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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.
..2..
-: 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.
..3..
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:
..5..
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
..6..
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).
..7..
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:-
..8..
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).
..9..
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).
..10..
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
..11..
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
..12..
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
..13..
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).
..14..
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.
..15..
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
..16..
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.
:: 3 ::
(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.
:: 5 ::
(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
:: 6 ::
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
:: 7 ::
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
:: 8 ::
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.