1. What is under challenge in this petition filed under Art. 227 of the Constitution of India is the impugned order dated 21st May, 2004 passed by the learned District Judge, Hamirpur in proceedings under S. 372 of the Indian Succession Act, 1925. Brief facts giving rise to the filing of this petition may stated as under:—
One Neeraj Kumar, who was serving in the Army, had died intestate and consequent upon his death his mother Smt. Kanta Devi filed a petition under S. 372 of the Indian Succession Act, 1925 for grant of a succession certificate. In this petition the widow of deceased-Neeraj Kumar was the only contesting respondent, in effect and substance, because the other two respondents were the “General Public” and “Zila Sainik Board, Hamirpur.” During the pendency of the aforesaid petition before the learned District Judge, Hamirpur the sole petitioner-Smt. Kanta Devi, the mother of deceased-Neeraj Kumar died. On 21st May, 2004 when the petition was fixed for consideration before the learned District Judge, the factum of the death of the sole petitioner was brought to the notice of the learned District Judge. Noticing the said fact of the death of sole petitioner-Smt. Kanta Devi the learned District Judge dismissed the petition for grant of succession certificate filed by Smt. Kanta Devi on the ground that since sole petitioner had died and since Smt. Soma Devi, respondent was the sole surviving Class I heir to the estate of deceased-Neeraj Kumar, the application no longer survived. For ready reference the text of the impugned order is reproduced hereunder which reads thus:—
“According to both the learned counsel, petitioner-Kanta Devi has died. The petition is for succession certificate qua some amount due to son of the petitioner. Petitioner being mother of deceased-Neeraj Kumar and respondent No. 2-Soma Devi being wife were both 1st Class heirs. Mother 1st Class heir has died. As such leaving behind the widow a sole surviving 1st Class heir. Hence, this application due to the death of petitioner does not survive. The same is dismissed. Be consigned to the Record Room.”
2. Mr. Ashok Sharma, learned counsel appearing for the petitioners submits that the impugned order is bad in law because Smt. Kanta Devi, sole petitioner, who was mother of the deceased-Neeraj Kumar, had left behind her legal heirs and legal representatives who were to succeed to her estate and, therefore, it was incumbent upon the learned District Judge to have afforded an opportunity to the legal representatives of deceased-Kanta Devi (sole petitioner) to be brought on record in her place and to maintain and prosecute the petition filed by her under S. 372 of the Indian Succession Act, 1925 for the grant of a succession certificate. I find sufficient merit in this contention of Mr. Ashok Sharma.
3. The parties agree and it is undoubtedly true that the parties being Hindus, in the matter of succession were governed by the Hindu Succession Act, 1956. Section 8 of this Act reads thus:—
“8. General rules of succession in the case of males.— The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:—
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.”
4. Insofar as the order of succession among the heirs in the Schedule to 1956 Act is concerned, S. 9 suggests that among the heirs specified in the Schedule those in Class I shall take simultaneously and to the exclusion of all other heirs and so and so forth. Section 9 of the 1956 Act may be reproduced hereunder:—
“9. Order of succession among heirs in the Schedule.— Among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry; and so on in succession.”
5. Had Kanta Devi, the mother of deceased-Neeraj Kumar, the sole petitioner, in S. 372 application not died during the pendency of that application, in accordance with S. 8 read with S. 9 of 1956 Act, she would have got half the share of the estate of deceased-Neeraj Kumar because undoubtedly deceased-Neeraj Kumar was survived by only two heirs, being the relatives specified in Class I of the Schedule, namely, his mother and his widow Smt. Soma Devi. Under law these two heirs, being the only two heirs belonging to Class I of the Schedule had to split in equal shares the amount which formed the subject-matter of S. 372 application. At the conclusion of the proceedings in S. 372 application, therefore, had Smt. Kanta Devi been alive she would have walked away with half of the amount forming the subject-matter of the application for grant of succession certificate. That amount, therefore, would have formed the part of her estate for all intents and purposes. Unfortunately, however, she died during the pendency of S. 372 application.
6. In the aforesaid background, the view taken by the learned District Judge that after the death of Smt. Kanta Devi, Smt. Soma Devi widow of late Neeraj Kumar was his sole surviving heir and on that ground dismissing the application filed by Smt. Kanta Devi was wholly erroneous. In coming to this view, the learned District Judge did not properly appreciate the basic principles of Hindu Succession Act, 1956, particularly Ss. 8 and 9 thereof and the fact that Smt. Kanta Devi during her lifetime was one of the two heirs in Class I of the Schedule and since whatever amount she would have got would belong to her estate and because of her death during the pendency of S. 372 application such persons who survived her and claimed to be her legal representatives had a right to ask for their substitution in place of deceased-Smt. Kanta Devi. Undoubtedly they had a right to the estate of deceased-Kanta Devi since they were her legal heirs. They, therefore, also had a corresponding right to maintain S. 372 application after her death because the entitlement of Kanta Devi (deceased) to half the share of the estate of her son Neeraj Kumar would have created a right in favour of the legal representatives of Kanta Devi to succeed to that estate. By the dismissal of S. 372 application, the learned District Judge has extinguished that right of the legal representatives of Kanta Devi. The impugned order, therefore, is patently erroneous and contrary to well established legal provisions relating to the law of succession.
7. The impugned order is set aside. It is held that S. 372 application could not have been dismissed on the ground of death of Kanta Devi. It is also held that on the ground of her death the respondent-Smt. Soma Devi cannot be treated as the sole surviving heir of deceased-Neeraj Kumar because the other co-heir, namely, Smt. Kanta Devi having been succeeded by her legal representatives, the legal representatives also would have a right to claim the share of Kant Devi.
8. As a consequence of the setting aside of the impugned order, it is directed that learned District Judge shall now decide the application filed or to be filed by the legal representatives of Smt. Kanta Devi and dispose it of on its merits and in accordance with law, in the light of the aforesaid observations.
9. C.M.P No. 370 of 2004:
In view of the disposal of the main petition, this application shall also stand disposed of.
Order accordingly.