principle of res judicata to the second appeal of the appellant arising out of aforesaid suit. Thus even if no appeal is pre-ferred by the appellant against the decision of the trial court arising out of proceedings for the grant of Succession Certifi-cate, the principle of res judicata would still not apply. But we further record, and accept the contention of the learned counsel for the appellant that the memorandum of second appeal itself reveals that he has preferred appeal against both the appellate orders where it records both appeals, case no. 237 of 1977 and 93 of 1978. Hence High Court was not right in holding that no appeal was preferred. Learned counsel for the respond-ents could not dispute this but submits that no second appeal lies against the appellate order in the proceedings for the grant of Succession Certificate, only a revision lies. However, it is not necessary for us to go into this question as this is for the appellants to make such submission as permissible under the law for and it is the respondent to raise such objection, as he deem fit and proper in this regard.
20. In view of the aforesaid findings we set aside the High Court order dated 26th September, 1989 and remand the case back to it for deciding afresh on merits, the second appeal, in accordance with law. The present appeal is allowed. Costs on the parties.
1. This appeal is directed against the High Court order dated 26th September, 1989 in second appeal. The short question raised in this appeal is, whether an order granting Succession Certifi-cate under Section 373 of the Indian Succession Act 1925 would operate as res judicata to the suit for partition filed in a civil court between the same parties.
2. The short facts are: the appellants are the defendants in suit no. 20 of 1974 which is filed by respondent no. 1 Velu Pillai since deceased claiming to be the only legal heir as brother to the estates of one Kizhangumvilayil died intestate. The suit was for declaration, partition and recovery of possession of the plaint schedule properties. The said respondent also filed O.P. No. 33 of 1974 in the same court for obtaining Succession Cer-tificate for receiving money from Life Insurance Corporation. The plaintiff case in the suit is that he along with Ramakrishna Pillai and the said deceased Thankappan Pillai were the children of one Parameshwaran Pillai and Karthiyayani Amma. Since the deceased Thankappan Pillai had no other legal heir to succeed his estates, he is entitled to be declared as a legal heir to the estates of the said deceased.
3. Defendants-appellants contested the said case. They pleaded that plaintiff was only their uterine brother and thus was not entitled to succeed as legal heir. In fact, they are in posses-sion of the suit property which could not be disturbed except by any legal heir. Both, the suits and the said proceeding under the Indian Succession Act were tried together and decided by a common judgment by the trial court. The trial court held, there was no evidence to show that the marriage between Karthiyayani Amma and Parameswaran Pillai had been dissolved. The presumption is that Thankappan Pillai was born to Karthiyayani Amma and Parameswaran Pillai. The plaintiff being the real brother of the deceased Thankappan Pillai is entitled to inherit his property. Thus the trial court decreed the suit declaring the plaintiff as a sole heir and also allowed the said application O.P. No. 33 of 74 by granting the Succession Certificate to the plaintiff. The appellate court set aside both the judgment of the trial court in suit and grant of the Succession Certificate, holding that there was no valid marriage between Karthiyayani Amma and Parameswaran Pillai. The High Court in second appeal set aside this appellate court judgment as findings were not supported by pleadings in the case hence remanded the case back for reconsideration. After remand, the appellate court dismissed the appeal of the appellant by confirming the trial court judgment. Thereafter the appellant filed the second appeal.
4. Submission for the respondent-plaintiff before the High Court was that since appeal was not preferred against the order of the appellate court arising out of the proceeding for the grant of the Succession Certificate, it became final, thus it operates as res judicata. The High Court by its impugned order, upheld this contention. Thus High Court dismissed the second appeal on this limited ground which is impugned before us.
5. The learned counsel for the appellants submits that proceeding for the grant of Succession Certificate is a summary proceeding and the same cannot operate as res judicata to a proceeding in a regular suit filed in the civil court even if, it is between the same parties or issues are the same. The grant of Succession Certificate under Section 373 has only the effect that it is conclusive as against the person owing such debts or liability on such securities (as in the present case LIC) and it affords full indemnity to such debtor against all such future claimant, when it tenders the amount to such person holding Succession Certifi-cate. The submission is, this is merely a summary proceeding in which adjudication is made prime facie as to whom such payment is to be tendered by such debtor. In other words leaves the battle if any inter se between claimants to be adjudicated in a regular proceeding. Thus any decision under it has this limited effect, but it in no way put any legal embargo on the parties to prove to the contrary in any subsequent suit or proceedings. On the other hand learned counsel for the plaintiffs-respondents submits, as both, the suit and the application for the grant of Succession Certificate were heard and decided by the same court, both at the trial stage and the first appellate stage and when the appellant did not prefer any appeal against the order passed by the first appellate court in the connected proceeding arising out of the proceedings for the grant of Succession Certificate, the said decision becomes final and it would operate as res judicata to the pending proceedings in the second appeal arising out of the suit. The learned counsel for the respondents also placed strong reliance on Explanation VIII to Section 11 of C.P.C. which is quoted hereunder:-
“Explanation VIII – An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstand-ing that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”
6. Submission thus is even the court deciding the question of grant of Succession Certificate, may have limited jurisdiction and also may not have jurisdiction to decide the regular suit for partition, yet issues decided therein would fall within the ambit of res judicata in view of the Explanation VIII.
