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District & Sessions Court, Dhule.

Summary On

The Paper For 2nd Workshop To Be Held On

4th August, 2019.

Topic No.1 – Procedural Law.

Execution of Decree : Scope of Section 47 and Order

21 Rule 97 to 101 of the Code of Civil Procedure, 1908.

-: INTRODUCTION :-

Execution is the enforcement of decree and order

of the Court by the process of the Court. In

practical sense, execution is the formal method

prescribed by law, whereby the party, entitled to

the benefit of the judgment or any obligation

equivalent to the judgment, may obtain that

benefit. A decree-holder can execute his decree in

different manner and in different modes. But,

fruits of decree cannot get easily to decree-holder,

due to some resistance to execute the decree. In

this proceedings Court can decide everything

arising out of execution proceeding like question

relating to title or interest in property arising

between parties or their representative under

Order 21 Rule 101 of Code.

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-: SCOPE OF SECTION 47 :-

Plain reading of Section 47 of the Code, makes it

clear that all the questions arising between the

parties in the suit in which the decree is passed

and relating to the execution, discharge or

satisfaction of the decree are required to be

decided by the executing court in the execution

proceeding itself and not by way of separate suit.

It is also clarified that whether any person is or is

not the representative of a party, shall be

determined by the executing Court. In the

explanation it is also made clear that a plaintiff,

whose suit has been dismissed or a defendant

against whom the suit has been dismissed, shall

be deemed to be parties to the suit. Similarly a

purchaser of a property of sale in execution of a

decree shall be deemed to be a party to the suit.

Besides the above all questions relating to the

delivery of possession of such property to the

purchaser or his representative, shall be deemed

to be questions relating to the execution,

discharge or satisfaction of the decree within the

meaning of Section 47 of the Code.

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Questions of execution, discharge & satisfaction -

Under section 47 of the Code the executing Court

is conferred with powers to determine objection

with regard to three things - (1) execution, (2)

satisfaction & (3) discharge. The executing Court

has to see that the defendant gives to the plaintiff

the very thing that the Court directs and not

something else. If there is dispute about it

identity or substance, the executing Court can

determine the same. As per Section 2, the words

'decree' and 'order' have been defined to mean a

formal expression of an adjudication by which,

the court expressing it, conclusively and finally

determine the rights of the parties regarding all

or any of the controversy in the suit. A decree can

be preliminary or final or it can be partly

preliminary and partly final. A decree can be

declaratory decree only or it can an executable

decree. A decree can be a consent decree or

compromise decree. Therefore, it follows that a

decree can be executable decree or it can also an

unexecutable decree.

However, it is settled principle of law

that the Court is not expected to pass a futile

decree. Therefore, so far as execution proceedings

are concerned, we can understand the above

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terms in their context i.e. to say “execution” of a

decree is a process by which decree of a Court is

enforced by taking legal steps. “Discharge” of a

decree is another process by which the liability

under decree is fulfilled or put to an end by

positive acts of the judgment debtor. Lastly

“satisfaction” of the decree means “compliance”

with the terms of the decree by the judgment

debtor or complying with the order of the Court so

as to give full and final relief to the decree holder.

Duties of executing court -

An executing court cannot go behind the decree.

It has to take the decree as it stands and execute

it according to its terms. It has no power to

question the correctness of the decree. This is

based on the principle that a proceeding to

enforce a judgment is collateral to the judgment

and therefore no inquiry into its regularity or

correctness can be permitted in such a

proceeding. There are exceptions to this rule if

the decree is a nullity. Though the executing

Court cannot go behind the decree but it can

certainly consider its executability. Those

exception are mentioned herein under:

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Decree obtained by playing fraud:-

A Judgment, decree or order obtained by playing

fraud on the court, tribunal Authority is a & non-

est in the eye of law (K.D.Sharma -Vs- Steel

Authority of India Ltd. & Ors. 2008 (12) SCC

481, 2008 (5) Supreme 287).

Barred jurisdiction by special law:-

When jurisdiction of court is barred by special

law. It was held in Sarwan Kumar -Vs- Madan

Lal Aggrawal A 2003 SC 1475, 2003 (4) SCC

147 that decree passed by such court is nullity.

Such objection can be raise before executing court

about the decree being nullity having been passed

by a court lacking inherent jurisdiction to do so.

