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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2284  OF 2019 (Arising out of Special Leave Petition (C) No. 22394/2016)

JOSEPH EASWARAN WAPSHARE & ORS. Appellant(s)

VERSUS

SHIRLEY KATHELEEN WHEELER                        Respondent(s)

J U D G M E N T

   R.F. Nariman, J.

1) Nobody appears for the respondent, even though service is

complete.

2) Leave granted.

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 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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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.

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 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.

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.

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

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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:

“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 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 son of G.O. Wapshare and the 2nd and 3rd

respondents being the 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 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

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mischievous as the petitioner in this application

herself 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 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  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.   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 and

verified by or on behalf of the applicant in the

manner prescribed by the Code of Civil Procedure,

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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;

(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, 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.”  

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

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granted under this Part may be revoked for any of

the following causes, namely:-

(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;

(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 circumstances;

(e) that a decree or order made by a competent

Court in a suit or 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:

“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 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,

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grandfather and great-grandfather, and so upwards

in the direct ascending line, or between a man and

his son, grandson, great-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 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.   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 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:

“1.  The  Petitioner  is  Mrs.  Shirley  Katheleen

Wheeler w/o late Mr. A.J. Wheeler and Daughter of

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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.”

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 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 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 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.  

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11) This being the case, we set aside the judgment of the

High Court and restore that of the learned Sub-Judge.

   12) Accordingly, the appeal is allowed.  

  .......................... J.    (ROHINTON FALI NARIMAN)

  .......................... J.              (VINEET SARAN)

New Delhi; February 26, 2019.