Report No. 110
II. Succession Certificates-grant of
48.2. Section 370-Restriction on grant of certificates under this Part.-
Section 370 reads-
"370. (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.
(2) For the purposes of this Part, "security" means-
(a) any promissory note, debenture, stock or 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 in corpora ted 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."
48.3. Recommendation as to section 370(2)(b).-
Sub-section (2), clause (b) of section 370 seems to be obsolete and should be deleted. We recommend accordingly.
48.4. Need for change of substance.-
Section 370 bars the grant of a succession certificate, inter alia, in cases where letters of administration (or probate) are mandatory. Letters of administration are mandatory in the case of Christians other than Indian Christians dying intestate1-to mention the most usual situation. We are of the view that this restriction is not required except where probate is mandatory. The bar in section 370 should be limited only to cases where probate is mandatory.
In the case of probate, the will has to be proved and it is understandable that without proof of the will, payment should not be made on the strength of a mere succession certificate. But this reasoning does not apply with the same force to letters of administration, where title is sought to be derived on the basis of a right of inheritance conferred by law and no formal writing is to be proved in general.
1. Section 212(1).
48.5. Recommendation as to section 370(1).-
Accordingly, we recommend that section 370(1) should be revised as under:-
"(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 probate."
(Existing Proviso to be omitted as a consequential change).
48.6. Survivorship under section 370.-
We are also of the view that there should be a provision for the grant of certificate on survivorship. By making this amendment, the legislature would be merely giving recognition to what is already the practice1-2 in some parts of India.
1. Banwari v. Maksuda, AIR 1930 All 99.
2. See also para. 34.14, supra.
48.7. Although a certificate, issued to certify survivorship should be described as "Survivorship certificate", we do not propose to change the present nomenclature (succession certificate"), since it has by now, become familiar to all concerned.
48.8. Recommendation to add further proviso to section 370(1).-
Accordingly, we recommend that the following proviso should be added to section 370(1):
"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 survivorship to the effects of a deceased Hindu, Mohammedan, Buddhist, Sikh, lain or Parsi or to any part thereof with respect to any debt or security by reason that the right thereto is claimed by survivorship and not by succession."1
1. Existing proviso is to be omitted, para. 48.5, supra.
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