7. Within the said parameter now we proceed to examine the ques-tion raised in this appeal. The principle of res judicata as enshrined in Section 11, is evolved from the maxim “nemo debet bis vexari pro una et eadem causa”. This principle enunciates that no man should be vexed twice over for the same cause. This principle gradually developed further by bringing within its compass more such litigations. Thus with the passage of time this principle is gradually expanded. This shows that sphere of res judicata as enshrined in Section 11 C.P.C. is not exhaustive, it is ever growing. One such example of its growth is exhibited by the incorporation of Explanation VIII in Section 11 by means of Amending Act in 1976. The submissions made are broadly under two heads. Firstly, under the broad and general principle of res judicata in view of Explanation VIII and secondly, whether in a proceeding for the grant of Succession Certificate, any adjudica-tion or issue decided therein would operate as res judicata to a suit proceeding. In order to apply the general principle of res judicata court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceeding, was it between the same parties, and was it decided by such court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, if incidentally any finding is recorded it would not come within the periphery of the principle of res judicata.
8. In Pawan Kumar Gupta v. Rochiram Nagdeo (JT 1999 (3) SC 191 = (1999 (4) SCC 243) this Court observed that the rule of res judi-cata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which has been directly and substantially in issue in a former suit between the same parties, and has been heard and finally decided by that court. It holds, it is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata.
9. For the respondent reliance was placed in Kalipada De and Ors. v. Dwijapada Das and Ors. (AIR 1930 PC 22). The reliance is that this decision holds, where a question of relationship bet-ween the parties has been decided in a court of limited jurisdic-tion also operates as res judicata to a subsequent suit between the same parties involving the same question of relationship. Though we shall be referring later, the effect of various provi-sions of the Indian Succession Act on this question, but suffice it to say that this decision renders no help to the respondent, as in our case there was no issue, in the earlier proceeding, whether uterine brother would be entitled to inherit the estate of the deceased in the proceeding under Section 372 of the Indian Succession Act, which is the foundation of challenge by the appellant to the claim of the plaintiff as the legal heir of the deceased. Even for applying this decision it has to be shown that the claim of the plaintiff to inherit the questioned proper-ty in the suit was raised through such an issue in earlier pro-ceeding i.e. in Succession Certificate proceedings. No such issue could be pointed by the learned counsel for the respondent.
10. As this Court has held in the case of Pawan Kumar Gupta (supra), it is only the decision on an issue and not mere find-ing on any incidental question to reach such decision, which operates as res judicata. So, even if there be any finding regarding any relationship for grant of such certificate in the absence of any issue it would be of no help to the plaintiff.
11. Next we proceed to examine the other head of submission viz. whether decision on any issue in a proceeding to grant Succession Certificate would operate as res judicata to the issue raised in the subsequent suit. First we proceed to examine the various provisions under the Indian Succession Act. Section 372(1) refers to the application to be made for the grant of Succession Certificate. Sub-section (1) gives the detail and the manner of making such an application. Sub-section (3) gives the sphere of such application viz. it to be in respect of any debt or debts due to the deceased creditor or in respect of portions thereof. Sub-section (3) is quoted hereunder:-
“Sub-section (3): Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.”
12. Under Sub-section (1) of Section 373 if the court is satis-fied that there is ground for entertaining the application, he fixes a date of hearing after notice. Sub-section (2) decides the right of the applicant, whether entitled for a grant of the certificate. Under Sub-section (3), if such Judge cannot decide such right, as the question raised both on fact or law are in-tricate and difficult then in a summarily proceeding it can still grant such certificate, if it appears to the court, that the person making such application has a prima facie title thereto. Sub-section (3) of Section 373 is quoted hereunder:-
“Sub-section (3): If the Judge cannot decide the right to the certificate without determining questions of law or fact which seems to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.”