Decree without jurisdiction:-

That a decree passed by a Court without

jurisdiction is a nullity, and its validity can be set

up whenever and wherever, it is sought to be

enforced or relied upon, including the stage of its

execution or in collateral proceedings (Kiran

Singh Vs Chaman Paswan reported in (1955)

1 SCR 117) .

Where the decree sought to be executed is a

nullity for lack of inherent jurisdiction in the

court passing it. Its validity can be set up in an

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execution proceeding, in collateral proceeding

because it goes to the competence of court to try

the case for the decree which is a nullity is void

and can be declared to be void by any court in

which it is presented (Sundar Dass -Vs- Ram

Prakash AIR1977 SC 1201/ Kiran Singh -vs –

Chaman Paswan A 1954 SC 340 /

Dhurandhar Prasad Singh -Vs- Jai Prakash

A 2001 SC 2552.)

Change law:-

The executing court can refuse to execute the

decree holding that it has become inexecutable on

account of the change in law & its effect (Haji

SK. Subhan -Vs- Madhaorao A 1962 SC 1230).

Executing court can allow objection u/s 47 of Code

to the executability of decree if it is found that the

same is void abinito & nullity, apart from the

ground that decree is not capable of execution

under law either because the same was passed in

ignorance of such a provision of law or law was

promulgated making a decree inexecutable after

its passing (Dhurandar Prasad Sing -Vs- Jai

Prakash University. A 2001 SC 2552).

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An executing Court must take the decree as it

stands. An executing Court cannot go behind the

decree. It can neither add something in the decree

already passed, nor alter the decree. It cannot

grant relief which is not contemplated by the

decree (Topanmal Vs Kundomal Gangaram

AIR 1960, SC 388). Point as to whether

summons were served or not can not be consider

by executing court under section 47 (Tushar

Suresh Bhumkar -Vs- Suresh & Com.2002 (4)

Mh. L.J.845).

The duty of an executing Court is to give effect to

the terms of the decree. It has no power to go

beyond its terms. Though, it has power to

interpret the decree, it cannot make a new decree

for the parties under interpretation {V.

Ramswami Vs T.N.V.Kailash Theyar AIR

1951 S.C,189 (192)}. However, where the defect

in jurisdiction ( as to territorial or pecuniary )

was of a kind that fell within the saving of S.21 of

the Code or S.11 of the Suits Valuation Act, it

could not be raised except in the manner and

subject to the conditions mentioned therein.

Following are the some of circumstances in which

decree is held to be executable by Hon’ble Apex

Court:-

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Wrong decision:-

If Court decided wrong it would not be doing

something which it had no jurisdiction to do. If

the party aggrieved does not take appropriate

steps to have that error corrected, the erroneous

decree will hold good & will not open to challenge

on the basis of a nullity (Balvant N.

Viswamitra -Vs- Yadav Sadashiv Mule [D]

Through Lrs 2004 [6] Supreme 194).

Decree illegal, not pass according to law:-

Illegality or irregularity can not be termed

inexecutable by executing Court. Such objection is

not tenable before executing court ( Rafique

Bibi -Vs- Sayed AIR 2003 (SC) 3789)

Decree passed beyond limitation:-

Even if the decree was passed beyond the period

of limitation, it would be an error of law, or at the

highest, a wrong decision which can be corrected

in appellate proceedings & not by the executing

court which was bound by such decree

(Bhawarlal -Vs- Universal Heavy Mechanical

Lifting Enterprise 1999 (1) SCC 558 /

Ittyavira Mathai -Vs- Varkey & Anr. A 1964

SC 907).

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No pecuniary, territorial jurisdiction :-

No territorial or pecuniary jurisdiction, the decree

is valid unless prejudice is caused (Hasham

Abbas Sayyad Vs Usman Abbas Sayyad AIR

2007 SC 1077).

When the decree is made by a court which has no

inherent jurisdiction to make it, objection as to its

validity may be raised in execution proceeding, if

objection appears on the face of record. Where

objection not appears on face of record and

required examination of question raised and

decide at trial or which could have been but have

not been raised, the executing court will have no

jurisdiction to entertain an objection as to the

validity of decree even on ground of absence of

jurisdiction (Vasudev Dhanjibhai Modi -Vs-

Rajabhai Abdul Rahman A 1970 SC 1475).

