Devesh Kumar Vs Smt. Ram Devi and Others

Pankaj Mithal, J.@mdashThe cause is succession of late Krishna Gopal Bajpai. The issue is of territorial jurisdiction as to in which district Court application for succession certificate would lie.

Late Krishna Gopal Bajpai was a native of district Fatehpur. He died in an accident at Etawah where he was serving in U.P. Police and was posted for about 10 years before this death. During his service, he had constructed a house at Kanpur but never resided therein.

Smt. Ram Devi, the widow of late Krishna Gopal Bajpai applied u/s 372 of the Indian Succession Act, 1925 (hereinafter referred to as the Act) for grant of succession certificate in the Court of Civil Judge (Senior Division) Fatehpur arraying her three sons Manish Kumar, Abhishek Kumar and Anoop Kumar as the defendants. In the said proceedings registered as Succession Case No. 80/70 of 2007, Smt. Neelam Bajpai and Devesh Kumar applied for impleadment claiming to be the widow and son of late Krishna Gopal Bajpai. The impleadment was allowed and they were permitted to contest the grant of succession certificate. They accordingly filed written statement and took the plea of jurisdiction to the effect that the Courts at Fatehpur have no jurisdiction in the matter as the deceased was last ordinarily residing at Etawah and, therefore, in view of Section 371 of the Act the Courts at Etawah alone have jurisdiction to deal with the application for succession certificate.

2. The aforesaid Devesh Kumar Bajpai also moved an application, paper No. 125 Ga to decide the question of jurisdiction first before proceeding with the application for grant of succession certificate.

The Court below by the impugned order dated 5.10.2012 held that the territorial jurisdiction in the matter vests with the Court at Fatehpur and is competent to deal with the matter. Accordingly the objection and application of Devesh Kumar Bajpai has been rejected.

The above order has been impugned in this revision u/s 115 C.P.C.

3. The argument of Sri Arvind Kumar Tiwari, learned counsel for Devesh Kumar (revisionist herein) is that in view of the language used in Section 371 of the Act the district Judge within whose jurisdiction the deceased was ordinarily residing at the time of his death alone has jurisdiction to deal with the application and, all other contingencies in respect of place of suing are alternative and would not apply where the deceased was having a fixed place of residence,.

4. Sri Manvendra Singh, learned counsel appearing for Smt. Ram Devi and her sons (respondents) contend that as the deceased was a permanent resident of Fatehpur and has also left properties at Fatehpur, the Count below has rightly held that the Court at Fatehpur has the jurisdiction in the matter. He also submitted that the application for grant of succession certificate filed by the revisionist at Etawah was rejected for want of jurisdiction and, therefore, he cannot now take a stand that the jurisdiction in the matter vests with the Courts at Etawah.

5. The jurisdiction of the Court for the purposes of grant of succession certificate under the Act is dependent upon the language of Section 371 of the Act which is plain and simple.

Section 371 of the Act reads as under:

371. The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, at that time 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 a certificate under this part." It clearly provides that the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death is authorised to grant certificate of succession but where the deceased was not having any fixed place of residence at the time of his death then the District Judge within whose jurisdiction the deceased was having any part of his property may grant the certificate.

6. A plain reading of the aforesaid provision makes it clear that the matter of grant of succession certificate can be dealt with by following two Courts:

(i) The District Judge within whose jurisdiction the deceased was ordinarily residing at the time of his death; or

(ii) The District Judge within whose jurisdiction the deceased was having any part of the property.

The second option is attracted only if the deceased was not having any fixed place of residence at the time of his death; otherwise the place where the deceased was ordinarily residing at the time of his death would determine the jurisdiction of the Court.

7. It is not disputed that the deceased Krishna Gopal Bajpai was in service of the U.P. Police. He was posted at Etawah and was residing there for the last 10 years. All service dues admissible to him on death are payable at Etawah. Apart from the above, there is no material on record to establish that he has been residing at Fatehpur during the above period.

8. Their Lordships of the Supreme Court in Union of India and Others Vs. Dudh Nath Prasad, , held that concept of domicile and residence may carry the same meaning and both refer to a permanent home but in common use the two things may differ. Domicile may take many colours such as domicile of residence, domicile of choice, domicile by operation of law or domicile of dependence. On the contrary, the concept of ordinarily resident is different and may shift from place of ordinary domicile as a person may have lived at one time in a particular: village of a State and may owe some property there but may subsequently start living elsewhere and in these circumstances for all purposes the person may be treated to be ordinarily residing in the subsequent place.

