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Jagadish Chandra Parija .Dead. … vs Sreechandra Parija And Others on 25 April, 2017

ORISSA HIGH COURT, CUTTACK.
C.R.P. No.26 of 2016

An application under Section-388(3) of
the Indian Succession Act.
———-

Jagadish Chandra Parija (dead) represented
Through his substituted Legal Heirs … Petitioners

Versus

Sreechandra Parija others … Opposite Parties

For Petitioners : M/s. Prafulla Kumar Rath,
R.N. Parija, A.K. Rout,
S.K. Pattnaik, A. Behera,
P.K. Sahoo, S.K. Behera

For Opp. Parties : M/s. Bhaktahari Mohanty,
D.P. Mohanty, R.K. Nayak,
B. Das, T.K. Mohanty,
P.K. Swain

———-

PRESENT :

THE HONOURABLE MR. JUSTICE BISWANATH RATH

—————————————————————————————————
Date of hearing : 11.04.2017 Date of Judgment : 25.04.2017

—————————————————————————————————

Biswanath Rath, J. This Civil Revision Petition has been filed under
the provisions contained in Section 388 (3) of the Indian
Succession Act assailing the orders of the original authority
involving Intestate Case No.11 of 2007 rendered by the learned
Civil Judge (Sr. Divn.) First Court, Cuttack and the order of the
appellate authority confirming the judgment involving the Intestate
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Case No.11 of 2007 vide F.A.O. No.28 of 2011 being passed by the
learned District Judge, Cuttack.

2. Short background involved in the case is that
Sri Chandra Parija, Rabindra Kumar Parija, Purna Chandra Parija
claiming to be the sons of late Padma Charan Parija died on
17.2.1978, all filed the Intestate Case No.11 of 2007 for grant of
succession certificate on account of death of their father Padma
Charan Parija on the premises of permanent place of his residence
at Tertang, under Tirtol Police Station in the District of
Jagatsinghpur. Claiming to be the only successor of late Padma
Charan Parija, they claimed that late Bauribandhu Parija of village
Tentulipada had duly adopted late Padma Charan Parija in
accordance with law, customs and practice in the year 1951.
Consequently, a registered adoption deed was also executed and
since his adoption. It is claimed that Jagadish Chandra Parija
severed all his relationship with the petitioners and succeeded to
all properties of Bauribandhu Parija. In the voter list also he has
been enrolled as S/o- Bauribandhu Parija and thus, claimed that
Jagadish Chandra Parija is the son of Bauribandhu Parija for all
purposes. Being the sons of late Padma Charan Parija these three
sons also claimed that their late father Padma Charan Parija had
brought some shares in the Company namely M/s. National
Foundary Rolling Mills Ltd., which is now in liquidation and after
settling the assets a sum of Rs.1,70,750/- had been found due to
the late father of the petitioners namely Patiram Parija @ Padma
Charan Parija. On death of Padma Charan Parija on 17.2.1978 on
the basis of a communication of the official liquidator dated
31.1.2007 claimed to be undelivered for the change in the address
of the father of the petitioners temporarily and the letters somehow
fell to the hands of the opposite parties therein. Taking full
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advantage of the situation made claim to the aforesaid money in
the Office of the Official Liquidator falsely claiming to be the son of
late Padma Charan Parija. Coming to know that the order has been
passed in favour of the Official Liquidator and as the claim of the
opposite parties therein was completely false, the petitioners raised
objection and the amount was withheld asking the parties to
produce the succession certificate justifying their claim and as a
consequence, they filed the Intestate Case in the Court of
competency at the relevant point of time for grant of succession
certificate in their favour in exercise of power under Section 372 of
the Indian Succession Act. On their appearance, the opposite
parties therein the legal heirs of late Jagadish Chandra Parija filed
objection challenging the maintainability of the proceeding before
the trial Court. For the residential address of the deceased involved
therein also challenged the validity of the registered adoption deed
stated to have been created on falsehood and on suppression of
material facts. Under the above premises, the opposite parties
therein i.e. the present petitioners requested the original Court to
reject the Intestate Case both on account of maintainability as well
as merit but ultimately, submitted that the present petitioners i.e.
the opposite parties therein have no objection in the event, the
succession certificate is granted in favour of both the parties to the
proceeding. Learned trial Court framed the following issues :

“i. Whether the present application
is maintainable in the present form?

ii. Whether the opp.parties
entitled for succession certificate along
with the petitioners being the son of the
deceased Patiram Parija?

iii. Whether the opp.party has
no right to make any claim over the
schedule of claim mentioned in the
petition, as he is the adopted son of
Bauribandhu Parija for all acts and
purposes?

