JOSEPH EASWARAN WAPSHARE & ORS.versusSHIRLEY KATHELEEN WHEELER

732               SUPREME [2019]
                          COURT2 REPORTS
                                 S.C.R. 732               [2019] 2 S.C.R.


A                  JOSEPH EASWARAN WAPSHARE & ORS.
                                         v.
                       SHIRLEY KATHELEEN WHEELER
                          (Civil Appeal No. 2284 of 2019)
                               FEBRUARY 26, 2019
B
                 [R. F. NARIMAN AND VINEET SARAN, JJ.]
              Succession Act, 1925:
              ss. 372, 383, 33(a) and 25 – Revocation of Succession
      Certificate granted u/s. 372 in favour of appellant No.1 – Respondent
      filed application u/s. 383 seeking revocation of the Succession
C     Certificate – Sub-Judge held that the respondent being the outsidser
      for the family could not maintain the application for revocation;
      and that since the previous proceedings for probate of Will initiated
      by the mother of the respondent had abated, the application for
      revocation was barred by res judicata – High Court, in revision set
D     aside the finding as regards res judicata and remanded the matter to
      Sub-Judge to decide the matter afresh – On appeal, held: Succession
      Certificate can be revoked only for the reasons set out in Section
      383 – The reasons mentioned in s. 383 is not satisfied in the present
      case – Respondent is neither a family member nor a lineal
      descendant – Revocation of Succession Certificate was rightly
E     refused by Sub-Judge – Though the High Court was right in its
      finding on res judicata but the High Court should have decided the
      case on the other grounds instead of remanding the case.
              Allowing the appeal, the Court
              HELD : 1. Under Section 383 of Succession Act, 1925, the
F     Certificate granted u/s. 372 could only be revoked for the reasons
      set out in Section 383. Revocation cannot be granted unless any
      one of sub-sections (a) to (e) of Section 383 is satisfied, which is
      not the case on facts in the present appeal. It is clear therefore,
      that on this ground alone, the Sub-Judge was justified in refusing
G     to revoke the Succession Certificate so granted. Even otherwise,
      it is clear that the respondent has nothing whatsoever to do with
      the Wapshare family which is clear from her averment in her
      Section 383 application. [Para 9][737-G-H]


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                                      732
    JOSEPH EASWARAN WAPSHARE & ORS. v. SHIRLEY                             733
               KATHELEEN WHEELER