Interpretation of decree by executing court

Wherever a decree is found to be vague or

ambiguous, it is within the power and duty of the

executing Court to interpret the decree with the

intent to find out the meaning of those terms. The

Executing Court can go through pleadings and

proceedings upto decree to know the intention of

the trial Court in passing decree (Bhavan Vaja

v. Solanki Hanuji Khodaji, AIR 1972 SC

1371).

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For the purpose of interpreting a decree when its

terms are ambiguous the court would certainly be

entitled to look in to the pleadings and the

judgments (AIR 1960 SC 388 Topanmal

Chhotamal -Vs- Kundomal Gangaram &

Ors.).

Identity of property adjudication in

execution-

When in execution a question arises as to the

identity of the property of which possession has to

be delivered to the decree-holder obviously such a

question would relate to the execution of the

decree and it would be for the executing Court to

decide it as required by sub-section (1) of Section

47 of the Code, since it would not be possible for

the decree-holder to get it determined by a

separate suit ( Madhukar Timbak Gore vs

Vasant Ramkrishna Kolhatkar, AIR 1983

Bom 277).

No reopening of concluded issues-

Jurisdiction of executing Court under section 47

is limited. Liberty to object does not meant to

reopen concluded issue. If objection is relating to

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decree nullity then can be determine (2009 (5)

MLJ 387 Savitribai A. Salvi -Vs- Suman

Novgir & Ors. )

Limitations for Objection

Limitation for an objection petition under section

47 was governed by Article 181 of L.A.-1908,

which was equal to Art. 137 of L.A.1963.

:- SCOPE OF ORDER 21 RULE 97 TO 101:-

Application under Rule 97 -

The decree holder or auction purchaser can apply

to executing Court if he is resisted or obstructed

in obtaining possession of such property by “any

person”. The Court on receipt of such application

proceeds to adjudicate the same. The Court must

make full-fledged inquiry and determine all

questions relating to right, title and interest in

the property arising between the parties to the

proceeding or their representatives.

Meaning of any person under Rule 97 -

Thus the word any person would include all

persons resisting the delivery of possession

claiming right in property even those not bound

by the decree including tenant or other person

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claiming right on their own, including a stranger

(Shreepath -Vs- Rajesh A 1998 SC 1827).

Applicability of Res Judicata-

In the case of Nooruddin Vs. K.K.L. Anand

1995(1) SCC 242, it was held that, ''doctrine of res

judicata'' is applicable to the adjudication under

Rule 97 of Order 21 of Code.

There should have been interest in

property-

Unless and until person who is objecting to

execution has independent right, title, or interest

in immovable property, he cannot claim

adjudication of his right by using provisions of

order XXI Rule 97 (Shivaji Bhausaheb Bankar

Vs– Jijabai Prabhakar Alwane and others

2016 (4) Mh.L.J 939).

Where the Court is satisfied that the resistance or

obstruction was occasioned without any just

cause by the judgment debtor or by some other

person at his instigation or on his behalf or by

any transferee, where such transfer was made

during the pendency of the suit or execution

proceeding, it shall order the applicant to be put

into possession of property and if the applicant is

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resisted or obstructed even thereafter in

obtaining possession, the Court may at the

instance of the applicant order the obstructer to

be detained in civil prison up to 30 days

(Brahmdeo Choudhary v. Rishikesh Prasad

Jaiswal AIR 1997 SC 856 see, also Section 74

Order XXI Rule 97-101 of the Code).

Rule 97 enables the decree holder or auction

purchaser to complain to executing court, if

he/she is resisted or obstructed in obtaining

possession of property by 'any person'. The Court

on receipt of such application will proceed to

adjudicate the issue of resistance. Rule 101

requires the Court to make full fledge inquiry and

determine all questions relating to right, title and

interest in the property, in the light of objection.

Thereafter court may pass necessary orders

under Rule 98 and determine rights of objector.

Application under Rule 99-

Any person other than the judgment debtor who

is dispossessed by the decree holder or auction

purchaser to make an application to executing

Court complaining such dispossession

(Silverline Forum Pvt Ltd. v. Rajiv Trust

and another, AIR 1998 SC 1754).

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Objection by stranger after removal of

possession by DH – R 99

It can not be said that the only remedy available

to the stranger to the decree for possession who

has resisted its execution, to have his claim

adjudicated is the one under R. 99 of O.21 after

he has lost possession to the decree-holder and

that he has no locus standi to get adjudication of

his claim prior to the actual delivery of possession

to the decree-holder in the execution proceeding

(Brahmdeo Choudhary V/s Rishikesh Prasad

Jaiswal AIR 1997 SC 856).

