erala High Court
Vishalakshi vs Bank Of India on 6 April, 2006
Equivalent citations: AIR 2006 Ker 255, 2006 (2) KLT 488
Author: V Ramkumar
Bench: K Denesan, V Ramkumar
JUDGMENT V. Ramkumar, J.
1. In this appeal filed under Section 384 of the Indian Succession Act, 1925 the petitioner who is the sole legal heir and successor of deceased P.K. Hymavathy, challenges the order dated 14-10-7005 passed by the Subordinate Judge, Ernakulam in Succession O.P. 20/05. The said original petition was filed under Sections 371 and 372 of the Indian Succession Act praying for a succession certificate in respect of certain bank deposits totaling to Rs. 1,95,695.73 and in respect of 6 cents of landed property with a building thereon. Even though the court below as per the impugned order held that the appellant is the sole legal heir of the said Hymavathy who died intestate on 29-1-2004 and allowed the original petition granting a succession certificate in respect of the bank deposits which were detailed in Schedule I of the Original Petition, that court disallowed relief in respect of the immovable property described in I schedule to the said original petition. It is aggrieved by that part of the impugned order which has declined to grant a succession certificate in respect of the immovable property that the appellant has preferred this appeal.
2. We heard Adv. Sri.P.K. Ibrahim, the learned Counsel appearing for the appellant. Assailing the impugned order the learned Counsel for the appellant submitted that Sections 30 and 192 of the Indian Succession Act will indicate that a succession certificate can be granted in respect of immovable properties as well.
3. We are afraid that we find ourselves unable to agree with the above submissions. The fact that the appellant is the sole legal heir and successor of P.K. Hymavathi who died intestate on 29-1-2004 is beyond the pale of controversy. Ext. A2 is the death certificate pertaining to Hymavathi. Her husband Karunakaran had predeceased her as evidenced by Ext. A1 death certificate. Part X of the Indian Succession Act, 1925 (hereinafter referred to as "the Act" for short) starting from Sections 370 to 390, deals with succession certificate. Sub-section 1 of Section 370 reads as follows:
370: Restriction on grant of certificates under this Part: (1) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate:
Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act.
4. A reading of Sections 370 and 372 of the Act, particularly, Clause (f) of Sub-section (1) of Section 372 of the Act, will show that a succession certificate can be applied for only in respect of debts and securities. The expression "Debt" has not been defined under the Act. The said expression has not been defined under the General Clauses Act as well. If so, one has to go by the ordinary meaning of the said expression. A debt means any pecuniary liability whether payable in presenti or in future to another in return for money, services, goods or any other obligation . A debt is also property in the form of a chose in action and is heritable and assignable as understood in law. In the case of securities Sub-section 2 of Section 370 of the Act enumerates the various securities envisaged by the section. They are as under:
(a) any promissory note, debenture, stock or other security of the Central Government or of a State Government;
(b) any bond, debenture, or annuity charged by Act of Parliament (of the United Kingdom) on the revenues of India;
(c) any stock or debenture of, or share in, a company or other incorporated institution:
(d) any debenture or other security for money issued by, or on behalf of, a local authority;
(e) any other security which the (State Government) may, by notification in the Official Gazette, declare to be a security for the purposes of this Part.
The fact that a succession certificate can be issued only in respect of a debt or security is further reinforced from the wording of Sub-section (3) of Section 372 which clarifies that an application for a succession certificate can be made in respect of any debt or debts due to a deceased creditor or in respect of portions there of. Section 376 of the Act makes provision for the grant of extension of succession certificate to any additional debt or security. Section 377 of the Act says that the certificate as well as extension of certificate shall be in the forms set forth in Schedule VIII of the Act. The said Forms read as follows:
FORMS OF CERTIFICATE AND EXTENDED CERTIFICATE In the Court of To A.B.
