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Report No. 110

IV. Procedure

48.21. Section 372-Application for certificate.-

This takes us to section 372, which reads as under:-

"372. (1) Application for such a certificate shall be made to the District Judge by petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure 5 of 1908, for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:-

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;

(c) the family or other near relatives of the deceased and their respective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity there of if it were granted; and

(f) the debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code (45 of 1860).

(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof".

48.22. Meaning of 'debt' in section 372.-

With reference to this section (section 372), there seems to be a conflict of decisions on the question whether, the word "debt" includes movable property that has been pledged. In a Bombay case1, the question arose whether a succession certificate could be granted in respect of gold or ornaments pledged by the deceased with a bank. It was held that the pledgee's obligation to return to the pledger's heirs the pledged movable property was not a 'debt', as it was not a specific or ascertained or liquidated sum of money. A similar view had been taken in a Patna case2.

However, an Allahabad judgment3 takes a different view in this regard.

We have discussed the matter under section 2144, and need not repeat here the points made in that discussion.

1. Ranchhoddas, (1976) 78 Born LR 219 (233).

2. Sham Sundar Dcv v. Sarti Devi, AIR 1962 Part 220.

3. Dina Nath v. Balkrishna, AIR 1963 All 46.

4. Para. 34.14, supra (section 214).

48.22A. Section 372(1)(f)-Extending the facility of succession certificate to properties other than debts (section 386A to be added).-

The Delhi Hindustani Mercantile Association, in its comment on the Working Paper of the Law Commission on the Act has offered the following suggestion:-

"We may suggest that succession certificates should not be limited to debts payable to the deceased, but should extend to all properties left by him without will. Similarly, pending the grant of such a certificate, an administration suit lies, but such a suit can be filed only by creditor. A suit like this should be permitted to be filed by even the heirs1."

The purport of the comment is not very clear, but it would appear that the intention is that the facility of succession certificate should be extended to properties other than "debts" also. At present, section 372(1)(f) confines succession certificates to debts. Although the suggestion does not say so, presumably the intention is this-in cases where "administration" of the estate is not contemplated, and all that is contemplated is that some kind of judicial confirmation of a person being the heir to the property is needed, the law should provide such a facility.

Such a facility may be of use in connection with dealings with public offices, where the question of succession to a particular property is in issue and the public office concerned wants some such confirmation.

1. Law Commission File No. F. 2(6)/84-L.C., S. No. 6A (Hindustani Mercantile Association, Delhi, letter No. HMA/2241 dated 30th May, 1984).

48.22B. Utility of suggested amendment.-

We regard this as an important suggestion, if the reasons underlying the suggestion (which are not stated in the letter of the Association) are what we have surmised above. There do arise, in practice, occasions when title to property other than debts may have to he established before public authorities and if a court is given power to issue such a certificate, it would certainly prove to be of use. At present, the object can be achieved by the somewhat more cumbersome procedure or a declaratory suit in which the claimant can seek a declaration about his title - a title based on testamentary or intestate succession.

Of course, the claimant filing a declaratory suit is expected to show that there is some kind of "cloud" on his title. If there is no controversy between "rival heirs", a declaratory suit may not be quite appropriate. The suggestion for extending the facility of succession certificate to property other than debts has therefore a practical utility. Theoretically also, there seems to be no objection in principle to such an amendment of the Act.

48.22C. Section 386A to be inserted.-

No doubt, such an amendment would require extensive amendments in several sections of the Act. This task could be left to the draftsman-though we do have a suggestion which may probably avoid an amendment of too many sections of the Act. What we have in mind is the insertion of a short section, say, as section 386A-which will provide1 that the provisions of sections 370 to 385 shall, so far as may be, and with necessary modifications, apply, in relation to property other than debts, as they apply in relation to debts.

1. To be carried out by inserting section 386A.

48.23. Section 372-application by minor.-

Another question, relevant to section 372, may be noted on the subject of the procedure to be followed regarding the grant of certificate to a minor. There is a conflict of views, which can be summarised as under:-

(i) First, there is the Allahabad view1-which was also the earlier Calcutta view2-that a succession certificate may be granted to a minor acting through his next friend. This is the most liberal view.

(ii) Secondly, we have the Madras view3 holding that a succession certificate can be granted to the minor on the application of his natural guardian. This also appears to be the later Calcutta view4. Incidentally it may be pointed out that this is a more rigid view than the first, since according to it, only the natural guardian can apply and no other person can apply as the next friend on behalf of the minor. This may be called the middle view.

