Supreme Court of India
JOSEPH EASWARAN WAPSHARE & ORS. versus SHIRLEY KATHELEEN WHEELER on 26 February 2019
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JOSEPH EASWARAN WAPSHARE & ORS.
v.
SHIRLEY KATHELEEN WHEELER
(Civil Appeal No. 2284 of 2019)
FEBRUARY 26, 2019
B[R. F. NARIMAN AND VINEET SARAN, JJ.]
Succession Act, 1925:
ss. 372, 383, 33(a) and 25 – Revocation of SuccessionCertificate granted u/s. 372 in favour of appellant No.1 – Respondentfiled application u/s. 383 seeking revocation of the SuccessionCCertificate – Sub-Judge held that the respondent being the outsidserfor the family could not maintain the application for revocation;and that since the previous proceedings for probate of Will initiatedby the mother of the respondent had abated, the application forrevocation was barred by res judicata – High Court, in revision setDaside the finding as regards res judicata and remanded the matter toSub-Judge to decide the matter afresh – On appeal, held: SuccessionCertificate can be revoked only for the reasons set out in Section383 – The reasons mentioned in s. 383 is not satisfied in the presentcase – Respondent is neither a family member nor a linealdescendant – Revocation of Succession Certificate was rightlyErefused by Sub-Judge – Though the High Court was right in itsfinding on res judicata but the High Court should have decided thecase on the other grounds instead of remanding the case.
Allowing the appeal, the Court
HELD : 1. Under Section 383 of Succession Act, 1925, theFCertificate granted u/s. 372 could only be revoked for the reasonsset out in Section 383. Revocation cannot be granted unless anyone of sub-sections (a) to (e) of Section 383 is satisfied, which isnot the case on facts in the present appeal. It is clear therefore,that on this ground alone, the Sub-Judge was justified in refusingGto revoke the Succession Certificate so granted. Even otherwise,it is clear that the respondent has nothing whatsoever to do withthe Wapshare family which is clear from her averment in herSection 383 application. [Para 9][737-G-H]
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2. Section 33(a) makes it clear that the intestate’s propertygoes only to his widow and his lineal descendants. Since father ofappellant No. 1 died intestate, the Will set up in the applicationfor probate having abated, the appellant is the only living linealdescendant, together with his two sons. This would make it clearthat, in any event, the respondent would have no interestwhatsoever either as a member of the family or as a linealdescendant in setting aside the Succession Certificate so grantedas she is neither a family member nor a lineal descendant. [Para10][738-C-D]
3. Though the High Court was correct in setting aside theSub-Judge’s order on its finding on res judicata, but that was notthe end of the matter. The High Court ought to have gone intothe other two grounds, which found favour with the sub-Judge,which it did not do. [Para 10][738-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2284of 2019
From the Judgment and Order dated 23.03.2015 of the High Courtof Judicature at Madras in C.R.P. (NPD) No. 1261 of 2006
R. Anand Padmanabhan, Romil Pathak, Prawal Chaturvedi,Ms. Nishaka Tyagi, Aravind C. and Shashi Bhushan Kumar, Advs forthe appearing parties.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
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1) Nobody appears for the respondent, even though service iscomplete.
2) Leave granted.
3) The present appeal arises out of a proceeding to revoke aSuccession Certificate that was granted in favour of the appellant on16.03.2005.
4) The appellant No.1 is the son of one Gorden Wapshare. GordenWapshare had a brother called Edward Wapshare, who married oneBeatrice. Apparently, this marriage was fruitless as there was no issuestherefrom. He also had two sisters, one of whom Miss Dorthy Wapsharewas unmarried, who is since dead; and the other Miss Violet Wapshare,who was married and has a daughter called Ellen Mary Jackson. GordenWapshare was himself married and had two sons - one of whom is the A
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734 SUPREME COURT REPORTS [2019] 2 S.C.R.
Aappellant No.1, and the other son called Robert Babu Wapshare, who isdead. The appellant No.1, in turn, is married and has two sons. Therespondent before us Ms. Shirley Katheleen Wheeler is said to be thedaughter of Beatrice, who, as stated herein above, was the wife of EdwardWapshare.
B5) Gorden Wapshare died on 18.01.1991. As a result, a petitionwas preferred under Section 372 of the Indian Succession Act, 1925being O.P. No. 17 of 2005 before the Court of Civil Judge, Nilgiris,which petition was allowed and Succession Certificate dated 16.03.2005granted to the appellant. The respondent, in an application filed underSection 383 of the Act dated 28.03.2005, applied to revoke the SuccessionCCertificate so granted. In this application, a counter affidavit was filedin which it was clearly stated that the respondent was an outsider to theWapshare family as she was the daughter of Beatrice and born to asecond husband and not Edward Wapshare, who was the brother ofGorden Wapshare, as stated hereinabove.
