C.K. PRAHALADA & ORS. versus STATE OF KARNATAKA & ORS.

[2008] 7 S.C.R. 852

C.K. PRAHALADA & ORS. v.

STATE OF KARNATAKA & ORS. (Civil Appeal No. 3325 of 2008)

MAY 6, 2008

[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]

Constitution of India, 1950 - Article 136 - Discretionary iurisdiction - Exercise of - Succession Certificate in favour of appellant's father on death of his brother - Suit by appellant's father seeking direction to hospital Authorities to hand over the articles removed from the body of the brother to them -Decreed exparte - Execution petition after 6 years - Appeal by State - Also application for condonation of delay of 2487 -days Application as also appeal allowed by High Court and matter remitted to trial court - On appeal, held: Succession -certificate is granted for limited purpose By obtaining it, person does not become owner of the property - High Court rightly held that wife of deceased was necessary party - On her death during pendency of proceedings for grant of succession certificate, her heirs and legal representatives should have been impleaded as parties - More so, delay in -filing appeal would not have been condoned However, High Court allowed the first appeal - Hence, order of High Court should not be interfered with - Adopted son of deceased to be impleaded as party in suit.

Appellant's uncle was admitted to the hospital.

Appellant's father removed all articles from his brother's body. Appellant's uncle expired. The hospital Superintendent insisted the appellant's father to deliver the articles kept by him so as to deliver the same to the persons entitled therefor, before handing over the dead body to them. The articles were handed over to the hospital authorities. Thereafter, appellant's father sought the articles from the authorities. However, the hospital 852

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C.K. PRAHALADA & ORS. v. STATE OF KARNATAKA & ORS.

authorities asked the appellant's father to obtain succession certificate for return of the articles. Appellant's father applied for the certificate. G-wife of deceased was impleaded as party. expired during pendency of proceedings, leaving behind S-her adopted son. Appellant's father was granted Succession Certificate. Howe"'.er, on the production of the ::;ame, hospital authorities did not return the articles. Appellant's father filed suit seeking direction to the hospital authorities to hand over the articles to appellants. An application u/s 80(2) CPC was filed and the same was allowed. Suit was decreed ex parle. Six years later execution case was filed. On receipts of summons, the State filed appeal. It also filed application for condonation of delay and the same was allowed. High Court held that the decree passed by the trial court was not sustainable and remitted the matter to the trial court. Hence the present appeal.

Dismissing the appeal, the Court

HELD: 1.1 succession certificate is granted for limited purpose. Court granting succession certificate does not decide the question of title. nominee or holder of succession certificate has duty to hand over the property to the person who has legal title thereto. By obtaining succession certificate alone, person does not become the owner of the property. [Para 10] [858-D-E]

Vidhyadhbari and Ors. vs. Sukhrana Bai and Ors. 2008 (2) sec 238 - referred to.

1.2 Th!~ r.-:-[11]rt would not exercise its extraordinary

jurisdiction only because it is lawful to do so. This Court has the power to pass necessary orders for doing complete justice to the parties. The High Court rightly held that was necessary party. As she expired during the pendency of the proceedings, her heirs and legal representatives should have been impleaded as parties in the said proceedings. The decree might have been passed ex parte but when the same has been brought to

[2008] 7 S.C.R.

the notice of this Court, in exercise of discretionary jurisdiction under Article 136 of the Constitution of India, it should not be interfered. [Para 1 O] [858-A-C]

Mis. Tanna & Modi v. C. I. T Mumbai XXV and Ors. 2007 -(8) SCALE 511 relied on.

1.3 There was enormous delay. in filing the appeal.

Ordinarily, this Court would not have condoned the said delay in filing the appeal but in the instant case, the First Appeal filed by the State has also been allowed by the ~c [High Court. Keeping in ][view ][the nature ][of ][the order passed ]by the High Court, it is not fit case where the judgment of the High Court dated 24.10.2005 should be interfered with which will have the effect of setting aside its order dated 1.12.2005 also. However, the State must pay sum [of ][Rs.10,000/- by way ][of ][costs ][to ][the appellant. It ][is ][further ]directed that should be impleaded as party in the suit. The appellant would be open to pray for such other relief or reliefs in the suit. [Para 12] [859-B-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. [3325 of 2008. ]

From the Judgment Mtd Order dated 1.12.2005 of the High

Court of Karanataka at 83'\-galore in RFA No. 1283/2004 (RES)

Kiran Suri, Aparna Bhat and S.J. Amith for the Appellants.

Sanjay R. Hegde for t?ie Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. LeAve granted.

2. This appeal is ~irected against the orders dated 24.10.2005 and dated 1.12.2005 passed by the High Court of Kanataka at Bangalore whereby and whereunder delay of 2487 days in filing the appeal has been condoned and the said appeal has been allowed.

3. The basic fact of the matter is not in dispute.

The brother of Madwaramanachar, father of the appellant, was admitted to S.D.S. TB Hospital at Bangalore. All the articles from the body of his brother were removed by the father of the appellant. After his death, the father of the appellant requested the hospital authorities to hand over the obsquecies seized wherefor written request was made on 9.6.1981.

The Superintendent of the said hospital passed an order that the articles kept by the father of the appellants must be delivered back to the hospital authorities for being kept in safe custody so as to enable them to deliver the same to the persons entitled therefor. Delivery of the artiqJ.es was insisted before handing over the dead body. The said articles were handed over to the hospital authorities wherefor an acknowledgment was issued.

