1. This is a petition under Art. 226 of the Constitution of India.
2. The facts giving rise to the present petition are as under: An application under S. 192 of the Indian Succession Act was moved by Smt. Vidha in the Court of the District Judge, Saharanpur, against the petitioner Baru Mal Singh. The application was made on the ground that she was the widow of Padam Prasad, who died on 7th November, 1978. Her case was that on the death of the deceased Padam Prasad, she being his widow, inherited the property and, consequently, she had a right to move the application. The application was made in respect of the assets of the deceased Padam Prasad. In the application, the main relief sought was in regard to the determination of the right and possession over a shop, situate in Bazar Nakhasa, Saharanpur.
3. This application was contested by the petitioner and it was alleged that Smt. Vidha was not the widow of the deceased Padam Prasad. It was further alleged that, in fact, the petitioner Baru Mal was the real brother of Padam Prasad and that he was in possession of the shop by virtue of the fact that a joint Hindu family firm was carrying on the business in the said shop, as Padam Prasad was a member of the joint Hindu Family.
4. While this application was pending, Smt. Vidha expired. Thereafter, two persons by the names of Hakim Khan and Kalim Khan filed an application for substitution in the said proceedings in place of Smt. Vidha on the ground that Smt. Vidha died on 9th May, 1979, and before her death, she had executed a will on 31st March, 1979. This application for substitution was contested by the petitioner and it was urged that no application for substitution was maintainable.
5. The District Judge, Saharanpur, by his order dated 27th August, 1979, held that the application for substitution was maintainable. This order dated 27th August, 1979, has now been impugned in the present writ petition.
6. Learned counsel for the petitioner has contended that the proceedings under Part VII of the Indian Succession Act (hereinafter referred to as the Act) are only summary proceedings and that after the death of Smt. Vidha; the alleged widow of Padam Prasad, no right to sue survived to respondents Nos. 2 and 3 and, as such, their application for substitution was not maintainable in law.
7. From a reading of Part VII of the Act, it is clear that this Part relates to the protection of the property of the deceased. Under S. 192 of the said Act, any person claiming a right by succession to the property of the deceased can make an application to the District Judge for relief. S. 308 specifically lays down that nothing contained in this Part shall be any impediment to the bringing of a suit, either by the party whose application may have been rejected before or after summoning the party in possession, or by the party who may have been evicted from the possession under this Part. S. 209 further provides that the decision of a District Judge in a summary proceeding under this Part shall have no other effect than that of settling the actual possession but for this purpose it shall be final, and shall not be subject to any appeal or review.
8. On a reading of the entire Part VII of the Act, it is clear that summary remedy has been provided to a person claiming a right of succession of the property of the deceased for the protection of the property of the said deceased.
9. Order 22, Rule 3, C.P.C prescribes that where one of two or more plaintiffs dies and the right to sue survives, the Court, on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
10. The question to be decided in the instant case is as to whether after the death of Smt. Vidha, the right to sue survives to respondents Nos. 2 and 3 or not.
11. As I have already indicated above, Part VII of the Act provides for a summary remedy for protection of the property of the deceased. In the instant case, the deceased was Padam Prasad. Smt. Vidha initiated the proceedings for the protection of the property of Padam Prasad. Respondents Nos. 2 and 3 claimed right not through Padam Prasad, but through Smt. Vidha. In the circumstances, the right to sue does not survive to respondents Nos. 2 and 3. If at all the applicants can make a fresh application under this Part for relief if they are able to establish that they can claim a right to succession of the property of the deceased Smt. Vidha and not otherwise. So far as the application made by Smt. Vidha is concerned, her right in the property of Padam Prasad came to an end by her death and, as such, in my opinion, no application under O. 22, R. 3, C.P.C is maintainable in law.