Hearing of application -

The court can dismiss an application for default of

appearance by the applicant or to pass ex-parte

order when the opposite party does not appear in

spite of notice to him. The court, on receipt of

such application will proceed to adjudicate the

right of applicant under rule 100. In short,

powers vested in court under Rule 98 and 100 of

Order XXI require full fledged judicial inquiry

and order which may be passed shall be a decree

for all purposes.

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Rule 98 and 100 of Order XXI of the Code do not

apply to transferee pendent lite. Plain reading of

Rule 102 makes it clear that it is based on justice,

equity and good conscience. A transferee of

judgment debtor is presumed to be aware of the

proceeding before a court of law. He should be

careful before he purchases a property which is

the subject matter of litigation. Rule 102 of the

Code recognizes the doctrine of lis pendence laid

down in Section 52 of Transfer of property Act,

1882. This legal position can be seen in decision

of Usha Sinha Vs. Dina Ram (2008(7) SCC

144).

The words " all questions arising between the

parties to a proceeding on an application under

rule 97 would envelop only such questions as

would legally arise for determination between

those parties. Second is, such questions must be

relevant for consideration and determination

between the parties, e.g. if the obstructer admits

that he is transferee pendentlite, it is not

necessary to determine a question raised by him

that he was unaware of the litigation when he

purchased the property. Similarly, a third party,

who questions the validity of a transfer made by

Decreeholder to an assignee, cannot claim that

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the question regarding its validity should be

decided during execution proceeding (Silver line

Forum's case Supra).

-: CONCLUSION :-

Execution is the most important aspect of civil

justice. The parties in whose favour decree is

passed go for execution of such decree, that

means to bring the decision of the Court into

effect, has to reach out to the executing Court.

There are certain powers, duties and obligations

of the executing Court. One of the main duties

includes determination of the questions by the

executing Court. Code contains elaborate and

exhaustive provisions for execution of decrees and

orders, takes care of different types of situations

and provides effective remedies, not only to the

decree holders and judgment debtors but also to

objectors and third parties.

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: Paper summarized & compiled by :

Shri. M.G. Chavan,(Committee Head)

District Judge-5 & A.S.J. Dhule.

: With the assistance of :

1) Shri. R.T. Nagre, 2) Shri. P. H. Bansod, Civil Judge Senior Division, 5th Jt. Civil Judge S.D. Dhule. Dhule.

3) Smt. S.V. Chandak, 4) Smt. S.N. Gangwal-Shah, Jt. C.J.J.D. & J.M.F.C. 2nd Jt. C.J.J.D. & J.M.F.C. Dhule. Dhule.

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SUMMARY OF WORKSHOP( Dated 04-08-2019 )

SUBJECT :- SUCCESSION CERTIFICATE & HEIRSHIP CERTIFICATE

(1) Succession means the law and procedures under which

beneficiaries become entitled to property. Succession certificate is a

certificate granted by the Courts to legal representatives of person dying

intestate leaving debts and securities.

(2) Succession certificate is a certificate granted by the courts to

legal representatives of person dying intestate leaving debts and securities. A

person is said to have passed away intestate when he/she does not leave a

legal will. Succession Certificate entitles the holder to make payment of debt

or transfer securities to the holder of certificate without having to ascertain

the legal heir entitled to it. The provisions of Part-X of the Indian

Succession Act, 1925, deals with to grant of succession certificate.

(3) Object of Succession Certificate :

The main object of a Succession Certificate is to facilitate

collection of debts on succession and afford protection to parties paying

debts to representatives of deceased persons. Such a certificate does not

give any general power of administration on the estate of the deceased. The

grant of a certificate does not establish title of the grantee as the heir of the

deceased. A Succession Certificate is intended to protect the debtors,

where a debtor of a deceased person either voluntarily pays his debt to a

person holding Certificate under the Act, or is compelled by the decree of a

Court to pay it to the person, he is lawfully discharged.

(A) SUCCESSION CERTIFICATE

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(4) Succession Certificate does not establish a title :

The grant of a certificate does not establish a title of a

grantee as the heir of the deceased, but only furnishes him with authority to

collect his debts and allows the debtors to make payments to him without

incurring any risk.

(5) Who can apply for certificate :

Any person of sound mind and not a minor can apply for

certificate, provided he has an interest in the estate of the deceased.

