# Smt. Monika Yadav v. Aakash Singh & Ors

- **Citation:** (2024) 4 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-29
- **Case number:** First Appeal Defective No. 366 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-monika-yadav-v-aakash-singh-ors-50983
- **Pages:** 7

## Headnote

Civil Law - Indian Succession act, 1925 -
Sections 371, 372, 384 & 388(2) -
Challenging rejection of application for
grant
of
Succession
Certificate
-
Jurisdiction of Court - Maintainability of
appeal - As Civil Judge (Senior Division)
which is a inferior court, exercises
powers of District Judge under Part X of
Succession Act, thus, the proviso to
Section 388(2) would be attracted, and
appeal from its order lies to District
Judge, not to the High Court - Hence,
appeal is permitted to be withdrawn
with liberty as prayed. (Para 2, 3, 34,
35)

Appeal disposed of. (E-13)

List of Cases cited:

## Text

976 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The appeal is devoid of merits and
is, accordingly, dismissed, however, with
the observations made above.
----------
(2024) 4 ILRA 976
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

First Appeal Defective No. 366 of 2023

Smt. Monika Yadav ...Appellant
Versus
Aakash Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Rajesh Yadav

Counsel for the Respondents:

Civil Law - Indian Succession act, 1925 -
Sections 371, 372, 384 & 388(2) -
Challenging rejection of application for
grant
of
Succession
Certificate
-
Jurisdiction of Court - Maintainability of
appeal - As Civil Judge (Senior Division)
which is a inferior court, exercises
powers of District Judge under Part X of
Succession Act, thus, the proviso to
Section 388(2) would be attracted, and
appeal from its order lies to District
Judge, not to the High Court - Hence,
appeal is permitted to be withdrawn
with liberty as prayed. (Para 2, 3, 34,
35)

Appeal disposed of. (E-13)

List of Cases cited:

1. East End Dwellings Co. Ltd. Vs Finsbury
Borough Council, (1951) 2 All ER 587 (HL)

2. St. Aubyn (L.M.) Vs Attorney General (No. 2),
(1951) 2 All ER 473;1952 AC 15 (HL)
3. Hunter Douglas Australia Pty. Vs Perma
Blinds, (1970) 44 Aust LJR 257

4. R. Vs Norfolk County Court, (1891) 60 LJ QB
379: 65 LT 22

5. Ferguson Vs Mcmillan, 1954 SLT 109

6. Mullins Vs Treasurer of Surrey, (1880) LR 5
QBD 170 at p. 173 (DC)

7. Prem Chand Vs Sunil Kumar & ors., 1990
AWC 593 All

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Rajesh Yadav, learned
counsel for the appellant.

2. The present first appeal filed under
Section 384(1) of the Succession act, 1925,
is directed against the judgment and order
dated 05.01.2023 passed by the Civil Judge
(Senior Division), Bhadohi Gyanpur in
Succession Case No. 81 of 2020 (Monika
Yadav Vs. Akash and Others), whereby the
Application (Paper 4Ga) preferred under
Section 372 for obtaining the Succession
Certificate, has been rejected.

3. A question has arisen with regard
to the maintainability of the appeal in view
of the provisions contained in Section
388(2) of the Succession Act, 19251.

4. Counsel for the appellant has
drawn the attention of the Court to Section
384(1) of the Act to contend that an order
passed by the District Judge granting,
refusing or revoking the certificate under
Part X, which relates to Succession
Certificate, would be amenable to an appeal
before the High Court. It is contended that
the Civil Judge (Senior Division) while
passing the order on the application seeking
Succession Certificate, was acting as a
4 All. Smt. Monika Yadav Vs. Aakash Singh & Ors.
977
District Judge and accordingly the appeal
would lie before the High Court.

5. In order to appreciate the
controversy at hand, the provisions relating
to grant of Succession Certificates under
Part X of the Succession Act, would be
required to be adverted.

6. The jurisdiction to grant a
Succession Certificate and the manner of
making an application for the purpose, are
provided under Sections 371 and 372 of the
Act, respectively, which are as follows:-

"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.

372. Application for certificate.-
-(1) Application for such a certificate shall
be made to the District Judge by a petition
signed and verified by or on behalf of the
applicant in the manner prescribed by the
Code of Civil Procedure, 1908, for the
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;

(b) the ordinary residence of the
deceased at the time of his death and, if
such residence was not within the local
limits of the jurisdiction of the Judge to
whom the application is made, then the
property of the deceased within those
limits;

(c) the family or other near
relatives
of
the
deceased
and
their
respective residences;

(d) the right in which the
petitioner claims;

(e)
the
absence
of
any
impediment under Section 370 or under
any other provision of this Act or any other
enactment, to the grant of the certificate or
to the validity thereof if it were granted;
and

(f) the debts and securities in
respect of which the certificate is applied
for.

