A. Parvathi Amma v. K.M. Gowri Amma, K.M. Savithri Amma, K.M. Ramdas, K.M. Balakrishnan, K.M. Sasidharan S/O Parvathi Amma, North Malabar Gramin Bank (Pilathara Branch), State Bank of Travancore (Payyannur Branch)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937 CRP.No. 396 of 2015 () -----------------------** **AGAINST THE JUDGMENT IN AS 117/2013 of ADDL.DISTRICT COURT,THALASSERY DATED 01-01-2015 AGAINST THE ORDER IN OP(SUC) 3/2012 of MUNSIFF COURT, PAYYANNUR DATED 14-08-2013** **REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/RESPONDENT NO.1: ---------------------------------------------------------------------** **A.PARVATHI AMMA AGED 78 YEARS AYIPPUZHA MADAM, W/O LATE GOVINDAN NAMBISSAN K.A. USHAS, CHERUTHAZHAM VILLAGE NEAR RAJIVE MEMORIAL HIGH SCHOOL, PILATHARA P.O. MANDUR (VIA), KANNUR DISTRICT-670501.** **BY ADV. SRI.R.SURENDRAN** **RESPONDENT(S)/RESPONDENTS/PETITIONERS AND SUPPL.RESPONDENTS NO.2 AND 3: ---------------------------------------------------------------------** **1. K.M.GOWRI AMMA, AGED 67 YEARS W/O K.M.SOMASUNDARAN, P.O.EZHIMALA KUNHIMANGALAM (VIA), KANNUR DISTRICT-670309. 2. K.M.SAVITHRI AMMA, AGED 65 YEARS W/O K.A.KRISHNAN NAMBISAN, P.O. NAREEKAMVALLI MANDUR (VI), KANNUR DISTRICT-670501. 3. K.M.RAMDAS, AGED 63 YEARS S/O LATE PARVATHI AMMA, B.S.N.L. EMPLOYEE PARVATHI NIVAS, P.O. NAREEKAMVALLI KANNUR DISTRICT-670501. 4. K.M.BALAKRISHNAN, AGED 59 YEARS S/O. LATE PARVATHI AMMA, ELECTRICIAN, EZHILODE P.O. KUNHIMANGALAM (VIA), KANNUR DISTRICT-670 309 5. K.M.SASIDHARAN S/O PARVATHI AMMA, AGE NOT KNOWN, AISWARYA P.O. EZHILODE KUNHIMANGALAM (VIA) KANNUR DISTRICT-670309.** **6. THE MANAGER NORTH MALABAR GRAMIN BANK PILATHARA BRANCH PILATHARA P.O.** **7. THE MANAGER STATE BANK OF TRAVANCORE, PAYYANNUR BRANCH, PAYYANNUR.** **CRP.No. 396 of 2015 () -----------------------** **2** **R1-R5 BY ADV. SRI.V.N.RAMESAN NAMBISAN R6 BY ADV. SRI.T.R.RAVI, SC, NORTH MALABAR GRAMIN BANK R7 BY ADV. SRI.T.SETHUMADHAVAN (SR.) ADV. SRI. JAYESH MOHAN KUMAR, SC, STATE BANK OF TRAVANCORE** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **vdv** ## **C.R** ## K.ABRAHAM MATHEW, J. ======================= C.R.P No.396 of 2015 ============================ Dated this the 14[th] day of January, 2016 ## ORDER Does the notification issued under Section 388 of the Indian Succession Act empower the munsiff to entertain an application under Section 372, the valuation of which exceeds the pecuniary jurisdiction conferred on him under Section 13 of the Kerala Civil Courts Act? 2. Respondents 1 to 5 are the children of one K.M.Parvathy Amma. They had a brother by name Narayanan, who while working as a sub engineer in Kerala State Electricity Board, died in a motor accident on24.02.1998. He was survived by his wife, Vasanthakumari and daughter, Chitra. Later, his mother, K.M.Parvathy Amma, died. His wife, Vasanthakumari and daughter, Chitra died on 27.04.2009. The petitioner is his mother-in-law. In O.P(MV) No.932 of 1998 of Motor Accident Claims Tribunal a certain amount was awarded as compensation C.R.P No.396/2015 2 for his death. An amount of `1,76,029/- has been deposited in the Tribunal towards compensation. Certain amounts have been deposited with the 6[th] and 7[th] respondent banks in the names of Vasanthakumari and Chitra. Respondents 1 to 5 filed a petition under Section 372 of the Indian Succession Act for a succession certificate in the court of munsiff. The total amount in respect of which the certificate was applied is above `4,50,000/-. The petitioner contended that Chitra died first and respondents 1 to 5 are not the legal heirs of Vasanthakumari and she (the petitioner) alone is her legal heir. The learned munsiff conducted an enquiry and found that the death of Vasanthakumari and Chitra was simultaneous and the presumption under Section 21 of the Hindu Succession Act is that Vasanthakumari died first. The court, therefore, held that the petitioner and respondents 1 to 5 are the legal heirs of Narayanan, and accordingly, it ordered issuance of succession certificate in their favour. The petitioner challenged it in appeal. The additional district judge who heard the appeal dismissed it confirming the order of the learned Munsiff. This is assailed in this revision petition. C.R.P No.396/2015 3 3. The argument of the learned counsel for the petitioner is two fold. (1) Munsiff court had no pecuniary jurisdiction to entertain the petition as the amount claimed was above `1,00,000/- which was the limit of the pecuniary jurisdiction of that court under Section 19 of the Kerala Civil Courts Act. (2) The finding that the death of Vasanthakumari and Chitra was simultaneous is illegal because evidence could have been adduced to prove who died first. 