13. This Sub-section reveals two things, first adjudication is in a summarily proceedings and secondly if the question of law and fact are intricate or difficult, it could still grant the said certificate based on his prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it cannot be construed that mere grant of such certificate or a decision in such proceeding would constitute to be a decision on an issue finally decided between the parties. If that be so how could principle of res judicata be made applicable to a case in a subsequent suit?. The effect of such certificate is also laid down in Section 381 which is quoted hereunder:-
“Section 381:
Effect of certificate: Subject to the provisions of this Part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, notwithstanding any contravention of Section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted.”
(Emphasis supplied)
14. So, this certificate merely affords full indemnity to the debtor for the payment he makes to the person holding such cer-tificate. Thus when the debtor pays the debts or the securities as specified in the certificate, to the holder of such certifi-cate, then on such payment, he is absolved from his obligation to pay to any one else as it conclusively concludes his part of his obligation and such payment is construed to be in good faith. This safeguards such debtor or person liable to pay that he may not be later dragged into any litigation which may arise subse-quently inter se between the claimants. The use of words “good faith” in Section 381 reinforces that decision in these proceed-ings are not final. When statute recognises such payment to be in good faith gives clear under current message that there may be in future better claimant but that would not effect the indemnifica-tion of the debtor. Thus we find accumulatively because of the grant of Succession Certificate being for a limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, leads to only one conclusion that any decision made there-in cannot be treated to be final adjudication of the rights of the parties, except such declaration being final for the purpose of these proceedings. If that be so, the amount received by the holder of such certificate can yet be questioned, and in subse-quent proceeding it may hold it to belong to other claimant, including the contesting party.
15. This can be examined from another angle. The grant of Succes-sion Certificate falls under Part X of the aforesaid Act. Its range is between Sections 370 to 390. It is significant to refer here Section 387. This declares the effect of decisions made under this Act and the liability of holder of such certificate. It lays down that any decision made under this Part, (Part X) upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. It further records that nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security to account therefor to the person lawfully entitled thereto. Section 387 is quoted hereunder:-
“Section 387:
Effect of decisions under this Act, and liability of holder of certificate thereunder: No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.”
(Emphasis supplied)
16. This leaves no room for doubt. Thus any adjudication made under Part X of this Act which includes Section 373 does not bar the same question being raised between the same parties in any subsequent suit or proceeding. This provision takes the deci-sions under Part X of the Act outside the purview of Explanation VIII to Section 11. This gives protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceedings.
17. No doubt Explanation VIII to Section 11 enlarges the field of res judicata, by including in its field the decisions on the same issue, between the same parties even by a court of limited juris-diction even though such court may not have the competence of deciding such an issue in a suit. But as we have held above this grant of certificate would not fall within the field of Explana-tion VIII to Section 11.
18. As for back as in 1937, this principle was upheld and recog-nised. In Mt. Charjo and Anr. v. Dina Nath and Ors. AIR 1937 Lahore 196(2)
“The enquiry in proceedings for grant of succession certificate is to be summary, and the Court, without determining questions of law or fact, which seem to it to be too intricate and difficult for determination, should grant the certificate to the person who appears to have prima facie the best title thereto. In such cases the Court has not to determine definitely and finally as to who has the best right to the estate. All that it is required to do is to hold a summary enquiry into the right to the certifi-cate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent their being time-barred, owing (for instance) to dispute between the heirs inter se as to their preferential right to succession, and, on the other hand, to afford protection to the debtors by appointing a representa-tive of the deceased and authorising him to give a valid dis-charge for the debt. The grant of a certificate to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se.”
19. So we have no doubt to hold that any decision made in the proceeding under Section 372, for the grant of Succession Cer-tificate under the Indian Succession Act, would not bar any party to the said proceeding to raise the same issue in a subsequent suit. Hence, the High Court fell into error in applying the principle of res judicata to the second appeal of the appellant arising out of aforesaid suit. Thus even if no appeal is pre-ferred by the appellant against the decision of the trial court arising out of proceedings for the grant of Succession Certifi-cate, the principle of res judicata would still not apply. But we further record, and accept the contention of the learned counsel for the appellant that the memorandum of second appeal itself reveals that he has preferred appeal against both the appellate orders where it records both appeals, case no. 237 of 1977 and 93 of 1978. Hence High Court was not right in holding that no appeal was preferred. Learned counsel for the respond-ents could not dispute this but submits that no second appeal lies against the appellate order in the proceedings for the grant of Succession Certificate, only a revision lies. However, it is not necessary for us to go into this question as this is for the appellants to make such submission as permissible under the law for and it is the respondent to raise such objection, as he deem fit and proper in this regard.
20. In view of the aforesaid findings we set aside the High Court order dated 26th September, 1989 and remand the case back to it for deciding afresh on merits, the second appeal, in accordance with law. The present appeal is allowed. Costs on the parties.