4. An application· for grant of succession certificate was

filed by the father of the appellants on 24.8.1981. In the said

proceedings, one Gowramma, wife of the deceased, was impleaded as party. She expired during the pendency of the said proceedings. She, allegedly left behind one S. Basavarajappa, who is said to be her adopted son. By an order dated 5. 7 .1991, succession certificate was granted in favour of the appellant in respect of the following :

5. Despite producuo11 uf the said SUL;l.ess1ur 1 ceitifll.ate

trre hospital authorities did not return the said articles and documents to the appellant's father, whe1 eupon suit in the court of Additional City Civil Judge, Bangalore seeking direction to the hoapltal authorities-defendants to hand over the articles to the appellants or in alternative pay the value thereof which was asseHed at Ra.45,000/- was filed

6. No notice under Section 80 of the Code of Civil

Procedure, however, was served upon the State. An application lJ under sub-section (2) of Section 80 of the Code was filed which Is said to have been allowed.

Before the learned Trial Judge, no written statement was

filed by the State. It was decreed ex pa rte on decree was passed on 31.10.1997.

7 .. An execution case was fileJ i11 tlie yea1 2003 f01

.. i=xecution of the said decree. Upon receipt of the surnr nons f1 urn the executing court, first appeal was preferred by the State of Karnataka. As Indicated hereinbefore, the same was barred by 2487 days.

An application for condonation of delay was tlled 111 the

said appeal being IA No.1 of 2005 which, by reason of judgment dated 24.10.2005 was allowed. The High Court by reason of its judgment dated 1.12.2005 pointed out various deficiencies in the said decree and opined that the judgment and decree passed by the learned Trial Judge was not sustainable in law, stating :

(I) No urgency was shown for filing the suit in terms of sub-section (2) of Section 80 of the Code of Civil Procedure;

(ii) Smt. Gowramma was necessary party in the suit; and

(iii) The value of the articles was not mentioned in the succession certificate. There was nothing to show that the plaintiff was the only heir of the deceased.

ft was directed :

"The appeal is allowed an the impugned judgment and decree dated 31.10.1997 made in O.S. No.3830/1994 on the file of II Additional City Civil Judge at Bangalore City, is set aside and the matter is remitted back to the Trial Court, with direction to the parties to appear before the Trial Court for further proceedings on 23. 12.2005, without notice. Further, the Trial Court is directed to afford an opportunity to the defendants to file the written statement within 30 days from 23.12.205 and dispose of the suit in al",r,ordanl",e with law."

8. Ms. Kiran Suri, learned counsel appearing on behalf of

the appellant, would submit that the High Court committed serious error in condoing the delay of 2487 days in preferring the appeal by the State. It was furthermore urged that the appellant has failed to prove any cause far less any sufficient cause therefor. The learned counsel contended that the High Court should not have remitted the matter back to the trial court keeping in view the fact that the short question which arose for its consideration was as to whether the hospital authorities having asked the appellants' father to obtain succession certificate was bound to return the articles to him him on production thereof

9. Mr. Hegde, learned counsel appearing on behalf of the respondents, however, supported the impugned judgment.

10. One Gowramma, as noticed hereinbefore, was

1mpleaded as party in the proceedings for grant of succession certificate. She claimed herself to be the w'lfe of the deceased. Appellant knew that the hospital authorities had handed over

the documents and goods to her. She was, therefore, necessary party. As .she expired during the pendency of the proceedings, her heirs and legal representatives should have been impleaded as parties in the said proceedings.

The decree might have been passed ex parte but when the same has been brought to the notice of this Court, in our opinion, in exercise of our discretionary jurisdiction under Article 136 of the Constitution of India, we should not interfere therein.

It is now well settled principle of law that this Court would [not exercise ][its ][extraordinary jurisdiction only because it ][is ][lawful ]to do so. (See Mis. Tanna & Modi v. C.I. T Mumbai XXV & Ors. [2007 (8) SCALE 511] This Court has the power to pass necessary orders for doing complete justice to the parties. The High Court, in our opinion, has rightly held that in the

[aforementioned situation, Gowramma was necessary party. ]

succession certificate is granted for limited purpose. Court granting succession certificate does not decide the question of title. nominee or holder of succession certificate has duty to hand over the property to the person who has

[legal title thereto. ]

By obtaining succession certificate alone, person does not become the owner of the property.

11. In Vidhyadhari & Ors. v. Sukhrana Bai & Ors. [(2008)

[2 SCC 238], this Court held : ]

"14. Therefore, though we agree with the High Court that Sukhrana Bai was the only legitimate wife yet, we would choose to grant the certificate in favour of Vidhyad~· '., who was his nominee and the mother of his four children. However, we must balance the equities as Sukhrana Bai is also one of the legal heirs and besides the four children she would have the equal share in Sheetaldeen's estate which would be 1/5[1]h. To balance the equities, we would, therefore, choose to grant succession certificate to Vidhyadhari but with rider that she would protect the

1/5[1]h share of Sukhrana Bai in Sheetaldeen's properties

and would hand over the same to her. As the nominee she would hold the 1;5th share of Sukhrana Bai in trust and would be responsible to pay the same to Sukhrana Bai. We direct that for this purpose she would give security in the trial court to the satisfaction of the trial court."

(Emphasis added)

12. It may be true that there was enormous delay in filing the appeal. Grdinarily, this Court would not have condoned the said delay in filing the appeal but in this case, the First Appeal filed by the State has also been allowed by the High Court.

Keeping in view the nature of the order passed by the High Court, we are of the opinion that it is not fit case where we should interfere with the judgment of the High Court dated 24.10.2005 which will have the effect of setting aside its order dated 1.12.2005 also. We, however, are of the opinion that the State must pay sum of Rs.10,000/- by way of costs to the appellant. We further direct that Basavarajappa should be impleaded as party in the suit. It will also be open to the appellant to pray for such other relief or reliefs in the suit as she may be advised in the matter.

13. The appeal is dismissed with the aforementioned directions. . In the facts and circumstances of the case, however, there shall be no order as to costs.

Appeal dismissed.