(2) If the petition contains any
averment which the person verifying it
knows or believes to be false, or does not
believe to be true, that person shall be
deemed to have committed an offence
under Section 198 of the Indian Penal
Code.

(3)
Application
for
such
a
certificate may be made in respect of any
debt or debts due to the deceased creditor
or in respect of portions thereof."

7. The provision relating to an appeal
against an order granting, refusing or
revoking a certificate under Part X, is
provided under Section 384, which is being
reproduced below:-

"384. Appeal.-(1) Subject to
the other provisions of this Part, an appeal
shall lie to the High Court from an order of
a District Judge granting, refusing or
revoking a certificate under this Part, and
the High Court may, if it thinks fit, by its
order on the appeal, declare the person to
whom the certificate should be granted and
978 INDIAN LAW REPORTS ALLAHABAD SERIES
direct the District judge, on application
being
made
therefor,
to
grant
it
accordingly,
in
supersession
of
the
certificate, if any, already granted.

(2) An appeal under sub-section
(1) must be preferred within the time
allowed for an appeal under the Code of
Civil Procedure, 1908.

(3) Subject to the provisions of
sub-section (1) and to the provisions as to
reference to and revision by the High Court
and as to review of judgment of the Code
of Civil Procedure, 1908, as applied by
section 141 of that Code, an order of a
District Judge under this Part shall be
final."

8. It would also be appropriate to take
notice of the provisions contained in
Section 388, on the basis of which a
question
has
arisen
with
regard
to
maintainability of the appeal.

9. Section 388 of the Act reads as
follows:-

"388. Investiture of inferior
Courts with jurisdiction of District
Court for purpose of this Act.-(1) The
State Government may, by notification in
the Official Gazette, invest any Court
inferior in grade to a District Judge with
power to exercise the functions of a District
Judge under this Part.

(2) Any inferior Court so invested
shall, within the local limits of its jurisdiction,
have concurrent jurisdiction with the District
Judge in the exercise of all the powers
conferred by this Part upon the District Judge,
and the provisions of this Part relating to the
District Judge shall apply to such an inferior
Court as if it were a District Judge:

Provided that an appeal from any
such order of an inferior Court as is
mentioned in sub-section (1) of Section 384
shall lie to the District Judge, and not to the
High Court, and that the District Judge
may, if he thinks fit, by his order on the
appeal, make any such declaration and
direction as that sub-section authorises the
High Court to make by its order on an
appeal from an order of a District Judge.

(3) An order of a District Judge
on an appeal from an order of an inferior
Court under the last foregoing sub-section
shall, subject to the provisions as to
reference to and revision by the High Court
and as to review of judgment of the Code
of Civil Procedure, 1908, as applied by
section 141 of that Code, be final.

(4) The District Judge may
withdraw any proceedings under this Part
from an inferior Court, and may either
dispose of them or transfer them to another
such Court established within the local
limits of the jurisdiction of the District
Judge and having authority to dispose of
the proceedings.

(5) A notification under subsection (1) may specify any inferior Court
specially or any class of such Courts in any
local area.

(6) Any Civil Court which for
any of the purposes of any enactment is
subordinate to, or subject to the control of,
a District Judge shall, for the purposes of
this section, be deemed to be a Court
inferior in grade to a District Judge."

10. A plain reading of Section 388
would
indicate
that
it
provides
for
investiture
of
inferior
courts
with
jurisdiction of District Court for purposes
4 All. Smt. Monika Yadav Vs. Aakash Singh & Ors.
979
of the Act. Sub-section (1) provides that the
State Government may invest any Court
inferior in grade to a District Judge with
power to exercise the functions of a District
Judge under this Part.

11. The State Government, in exercise
of powers under sub-section (1) of Section
388 of the Act, issued a notification
investing all Civil Judges in the State with
power to exercise the functions of the
District Judge under Part X of the Act.

12.

The
aforesaid
Notification
published in the U.P. Gazette, dated March
19, 1955, reads as follows:-

Judicial Deptt. no. 4516(i)/VII900(8)-53, dated March 11, 1955] 33
[Published in the U.P. Gazette, dated
March 19, 1955, Part I, p. 341:

"In supersession of all previous
notifications on the subject, and in exercise
of the powers conferred by sub-section (1)
of Section 388 of the Indian Succession
Act, 1925 (Act XXXIX of 1925), the
Governor of Uttar Pradesh is pleased to
invest all Civil Judges in the State with
power to exercise the functions of a District
Judge under Part X of the said Act, within
the
local
limits
of
their
respective
jurisdiction as Civil Judges."

13. Section 371 under Part X of the
Succession Act, confers jurisdiction upon
the District Judge for grant of a Succession
Certificate, and against an order of the
District
Judge
granting,
refusing
or
revoking a certificate under Part X, a forum
for an appeal before the High Court is
provided under Section 384.