12. In Sarat Chandra Banerjee v. Nani Mohan Banerjee, (1909) 3 Ind Cas 995, the Calcutta High Court took the view that in an application made for probate by the sole executor after the death of the sole executor, the right to sue does not survive and the suit stands abated under O. 22, R. 3, C.P.C
13. In Sm. Fatemanesha Begum v. Mahadin, (1944) 48 Cal WN 673, a Division Bench of the Calcutta High Court had an occasion to consider as to whether after the death of a person, who applied for grant of a succession certificate, an application for substitution can be made or not. The Court observed as under:
“There is no question of devolution of any right to the estate of the deceased on the death of the applicant for a succession certificate. The grant of a certificate does not confer any right on the applicant to the estate of the deceased. The only material question is whether a right to apply for a succession certificate can be said to survive to the heir of the applicant. There can only be a negative answer to this question. On the death of the applicant for a succession certificate the proceeding lapses, and it will be open to any other party entitled to a certificate to apply. There is no question of substitution in such cases.”
14. In Hari Bhusan Datta v. Manmatha Nath Datta, AIR 1919 Cal 197 in an application pending for grant of the Letters of Administration, an application for substitution was made. It was held that the right of a legatee to obtain a grant of administration was a personal right and this right cannot devolve upon his heir. The substitution application was dismissed and it was held that there was nothing to prevent the applicant from applying for a fresh grant if it was open to him in law to do so.
15. In Deo Kumar Singh v. Kailash Singh, AIR 1961 Pat 304, Hon. N.L Untwalia, J. (as he then was) held that on the death of an applicant for a succession certificate, the proceeding lapses and there can be no substitution of the heirs or the alleged heirs of the applicant. I respectfully agree with the decisions, mentioned above. In my opinion, unless the right to sue survives, it is not open to an applicant to make an application for substitution in proceedings under the Act.
16. Learned counsel for the respondents, however, relied upon the decision in Dr. Harish Chandra Prasad v. Jagannath Prasad, AIR 1985 Pat 283. This is a Division Bench decision of the Patna High Court. In this case, the question of substitution arose in an appeal. The principle of substitution under the Indian Succession Act is entirely different so far as the appellate stage is concerned. The Division Bench itself has observed as under:—
“The reliance put by Mr. Prasad on this decision is also erroneous and misplaced inasmuch as the learned single Judge in paragraph 5 of the Report itself has referred to an earlier Bench decision of this Court in the case of Mr. Phekni v. Mt. Manki, AIR 1930 Pat 618 where substitution at the appellate stage was allowed in place of the applicant in the Court below for grant of letters of administration, for the simple reason that in fact there should be no difficulty in allowing the substitution at the appellate stage inasmuch as the judgment of the Court below either granting or refusing to grant the letters of administration or the probate is a judgment in rem. If, therefore, substitution is not allowed at the appellate stage, the judgment of the Court below, right or wrong, will remain final and being a judgment in rem will affect everybody who is entitled to benefit under the will. But is not the position when the applicant dies at the trial stage.”
17. In the instant case, the matter relates to the trial stage and, as such, this decision does not, in any manner, support the impugned judgment.
18. As I have already held above that, in the instant case, the right to sue did not survive, the application under S. 192 of the Act was made by Smt. Vidha in regard to the estate of the deceased Padam Prasad. Respondents Nos. 2 and 3, who had made the application for substitution, did not claim through Padam Prasad, but they claimed through Smt. Vidha. Therefore, the right to sue does not survive so far as the proceedings initiated by Smt. Vidha are concerned. The application for substitution was not maintainable in law. It is, however, open to respondents Nos. 2 and 3 to make a fresh application, if they are so entitled to make in law, which, if so filed, shall be decided in accordance with law.
19. Learned counsel for the petitioner has vehemently urged that the provisions of O. 22, R. 3, C.P.C do not apply to these proceedings at all as S. 141, C.P.C does not apply to the proceedings under the Act. It is not necessary for me to go into this question, as I have already taken the view that even if under O. 22, R. 3, C.P.C applies, the right to sue does not survive. The application moved by Smt. Vidha automatically abates.
20. In the result, I allow the petition and quash the order dated 27th August, 1979, passed by the 3rd Additional District Judge. Saharanpur.
21. In the circumstances of the case, the parties are directed to bear their own costs.
22. Petition allowed.