TMI Blog2000 (4) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... g with Ramakrishna Pillai and the said deceased Thankappan Pillai were the children of one Parameshwaran Pillai and Karthiyayani Amma. Since the deceased Thankappan Pillai had no other legal heir to succeed his estates, he is entitled to be declared as a legal heir to the estates of the said deceased. Defendants-appellants contested the said case. They pleaded that plain-tiff was only their uterine brother and thus was not entitled to succeed as legal heir. In fact, they are in possession of the suit property which could not be disturbed except by any legal heir. Both, the suits and the said proceeding under the Indian Succession Act were tried together and decided by a cornmon judgment by the trial court. The trial court held, there was no evidence to show that the marriage between Karthiyayani Amma and Parameshwaran Pillai had been dissolved. The presumption is that Thankappan Pillai was born to Karthiyayani Amma and Parameswaran Pillai. The plaintiff being the real brother of the deceased Thankappan Pillai is entitled to inherit his property. Thus the trial court decreed the suit declaring the plaintiff as a sole heir and also allowed the said application O.P. No. 33 of 74 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer any appeal against the order passed by the first appellate court in the connected proceeding arising out of the proceedings for the grant of Succession Certificate, the said decision becomes final and it would operate as res judicata to the pendmg proceedings in the second appeal arising out of the suit. The leamed counsel for the respondents also placed strong reliance on Explanation VII to Section 11 of C.P.C. which is quoted hereunder : Explanation VIII - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as nes judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Submission thus is even the court deciding the question of grant of Successing Certificate, may have limited jurisdiction and also may not have jurisdiction to decide the regular suit for partition, yet issues decided therein would fall within the ambit of res judicata in view of the Explanation VIII. Within the said parameter now we proceed to examine the question raised in this appeal. The principi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferring later, the effect of various provisions of the Indian Succession Act on this question, but suffice it to say that this decision renders no help to the respondent, as in our case there was no issue, in the earlier proceeding, whether uterine brother would be entitled to inherit the estate of the deceased in the proceeding under Section 372 of the Indian Succession Act, which is the foundations of challenge by the appellant to the claim of the plaintiff as the legal heir of the deceased. Even for applying this decision it bas to be shown that the claim of the plaintiff to inherit the question property in the suit was raised through such an issue in earlier proceeding i.e. in Succession Certificate proceedings. No such issue could be pointed by the leamed counsel for the respondent. As this Court bas held in the case of Pawan Kumar Gupta (supra), it is only the decision on an issue and not mere finding on any incidental question to reach such decision, which operates as nes judicata. So, even if there be any finding regarding any relationship for grant of such certificate in the absence of any issue it would be of no help to the plaintiff Next we proceed to examine the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res judicata be made applicable to a case in a subsequent suit? The effect of such certificate is also laid down in Section 381 which is quoted hereunder : Section 381 : Effect of certificate : Subject to the provisions of this Part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, notwithstand-ing any contravention of Section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. (Emphasis supplied) So, this certificate merely affords full indemnity to the debtor for the payments he makes to the person holding such certificate. Thus when the debtor pays the debts or the securities as specified in the certificate, to the holder of such certificate, then on such payment, he is absolved from his obligation to pay to any one else as it conclusively concludes his part of his obligation and such payment is construed to be in good faith. This safeguards suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt. Thus any adjudication made under Part X of this Act which includes Section 373 does not bar the same question being raised between the same parties in any subsequent suit or proceeding. This provision takes the decisions under Part X of the Act outside the perview of Explanation VIII to Section 11. This gives proiective umbrei l a to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceedinggs. No doubt Explanation VIII to Section 11 enlarges the filed of res judicata, by including in its field the decisions on the issue, between the same parties even by a court of limit jurisdiction even though such court may not have the competence of deciding such an issue in a suit. But as we have held above this grant of certificate would not fall within the field of Explanation VIII of Section U. As far back as in 1937, this principle was upheld and recognised. In Mt. Charjo and Anr. v. Dina Nath and Ors., AIR (1937) Lahore 196(2). The enquiry in proceedings for grant of succession certificate is to be summary, and the Court, without determining questions of law or fact, which seem to it to be too intricate and difficult for determina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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