LAW OF SUCCESSION DECODED
In a literal sense of term Succession
means capable of comprehending every kind of passing of property. The Indian Succession Act (ISA) 1925, came
into operation on 30th September, 1925 and it seeks to consolidate
all Indian Laws relating to succession. The Act consists of 11 Parts, 391 Sections
and 8 Schedules and this Act is applicable to intestate and testamentary
succession.
The
law of succession defines the rules of devolution of property, in case a person
dies intestate i.e without making a
Will. The succession shall also be necessary, in case , a will is executed by the deceased, but it is
only for some part of the estate, then, the remainder, shall have to be factored
only in succession. These rules stipulates category of persons and extent or
percentage of property that may devolve on such person or persons. A
succession certificate shall be in effect throughout the whole country in terms
of section 380 of Indian Succession Act, 1925. The Section 381 and 386 of the ISA,
a succession certificate is conclusive as against the person/persons liable to
whom all indemnity is afforded for payment made.
A succession certificate is
issued by a civil court to the legal heirs of a deceased person. If a person
dies without leaving a will, a succession certificate can be granted by the
court to realise the debts and securities of the deceased. It establishes the
authenticity of the heirs and gives them the authority to have securities and
other assets transferred in their names as well as inherit debts. It is issued
as per the applicable laws of inheritance on an application made by a
beneficiary to a court of competent jurisdiction. A succession certificate is
necessary, but not always sufficient, to release the assets of the deceased. In
order to apply for succession before a competent court, a death certificate,
and no-objection certificates will be needed. A succession certificate,
strictly speaking, does not impact adjudication of title of the deceased far
less than that of the holder as regards the debts and securities covered
thereunder, yet, it afford protection to the parties paying the debts. The grant
of succession certificate is conclusive against the debtor. A succession
certificate is effect throughout the whole of India as per section 380 of The
Indian Succession Act, 1925. According to sections 381 and 386 of the Act, a
succession certificate is conclusive as against the person/persons liable to
whom full indemnity is afforded (make available) for payments made. But,
despite the succession certificate is only conclusive of the representative
title of the holder thereof as against the debtors, a suit of declaration will
not lie that the holder of the certificate is not the legal representative of
the deceased.
In
case, legal heirs are residing in outside India Application can be filed
through Power of Attorney also and the personal presence of individual before
court is not required for the purpose of obtaining Succession Certificate.
Newspaper Publication informing the Public at large, once. the application for
succession certificate is filed the Court is required to issue notice to all
the legal heirs and close relatives, so as to enable anyone having any
objection in grant of Succession Certificate in favour of Applicant to raise
objection. Similarly, Publication of the notice in newspaper is aimed at informing
public at large, about the application for issuance of succession certificate
so that if any members of public has any objection to grant of certificate can
raise objection to grant of certificate. Once, citation is published in newspaper
about the pendency of succession application, the court awaits of any
prospective objection for 45 to 60 and if no objection is forthcoming, on the
expiry of this period, the court passes an order for issuance of succession
certificate. Conversely, if any objection is raised, the Court, only after
adjudicating on the objections and in case the objection is dismissed, may
proceed further.
APPLICABILITRY OF HINDU SUCCESSION ACT 1956 (HSA)
Before delving further, it is to
be borne in mind that in case of Hindus, the governing Act of succession shall
be Hindu Succession Act 1956 and the procedure of succession shall follow under
the Indian Succession Act 1925. The relevant provisions of The Hindu Succession
Act (HSA) 1956 and also the details as regards the mode and manner of
inheritance is to be understood in case of estates of deceased male or female
Hindu. Therefore, the relevant provisions of Hindu Succession Act 1956 (In
short HSA 1956) is required to be
ascertained, before going further.
What
is of pertinence is that HSA 1956 regulates intestate succession among Hindus.
The HSA was amended in 2005 and Section 6 of the HAS was amended to
confer legal rights and liabilities upon daughters in the ancestral
property by birth in a Hindu Undivided Family (‘HUF’), equivalent to that of a
son. However, a question continued to revolve as regards the issue that whether
Section 6 of the HSA 1956 has retrospective applicability?