       2. Section 33(a) makes it clear that the intestate’s property       A
goes only to his widow and his lineal descendants. Since father of
appellant No. 1 died intestate, the Will set up in the application
for probate having abated, the appellant is the only living lineal
descendant, together with his two sons. This would make it clear
that, in any event, the respondent would have no interest
                                                                           B
whatsoever either as a member of the family or as a lineal
descendant in setting aside the Succession Certificate so granted
as she is neither a family member nor a lineal descendant. [Para
10][738-C-D]
       3. Though the High Court was correct in setting aside the
Sub-Judge’s order on its finding on res judicata, but that was not         C
the end of the matter. The High Court ought to have gone into
the other two grounds, which found favour with the sub-Judge,
which it did not do. [Para 10][738-E]
       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2284
of 2019                                                                    D
       From the Judgment and Order dated 23.03.2015 of the High Court
of Judicature at Madras in C.R.P. (NPD) No. 1261 of 2006
       R. Anand Padmanabhan, Romil Pathak, Prawal Chaturvedi,
Ms. Nishaka Tyagi, Aravind C. and Shashi Bhushan Kumar, Advs for
the appearing parties.                                                     E
       The Judgment of the Court was delivered by
       R. F. NARIMAN, J.
       1) Nobody appears for the respondent, even though service is
complete.
       2) Leave granted.                                                   F
       3) The present appeal arises out of a proceeding to revoke a
Succession Certificate that was granted in favour of the appellant on
16.03.2005.
       4) The appellant No.1 is the son of one Gorden Wapshare. Gorden
Wapshare had a brother called Edward Wapshare, who married one             G
Beatrice. Apparently, this marriage was fruitless as there was no issues
therefrom. He also had two sisters, one of whom Miss Dorthy Wapshare
was unmarried, who is since dead; and the other Miss Violet Wapshare,
who was married and has a daughter called Ellen Mary Jackson. Gorden
Wapshare was himself married and had two sons - one of whom is the
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734                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A     appellant No.1, and the other son called Robert Babu Wapshare, who is
      dead. The appellant No.1, in turn, is married and has two sons. The
      respondent before us Ms. Shirley Katheleen Wheeler is said to be the
      daughter of Beatrice, who, as stated herein above, was the wife of Edward
      Wapshare.
B            5) Gorden Wapshare died on 18.01.1991. As a result, a petition
      was preferred under Section 372 of the Indian Succession Act, 1925
      being O.P. No. 17 of 2005 before the Court of Civil Judge, Nilgiris,
      which petition was allowed and Succession Certificate dated 16.03.2005
      granted to the appellant. The respondent, in an application filed under
      Section 383 of the Act dated 28.03.2005, applied to revoke the Succession
C     Certificate so granted. In this application, a counter affidavit was filed
      in which it was clearly stated that the respondent was an outsider to the
      Wapshare family as she was the daughter of Beatrice and born to a
      second husband and not Edward Wapshare, who was the brother of
      Gorden Wapshare, as stated hereinabove.
D            6) An application for probate of the will of Gorden Wapshare was
      moved by Beatrice in 1993, being O.P. No. 55 of 1993. Beatrice died on
      29.01.1999. It may be mentioned that this application was dismissed for
      non-prosecution. At no point of time did the respondent ever apply as
      legal heir of Beatrice to be substituted therein.
E            7) By an order dated 10.04.2006, the Sub-Court, Nilgiris, held that
      the respondent, not being the daughter of Edward Wapshare, was an
      outsider who could not, therefore, maintain the application for revocation.
      The Sub-Court also decided that, in any case, since the previous
      proceeding had abated, the matter is res judicata between the parties.
      It then went on to decide:
F            “Since the petitioners in O.P. 17/05 are the direct heirs of then
             deceased G.O. Wapshare; neither Ms. Ellen Mary Jackson nor
             her step sister the present petitioner in this application did have
             any right to question the Succession Certificate obtained by the
             petitioners in O.P. 17/2005 dated 16.3.2005. The evidence adduced
G            on the side of the respondents in this application clearly proves
             that the deceased G.O. Wapshare during his life time has legally
             married one Valliammal and had given birth to a male child, who
             had been named Easwaran. The 1st respondent in this application
             and who in turn given a birth of 2nd and 3rd respondents in this
             application. Since, the 1st respondent in this application being the
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     JOSEPH EASWARAN WAPSHARE & ORS. v. SHIRLEY                                    735
         KATHELEEN WHEELER [R. F. NARIMAN, J.]

        son of G.O. Wapshare and the 2nd and 3rd respondents being the             A
        son of the 1st respondent in this application are the direct heirs of
        G.O. Wapshare who are alone entitled to inherit the immoveables
        as well as the moveables of deceased G.O. Wapshare is completely
        been established by the respondents in this application. In the
        absence of any testament left by G.O. Wapshare the property of
                                                                                   B
        G.O. Wapshare will naturally go to his son Joseph Easwaran
        Wapshare and his sons W.E. Prince Kumar and W.E. Praveen
        Kumar, only when the petitioner Mary Jackson able to prove that
        G.O. Wapshare left a will or other testament to inherit the properties
        left by G.D.Wapshare, claim of the petitioner in this petition will
        become mischievous as the petitioner in this application herself           C
        know that her step sister Ms. Ellen Mary Jackson’s claim in the
        previous suits O.S.No. 41/97, 42/97 and 86/96 were dismissed as
        abated.”
        8) A revision petition was filed against the said judgment. By the
impugned judgment dated 23.03.2015, the Madras High Court allowed                  D
the revision on only one point, namely, that the finding of the Sub-Judge
on res judicata was incorrect. However, it noticed the arguments made
by the petitioners’ counsel that, in any event, the revocation application
was not maintainable and, in any case, not being a direct lineal descendant
of Gorden Wapshare, the respondent could not, in any event, succeed to
the estate of Gorden Wapshare. The High Court therefore, set aside                 E
the order dated 10.04.2006 and remanded the matter to the Sub-Judge
to decide the matter afresh after hearing the parties.
        9) Mr. R. Anand Padmanabhan, learned counsel appearing on
behalf of the appellants, has painstakingly taken us through the record
and has referred to the various provisions of the Indian Succession Act.           F
It is necessary to first set out Section 372 of the said Act, under which
an application for a Succession Certificate has to be made. Section 372
reads as follows:
        “372. Application for certificate.- (1) Application for such a
        certificate shall be made to the District Judge by a petition signed
                                                                                   G
        and verified by or on behalf of the applicant in the manner
        prescribed by the Code of Civil Procedure, 1908 (5 of 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;
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736                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A           (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
B           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;
C           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
D
            section 198 of the Indian Penal Code, 1860 (45 of 1860).
            (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.”

