MISRA, J.

This appeal is directed against the High Court order dated 26-9-1989 in second appeal. The short question raised in this appeal is whether an order granting succession certificate under Section 373 of the Indian Succession Act, 1925 would operate as res judicata to the suit for partition filed in a civil court between the same parties

The short facts are : the appellants are the defendants in Suit No. 20 of 1974 which is filed by Respondent 1 Velu Pillai since deceased claiming to be the only legal heir as brother to the estates of one Kizhangumvilayil died intestate. The suit was for declaration, partition and recovery of possession of the plaint schedule properties. The said respondent also filed OP No. 33 of 1974 in the same Court for obtaining succession certificate for receiving money from Life Insurance Corporation. The plaintiffs case in the suit is that he along with Ramakrishna Pillai and the said deceased Thankappan Pillai were the children of one Parameswaran Pillai and Karthiyayani Amma

Since the deceased pan 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

The defendant-appellants contested the said case. They pleaded that plaintiff 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 proceedings under the Indian Succession Act were tried together and decided by a common judgment by the trial court. The trial court held, there was no evidence to show that the marriage between Karthiyayani Amma and Parameswaran 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 OP No. 33 of 1974 by granting the succession certificate to the plaintiff. The appellate court set aside both the judgment of the trial court in suit and grant of the succession certificate, holding that there was no valid marriage between Karthiyayani Amma and Parameswaran Pillai. The High Court in second appeal set aside this appellate court judgment as findings were not supported by pleadings in the case hence remanded the case back for reconsideration. After remand, the appellate court dismissed the appeal of the appellant by confirming the trial court judgment. Thereafter the appellant filed the second appealThe submission for the respondent-plaintiff before the High Court was that since appeal was not preferred against the order of the appellate court arising out of the proceedings for the grant of the succession certificate, it became final, thus it operates as res judicata. The High Court by its impugned order, upheld this contention. Thus High Court dismissed the second appeal on this limited ground which is impugned before us

The learned counsel for the appellants submits that proceedings for the grant of succession certificate are summary proceedings and the same cannot operate as res judicata to proceedings in a regular suit filed in the civil court even if, it is between the same parties or issues are the same. The grant of succession certificate under Section 373 has only the effect that it is conclusive as against the person owing such debts or liability on such securities (as in the present case LIC) and it affords full indemnity to such debtor against all such future claimant, when it tenders the amount to such person holding the succession certificate. The submission is, these are merely summary proceeding in which adjudication is made prima facie as to whom such payment is to be tendered by such debtor. In other words, it leaves the battle if any inter se between the claimants to be adjudicated in regular proceedings. Thus any decision under it has this limited effect, but it in no way puts any legal embargo on the parties to prove to the contrary in any subsequent suit or proceedings. On the other hand learned counsel for the respondent-plaintiffs submits, as both, the suit and the application for the grant of succession certificate were heard and decided by the same court, both at the trial stage and the first appellate stage and when the appellant did not prefer 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 pending proceedings in the second appeal arising out of the suit. The learned counsel for the respondents also placed strong reliance on Explanation VIII to Section 11 of CPC 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 res 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." *

The submission thus is even the court deciding, the question of grant of a succession 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 Explanation VIII

Within the said parameter now we proceed to examine the question raised in this appeal. The principle of res judicata as enshrined in Section 11, is evolved from the maxim "nemo debet bis vexari pro una et eadem causa." This principle enunciates that no man should be vexed twice over for the same cause. This principle gradually developed further by bringing within its compass more such litigations. Thus with the passage of time this principle gradually expanded. This shows that the sphere of res judicata as enshrined in Section 11 CPC is not exhaustive, it is ever growing. One such example of its growth is exhibited by the incorporation of Explanation VIII in Section 11 by means of the amending Act in 1976. The submissions made are broadly under two heads : firstly under the broad and general principle of res judicata in view of Explanation VIII and secondly, whether in proceedings for the grant of succession certificate, any adjudication or issue decided therein would operate as res judicata to suit proceedings. In order to apply the general principle of res judicata the court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceedings, was it between the same parties, and was it decided by such court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, incidentally any finding is recorded it would not come within the periphery of the principle of res judicataIn Pawan Kumar Gupta v. Rochiram Nagdeo (1999 SC 1101) [LQ/SC/1999/23] this Court observed that the rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which has been directly and substantially in issue in a former suit between the same parties, and has been heard and finally decided by that court. It holds, it is the decision on an issue and not a mere finding on any incidental question to reach such decision, which operates as res judicata

For the respondent, reliance was placed on Kalipada De v. Dwijapada cap Das 1930 AIR(PC) 22 : 57 IA 24). The reliance is that this decision holds, where a question of relationship between the parties has been decided in a court of limited jurisdiction also operates as res judicata to a subsequent suit between the same parties involving the same question of relationship. Though we shall be referring 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 proceedings, whether the uterine brother would be entitled to inherit the estate of the deceased in the proceedings under Section 372 of the Indian Succession Act, which is the foundation of challenge by the appellant to the claim of the plaintiff as the legal heir of the deceased. Even for applying this decision it has to be shown that the claim of the plaintiff to inherit the questioned property in the suit was raised through such an issue in earlier proceedings i.e. in succession certificate proceedings. No such issue could be pointed by the learned counsel for the respondent