14. Section 388 of the Act provides
for investiture of inferior courts with
jurisdiction of District Court for the
purposes of the Act, and in terms thereof
the State Government may, by notification
in the official gazette invest any court
inferior in grade to a District Judge with
power to exercise the functions of a District
Judge under Part X.

15. The phrase 'as if it were' used in
sub-section (2) of Section 388 is of
considerable significance. It is a deeming
provision and creates a legal fiction.

16. The legal fiction created by a
deeming clause has been subject matter of
consideration in a number of judicial
precedents. In an oft-quoted passage from
East End Dwellings Co. Ltd. v. Finsbury
Borough Council2, Lord Asquith stated:-

"If you are bidden to treat an
imaginary state of affairs as real you must
surely, unless prohibited from doing so,
also imagine as real the consequence and
incidents which, if the putative state of
affairs had, in fact, existed must inevitably
have flowed from or accompanied it. ... The
statute states that you must imagine a
certain state of affairs, it does not say that
having done so, you must cause or permit
your imagination to boggle when it comes
to the inevitable corollaries of that state of
affairs."

17 . Lord Radcliffe in St. Aubyn
(L.M.) v. Attorney-General (No. 2)3,
observed as follows:-

"The word ''deemed' is used a
great
deal
in
modern
legislation.
Sometimes it is used to impose for the
purposes
of
a
statute
an
artificial
construction of a word or phrase that would
not otherwise prevail. Sometimes it is used
to
put
beyond
doubt
a
particular
construction that might otherwise be
980 INDIAN LAW REPORTS ALLAHABAD SERIES
uncertain. Sometimes it is used to give a
comprehensive description that includes
what is obvious, what is uncertain and what
is, in the ordinary sense, impossible."

18. The use of the word "deemed" in
statutory definitions was explained by
Windener,
J.,
in
Hunter
Douglas
Australia Pty. v. Perma Blinds4, by
stating:-

"Deemed", as used in statutory
definitions "to extend the denotation of the
defined term to things it would not in
ordinary parlance denote, is often a
convenient devise for reducing the verbiage
of an enactment, but that does not mean
that wherever it is used it has that effect; to
deem means simply to judge or reach a
conclusion about something, and the words
''deem' and ''deemed' when used in a statute
thus simply state the effect or meaning
which some matter or thing has -- the way
in which it is to be adjudged; this need not
import artificiality or fiction; it may simply
be the statement of an undisputable
conclusion."

19. Cave, J. in R. v. Norfolk County
Court5, has explained the term "deemed"
in the following manner:-

"When a thing is to be "deemed"
something else, it is to be treated as that
something
else
with
the
attendant
consequences, but it is not that something
else"

20. The use of the word "deemed" in
a definition clause has been explained by
Lord President Cooper in Ferguson v.
Mcmillan6, by stating:-

"When a statute gives a definition
and then adds that certain things shall be
''deemed' to be covered by the definition, it
matters not whether without that addition
the definition would have covered them or
not."

21. Having regard to the forgoing
discussion, the use of the deeming clause
under sub-section (2) of Section 388 would
mean that any inferior Court invested with
power to exercise the functions of a District
Judge under Part X shall, within the local
limits of its jurisdiction, have concurrent
jurisdiction with the District Judge in
exercise of all the powers conferred upon
the District Judge, and the provisions of
Part X relating to the District Judge shall
apply to such an inferior Court as if it were
a District Judge.

22. The proviso to sub section (2) of
Section 388, states in explicit terms that an
appeal from such order from inferior court
as mentioned in sub section (1) of Section
384, shall lie to the District Judge, and not
to the High Court.

23. In Craies on Statute of Law7,
referring to the rules regarding construction
of a proviso, it has been observed as
follows:-

"9.1. The effect of an excepting
or qualifying proviso, according to the
ordinary rules of construction, is to except
out of the preceding portion of the
enactment, or to qualify something enacted
therein, which but for the proviso would be
within it; and such a proviso cannot be
construed as enlarging the scope of an
enactment when it can be fairly and
properly construed without attributing to it
that effect."

24. Again, as has been pointed out by
Craies in the treatise on Statute Law:-
4 All. Smt. Monika Yadav Vs. Aakash Singh & Ors.
981

"The effect of an excepting or
qualifying
proviso,
according
to
the
ordinary rules of construction, is to except
out the preceding portion of the enactment,
or to qualify something enacted therein,
which but for the proviso would be within
it."

25. Odgers in Construction of
Deeds and Statutes8, while referring to the
scope
of
a
proviso,
mentioned
the
following ingredients:-

"p. 317. Provisos--These are
clauses of exception or qualification in an
Act, excepting something out of, or
qualifying something in, the enactment
which, but for the proviso, would be within
it.

p. 318. Though framed as a
proviso, such a clause may exceptionally
have the effect of a substantive enactment."