The ambiguity is
finally cleared by hon’ble Supreme Court.
In Vineeta Sharma Vs Rakesh Sharma (2020)
9 SCC 1. The Supreme Court’s Three (3) Judge Bench( CORAM: Justices Arun
Mishra, S.Abdul Nazeer and and MR Shah) has laid down the position on the
issue and cleared the path from
ambiguity.
The
law was not clear before. In Prakash v. Phulavati (2016)
2 SCC 36 , it was held by the Supreme Court (Single Judge bench) that Section 6
of Hindu Succession Act 1956 (as amended in 2005), had no retrospective
applicability and was applicable only in such cases, where both the father and
his daughter were alive on the 9th
of September 2005, when the amendment in HSA 1956 came into force
However, in and in Mongammal
@Thulasi & Anr Vs T B Raju & Ors (2018) 15 DCC 662, a division
judge bench of the Supreme Court held otherwise i.e it was held that the
amended section 6 of HAS, 1956 conferred full rights upon the daughter, who
could claim her rights to the property in question, despite her father having
passed away before the amendment came in force. It was held that a female
shall also be treated as coparcener on birth and no time line can be fixed for
that. It is further held that the issue of when the father died was not
relevant, as survivorship was only the mode of succession, not that of the
formation of coparcenery rights. The Phulavati (Supra) decision was therefore overruled. The
Court held that the intent and purpose of the relevant amendment was to ensure
gender justice as constitutionally protected and no fetter could be attached
thereto. Section 6 of HSA 1956 (Amended in 2005) as to apply retrospectively.
In
this backdrop, the entitlement of legal heirs needs to be ascertained.
In
the Schedule to The Hindu Succession Act 1956 , following are the class I
heirs In case of MALES):
Section
8 of HSA stipulates mode of succession I case of Male Hindu.
CLASS
– I
Son; Daughter; Widow; Mother; Son of a pre
deceased Son; Daughter of a pre deceased Son; Son of a pre deceased daughter;
daughter of a pre deceased daughter Widow of a pre deceased Son, Son of a pre
deceased Son of a pre deceased Son of a pre deceased Son ; Daughter of a pre
deceased Son of a pre deceased son; widow of a pre deceased son of a pre
deceased son,
*[Son of a pre
deceased daughter of a pre deceased daughter ; daughter of a pre deceased
daughter of a pre deceased daughter; daughter of a pre deceased son of a pre
deceased daughter; daughter of a pre deceased daughter of a pre deceased Son]
(* As per
Hindu Succession Amendment act 2005 (w.e.f 09.09.2005)
The Class I legal heirs take the shares together without any preference
and simultaneously, in exclusion of class II legal heirs. For instance, if a
male Hindu dies and survived by his One Son, one daughter, wife and Mother each
shall have one share each in the estate of deceased. If Widows are more than
one, , one share shall be taken together by all widows.In case of branch of
each pre deceased son and daughter, each branch shall take one share.
CLASS- II
I.
Father
II.
(1) Son’s daughter’s son (2) Son’s
daughter’s daughter (3) Brother (4) Sister
III.
(1) Daughter’s Son’s Son (2)
daughter’s Son’s Daughter (3) Daughter’s daughter’ s Son (4) Daughter’s daughter’ s
daughter
IV.
(1) Brother’s Son (2) Sister’s Son (3)
Brother’s Daughter (4) Sister’s daughter
V.
Father’s father, Father’s Mother
VI.
Father’s Widow, Brother’s Widow
VII.
Father’s Brother, Father’s Sister
VIII.
Mother’s father, Mother’s Mother
IX.
