UMA DEVI NAMBIAR AND ORS. versus T.C. SIDHAN (DEAD)

Citation: [2003] SUPP. 6 S.C.R. 637 · Decided: 11-12-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed

Judgment (excerpt)

UMA DEVI NAMBIAR AND ORS. 
A 
v. 
T.C. SIDHAN (DEAD) 
DECEMBER 11, 2003 
B 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
Indian Succession Act, 1925-Sections 192, 193, 194 and 195-
Proceedings under-Nature of-Held, summary proceedings-Order in-
terlocut01y in nature-Person aggrieved by order can file suit to .claim 
possession on the bas's of title-'R' opposing application of 'A ' for C 
possession on basis of a will-Court examining the genuineness of the will 
in a detailed and conclusive manner-Held, such examination beyond the 
scope of summary proceedings. 
Code of Civil Procedure-Section 115-Revision-Discretionary D 
jurisdiction-Exercise of-He?d, discretion should be exercised according 
to rules of law and not as per whim or caprice of the Judge-District Judge 
examining the genuineness of a will in summary proceedings in a detailed 
and conclusive manner"-Revision against the order dismissed by High 
Court citing discretion-Held, discretion not properly exercised-Words E 
and Phrases-Discretion. 
Words and Phrases-'Will', 'discretion' Meaning of 
'S' had two daughters, the appellant and the wife of the respond- F 
ent. After the death of 'S\ the ancestral house devolved upon his two 
d~ughters. Wife of the respondent died without any issue. The appel-
lant initiated proceedings under Sections 192 to 195 (Part VII) of the 
Indian Succession Act, 1925, for possession of the ancestral house 
claiming that the r~spondent had taken illegal possession thereof 
though, after the death of her sister,-she had become exclusive owner G 
thereof. The respondent claimed that his wife had executed a Will, 
whereby the ancestral house was bequeathed to him, and he had 
become entitled to half share therein. 
The District Judge examined the genuineness and the validity of H 
637 
638 
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R. 
A the Will in detail and held that the Will had been proved by the 
respondent. The District Judge ordered that the possession of the house 
should be handed over to the respondent. The appellant filed revision 
petition before the High Court, which was dismissed by the High 
Court. The High Court while dismissing the revision petition relied 
B upon its discretionary Jurisdiction under Section 115 of the Code of 
Civil Procedure. 
The appellant filed appeal by way of special leave petition before 
the Court. The appellant argued, inter alia, that the proceedings under 
Section 192 of the Indian Succession Act, 1925 are summary in nature 
C and that the genuineness of the Will could not have been gone into by 
the District Judge under such proceedings. The responde.nt argued, 
inter alia, that for adjudicating claim under Section 192 of the Indian 
Succession Act, 1925, the prima facie view on the question of title has 
to be rendered and therefore, scrutiny of the Will by the District Judge 
D was not illegal. The respondent also argued that the High Court has 
passed the impugned order in exercise of its discretionary jurisdiction 
and therefore, it should not ·be interfered with. 
E 
Allowing the appeal, the Court 
HELD : 1.1. Sections 192, 193, 194 and 195 of the Indian 
Succession Act, 1925 deal with the modalities to be adopted for 
protection of properties of the deceased. These proceedings are essen-
tially interlocutory in character and necessarily summary depending 
upon the filing of an application for relief seeking the Court to 
F determine who has a right to possession pending the final determina-
tion of the rights of the parties in a regular suit. (654-E-F) 
G 
Biso Ram v. Emperor, 66 Ind. Cases 76, referred to. 
Clarence Pais and Ors. v. Union of India, (2001) 4 SCC 325, cited. 
1.2. The Court before taking any steps in the matter under Section 
194 of the Indian Succession Act, 1925 is required to be satisfied of the 
existence of the ground that the person in possession has no lawful title 
and that the person applying is likely to be materially prejudiced it left 
H to the ordinary remedy of a regular suit. An order under Section 194 
I 
I I 
j ; 
U.D. NAMBIAR v. T.C. SIDHAN 
639 
1s m nature of summary decision and can only be passed in the A 
conditions embodied in Section 193 of the Indian Succession Act, 1925 
are fulfilled. (654-H; 655-A-B) 
1.3. The effect of a summary decision even in an extreme case is not 
a bar to a regular suit. A person aggrieved by an order passed in a B 
summary proceeding under Part VII of the Indian Succession Act, 1925 
is required to seek remedy by

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