Succession Act 1925 | Appeal Against Civil Judge Order Denying Succession Certificate Lies Before District Judge Not HC: Allahabad High Court

The Allahabad High Court has held that an appeal against the order of a Civil Judge rejecting a plea for the issuance of a succession certificate would lie before the District Judge under Section 388(2) of the Indian Succession Act, 1925, and not before the High Court under Section 384 of the Act.

The Court held that the legislative intent was to provide for an appellate mechanism before a District Judge, and 'not to the High Court.'

A single bench of Justice Dr. Yogendra Kumar Srivastava held:

“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 sub­section (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'.” 

The petitioner filed an appeal under Section 384(1) (Appeals) of the Succession Act, 1925 against a judgment and order passed by the Civil Judge (Senior Division), Bhadohi Gyanpur whereby his application under Section 372 for obtaining a Succession Certificate was rejected.

Counsel for the appellant contended that an appeal from the order of the District Judge granting, refusing or revoking the succession certificate would lie before the High Court under Section 384(1) of the 1925 Act. Since the Senior Civil Judge was invested with the powers of the District Judge, he was acting in the capacity of District Judge while passing the order, it was submitted.

The question before the Court was whether an appeal to the High Court would be maintainable in view of Section 388(2) of the Succession Act, 1925.

Section 388 of the Succession Act, 1925 lays down the investiture of inferior courts with the jurisdiction of the District Court for purposes of the Act of 1925. Section 388(2) provides that:

“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.”

The Court observed that the State Government, in the exercise of powers under Section 388(1) of the Act, had issued a notification dated 19^th March 1955 investing all Civil Judges in the State with the power to exercise the functions of the District Judge under Part X of the Act.

The Court held that the phrase “as if it were” in Section 388(2) of the Act created a deeming fiction whereby any inferior court which has been vested with powers of the District Judge under the Succession Act, shall act upon the powers vested upon the District Judge under Chapter X of the Act.

“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,” noted the Court.

Relying on various tools of statutory interpretation, the Court held

“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.”

The Court held that it was the intention of the legislature to vest jurisdiction of appeal with the District Judge for orders passed by inferior courts. It held:

“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 sub­section (1) of Section 384, shall lie to the District Judge.”

The Court further observed that in a similar case, Prem Chand Vs. Sunil Kumar and Others, the Allahabad High Court had observed that the appellate jurisdiction of the High Court was subject to the other provisions of the Act. Since Section 388 provided that appeals from inferior courts shall lie before the District Judge, it was held that the High Court did not have jurisdiction over such appeals.

Accordingly, the appeal was dismissed.

Case Title: Smt. Monika Yadav v. Aakash Singh And 3 Others [FIRST APPEAL DEFECTIVE No. ­ 366 of 2023]

Citation: 2023 LiveLaw (AB) 465

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