Through: Mr. Jogy Scaria, Adv v. SANGHAMITRA ( CGHS) SOCIETY AND ORS

1. Appellants filed a petition under Section 372 of the Indian Succession Act, 1925 (for short, hereinafter referred to as the ‗Act‘) before the trial 2014:DHC:6064 court for grant of succession certificate in respect of estate of Late Rev. Fr. P.J. Gregory Paruvaparambil. It was alleged that deceased died in a hospital in Cochin, within the state of Kerala on 2nd July, 2008 at the age of 69. Deceased was unmarried. Appellants were brother and sister of deceased, who was ordinarily resident of Flat No. B-102 Sanghamitra Apartments, Sector 4, Dwarka, New Delhi – 110075. The said flat was purchased by him from the respondent no.1. Allotment letter, sub-lease agreement and receipts of property tax pertaining to the period 2009-10 and 2012-13 were annexed with the petition. It was alleged that appellants were the only legal heirs of deceased.

2. Without issuing notice of this petition, trial court held that courts at Delhi had no territorial jurisdiction to entertain and try the petition as deceased was residing within the State of Kerala at the time of his death. Only because deceased was having a property in Delhi was not sufficient to attract the jurisdiction of Delhi courts under Section 371 of the Act. Accordingly, trial court has ordered for return of petition to appellants.

3. It appears that trial court has ordered for return of the plaint under Order 7 Rule 10 of the Code of Civil Procedure, 1908 (for short, ‗CPC‘). It is trite law that for the purposes of Order 7 Rule 10 CPC the Court has only to consider the averments made in the plaint and the documents annexed therewith and nothing else. Defense of the defendant has not be looked into. The averments made in the plaint/petition have to be taken as correct. In this case, no application under Order 7 Rule 10 CPC was filed before the trial court. Trial court of its own exercised the jurisdiction under Order 7 Rule 10 CPC and has ordered for return of the petition.

4. Section 371 of the Act reads as under:- ―371-Court having jurisdiction to grant certificate.—The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he 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.‖

5. A bare perusal of the aforesaid provision makes it clear that the section is in two parts. First part provides for filing of the petition before the District Judge, within whose jurisdiction the deceased ordinarily resided at the time of his death. The second part envisages that if at the time of death deceased 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 succession certificate. In my view, the second part would come into play only if first part is not satisfied; meaning thereby if deceased ordinarily resided at a given place at the time of his death the petition would lie within the jurisdiction of District Judge within whose jurisdiction deceased had been ordinarily residing. Place of death is not material to attract the jurisdiction of that court. It is the place of residence at the time of death which is material. Only in such cases where deceased had no fixed place of residence the petition for succession certificate could be filed at the place where deceased was having any part of the property.

6. In Rameshwari Devi vs. Raj Bali Shah and Anr. 1987 (13) ALR 705, a Single Judge of Allahabad High Court held thus: ―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‖. In Shivkumar vs. Bhanu Prakash Singh MANU/MP/0408/1961 also, similar view has been taken. In the said case, deceased was residing ordinarily at Narsinghgarh, within the local limits of Rajgarh Court. She had gone to Bombay for treatment where she expired. In these facts, it was held that succession certificate can be filed in Rajgarh Court within whose jurisdiction deceased was ordinarily residing and not in Bombay where she had gone only for treatment.

7. I am of the opinion that place of death is not material. However, the place where deceased at the time of his death had been ordinarily residing is material so as to attract the jurisdiction of a Court. In Madhuribai wd/o Mohan Walke and Anr. vs. Annapurnabai Keshao Walke and Anr. MANU/MH/0417/2003, deceased was resident of Wedshi which was situated in the district of Yavatmal. However, at the time of his death he was posted at Gadchiroli and on account of his employment he was residing at the place of his posting. In the context of Section 371 of the Act, it was held that ordinarily residence of deceased at the time of his death was at Gadchiroli where he was posted and had been residing. Meaning thereby that permanent residence of deceased is also not material so as to attract the jurisdiction. It is the place where deceased had been ordinarily residing at the time of his death is material for attracting the jurisdiction of the Court.

8. In this case, appellants have categorically stated in para 4(b) of the petition that ordinary residence of deceased was Flat No. B-102 Sanghamitra Apartments, Sector 4, Dwarka, New Delhi – 110075. It is nowhere stated in the petition that deceased was posted in some place in Kerala and had been residing there. Only because deceased died in a hospital in Cochin within the State of Kerala by itself would not be sufficient to indicate that deceased was ordinarily residing in Cochin. In the petition appellants have nowhere stated that deceased was ordinarily residing at Cochin, at the time of his death.

9. For the foregoing reasons, appeal is allowed and impugned order is set aside. Trial court is directed to proceed with the matter in accordance with law. Appellants to appear before the trial court on 10th December, 2014.

10. Appeal is disposed of in the above terms. A.K. PATHAK, J. NOVEMBER 14, 2014 ga