(iii) Thirdly, there is a Bombay rulling5, according to which the certificate can be granted to the guardian only if he is appointed a guardian of the property of the minor under the Guardian & Wards Act, 1890. This is the narrowest view.

1. Ram Kaur v. Sardar Singh, 1898 ILR 20 All 352.

2. Kali Coomar v. Tara Prosunne, 5 CLR 517, referred to in Ram Kaur v. Sardar Singh, 1898 ILR 20 All 352.

3. Krishnamma v. Venkata, ILR 36 Mad 314.

4. Sen Mohatta (in re:), 1894 ILR 21 Cal 911.

5. Naryan Khanderao (in re:), 35 Born LR 950: AIR 1933 Born 436.

48.24. Grant to a minor.-

It is noteworthy that there is no specific provision in section 372 prohibiting the grant of probate to a minor. In this respect, sections 223 and , 236, which relate to the grant of probate and letters of administration respectively, may be contrasted. These sections prohibit grant to a minor. The reason why the two sets of provisions are differently framed appears to be this. Probate is granted to an executor appointed by the testator.

Normally, the executor would not be a minor, but in the rare ease in which he is a minor, the prohibition against grant of probate-and consequential refusal by the court to grant the probate to him-would not cause serious hardship, because letters of administration with the will annexed can still be obtained by another suitable person.

It may be noted that the law does not impose very rigid limitations as to the grant of letters of administration. In the case of a succession certificate, however, the position is different. Only the person who has the right to the debt in question can apply, so that the field of choice is limited and is determined, not by statutory provisions or by the testator's directions or by the orders of the court, but by external circumstances-the person who have survived the deceased and stand in the prescribed relationship to him.

Apparently for this reason, the Act does not provide a total bar as such against the minor being granted succession certificate. Under section 372(1)(d), the right which the petitioner claims has to be specified in the petition, this indicating that the claimant must be a person who has some title or interest in the debt. If the person who has some title or interest happens to be a minor, only he can apply for a succession certificate.

48.25. Question of procedure-Recommendation.-

The question that should really survive for practical consideration is only one as to the procedure to be followed by the minor. The grant of succession certificate to a minor as such cannot be denied as a matter of law, but safeguards could still be laid down. Of course, the safeguards should not impose very severe restrictions on the pursuit of the remedy for enforcing a right that is already vested in the minor.

Having regard to the above considerations, the proper course, in our view, would be to provide-by way of clarification and by way of indicating the correct procedure-that where the applicant for succession certificate is a minor, he may apply through a next friend as if he were a plaintiff in a suit and the provisions of the Code of Civil Procedure, 1908 should, so far as may be, apply in relation to such next friends as they apply in relation to a next friend suing under the Code1.

We may add that the provision proposed would not only possess practical utility, but would also be consistent with the object underlying the provisions of the Act as to succession certificate. Incidentally section 384(3), by mentioning section 141 of the Code of Civil Procedure, 1908 (though in a different context), assumes that the Code of Civil Procedure, as far as may be applies to proceedings for succession certificate. Thus, the amendment which we are recommending would be in harmony with the assumptions underlying the entire chapter.

1. For draft, see para. 48.26, infra.

48.25A. Position of Guardian.-

It should be pointed out that the grant of a certificate only to a court-appointed guardian1 would be highly inconvenient. It means that if the guardian is changed, a fresh succession certificate will have to be obtained.

1. Naryan Khanderao (in re:), AIR 1933 Bom 436.

48.26. Recommendation to amend section 372.-

Accordingly, we recommend that an Explanation should he inserted as follows, below section 372.

"Explanation-Where the applicant for succession certificate is a minor, he may apply through a next friend as if he were a plaintiff in a suit, and the provisions of the Code of Civil Procedure, 1908, shall, so far as may be, apply in relation to such next friend as they apply in relation to a next friend suing under the Code."

48.27. Section 373-Procedure on application.-

This takes us to section 373. It reads-

"373. (1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing-

(a) to be saved on any person to whom, in the opinion of the Judge, special notice of the application should be given, and

(b) to be posted on some conspicuous part of the court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.

(2) When the Judge decides that the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seems to be too intricate the difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.

(4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants."

The section needs no change, having created no serious problems.

The Indian Succession Act, 1925 Back

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