26. It was stated in Mullins v.
Treasurer of Surrey9 that when one finds
a proviso to a section the natural
presumption is that but for the proviso the
enacting part of the section would have
included the subject-matter of the proviso.

27. In "The Construction and
Interpretation
of
Law"
by
Henry
Campbell Black10, while considering the
manner of construction of provisos it has
been stated that the natural and appropriate
effect of a proviso to a statute, or to a
section thereof, is to restrain or qualify the
provisions immediately preceding it.

28. It is therefore seen that the
function of a proviso is to except and to
deal with a case which would otherwise
fall within the general language of the
main enactment and its effect is confined
to that case. It is a qualification of the
preceding enactment which is expressed in
terms too general to be quite accurate. As
a general rule, a proviso is added to an
enactment
to
qualify
or
create
an
exception to what is in the enactment and
ordinarily, a proviso is not interpreted as
stating a general rule.

29. The use of a proviso after subsection (2) of Section 388 of the Act has
the effect of qualifying or creating an
exception by providing that an appeal or
any order of an inferior court, as is
mentioned in sub-section (1) of Section
384, shall lie to the District Judge.

30. The legislative intent in providing
for an appeal before a District Judge in case
of an order passed by an inferior court upon
investiture of jurisdiction under sub-section
(1) of Section 388, is also clear from the
emphasis in the language of the proviso
where it states 'and not to the High
Court'.

31. A controversy of a similar nature
had arisen in the case of Prem Chand Vs.
Sunil Kumar and Others11, wherein a
Division Bench of this Court, upon noticing
that Section 384, which deals with the
forum where the appeal arising out of an
order passed under Part X of the
Succession Act, granting, refusing or
revoking a certificate would lie, is prefaced
with
the
words
'subject
to
other
provisions of this part'. This phraseology
used in the section, was interpreted to mean
that though in ordinary circumstances an
appeal
against
an
order
passed
in
proceedings under Chapter X would lie to
the High Court, but this would be subject to
the condition that there is no other
provision contrary to this or which may
provide otherwise.
982 INDIAN LAW REPORTS ALLAHABAD SERIES

32. It was noticed that Section 388
lays down somewhat a different provision
and in its terms where powers of a District
Judge are conferred upon an inferior court
by a notification of the State Government,
such court shall exercise the powers of the
District Judge so far as Part X of the Act is
concerned, and in such a case an appeal
instead of being filed before the High Court
would lie before the District Judge.

33. Section 388 thus creates a special
jurisdiction on a Court subordinate to the
District Judge through investiture of power.
Once such power is invested to a Court
inferior to the District Judge, under subsection (1), in that event by virtue of the
deeming clause under sub-section (2), such
Court would discharge the function of the
District Judge by reason of such investiture,
and have concurrent jurisdiction in exercise
of all the powers conferred by Part X upon
the District Judge. The proviso to subsection (2) creates an exception by
providing that an appeal from any order of
an inferior court falling within the scope of
Section 384 would in such circumstance,
lie to the District Judge and 'not to the High
Court'.

34. In the case at hand, the order
having been passed by the Civil Judge
(Senior Division) having been invested
with the power to exercise the function of a
District Judge under Part X, the proviso to
sub-section (2) of Section 388 would be
attracted and an appeal from the order
passed
by
the
Civil
Judge
(Senior
Division), which is the inferior Court,
would lie to the District Judge, and not to
the High Court.

35 . The appeal, which has been
preferred, would therefore not lie before the
High Court.

36. Counsel for the appellant, at this
stage, submits that he may be permitted to
withdraw the appeal with liberty to
approach the appropriate forum i.e. the
District Judge concerned.

37.
The
appeal
is
accordingly
permitted to be withdrawn with the liberty
as prayed.

38. Office to return the certified
copies of the orders to the counsel for the
appellant after retaining photo copies of the
same.
----------
(2024) 4 ILRA 982
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.04.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 425 of 2014

Sri Thakur Sanatan Ram Yugal Sarkar
Virajman Mandir Faizabad ...Appellant
Versus
Kusam Dasi Chelin Sri Lalita Das
 ...Respondents

Counsel for the Appellant:
Sri R.D. Shahi

Counsel for the Respondents:
Sri Prem Shanker Shukla

Civil Law - Indian Succession Act, 1925 -
Section 63 - Indian Evidence Act, 1872 -
Sections 69, 70 - Against dismissal of suit
for declaration of title and possession -
Counsel for plaintiff-appellants submitted
that suit for permanent injunction was
based on registered Will deed dated
26.09.1969 executed by Ram Rati Dasi in
favour of Janki Dasi, which stood duly
proved u/s 69 and 70 of Indian Evidence
Act, execution being admitted by D.W.1