6) An application for probate of the will of Gorden Wapshare wasmoved by Beatrice in 1993, being O.P. No. 55 of 1993. Beatrice died on29.01.1999. It may be mentioned that this application was dismissed fornon-prosecution. At no point of time did the respondent ever apply aslegal heir of Beatrice to be substituted therein.
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E7) By an order dated 10.04.2006, the Sub-Court, Nilgiris, held thatthe respondent, not being the daughter of Edward Wapshare, was anoutsider who could not, therefore, maintain the application for revocation.The Sub-Court also decided that, in any case, since the previousproceeding had abated, the matter is res judicata between the parties.It then went on to decide:F
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“Since the petitioners in O.P. 17/05 are the direct heirs of thendeceased G.O. Wapshare; neither Ms. Ellen Mary Jackson norher step sister the present petitioner in this application did haveany right to question the Succession Certificate obtained by thepetitioners in O.P. 17/2005 dated 16.3.2005. The evidence adducedGon the side of the respondents in this application clearly provesthat the deceased G.O. Wapshare during his life time has legallymarried one Valliammal and had given birth to a male child, whohad been named Easwaran. The 1[st] respondent in this applicationand who in turn given a birth of 2[nd] and 3[rd] respondents in thisapplication. Since, the 1[st] respondent in this application being the H
son of G.O. Wapshare and the 2[nd] and 3[rd] respondents being theson of the 1[st] respondent in this application are the direct heirs ofG.O. Wapshare who are alone entitled to inherit the immoveablesas well as the moveables of deceased G.O. Wapshare is completelybeen established by the respondents in this application. In theabsence of any testament left by G.O. Wapshare the property ofG.O. Wapshare will naturally go to his son Joseph EaswaranWapshare and his sons W.E. Prince Kumar and W.E. PraveenKumar, only when the petitioner Mary Jackson able to prove thatG.O. Wapshare left a will or other testament to inherit the propertiesleft by G.D.Wapshare, claim of the petitioner in this petition willbecome mischievous as the petitioner in this application herselfknow that her step sister Ms. Ellen Mary Jackson’s claim in theprevious suits O.S.No. 41/97, 42/97 and 86/96 were dismissed asabated.”
8) A revision petition was filed against the said judgment. By theimpugned judgment dated 23.03.2015, the Madras High Court allowedthe revision on only one point, namely, that the finding of the Sub-Judgeon res judicata was incorrect. However, it noticed the arguments madeby the petitioners’ counsel that, in any event, the revocation applicationwas not maintainable and, in any case, not being a direct lineal descendantof Gorden Wapshare, the respondent could not, in any event, succeed tothe estate of Gorden Wapshare. The High Court therefore, set asidethe order dated 10.04.2006 and remanded the matter to the Sub-Judgeto decide the matter afresh after hearing the parties.
9) Mr. R. Anand Padmanabhan, learned counsel appearing onbehalf of the appellants, has painstakingly taken us through the recordand has referred to the various provisions of the Indian Succession Act.It is necessary to first set out Section 372 of the said Act, under whichan application for a Succession Certificate has to be made. Section 372reads as follows:
“372. Application for certificate.- (1) Application for such acertificate shall be made to the District Judge by a petition signedand verified by or on behalf of the applicant in the mannerprescribed by the Code of Civil Procedure, 1908 (5 of 1908) forthe signing and verification of a plaint by or on behalf of a plaintiff,and setting forth the following particulars, namely:- (a) the time of the death of the deceased; AB
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A(b) the ordinary residence of the deceased at the time of his deathand, if such residence was not within the local limits of thejurisdiction of the Judge to whom the application is made, then theproperty of the deceased within those limits;
(c) the family or other near relatives of the deceased and theirBrespective residences; (d) the right in which the petitioner claims; (e) the absence of any impediment under section 370 or underany other provision of this Act or any other enactment, to thegrant of the certificate or to the validity thereof if it were granted;andC(f) the debts and securities in respect of which the certificate isapplied for.
(2) If the petition contains any averment which the person verifyingit knows or believes to be false, or does not believe to be true, thatperson shall be deemed to have committed an offence underDsection 198 of the Indian Penal Code, 1860 (45 of 1860).
