2025:JHHC:10063 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No. 403 of 2019 Ankita Devi, wife of late Rishav Sagar @ Manish Kumar about 32 years, resident of care of Birendra Prasad, Girls School Road, Near B.S. Light Gali, P.O. and P.S. Jugsalai, Jamshedpur, Distrit-East Singhbhum ……… Appellant VERSUS 1. Ritu Kumari, daughter of late Ashok Kumar wife of Shri Vinay Kumar, resident of Qr. No. 3/2/1, Main Road, Adityapur, P.O. and P.S. Adityapur-1, District Seraikella Kharsawan, present address SP Kothi, Abadganj, Near Surya Clinic, P.O. and P.S. Daltonganj, District- Palamau 2. Bobby Devi, daughter of late Ashok Kumar, wife of Rabindra Ram, Resident of village Chilho, P.O. Kaji-Pakri, P.S. Tarhasi, District- Palamau 3. Nitu Kumari @ Nitu Mahato @ Pragya Kumari, daughter of late Ashok Kumar, wife of Munna Kumar Mahato, resident of Nigha Colliery, Punjabi Centre, Staff Club, P.O. and P.S. Nigha, Burdwan (Asansol) West Bengal 4. Anjali Kumari @ Anjali Singh @ Durga Kumari daughter of late Ashok Kumar, wife of Basant Kumar resident of Bhatiya Basti, Mandri Path, Holding No. 35/13, P.O. and P.S. Kadma, Jamshedpur, District-East Singhbhum 5. Somya Shally, daughter of late Ruby Kumari (Minor) represented through her father Shri Vinay Kumar, resident of S.P. Kothi Road, Abadganj, P.O. and P.S. Daltonganj District-Palamau .…… Respondents CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Appellant : Mr. Chandrajit Mukherjee, Advocate For the Respondents : Mr. Atanu Banerjee, Advocate ………. 24/Dated: 02/04/2025 Heard Mr. Chandrajit Mukherjee, learned counsel for the appellant and Mr. Atanu Banerjee, learned counsel for the respondents. 2. This appeal has been preferred against the order dated 18.11.2017 passed in Succession Certificate Case No. 02 of 2015 by learned Principal District Judge, Seraikella-Kharsawan wherein succession certificate vide order dated 09.03.2018 has been granted in favour of the respondent no.1 3. Mr. Chandrajit Mukherjee, learned counsel for the appellant submits that said Succession Certificate Case No. 02 of 2015 was instituted for grant of succession in favour of the respondents. He submits that the said 2025:JHHC:10063 2 Succession Certificate Case No. 02 of 2015 has been allowed by impugned order dated 18.11.2017 and succession has been granted on 09.03.2018 in favour of respondent no.1. He then submits that the appellant is widow daughter in law of late Ashok Kumar who was posted as a driver of Jeep in the office of Dy. Director, (Scientist) Quality Check Division, Dam Side Dhurwa, Ranchi. He then submits that the respondent nos. 1 to 4 are all married daughters of late Ashok Kumar while respondent no.5 is a minor girl who is the grand daughter of late Ashok Kumar. He also submits that the mother of the respondent no.5 late Rubi Kumari was daughter of late Ashok Kumar and having being deceased was represented by her minor daughter. He further submits that the appellant was married to late Rishav Sagar @ Manish Kumar who was the son of late Ashok Kumar and he had pre deceased his father and died on 29.08.2011 leaving behind the sole appellant herein. He submits that late Ashok Kumar died on 23.05.2013 and his wife late Kusum Devi also pre deceased him and had died on 29.10.2012 and in view of that the appellant being the widow of son of late Ashok Kumar was the heir in the light of Act as also the respondents who are the married daughters and respondent no. 5 being the minor child of the deceased married daughter of late Ashok Kumar. He then submits that initially the said order was challenged in F.A. No. 231 of 2018 however as it was not maintainable, permission was accorded to convert the same into under Section 384 of the Indian Succession Act and pursuant to that it has been converted in the form of miscellaneous appeal under Section 384 of the Indian Succession Act. 4. He submits that in absence of proper notice upon the appellant the learned court has passed the impugned order in view of that the appellant was not heard as such opportunity is required to be provided. He submits that notice in the said succession certificate case has never been received by her as the address of the appellant was not properly disclosed in the said succession certificate case. He submits that in the succession case address of appellant is 2025:JHHC:10063 3 disclosed as Ankita Devi wife of late Rishav Sagar @ Manish Kumar aged about 32 years, resident of Jugsalai, P.O. and P.S. Jugsalai, Jamshedpur, District-East Singhbhum and on that address notice has been issued and in view of that the proper address of the appellant was Ankita Devi wife of late Rishav Sagar @ Manish Kumar, aged about 32 years, resident of care of Birendra Prasad, Girls School Road, Near B.S. Light Gali, P.O. and P.S. Jugsalai, Jamshedpur, District-East Singhbhum. He submits that the husband of the appellant has already left for his heavenly abode in place of that wife and daughter is required to be disclosed and proper address has not been made and only P.O. and P.S. Jugsalai has been disclosed in view of that notice has not been effected. According to him even paper publication was made without holding due process and in view of that impugned order may kindly be set aside. 