9. It is settled view that a person'' is deemed to be residing at a place where he actually and, voluntarily resides and carries on business. He cannot be said to be residing at a place where he has a family and visits occasionally. The term ''residence'' is a flexible one and it connotes the ordinary and general place of residence of a person and not casual or occasional place of his visit.

10. In Munna Lal and others v. Paneychand and others, AIR 1958 Raj 166, in interpreting the word "actually and voluntary resides" as used in Section 20 C.P.C., it was held that a person has his residence at a place where he normally lives and carries on his business and not at the place where his forefathers lived and left immovable property or where the person goes off and on, on occasions of marriage and other ceremonies. The fact of his having his ancestral home at a certain place and occasionally visiting it do not make it a place of his actual and voluntary residence.

11. The ownership of the house in which the person resides is also not material for the purpose of determining his ordinary place of residence which connotes the place where a persons sleeps, eats and drinks and not a place which is owned by him.

12. In connection with Section 371 of the Act itself, His Lordship of this Court in Rameshwari Devi Vs. Raj Bali Shah and Another, , held that "a reading of Section 371, however, shows that it is only in those cases in which the deceased at the time of his death had no fixed place of residence that recourse to the second part of the section could be taken". Thus, it was held that where there was no dispute that the deceased was living at a particular place at the time of his death it would mean that he was having a fixed place of residence at that place and, therefore, the second part of Section 371 of the Act would not be applicable.

13. A similar view was expressed by the Single Judge of the Madras High Court in the matter of In the matter of Mohanaprakasam, and it was held that second part relating to jurisdiction on the basis of the situation of the property of the deceased would come into operation only if the deceased had no fixed place of residence.

14. In Kumari Rakhi and another Vs. Ist Additional District Judge, Firozabad and others, , which has been heavily relied upon by the Court below, it has again been reiterated that the second part of Section 371 of the Act would not be attracted unless first part is" exhausted. Therefore, if the deceased was having a fixed place of residence at the time of his death, the place where his properties are situate would not be material for determining the jurisdiction of the Court to which the application for grant of succession certificate would lie. It was also observed therein that if the deceased was ordinarily residing at a particular place and had gone to another place for medical treatment and died at that place the application for grant of succession certificate would be maintainable at a place where he was ordinarily residing and not at the place of death.

15. The observation to this effect made in the above case would not mean that the place where the deceased was serving and living for a pretty long time and died would not be the place of his ordinary residence or would be a place where he had gone temporarily for the service purpose. In view of the aforesaid facts and circumstances and legal position discussed above, as the deceased was in service at Etawah and was residing at that place for the last 10 years before his death, irrespective of the fact that he was having a home or domicile of residence at Fatehpur or even some properties at that place, he would not be a ordinarily residence of Fatehpur but of Etawah and, as such, the application for grant of succession certificate would certainly lie before the District Judge, Etawah and not at Fatehpur.

16. It is correct that earlier the revisionist had applied for succession certificate at Etawah and the said application, on objection of the other side, was rejected for want of jurisdiction and it was held that the Court at Etawah was not having jurisdiction nonetheless the said order would not come in way of the Court of District Judge, Etawah to take cognizance of the application of the respondents for grant of succession certificate, inasmuch as the principle of res judicata would not be attracted in the matter of jurisdiction so as to confer jurisdiction upon the Court which actually lacks it. The Apex Court in Smt. Isabella Johnson Vs. M.A. Susai, , following the two earlier decisions of the three Judges of the Supreme Court in Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, and Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., , held that the Court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata and that there cannot even be estoppel on a pure question of law and the question of jurisdiction is a pure question of law.

In view of the above, the Court below materially erred in exercise of its jurisdiction and in holding that the application for succession certificate in respect of the late Krishna Gopal Bajpai would lie before the District Judge, Fatehpur.

Accordingly, the order impugned 5.10.2012 cannot be sustained and is hereby set-aside and the revision is allowed.

The record of the case be transmitted to the District Judge Etawah forthwith who will proceed to decide it most expeditiously.