The only right which entitles a person to a succession certificate is the

beneficial interest in the debt or security. It is open to anyone who has a

beneficial interest to apply for it on the death of the applicant for a

succession certificate.

(6) How to apply for “Succession Certificate” :

1. An application should be made to The District Judge under section 372 of the Act;

2. the petitioner must sign and verify the petition;

3. the residences of the relatives and family of the deceased must be mentioned;

4. in case of The Hindu Succession Act (Act XXX OF 1956), the names of the heirs must be mentioned in the petition;

5. the right of the petitioner should be mentioned;

6. Either Ordinary residence of the deceased, at the time of death, or the property of the deceased should be within the limits of the Jurisdiction of the Court concerned;

7. the debts and securities as to which the succession certificate is applied for should be mentioned.

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(7) The provisions of Bombay Regulation Act, 1827 are applicable

to grant of heirship certificate. Civil Manual Chapter XIV provides detail

procedure for the same. The object of Bombay Regulation Act, 1827

(hereinafter referred to as the said Act) is to provide for formal recognition

of heirs, executors and administrators and for the appointment of

administrators and managers of the property by the Courts. In general, it is

desirable that heirs, executors or legal administrators of person deceased

should, unless their right is disputed, be allowed to assume the management

or sue for recovery of property belonging to the estate, without interference

of Courts of justice. In some cases, it is necessary or convenient that such

heirs, executors or administrators should obtain a certificate of heirship,

executorship or administratorship from the Court.

(8) Who may apply :

Only an heir, executor or administrator desirous to have his

right formally recognized, can apply for the heirship certificate.

(9) J urisdiction of Court :

Section 371 provides that the District Judge within whose

jurisdiction the deceased ordinarily resided at the time of his death, or, if at

that time had no fixed place of residence, the District Judge, within whose

jurisdiction any part of the property of the deceased may be found, may grant

a succession certificate.

(10) Civil Judge J.D. invested with powers of District

Judge :

As per para 305 (ii) and (iii) of Civil Manual the powers

conferred by Section 28-A of the Maharashtra Civil Courts Act, the Hon'ble

(B) HEIRSHIP CERTIFICATE

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High Court has invested all Civil Judges (Junior Division) with all the powers

of a District Judge in the matter of issuing Succession Certificate limited to

debts and securities to the extent of their pecuniary jurisdiction, whereas all

the Civil Judges Senior Division are invested with all powers of the District

Judge to take cognizance of any contentious proceedings under the Indian

Succession Act, 1925 arising within the local limits of their jurisdiction that

may be transferred to them by the respective District Judges.

(11) Procedure – Summary I nquiry :

(A) Heirship Certificate :

The scope of inquiry while deciding application of grant of

heirship certificate is limited to ascertain the claim of heirship of the

applicant. The court is not required to determine the title of the deceased or

the persons claiming heirship certificate to any property. The court is only

required to consider, whether the person claiming heirship certificate is the

heir of the deceased and formally recognizes the heirs.

(B) Succession Certificate :

Grant of succession certificate is to be decided by following

summ a ry procedure . After examining the petition, notice is to be issued to all

those concerned. The procedure also contemplates issuance of public notice

in a daily circulated local newspaper and specifying a time frame (usually 45

days/one month) for calling objection. In case, where no one contests the

petition on or before the expiry of given period, the Court usually issues a

succession certificate to the petitioner. If there is more than one petitioner,

then the Court may jointly grant them a certificate.

(12) If in the opinion of Court, the rights of the parties cannot be

decided without adjudication of question of law or fact, which seems to be to

intricate and difficult for determination in summary proceeding, then he can

grant the certificate in favour of the applicant who appears to be the person

having prima facie title thereto.

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(13) When more than one application are filed for getting

succession certificate, the court while deciding to whom the certificate is to

be granted, shall have to take into consideration, the extent of interest and the

fitness in other respects of the applicants.

(14) Whether p eriod of Limitatio n appl ies t o certificate ? :

No limitation period is prescribed to obtain probate letter of

administration and succession certificate under Limitation Act. The right to

apply is a continuous right and it can be exercised at any time after the death

of deceased as long as the right to do so exists.

In Ganpati Vinayak Achwal 2014(6) Mh.L.J. 683 Hon'ble

High Court held that section 137 of Indian Succession Act is not applicable

to the application seeking heirship certificate. Therefore, the claim to seek

heirship certificate is not barred by limitation.