E     Equally, if such certificate is to be revoked it can be so revoked if any of
      the grounds under Section 383 are made out. Section 383 of the Act is
      set out herein below:
             “383. Revocation of certificate.- A certificate granted under this
             Part may be revoked for any of the following causes, namely:-
F            (a) that the proceedings to obtain the certificate were defective in
             substance;
             (b) that the certificate was obtained fraudulently by the making of
             a false suggestion, or by the concealment from the Court of
             something material to the case;
G            (c) that the certificate was obtained by means of an untrue
             allegation of a fact essential in point of law to justify the grant
             thereof, though such allegation was made in ignorance or
             inadvertently;
             (d) that the certificate has become useless and inoperative through
H            circumstances;
     JOSEPH EASWARAN WAPSHARE & ORS. v. SHIRLEY                                  737
         KATHELEEN WHEELER [R. F. NARIMAN, J.]

        (e) that a decree or order made by a competent Court in a suit or        A
        other proceeding with respect to effects comprising debts or
        securities specified in the certificate renders it proper that the
        certificate should be revoked.”
At this juncture, it is important to set out Section 33 (a) which reads as
follows:                                                                         B
        “33.(a) if he has also left any lineal descendants, one-thirds of his
        property shall belong to his widow, and the remaining two-thirds
        shall go to his lineal descendants, according to the rules hereinafter
        contained;”
The expression “lineal descendant” has reference to Section 25 of the            C
Act which is set out herein below:
        “25. Lineal Consanguinity.- (1) Lineal consanguinity is that which
        subsists between two persons, one of whom is descended in a
        direct line from the other, as between a man and his father,
        grandfather and great-grandfather, and so upwards in the direct
        ascending line, or between a man and his son, grandson, great-           D
        grandson and so downwards in direct descending line.
        (2) Every generation constitutes a degree, either ascending or
        descending.
        (3) A person’s father is related to him in the first degree, and so
        likewise is his son; his grandfather and grandson in the second          E
        degree; his great-grandfather and great-grandson in the third
        degree, and so on.”
        A reading of the aforesaid provisions of the Succession Act make
it clear that a Succession Certificate can be granted in an application in
which necessary particulars are set out as mentioned in Section 372.             F
There is no dispute that the application made by the appellant set out the
aforesaid particulars. Under Section 383, the Certificate so granted
could only be revoked for the reasons set out in the said Section. It will
be noticed that revocation cannot be granted unless anyone of sub-sections
(a) to (e) of Section 383 is satisfied, which is not the case on facts in this
                                                                                 G
appeal. It is clear therefore, that on this ground alone, the learned Sub-
Judge was justified in refusing to revoke the Succession Certificate so
granted. Even otherwise, it is clear that the respondent has nothing
whatsoever to do with the Wapshare family. This becomes clear from
her averment in her Section 383 application in which, in para 1, she
stated:                                                                          H
738                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A             “1. The Petitioner is Mrs. Shirley Katheleen Wheeler w/o late
              Mr. A.J. Wheeler and Daughter of Late Mrs. Beatrice Wapshare,
              Christian aged about 68 years, a British Citizen and permanent
              resident at 43, Cuttons Corner, Hemblinton, Norfolk-NR 134 PS,
              England, United Kingdom, and presently at Compton Estate,
              Naduvattam Post, Udhagamandalam in the District of Nilgiris.”
B
              10) It will be noticed that the respondent describes herself as the
      wife of the late A.J.Wheeler and daughter only of the late Beatrice
      Wapshare. Edward Wapshare’s name is conspicuous by its absence,
      making it clear that she was, by no means, a lineal descendant of Edward
      Wapshare and therefore, had nothing whatsoever to do with the
C     Wapshare family. Apart from this, since Gorden Wapshare died intestate,
      the will being set up in the application for probate having abated, Section
      33(a) makes it clear that the intestate’s property goes only to his widow
      and his lineal descendants. The appellant is today the only living lineal
      descendant, together with his two sons, of Gorden Wapshare. This would
D     again make it clear that, in any event, the respondent would have no
      interest whatsoever either as a member of the Wapshare family or as a
      lineal descendant in setting aside the Succession Certificate so granted
      as she is neither a family member nor a lineal descendant as has been
      held herein above. It may only be added that the High Court was correct
      in setting aside the Sub-Judge’s order on his finding on res judicata, but
E     that was not the end of the matter. The High Court ought to have gone
      into the other two grounds, which found favour with the sub-Judge, which
      it did not do.
              11) This being the case, we set aside the judgment of the High
      Court and restore that of the learned Sub-Judge.
F             12) Accordingly, the appeal is allowed.

      Kalpana K. Tripathy                                          Appeal allowed.




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