M.L Visa, J.

1. This appeal is directed against the order dated 12.6.2002 passed by IIIrd Additional District Judge, Madhepura in Succession Cases No. 5 of 1992 and 5 of 1993 dismissing both the cases on the ground that both the cases are not maintainable.

2. Brief facts of the matter are that Appellants filed an application under Section 372 of the Indian Succession Act for grant of a succession certificate in the name of Appellant No. 1 being legal heir and successor of deceased Raj Kumari Choudhary. Their application was numbered as Succession Case No. 5 of 1993. The case of Appellants was that Appellant No. 1 is the adopted son of deceased Raj Kumari Choudhary. Respondent Renu Kumari also filed similar application on the ground that she was adopted daughter of deceased Raj Kumari Choudhary and her case was numbered as Succession Case No. 5 of 1992. Both the parties claimed succession certificate for withdrawing a sum of Rs. 13,000/- deposited in the State Bank of India, Madhepura Branch vide account No. 47/26827 standing in the name of deceased Raj Kumari Choudhary. Both the cases were heard together and were disposed of by the same impugned order.

3. The Court below, after observing that both the parties were claiming their right for grant of succession certificate on the basis of title of adoption and title of parties cannot be decided in an application filed under Section 372 of Indian Succession Act and without deciding the title of parties, no succession certificate can be granted in favour of any body, it was helpless to decide the right to the certificate without determining the question of law and facts relating to title of parties. It further observed that title can only be decided in a title suit by a competent Court of civil jurisdiction. It dismissed both the cases by observing that the same were not maintainable.

4. The learned Counsel appearing on behalf of the Appellants, by relying upon a decision of this Court in the case of Hira. Poddar v. Parwati Devi reported in 2001 (1) BBCJV 482 : : 2001 (1) PLJR 528 [LQ/PatHC/1999/1002] , has submitted that Section 373 of Indian Succession Act is the procedure followed by Court on receipt of application for grant of succession certificate under Section 372 of Indian Succession Act and this procedure is summary procedure in nature and in this enquiry, the Court has simply to see that who is entitled to get the certificate without going into detailed investigation as to title of the parties. He has further argued that before the Court below, the matter remained pending for about more than ten years and finally the Court dismissed both the cases without deciding the question involved in both the cases. In the aforesaid decision relied upon by the learned Counsel of Appellants, it has been held as follows:

The purpose for summary enquiry under Section 373 is that an early decision is taken with regard to the grant of certificate. The decision taken in the summary proceeding does not operate as res judicata in a subsequent litigation. The contested question of title to the property cannot be gone into.

Sub-section (3) of Section 373 provides inter alia that when the question of law or facts is too intricate and difficult for determination in summary proceeding even then the court should not refrain itself from deciding the question of grant of certificate. On the other hand taking into consideration the facts of the case it should grant certificate to the person who appears to have prima facie best title thereto. Sub-section (4) of Section 373 provides that if there are more than one Applicants even in that case in deciding the question to whom certificate is to be granted the court has to take into consideration the interest and the fitness in other respect of the Applicants. The court after entertaining the application cannot shirk to its responsibility by holding that as the complicated questions of law or facts are there, no summary enquiry is to be held with regard to the grant of certificate. Even in such cases the efforts should be made to decide as to whom the certificate is to be granted keeping in view of the person having the prima facie best title to the grant of certificate and in that case the certificate is to be granted to the person having prima facie clearest title to certificate.

Thus, it has to be held that though at the stage of grant of certificate under Chapter (sic--Part) X the nature of the enquiry is a summary one but that does not mean that whenever an intricate question of law or facts appears or involved in the case the proceeding be stayed. Even at that stage the effort is to be made to decide the question in the light of the provision contained in Sub-sections (3) & (4) of Section 373 of the. The nature of the enquiry, however, should be only confined to decide as to whom the certificate is to be granted and not as to who has a title of the estate of the deceased.

5. The learned Counsel of Appellants submits that the case be sent back to Court below for deciding the matter afresh. The learned Counsel of Respondent says that he has got no objection if the matter is sent back to Court below for deciding the question involved in both the cases which were being heard analogously.

6. In the result, the impugned order is hereby set aside and the matter is remitted back to Court below to consider afresh the question involved in both the cases in the light of observations made in the case of Hira Poddar v. Parwati Devi (supra).