4

iv. To what other reliefs the
parties are entitled for?”

Both the parties contesting the Intestate Case examined
their respective witnesses as P.W. 1 and O.P.Ws 1 2. Petitioners
therein exhibited ten documents marked as Exts.1 to 10 whereas
the opposite parties-the present petitioners exhibited one
document and marked as exhibit-A. Basing on the pleadings of the
parties and further the evidence through oral and material laid by
the respective parties, the trial Court dealing with the issue Nos.2
3 taking into consideration the law of land rendered by this
Court answered on both the issues in favour of the petitioners
therein. Answering on the aforesaid issues, the trial Court
observed that for a clear case of father’s permanent residence
being in the Cuttack District and for the above observation, the
trial Court while accepting the permanent address of the deceased
in the district of Cuttack also answered on the questions relating
to cause of action involving the petitioners therein in the Court at
Cuttack in favour of the petitioners therein and in answering the
issue No.iv refused to enter into the question of adoption deed
observing that unless the adoption deed is done away by the
appropriate Court, the Court dealing with the Intestate Case has
no jurisdiction to touch such issues.

On appeal at the instance of the present petitioners, the
District Judge, Cuttack touching all the points at the instance of
the present petitioners being the legal heirs of the original opposite
party in the Intestate Case and taking into consideration the
judgment passed by the trial Court in the intestate case disposed
of the F.A.O No.28 of 2011 against the appellant thereby
conforming the judgment by the original Court.

5

3. The present Civil Revision Petition arises against the
above orders. Advancing his argument, Sri P.K. Rath, learned
counsel for the petitioners reiterating his stand allthrough that the
Intestate Case was not maintainable before the Court at Cuttack,
submitted that the proceeding involving the succession issue was
not maintainable.

4. Learned counsel for the petitioners further taking
resort to the objections of the appellants in the trial Court as well
as in the appellate Court on the aspect of adoption deed submitted
that since there was a dispute with regard to adoption deed, in the
event, the Courts below have maintained the Intestate Case but
however keeping in view the challenge to the adoption deed should
have at least protected the interest of the petitioners over the
disputed property while granting the succession certificate.

5. Referring to the decisions in the case in between
Hasham Abbas Sayyad v. Usman Abbas Sayyad Ors. as reported
in AIR 2007 Supreme Court 1077, in the case in between C.K.
Prahalada and others vrs. Stte of Karnataka and others as reported
in (2008) 15 Supreme Court Cases 577 and a case as reported in
(2008) 2 SCC 238 Sri Rath, learned counsel further contended
that for the judgments rendered by the Hon’ble Apex Court, in the
interest of justice the proceedings should have been concluded by
the Courts below protecting the share of the petitioners subject to
however, a decision on the validity of the adoption deed by the
competent Court of law.

6. Sri D.P. Mohanty, learned counsel for the opposite
parties i.e. the petitioners in the Intestate Case while objecting the
contentions raised on behalf of the petitioners contended that the
6

question of maintainability of the Intestate Case as well as the
power of the Court dealing with the grant of succession certificate
considering the merit of adoption deed have all been considered
and both the Courts below in one tone held that not only the
Intestate Case is maintainable in the Court at Cuttack but also
held that the question of validity of registered adoption deed
cannot be made subject in succession case involving the intestate
proceeding. Sri Mohanty, learned counsel also submitted that for
the concurrent finding of fact rendered by both the Courts below,
there appears no scope for interfering in such cases in exercise of
revisional power. Referring to the Section 16 of the Hindu Adoption
and Maintenance Act, Sri Mohanty, learned counsel further
submitted that once an adoption deed is registered following the
provisions contained in Section 16 of the Act, such question shall
not be opened to be amenable in the proceeding deciding the grant
of succession certificate. It is under the premises, Sri Mohanty,
learned counsel for the opposite parties prayed for dismissal of the
Civil Revision Petition.