(15) Court Fees required for grant of certificate :

As per Section 379 of Indian Succession Act, 1925, Court fees

should be levied on the market value of the property and not on its face

value. Before issuing the certificate, the Judge should ascertain what is the

market value of the properties and to recover the duty on such value. He

should for this purpose insist on a affidavit and make such other enquiry as

may be necessary.

The certificate should be issued in the form set forth in

Schedule VIII of the Act. The last column of the form should be correctly

filled in.

(16) Effect of non-payment of Court Fees :

It is not necessary that the Court fee be paid while filing

application for succession certificate. Complete court fee payable has to be

paid after issue of certificate, failing which certificate will become

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inoperative. At the time of issuing succession certificate as well as heirship

certificate petitioner is required to pay the Court fees as per Article - 11 and

12 of the Bombay Court Fees Act, 1959.

(17) No E xemption of C ourt F e e s to W omen Litigants :

The Hon'ble Bombay High Court in the case of Snehala

Pramod Desai AIR 2012 Bom 168, held that a woman is entitled to

waiver/exemption of Court fee only in respect of applications for

maintenance in matrimonial disputes or with regard to divorce and family

law, property disputes. The property disputes relating to the grant of

probate, Letters of Administration, Succession Certificate are not exempted

from the payment of Court fees even if they are filed by female litigants.

(18) C ertificate is – Conclusive Proof :

Under Section 381 of Indian Succession Act, the succession

certificate issued by the Court shall be conclusive as against the persons

owing such debts or securities and afford full indemnity to all such persons

as regards all payments made in good faith in respect of such debts or

securities to whom the certificate was granted.

(19) Revocation of the Certificate :

The Hon'ble Bombay High Court in the case of Kusum

Chandrakant Shankardas and others -v/s- Rajeshri Chandrakant Shankardas

and others, 2017 SCC OnLine Bom 9714, held that as per Clause (b) of

section 383 of Indian Succession Act, 1925, where the heirship certificate is

obtained fraudulently by making of a false suggestion or by concealment of

fact from the Court of something material to the case, then it can be revoked.

(20) For seeking revocation of a succession certificate or heirship

certificate, the applicant must make out three ingredients. Firstly, it needs to

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be shown that there is a false suggestion or concealment of a material

particular in the application for heirship certificate. Secondly, such

suggestion or concealment must be shown to have been made knowingly.

Thirdly, there should be no other consideration affecting the maintainability

of the application for revocation, for example, bar of limitation or equitable

considerations affecting the applicant's right to seek revocation.

(21) Succession Certificate About – Missing Person :

On this point, there is case law of Hon'ble Bombay High

Court. In the case of Mrs. Vijaya Shrikant Revale -v/s- Shirish Shrikant

Revale and others 2016 SCC OnLine Bom 1898, the facts were that the

appellant/applicant had filed Miscellaneous Civil Application No. 25 of 2012

before the Civil Judge, Junior Division, Khalapur for granting succession

certificate in respect of securities and properties belonging to her husband

Shrikant Vishnupant Revale, who went missing since April, 2002 and was

not seen or heard of for more than seven years. She claimed that she being

the wife of Shrikant is entitled to claim the amounts invested by her husband

in fixed deposits or in other various schemes, as specified in her application.

The application was rejected by the Civil Judge mainly on the ground that it

has no power to grant heirship certificate in the absence of specific averment

in respect of the date of death of the missing person.

(22) The Hon'ble Bombay High Court considering the provisions

of Section 107, 108 of Evidence Act and Section 372 of Indian Succession

Act, 1925, held that while dealing with the case of heirship certificate and

where the date of death of the person missing is not known, under such

circumstances, the Courts not to insist on compliance of sub-section(1) of

Section 372 of the Act. It is true that only Civil Court has power to give

relief of declaration in such matters. The inquiry under section 372 of the

Act is limited. However, the Court which conducts the inquiry under Section

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372 of the Act is a civil Court and therefore the said Court is competent to

decide the issue of declaration of death.

(23) Can a c ertificate be granted for a ppointmen t under the Compassionate Benefits Scheme ? :

In the case of Manjula Vasant Gohil -v/s- Vasant Danji Gohil

2016 SCC OnLine Bom 14045, the facts were that the Petitioner sought a

legal Heirship Certificate under Section 2 of Bombay Regulation VIII of

1827 in respect of one Vasant Danji Gohil, who is said to have died intestate

in Mumbai. The Legal Heirship Certificate was required for submission to

the Municipal Corporation of Greater Mumbai Lokmanya Tilak Municipal

Hospital, Sion, Mumbai 400 022 for the post of sweeper on compassionate

grounds. The Legal Heirship Certificate was also required for the deceased's

dues such as Provident Fund etc.

