Report No. 110

VII. State for Obtaining Succession Certificate

34.32. Stage for obtaining grant.-

The stage at which probate or succession certificate should he obtained has also become the subject of controversy. In one Allahabad ease1, the question for consideration was whether a probate or succession certificate was required to be obtained by the plaintiffs, before a decree could be granted in their favour. The High Court, applying section 213(2), held that probate will not be required to be obtained by a Hindu in respect of a will made regarding immovable properties situated in Uttar Pradesh.

As to the applicability of section 214 at the stage of institution of proceedings, the High Court held-

"The purpose of section 214 is to make clear that no debt to a deceased person can be recovered through the court except by a holder of one of the documents specified, the only exception being either whether the claim is made on survivorship, or whether it is in respect of rent, revenue or profits payable in respect of land used for agricultural purposes. It may, however, be pointed out that section 214 does not debar the filing of the suit. It merely debars a court from passing a decree. If a suit has been filed, the court is forbidden from passing a decree on the basis of a debt against the debtor of the deceased."

1. Bhanja Ji v. Jageshwar Dayal, AIR 1978 All 268.

34.33. Recommendation to add an Explanation as to institution of suit.-

In our view, it is desirable that the matter should be put beyond possible controversies by codifying the Allahabad view1. An Explanation on the subject could be usefully added to the section3, for the purpose.

1. See case law discussed, para. 33.32, supra.

2. Para. 34.45, infra.