7. Considering the rival contentions of the parties and
taking into consideration the evidence through oral as well as
materials available in the original proceeding, the trial Court found
that Ext.1 i.e. the death certificate of Patiram Parija @ Padma
Charan Parija issued by the Registrar, Birth Death on 31.3.2007
being expired on 17.2.1978 by the Registrar, Birth Death-cum-
Medical Officer in-charge, P.H.C. Manijanga in the district of
Jagatsinghpur where place of death of Patiram Parija @ Padma
Charan Parija was mentioned to be at Tertanga in the undivided
district of Cuttack. Similarly, from Ext.2 i.e. the legal heir
certificate granted by the Tahasildar, Tirtole on 9.8.2007
established that the present petitioners are the only legal heirs
7

being the sons and the certificate was also granted for withdrawal
of the money from M/s. National Foundary Rolling Mills Ltd.
involving Misc. Case No.921/2007. Similarly, Ext.3 is the certified
copy of the deed of acknowledgement of adoption executed by
Bauribandhu Parija clearly acknowledging the opposite party to be
his adopted son, which acknowledgement deed is remaining valid
as on date. From Ext.4, it was also apparent that the certified copy
of sale deed had a clear indication where the father of the present
petitioners had described himself to be the son of Bauribandhu
Parija. Exts.5 6 also establish the same. On scrutiny of Ext.7, a
certified copy of the voter list of the year 2001 of Tirtole
Constituency disclosing the name of the present petitioners as
voter at Sl.No.918 holding No.147 where Jagadish Chandra Parija
to be showing as the son of Bauribandhu Parija. Ext.8 i.e. the
certified copy of the money lending license granted by the Sub-
Registrar, Tirtol also establishes the father’s name of the opposite
party as Bauribandhu Parija. Taking into consideration the gist of
the matter, the trial Court has categorically found that not only the
opposite parties failed to discharge the burden of proof but they
had also not come to the Court with clean hand particularly when
in their evidence they have admitted that they have made a false
representation before the Court below during cross-examination
and it is in the above premises, learned trial Court came to hold
that the opposite parties herein and the petitioner in the original
court was right in making a petition for succession certificate in a
Court at Cuttack. On perusal of the order passed by the appellate
authority, this Court finds, the appellate authority taking into
consideration all the above and considering the contentions raised
by the petitioners in the appeal confirmed the finding with regard
to the maintainability of the proceeding. This Court finds no reason
to disagree with the above findings.

8

8. Coming to the provisions contained in the Section 372 (1) of
the Indian Succession Act, this Court finds the followings:

“372. Application for certificate.- (1)
Application for such a certificate shall be made
to the District Judge by a petition signed and
verified by or on behalf of the applicant in the
manner prescribed by the Code of Civil
Procedure, 1908 (5 of 1908), for the signing and
verification of a plaint by or on behalf of a
plaintiff, and setting forth the following
particulars, namely:-

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at
the time of his death and, if such
residence was not within the local limits of
the jurisdiction of the Judge to whom the
application is made, then the property of
the deceased within those limits;

(c) the family or other near relatives of the
deceased and their respective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under
section 370 or under any other provisions
of this Act or any other enactment, to the
grant of the certificate or to the validity
thereof if it were granted; and

(f) the debts and securities in respect of
which the certificate is applied for.”

The provisions contained in Section 372(B) of the Act given a
rider to a party for applying for succession certificate has the
choice of filing the petition either at a place of original residence of
a deceased or the place where the property of the deceased
situates. From the discussions of both the Courts below and the
permanent residence of the deceased being at Cuttack, this Court
finds no force in the submission of the learned counsel for the
petitioners with regard to the maintainability of the proceeding in a
Court at Cuttack and thereby affirms the view of the original
authority as well as the appellate authority in the said regard.

9

9. Coming to consider the question as to whether the
authorities deciding the grant of succession certificate have the
power to go into the dispute involving the registered adoption
deeds, this Court for the restricted jurisdiction assigned with the
competent authority in the matter of grant of succession certificate
under the Indian Succession Act, 1925 and the proceeding being of
limited nature, this Court is of the opinion that the Court dealing
with the grant of succession certificate has no authority to enter
into the registered adoption deeds. Before parting with the case,
this Court observes that in both the proceedings, the petitioners
have the specific case that there exists a registered adoption deed
and the registered adoption deed has never been the subject
matter to any litigation questioning the same and this Court thus
finds, the finding of both the Courts below on the issue of adoption
is well justified. Looking to the decisions cited by the learned
counsel for the petitioners and as reflected in paragraph No.6, this
Court finds, all the decisions cited from the side of the petitioners
since standing on different footing, none of the decisions has any
application to the case at hand.

10. Under the circumstances, this Court finds no merit in the
revision petition and thus, while dismissing the Civil Revision
Petition, this Court confirms both the orders passed by the
authorities below. No cost.

………………………..

(Biswanath Rath, J.)
Orissa High Court, Cuttack.

The 25th day of April, 2017/Ayas.

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