5. On the other hand, Mr. Atanu Banerjee learned counsel for the respondents vehemently opposes the prayer and submits that proper opportunity was provided and thereafter the learned court has passed the said order. He submits that the appellant was made respondent in the Succession Certificate Case and by order dated 07.07.2015 it has been found that notice upon O.P. Nos. 1, 2 and 4 has not been served. In order dated 05.03.2016 it has been disclosed that address of the O.P. No. 5 is said to be insufficient. Further notice was directed to be issued by order dated 30.03.2016 and further notice has been issued on 02.04.2016 by order dated 02.04.2016 and it has been recorded in the order dated 03.05.2016 that S/R has not been received and thereafter the matter has been posted on 02.06.2016. He submits that in the said order dated 02.06.2016 it has been disclosed that S/R of O.P. No. 5 has been received and thereafter the learned court has been pleased to pass order of paper publication compliance and in view of that there is sufficient compliance of notice upon the appellant as such this Court may not interfere with the impugned order. He made objection that if ex parte order was there the appellant was required to invoke Order 9, Rule 13 2025:JHHC:10063 4 of C.P.C. which is provision of recall of ex parte order and this miscellaneous appeal filed under Section 384 of Indian Succession Act and the spirit of Section 384 of the said Act is otherwise. On these grounds, he submits that this appeal is fit to be rejected. He further submits that on merit also the learned court has rightly dealt with case. 6. It is an admitted position that the appellant hereinabove is daughter- in-law of late Ashok Kumar. The respondent nos. 1 to 4 are daughters of late Ashok Kumar and respondent no. 5 is minor grand daughter who is represented by her father Shri Vinay Kumar. In the Succession Case address of the appellant is disclosed as Anikita Devi, wife of late Rishav Sagar @ Manish Kumar, aged about 32 years, resident of Jugsalai, P.O. and P.S. Jugsalai, Jamshedpur, District-East Singhbhum, Jharkhand prior to that the husband of the appellant has left for his heavenly abode and it has been pointed out that appellant herein is residing along with her parents at Girls School Road, Near B.S. Light Gali, P.O. and P.S. Jugsalai, Jamshedpur, District-East Singhbhum wherein the Succession Certificate Case only P.O. and P.S. is disclosed. Thus, it is crystal clear that correct address was not disclosed in the Succession Certificate Case on which notice was issued. The husband of the appellant has already left for his heavenly abode and in place of daughter of wife has been disclosed. In order dated 07.07.2015 it is recorded that S/R of O.P. Nos. 1, 2, 4 and 5 has not been received. In order dated 05.03.2016 it is disclosed that notice upon O.P. No.5. is insufficient who is appellant. Further notice has been issued on 30.03.2016 and 02.04.2016 notice was further directed to be issued on proper verification. Order dated 03.05.2016 further suggests that S/R is not received of the O.P. No.5 who is appellant. In view of that it is crystal clear that notice has not been effected upon the appellant. It has been vehemently argued by the learned counsel for the respondents that S/R has been received that is disclosed in the margin of order dated 03.05.2016 and thereafter paper publication has been made. It is not in the margin of order dated 03.05.2016 that 2025:JHHC:10063 5 S/R has been received by way of service of notice. There is nothing on record to suggest that notice has been served or not. 7. In all the above orders, there is no whisper regarding the satisfaction of the learned trial court about non service of notice of the appellant that she is avoiding service, despite repeated efforts by the Court. Before dealing with application under Order 5 Rule 20 C.P.C. it was duty of the learned trial court to record its satisfaction that the appellant was avoiding the service of notice. The trial court did not bother to record the statement of process server who had taken the summons for service on the appellant at her address shown in the plaint. 8. It was pointed out that the appellant’s correct address was not disclosed even the learned trial court has not framed issues with regard to the service of notice of the appellant in a case of succession and the appellant having being the daughter- in -law of the deceased late Ashok Kumar is coming as first class legal heir under Hindu Succession Act. 9. The Hon’ble Supreme Court in the case of “Smt. Yallawwa V. Smt. Shantavva, reported in AIR 1997 SC 35 held that the Trial Court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order 5 Rules 12, 15 and 17 of the C.P.C. It must be kept in view that substituted service has to be restored as the last resort when the defendant cannot be served in the ordinary way and the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. Evidence has also not been led on the issue of service of notice. 10. For the aforesaid reasons, the Court finds that appellant was not served with notice. 11. So far argument of the learned counsel for the respondents with 2025:JHHC:10063 6 regard to Order 9 Rule 13 CPC is concerned, that is not in dispute. However on wrong advice the appellant has filed First Appeal which was registered as F.A. No. 231 of 2018 and being found that it is not maintainable, it was converted into under Section 384 of Indian Succession Act in the form of miscellaneous appeal. 12. It is well settled that only because a wrong provision of law has been invoked, the right of any person cannot be curtailed. As such the argument of the learned counsel for the respondents with regard to Order 9 Rule 13 CPC is not accepted by this Court. As such order dated 18.11.2017 passed in Succession Certificate Case No. 02/2015 is hereby set aside. 13. The matter is remitted back to the learned court to pass order afresh in accordance with law and on merit. The appellant and respondent nos. 1 to 5 will appear before the learned court on 22.04.2025 at 10.30 A.M. and the appellant and respondents will not take plea before the learned court that they were not knowing about the date as the date has been fixed by this Court on 22.04.2025 for appearance of both sides. 14. Both the parties will take endeavour for early disposal of the said case. Unnecessary adjournment will not be taken by either side. The learned court will decide the same in accordance with law. 15. This appeal is allowed in above terms and disposed of. Pending I.A, if any, stands disposed of. 16. Let Trial Court Record be sent to the concerned court forthwith. ( Sanjay Kumar Dwivedi, J.) Satyarthi/A.F.R.