4. Under Section 371 of the Indian Succession Act District Judge has exclusive jurisdiction to entertain an application filed under Section 372 of the Act. But Section 388 of the Act empowers the state government to confer the powers of the district judge on any other court. Accordingly, the government of Kerala have issued two notifications on 06.02.1958, which read as follows: C.R.P No.396/2015 4 “i) In exercise of the powers conferred by sub-section (1) of Section 388 of the Indian Succession Act, 1925 (Act XXXIX of 1925), and in supersession of all previous notifications investing courts of subordinate judges with power to exercise the functions of a District Judge under Part X of the said Act, the Government of Kerala hereby invest all courts of subordinate judges in the State with power to exercise the functions of a District Judge under Part X of the Act within the local limits of their respective jurisdiction. ii) In exercise of the powers conferred by sub-section (I) of Section 388 of the Indian Succession Act, 1925 (Act XXXIX of 1925) and in supersession of all previous notifications investing courts of Munsiffs with power to exercise the functions of a District Judge under Part X of the said Act, the Government of Kerala hereby invest all courts of Munsiffs in the State with power to exercise the functions of a District Judge under Part X of the Act within the local limits of the respective jurisdiction.” 5. The submission of the learned counsel for the petitioner is that the jurisdiction conferred by the notifications is only over the subject matter and it does not empower the munsiff to entertain the application if the amount in respect of which it is filed exceeds the limit of the pecuniary jurisdiction mentioned in Section 13 of the Civil Court Act. 6. Jurisdiction of a court can be of four types: C.R.P No.396/2015 5 i) subject matter jurisdiction ii) territorial jurisdiction iii) pecuniary jurisdiction, and iv) personal jurisdiction. Subject matter jurisdiction is the jurisdiction over the nature of the case and the type of relief sought. It is also said to be jurisdiction of the cause or jurisdiction over the action. (See Black's Law Dictionary). 7. The second notification mentioned above gives authority to the munsiff to discharge the functions of a district judge under Part X of the Indian Succession Act. What are the functions of a district judge under this Part of the Act. The title of Part X is 'Succession Certificates'. Sections 370 to 390 appear in this Part. Section 370 speaks of granting succession certificates. Section 371 of the Act which runs as follows is the most relevant provision pertaining to the functions of the district judge. “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 C.R.P No.396/2015 6 may be found, may grant a certificate under this Part.” Some of the other sections in this Part deal with extension, amendment, local extent, effect and revocation of the certificates. No function other than issuance of succession certificates is dealt with in any provision in Part X. The only function enjoined on the district judge under this Part is issuing succession certificates. This power alone has been conferred on the munsiff by the notification issued by the government. 8. The notifications under Section 388 of the Indian Succession Act conferring powers of the district judge on subordinate judges and munsiffs were issued on the same date. If the munsiff has unlimited pecuniary jurisdiction, it is unnecessary to confer the same powers on the subordinate judge also. In Kerala there is no area which does not fall within the territorial jurisdiction of a munsiff. This is also an indication that the power conferred by the notification is only with regard to subject matter jurisdiction. 