The Hon'ble Supreme Court held that appointment under

compassionate ground falls within the definition of property and hence,

heirship certificate under the Bombay Regulation Act can be granted.

(24) Whether a c ertificate can be issued to C ollect the O riginal D ocument from Bank ? :

In the case of Asha Nagesh Pawar -v/s- Nil 2017 SCC

OnLine Bom 6416, the Hon'ble Supreme Court held that there is no

impediment to grant heirship certificate for collecting original title deeds of

property from Bank.

(25) Powers of Civil Judge J. D. to deal wit h contested heirship application :

In the case of Nanasaheb Laxman Dhole and others -v/s- Smt.

Kalpana Bhagwan Dhole and others Writ Petition No.6973/2011, the

Hon'ble Bombay High Court Bench at Aurangabad held that para No. 304

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of the Civil Manual lays down that all the Civil Judges in the State are

invested with the provisions of the District Court for the purpose of the

Indian Succession Act. It also has the effect of investing the Civil Judge with

power to hear applications made U/s. 2 of the Bombay Regulation Act. In

view of the above, more particularly Section 388 read with Section 390 of

the said Act, it would be clear that the Civil Judge [ Jr. Division ] would

have the jurisdiction to entertain the petition. The provisions of Section 265

and 286 of the said Act would not be applicable to the proceedings for grant

of Heirship Certificate under the Bombay Regulation Act.

(26) Provisions of Indian Succession Act, 1925 also ap pli es to – Heirship Certificate :

In view of Section 390 of Indian Succession Act,

notwithstanding anything contained in Bombay Regulation Act, 1827, the

provisions of Sections 370, 372, 374 to 389 of Act of 1925 shall be

applicable in respect of grant of heirship certificate under the provisions of

Bombay Regulation Act, 1827.

(27) In the case of Anthony Fernandes and Ors.

MANU/MH/0603/1992, the Hon'ble Bombay High Court held that the

provisions of law contained in Bombay Regulation VIII of 1827 are

supplemented by the relevant provisions contained in the Indian Succession

Act, 1925. The two provisions must be read together.

(28) Difference between Succession Certificate and Heirship Certificate :

SUCCESSION CERTIFICATE HEIRSHIP CERTIFICATE

Succession Certificate is issued

under part X of the Indian

Succession Act 1925.

Whereas, the Heirship Certificate is

given under section 2 of Bombay

Regulation VIII of 1827.

A] Movable or immovable property

Succession certificate is granted

only in case of certain movable i.e.

debt and securities.

Heirship Certificate can be granted

in respect of movable or immovable

property.

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B] Right

Succession Certificate empowers to

collect debts due to the deceased and

also negotiate and transfer them.

Heirship certificate confers no right

to the property but only indicate

person to whom certificate is

granted is executor, administrator,

management.

C] Who may apply

Heir, executor, administrator of

deceased is expected to apply under

section 372 of Indian Succession

Act.

Heirs of deceased may apply to get

recognized as legal heirs.

D] Recognition

While issuing Succession Certificate

no legal recognizance as heirs is

made.

Under the Bombay Regulation Act

it formally recognizes heirs,

executor and administrator of

movable or immovable property of

deceased.

E] Security

If there are more than one applicant

claiming right interest in respect of

estate of deceased, Court may grant

Succession Certificate to the extent

of interest and fitness and Court may

direct to furnish bond with surety or

security.

While granting Heirship Certificate

recognition is made only of rights of

the person. Therefore, no security

required for formal recognition.

F] Form for Certificate

Succession Certificate described in

Schedule VIII of section 377 of

Indian Succession Act.

Whereas the form of Heirship

Certificate enumerated in appendix

B to the Bombay Regulation.

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G] Effect

Grant of Succession Certificate to

person does not give him absolute

right nor it affects the rights of heirs

but it is conclusive as against the

person owing such steps and

securities.

Heirship Certificate does not confer

right to the property but only for the

time being recognizes as the legal

management and it does not

determine rights of any person. The

certificate holder is accountable to

the acts done in that capacity.

Hence, the summary of this paper is concluded.