As this Court has held in the case of Pawan Kumar Gupta ( 1999 (4) SCC 234) it is only the decision on an issue and not mere finding on any incidental question to reach such decision, which operates as res 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 plaintiffNext we proceed to examine the other head of submission viz. whether decision on any issue in a proceeding to grant succession certificate would operate as res judicata to the issue raised in the subsequent suit. First we proceed to examine the various provisions under the Indian Succession Act. Section 372(1) refers to the application to be made for the grant of succession certificate. Sub-section (1) gives the detail and the manner of making such an application. Sub-section (3) gives the sphere of such application viz. it to be in respect of any debt or debts due to the deceased creditor or in respect of portions thereof. Sub-section (3) is quoted hereunder

"372. (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." *

Under sub-section (1) of Section 373 if the court is satisfied that there is ground for entertaining the application, he fixes a date of hearing after notice. Sub-section (2) decides the right of the applicant, whether entitled for a grant of the certificate. Under sub-section (3), if such Judge cannot decide such right, as the question raised both on facts or law are intricate and difficult then in summary proceedings it can still grant such certificate, if it appears to the court, that the person making such application has a prima facie title thereto. Sub-section (3) of Section 373 is quoted hereunder

"373. (3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto." *

This sub-section reveals two things : first, adjudication is in summary proceedings and secondly, if the question of law and facts are intricate or difficult, it could still grant the said certificate based on his prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it cannot be construed that the mere grant of such certificate or a decision in such proceedings would constitute to be a decision on an issue finally decided between the parties. If that be so how could the principle of 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

"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, notwithstanding 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." *

So, this certificate merely affords full indemnity to the debtor for the payment 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 anyone else as it conclusively concludes his part of his obligation and such payment is construed to be in good faith. This safeguards such debtor or person liable to pay that he may not be later dragged into any litigation which may arise subsequently inter se between the claimants. The use of words "good faith" in Section 381 reinforces that the decision in these proceedings are not final. When statute recognises such payment to be in good faith it gives clear undercurrent message that there may be in future better claimant but that would not affect the indemnification of the debtor. Thus we find accumulatively because of the grant of succession certificate being for a limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, reads to only one conclusion that any decision made therein cannot be treated to be final adjudication of the rights of the parties, except such declaration being final for the purpose of these proceedings. If that be so, the amount received by the holder of such certificate can yet be questioned, and in subsequent proceedings it may be held to belong to other claimant, including the contesting partyThis can be examined from another angle. The grant of the succession certificate falls under Part X of the aforesaid Act. Its range is between Sections 370 to 390. It is significant to refer here Section 387. This declares the effect of decisions made under this Act and the liability of the holder of such certificate. It lays down that any decision made under this Part (Part X) upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. It further records that nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security to account therefor to the person lawfully entitled thereto. Section 387 is quoted hereunder

"387. Effect of decisions under this Act, and liability of holder of certificate thereunder. - No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto." *

This leaves no room for doubt. 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 purview of Explanation VIII to Section 11. This gives protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceedingsNo doubt Explanation VIII to Section 11 enlarges the field of res judicata, by including, in its field the decisions on the same issue, between the same parties even by a court of limited 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 to Section 11

As far back as in 1937, this principle was upheld and recognised. In Charjo v. Dina Nath 1937 AIR(Lah) 196 (2)) : (AIR Headnote)

"The inquiry 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 determination, should grant the certificate to the person who appears to have prima facie the best title thereto. In such cases the Court has not to determine definitely and finally as to who has the best right to the estate. All that it is required to do is to hold a summary inquiry into the right to the certificate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent their being time-barred, owing (for instance) to dispute between the heirs inter se as to their preferential right to succession, and, on the other hand, to afford protection to the debtors by appointing a representative of the deceased and authorising him to give a valid discharge for the debt. The grant of a certificate to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se." *

So we have no doubt to hold that any decision made in proceedings under Section 372, for the grant of succession certificate under the Indian Succession Act, would not bar any party to the said proceedings to raise the same issue in a subsequent suit. Hence, the High Court fell into error in applying the principle of res judicata to the second appeal of the appellant arising out of the aforesaid suit. Thus even if no appeal is preferred by the appellant against the decision of the trial court arising, out of proceedings for the grant of succession certificate, the principle of res judicata would still not apply. But we further record, and accept the contention of the learned counsel for the appellant that the memorandum of second appeal itself reveals that he has preferred appeal against both the appellate orders where it records both appeals, Cases Nos. 237 of 1977 and 93 of 1978. Hence High Court was not right in holding that no appeal was preferred. Learned counsel for the respondents could not dispute this but submits that no second appeal lies against the appellate order in the proceedings for the grant of succession certificate, only a revision lies. However, it is not necessary for us to go into this question as this is for the appellants to make such submission as permissible under the law and it is for the respondent to raise such objection, as he deems fit and proper in this regardIn view of the aforesaid findings we set aside the High Court order dated 26-9-1989 and remand the case to it for deciding afresh on merits, the second appeal, in accordance with law. The present appeal is allowed. Costs on the parties.