Report No. 110

Succession Certificates: Sections 370 to 390

(135) Section 370 bans the grant of succession certificate, inter alia, in cases where letters of administration (or probate) are mandatory1. Letters of administration are mandatory in the case of Christians other than Indian Christians dying intestate-to mention the most usual situation. The restriction in section 370 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, in general, to be proved.

Accordingly, section 370(1) should be revised2 as under:-

"(1) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under the 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).

1. Section 212(1).

2. Paras. 48.4 and 48.5.

(136) There should also be inserted in section 370, a provision for the grant of succession certificate on survivorship. By making this amendment, the legislature would be merely giving recognition to what is already the practice in some part of India. Although a certificate, issued to certify survivorship, should be, strictly speaking, described as a "Survivorship certificate", it is not proposed to change the present nomenclature ("Succession Certificate"), since it has, by now, become familiar to all concerned.

Accordingly, 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 on survivorship to the effects of a deceased Hindu, Mohammedan, Buddhist, Sikh, Jain or Parsi or to any part thereof, in respect of any debt or security by reason that the right thereto is claimed by survivorship and not by successions1.".

1. Paras. 48.6 and 48.8.

(137) Section 371 should be revised as follows:-

"371. The District Judge within whose jurisdiction the deceased, at the time of his death, had a fixed place of abode, or any property, movable or immovable, may grant a certificate under this Part1."

1. Paras. 48.13 and 48.17.,

(138) To section 372, an Explanation should be inserted below:-

"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 Code1."

1. Para. 48.23.

(139) In section 379, a new sub-section should be inserted as follows1:-

"(4) If the application is allowed with or without condition, the sum shall not be refunded, even if, by reason of breach of the condition, the certificate cannot be granted."

1. Para. 48.35.

(140) It is also recommended that the provisions of sub-section (3) of section 379 should be made subject to those of new sub-section (4), which is proposed to be inserted, as above, in section 379.

Section 379(3) should, therefore, begin as follows:-

"(3) Subject to the provisions of sub-section (4) any sum received...............1".

1. Para. 48.35.

(141) New section 386A should be inserted, as recommended, to provide the facility of succession certificate to properties other than debts.1

1. Para. 48.42A, read with paras. 48.19A to 48.19C.