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Judgment
The petitioners have preferred this writ petition praying the following reliefs :-
“It is, therefore, prayed that this Writ Petition may kindly be allowed with cost and the impugned order judgment dated 23.05.2018 (Annexure-1)
passed by the learned Additional District Judge, Sangariya in civil original suit no. 30/2002 (Gurucharan Singh & Ors. V/S Balwant Singh & Ors.) may
kindly be quash and set aside and the application filed by the petitioners under order 14 rules 5 CPC (Annex.7) may kindly be allowed as prayed.â€
The petitioners have filed a suit for partition against the respondents in respect of ancestral properties.
3.1 Learned counsel for the petitioners has raised a limited issue that once the Court has declined relief to the respondents under Section 372 of
Succession Act while making a declaration that the respondents are not daughters of the deceased, then whether it was not open for him to seek the
dismissal by framing an issue regarding res judicata in the present suit.
3.2 Learned counsel for the petitioners has submitted that the question of relationship of parties were decided in a previous proceedings under Section
372 of Indian Succession Act and the same question cannot be agitated between the parties in the subsequent suit. Learned counsel for the petitioners
has further harped upon the issue that the trial Court could have framed the issue and the arguments on that issue would remain open and if the
learned trial Court was satisfied, then appropriate conclusion of the same could be permitted.
3.3 Learned counsel for the petitioners has relied on the following judgments :-
(i) Surinder Kumar and others. vs. Gian Chand and others. reported in AIR 1957 SC 875, para 5 whereof reads as under:-
“(5)  An objection to the admission of additional evidence at this stage, is taken by the respondents on the ground that the probate was obtained
without their knowledge and that the application was made at a late stage, it deprived the respondents of the valuable right which vests in them
because the claim has become statute barred and that there is no provision in the Rules of this court for the admission of additional evidence.
It is clear that the probate was applied for and obtained after the judgment of the High Court and therefore could not have been produced in that
court. The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a
judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself.â€
(ii) Shiv Narain and others. vs. Mst. Raji and others. reported in AIR 1982 Raj. 119, paras 9 and 10 whereof read as under :-
“9. Thus, so far as Smt. Omkumari is concerned, the judgment passed by the learned District Judge in the proceedings for grant of letters of
administration and the order passed by this Court in appeal clearly declared that she was not entitled to the legal character of heirship of her deceased
brother Arjunsingh, both on the ground of intestate succession as the nearest heir and also on the ground of alleged adoption of Nenji by Smt. Sara,
widow of Poonamchand. When the question of relationship of parties has been decided in a previous probate proceeding, the same question could not
be agitated between the same parties in a subsequent suit. The judgment of the probate court is a judgment in rem and all the essential questions
raised before the probate court must be taken to have been conclusively determined by the judgment of that court. Merely because some other
persons have been added as defendants in the suit, with the allegation that they were trespassers in the property in dispute, could not confer any legal
character in respect of the disputed property upon Smt. Omkumari.
So far as Smt. Raji is concerned, it is not disputed before me that she was a married daughter of Bastiram and her case is that after the death of
her husband she was residing with her father Bastiram and her brother Arjunsingh. It was not argued by the learned counsel for the respondents that
Smt. Raji, who was a widowed daughter of Bastiram, had any right or title in respect of the property left by Arjunsingh. The entire argument was
advanced on behalf of Smt. Omkumari, who is said to be the unmarried daughter of Bastiram. The judgment of the probate court is a judgment in rem
and is binding on all persons, even if they may not be parties thereto and any objection that they were not parties is not sus-tainable in view of the
nature of the order being a judgment in rem. Even if the decision of the probate court may not be held to be binding or may not operate as res judicata
in the present suit, as there are other defendants besides Smt. Omkumari, the aforesaid decision is relevant and has considerable evidentiary value.â€
Learned counsel for the respondents has, however, submitted that the issue framed regarding the ownership of the immovable property in the
succession proceedings was declined by the Court below while hearing the matter on the ground that the succession certificate cannot be issued for
immovable properties, vide order dated 29.5.2009. Learned counsel for the respondents submits that first of all succession of the immovable properties
was declined for lack of jurisdiction and even if the Court had assumed jurisdiction, then also the summary proceedings of succession would not
operate as res judicata in the subsequent proceedings. Learned counsel for the respondents has relied upon the judgment of Hon’ble Supreme
Court in the case of Madhvi Amma Bhawani Amma and others. vs. Kunjikutty Pillai Meenakshi Pillai and others. reported in AIR 2000 SC 2301, para
19 whereof reads as under :-
“So we have no doubt to hold that any decision made in proceeding under Section 372, for the grant of Succession Certificate under the Indian
Succession Act, would not bar any party to the said proceeding to raise the same issue in a subsequent suit. Hence, the High Court fell into error in
applying the principie of res judicata to the second appeal of the appellant arising out of the aforesaid suit. Thus even if no appeal is preferred by the
appellant against the decision of the trial court arising out of proceedings for the grant of Succession Certificate, the principie of res judicata would still
not apply. But we further record, and accept the contention of the leamed counsel for the appellant that the memorandum of second appeal itself
reveals that he has preferred appeal against both the appellate orders where it records both appeals, case No. 237 of 1977 and 93 of 1978. Hence
High Court was not right in holding that no appeal was preferred. Leamed counsel for the respondent could not dispute this but submits that no second
appeal lies against the appellate order in the proceedings for the grant of Succession Certificate, only a revision lies. However, it is not necessary for
us to go into this question as this is for the appellants to make such submission as permissible under the law and it is for the respondent to raise such
objection, as he deemed fit and proper in this regard.â€
After hearing the learned counsel for the parties as well as perusing the record of the case, this Court finds that the Court below has not decided
the issue of immovable properties on count of the same not coming under the purview of Section 372 of the Indian Succession Act. This Court also
finds that the claim of the party would have to be specifically adjudicated in this separate suit and the principle of res judicata would have applied only
if the parameters and procedures of the proceedings would have been the same. However, the current proceedings are regular suit whereas the
previous proceedings were admittedly limited to Section 372 of the Indian Succession Act. Thus, the precedent law relied upon by the counsel for the
petitioners do not apply in the facts and circumstances of the case whereas the precedent law cited by the counsel for the respondents clearly applies
to the present case as the Hon’ble Supreme Court has categorically held that the decision in proceedings for grant of succession certificate not
being final adjudication of rights of parties and thus, cannot operate as res judicata in the subsequent proceedings.
Consequently, the present writ petition, being devoid of any merit, is hereby dismissed. However, it shall be left to the learned Court below to
consider the order passed in the proceedings under Succession Act strictly in accordance with law.