(3) Application for such a certificate may be made in respect ofany debt or debts due to the deceased creditor or in respect ofportions thereof.”
EEqually, if such certificate is to be revoked it can be so revoked if any ofthe grounds under Section 383 are made out. Section 383 of the Act isset out herein below:
“383. Revocation of certificate.- A certificate granted under thisPart may be revoked for any of the following causes, namely:-F(a) that the proceedings to obtain the certificate were defective insubstance; (b) that the certificate was obtained fraudulently by the making ofa false suggestion, or by the concealment from the Court ofsomething material to the case; G(c) that the certificate was obtained by means of an untrueallegation of a fact essential in point of law to justify the grantthereof, though such allegation was made in ignorance orinadvertently; (d) that the certificate has become useless and inoperative throughHcircumstances; JOSEPH EASWARAN WAPSHARE & ORS. v. SHIRLEYKATHELEEN WHEELER [R. F. NARIMAN, J.]
(e) that a decree or order made by a competent Court in a suit orother proceeding with respect to effects comprising debts orsecurities specified in the certificate renders it proper that thecertificate should be revoked.”
At this juncture, it is important to set out Section 33 (a) which reads asfollows:
“33.(a) if he has also left any lineal descendants, one-thirds of hisproperty shall belong to his widow, and the remaining two-thirdsshall go to his lineal descendants, according to the rules hereinaftercontained;”
The expression “lineal descendant” has reference to Section 25 of theAct which is set out herein below:
“25. Lineal Consanguinity.- (1) Lineal consanguinity is that whichsubsists between two persons, one of whom is descended in adirect line from the other, as between a man and his father,grandfather and great-grandfather, and so upwards in the directascending line, or between a man and his son, grandson, great-grandson and so downwards in direct descending line.
(2) Every generation constitutes a degree, either ascending ordescending.
(3) A person’s father is related to him in the first degree, and solikewise is his son; his grandfather and grandson in the seconddegree; his great-grandfather and great-grandson in the thirddegree, and so on.”
A reading of the aforesaid provisions of the Succession Act makeit clear that a Succession Certificate can be granted in an application inwhich necessary particulars are set out as mentioned in Section 372.There is no dispute that the application made by the appellant set out theaforesaid particulars. Under Section 383, the Certificate so grantedcould only be revoked for the reasons set out in the said Section. It willbe noticed that revocation cannot be granted unless anyone of sub-sections(a) to (e) of Section 383 is satisfied, which is not the case on facts in thisappeal. It is clear therefore, that on this ground alone, the learned Sub-Judge was justified in refusing to revoke the Succession Certificate sogranted. Even otherwise, it is clear that the respondent has nothingwhatsoever to do with the Wapshare family. This becomes clear fromher averment in her Section 383 application in which, in para 1, shestated:
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A“1. The Petitioner is Mrs. Shirley Katheleen Wheeler w/o lateMr. A.J. Wheeler and Daughter of Late Mrs. Beatrice Wapshare,Christian aged about 68 years, a British Citizen and permanentresident at 43, Cuttons Corner, Hemblinton, Norfolk-NR 134 PS,England, United Kingdom, and presently at Compton Estate,Naduvattam Post, Udhagamandalam in the District of Nilgiris.”B10) It will be noticed that the respondent describes herself as thewife of the late A.J.Wheeler and daughter only of the late BeatriceWapshare. Edward Wapshare’s name is conspicuous by its absence,making it clear that she was, by no means, a lineal descendant of EdwardWapshare and therefore, had nothing whatsoever to do with theCWapshare family. Apart from this, since Gorden Wapshare died intestate,the will being set up in the application for probate having abated, Section33(a) makes it clear that the intestate’s property goes only to his widowand his lineal descendants. The appellant is today the only living linealdescendant, together with his two sons, of Gorden Wapshare. This would Dagain make it clear that, in any event, the respondent would have nointerest whatsoever either as a member of the Wapshare family or as alineal descendant in setting aside the Succession Certificate so grantedas she is neither a family member nor a lineal descendant as has beenheld herein above. It may only be added that the High Court was correct in setting aside the Sub-Judge’s order on his finding on res judicata, butEthat was not the end of the matter. The High Court ought to have goneinto the other two grounds, which found favour with the sub-Judge, whichit did not do.
11) This being the case, we set aside the judgment of the HighCourt and restore that of the learned Sub-Judge.F12) Accordingly, the appeal is allowed.
Kalpana K. Tripathy
Appeal allowed.
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