9. For the reasons stated above, I accept the argument of the learned counsel. The munsiff cannot entertain an application under Section 372 of the Indian Succession Act if the amount C.R.P No.396/2015 7 claimed in it exceeds his pecuniary jurisdiction as determined by Section 13 of the Kerala Civil Courts Act. Under the said Section the limit of the pecuniary jurisdiction of the munsiff at the relevant time was only `1,00,000/-. The amount in respect of which the certificate was claimed was about `4,65,000/-. It exceeded the pecuniary jurisdiction of the munsiff. 10. But, learned counsel for respondents 1 to 5 submits that lack of pecuniary jurisdiction is a matter to be agitated at the initial stage of the proceedings, failing which the aggrieved party cannot be allowed to raise it later. He relies on Section 21 of the Code of Civil Procedure, the provisions of which, admittedly, are applicable to the proceedings under Section 372 of the Indian Succession Act. Sub section (2) of section 21 C.P.C provides that no objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection was taken in the court of the first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. He has brought to my notice the decision of the Supreme C.R.P No.396/2015 8 Court in Kiran Singh v. Chaman Paswan (AIR 1956 SC 340), Koopilan Uneen's daughter Pathumma v Koopilan Uneen's son Kuntalan Kutty (AIR 1981 SC 1683) and Harshad Chiman Lal Modi v. D.L.F Universal Ltd (AIR 2005 SC 4446). Some other decisions of the Supreme court and of this Court are also relied on by the learned counsel. The Supreme Court has in categorical terms held that unless the objection with regard to the pecuniary jurisdiction is taken at the initial stage, it cannot be raised later. The petitioner did not object to the munsiff's entertaining the application on the ground that the valuation exceeded his pecuniary jurisdiction. She has lost her right to take up the contention that the munsiff did not have pecuniary jurisdiction to entertain the petition. 11. Coming to the second point, Vasanthakumari, wife of Narayanan and their daughter, Chitra died on 27.04.2009. They were found dead. It apparently was a suicide. No evidence has been produced by either side to show who died first. The argument of the petitioner is that the post-mortem certificates of the deceased would have proved who died first. But, she has no case that facts which would enable the court to reach such a C.R.P No.396/2015 9 conclusion are available in the post-mortem certificates. The petitioner could have produced copies of the post-mortem certificates. For the reasons best known to her she did not produce them. The parties are Hindus. 12. The statutory provision relating to commorientes is contained in Section 21 of the Hindu Succession Act. The Section is extracted below: “Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.” 13. Learned counsel submits that as the death of Vasanthakumari and Chitra was not in a natural calamity the presumption is not available. This cannot be accepted. The Section does not mention death in natural calamity or for that matter even unnatural death. To attract the provision it is sufficient that the circumstances in which the death took place make it uncertain who died first. As there is no evidence as to who died first, the presumption is that Chitra survived her mother, Vasanthakumari. I do not find any reason to take a view different from the one taken by the courts below. C.R.P No.396/2015 10 ## 14. It should also be mentioned that the proceedings under Section 372 of Indian Succession Act is only summary in nature. Section 373(3) of the Act provides: “If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.” Any party aggrieved by the order may approach the regular court to establish his title. In the result, this Civil Revision Petition is dismissed. Sd/- K.ABRAHAM MATHEW , JUDGE vdv /15/01/2016