Whereas you applied on the...day of...for a certificate under Part X of the Indian Succession Act, 1925, in respect of the following debts and securities, namely:
DEBTS Serial no. Name of debtor Amount of debts, Description and including interest, date of instrument on the date of if any, by which the application for certificate debt is secured SECURITIES Serial No. Description Market valueof Distinguishing Name,titleor Amount of par security on date Security number or letter of class of security valueof of of application security for certificate This certificate is accordingly granted to you and empowers you to collect those debts and to receive interest on dividends to negotiate to transfer those securities.
Dated this day of District Judge
In the Court of
On the application of A.B. made to me on the day of....I hereby extend the certificate to
the following debts and securities, namely:
Serial no. Name of debtor Amount of debt, Description and the
including interest, date of instrument,
on the date of if any, by which the
application for extension debt is secured
Serial No. Description
Distinguishing Name, title or Amount of par Market valueof
Security number or letter of class of value security ondate
security security of application
This extension empowers A.B. to collect those debts and to receive interest on dividends to negotiate to transfer those securities:
By virtue of Section 380 of the Act, a succession certificate granted under Part X of the Act shall have effect throughout India. The effect of issuing a Succession Certificate is that it will afford full indemnity to all persons owing the debts or liable on the securities specified in the certificate as regards all payments made or dealings had in good faith in respect of such debts or securities or with the grantee of the Succession Certificate. (Vide Section 381), A Succession Certificate issued under Part X of the Act is liable to be revoked for any of the following grounds:
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 proceedings with respect to effects comprising debts or securities specified in the certificate renders if proper that the certificate should be revoked. (Vide Section 383 of the Act)
5. Section 371 of the Act gives an indication regarding the court having a jurisdiction to grant succession certificate. It is the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death or if at that time he had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found, who is empowered to issue a Succession Certificate. Section 388 of the Act confers power on the State government to invest any inferior court with the power to exercise the functions of a District Judge. In exercise of the said power the State of Kerala in the Home Department has issued the following notification dated 31-1-1958:
Home (C) Department
C.NO. 29988/57/HD. Dated, Trivandrum, 31st January 1958
In exercise of the powers conferred by Sub-section (ql) of Section 388 of the Indian Succession Act, 1925 (Act XXXIX of 1925), and in supersession of all previous notifications investing courts of subordinate judges with power to exercise the functions of a District Judge under Part X of the said Act, the Government of Kerala hereby invest all courts of subordinate Judges in the State with power to exercise the functions of a District Judge under Part X of the Act within the local limits of their respective jurisdiction.
(ii) In exercise of the powers conferred by Sub-section (21) of Section 388 of the Indian Succession Act, 1925 (Act XXXIX of 1925) and in supersession of all previous notifications investing courts of Munsiffs with power to exercise the functions of a District Judge under Part X of the Act, the Government of Kerala hereby invest all courts of Munsiffs in the State with power to exercise the functions of a District Judge under Part X of the Act within the local limits of their respective jurisdiction.
By order of the Governor, N.E.S. Raghavachari, Chief Secretary After the said notification, both the Munsiffs courts as well as the Sub Courts in the State have concurrent jurisdiction to issue Succession Certificate.
6. As in the case of probate or letters of administration (vide Francis v Antony 1991 (1) KLT 62 there is no limitation for approaching the court for the grant of a Succession Certificate. (See Janaki v. Kesavalu - ILR 8 Madras 207). If a Succession Certificate has been issued to a person not entitled to the same, it can be revoked under Section 383 (e) of the Act. Sections 30 and 192 of the Act on which reliance was placed by the learned Counsel for the appellant, do not support the view canvassed by him. The deeming provision under Section 30 of the Act is for considering the circumstances under which a deceased person could be said to have died intestate. Section 192 to 207 are mainly intended to curb interlopers from meddling with the property of the deceased and are in the nature of summary procedure which is subject to the right of either party to bring a regular suit as saved by Section 208 of the Act.
7. Thus the court below was perfectly justified in declining to grant a succession certificate in respect of the immovable property described in the II Schedule of the O.P. We see no reason to interfere with the order passed by the Subordinate Judge.
The result of the forgoing discussion is that this appeal which is bereft of any merit is liable to be dismissed and we do so. However, in the facts and circumstances of the case, there shall be no order as to costs.