Mother’s Brother, Mother’s Sister
The mode of inheritance in case of deceased males,
section 8 of Hindu Succession Act 1956 as regards class II legal heirs shall be
such that they will be entitled to shares if any of Class I legal heirs are not
surviving. Moreover, the first entry in class II shall have preference to any
other entry. Still further, if entry in category of class II in a particular
category is more than one, the preceding entry preceding entry shall have the
priority. For instance, the entry 1 of class II shall have clear preference to subsequent
entries. Moreover in case of a category II or III of class II as the case may
be, the prior entry shall have the first preference. eg the 1,2 and 3 in the
category shall imply the first shall have prior rights in the exclusion of all
other.
If class II legal heirs are also not available,
then to the agnates of deceased (descendants from father’s side) and if agnates
are not available , then the cognates ( descendants from Mother side) of
deceased shall have the right in the estate of deceased.
Section 25 of the HSA 1956
disentitle the murder of deceased tor the one who abets murder from succeeding
the estate of deceased. It will be treated as if such person had died before
the deceased and succession process shall follow accordingly.
In case of Female Hindu, who dies intestate, the mode of succession is
prescribed u/s 15 & Section 16 of
HSA 1956. The mode of succession shall be as under:
Section 15(1):
(a) Firstly,
upon the sons and daughters( including the children of any pre- deceased son or
daughter and the husband;
(b) Secondly upon the heirs of the husband;
(c) Thirdly,
upon the Mother and Father;
(d) Fourthly,
upon the heirs of father; and
(e) Lastly,
upon the heirs of the Mother
However, if a female Hindu
inherits properties from her Father or Mother and in case the deceased female
does not have Son or daughter including the children of pre- deceased son or
daughter, then the property shall devolve upon
the heirs of father and not in a manner shown above u/s 15(1) of HSA.
Similarly, if deceased female Hindu had inherited properties from her husband
or her father-in-law, then, in absence of her own son and daughter and children
of pre deceased son and daughter, the property shall devolve only on heirs of
husband and not as per section 15 (1) of HSA
as stipulated above.
The order of succession is
described in section 16 of HSA 1956. The first entry as per Section 15 (1)
succession shall be preferred to other succeeding entries have the priority.
Those included in the same entry shall take that simultaneously.
The children of pre deceased son
and daughter shall take only such share which his /her father or Mother would
have been entitled to.
The aforesaid shall clearly
demonstrate as to who shall have the entitlement and precedence as legal heirs
and the succession application shall have to be moved in consonance with that.
INDIAN
SUCCESSION ACT, 1925
At the outset, what is of
significance is that as regards Hindus , mode and manner of inheritance is
prescribed in Hindu Succession Act (as amended and up to date) and therefore
the mode and manner of succession prescribed in Indian Succession Act 1925
shall not apply in case of Hindus including a Virashaiva, Lingayats, the
Brahmo, The Prarthana or Arya Samaj, or Budhists, Jains or Sikhs by religion. The HSA 1956 shall apply
to all, other than Muslim, Parsi, Christian or Jew by religion, unless it is
shown that they are not governed by Hindu law by any custom or usage.
The Indian Succession Act 1925
was, however, made applicable to all. Since, a comprehensive succession
mechanism was laid down by way of Hindu Succession Act 1956 and subsequent
amendments have also been carried out in that, therefore, being a comprehensive
and subsequent Act, HSA, 1956 so far as mode of distribution or succession is
concerned, shall apply in case of Hindus. However, the procedure of filing the
petition and the process that entails in it, is prescribed in Indian Succession
Act 1925.
Restrictions to Grant of Succession Certificate
No
succession certificate can be granted, if:.
i) under section 370 (1) of the
Act, as to any debt or security to which a right is required to be established
by probate or letters of administration;
ii)
Sections 212 of the ISA 1925 applies;
iii)
Section 213 of the ISA 1925 applies;
iv) Law requires probates or
letters of administration as mandatory to establish right to property as in the
cases of Parsis, Jews, East Indians, Europeans and Americans.
Provided that nothing will
prevent as to granting a succession certificate to any person entitled to the
effects of a deceased Indian Christian or any part thereto pertaining to any
debt or security, that the right can be established by letters of administration.
Pre-requisites of Succession Certificate
are as follows:
(i)
The beneficiary/ legal heirs are required to
approach a competent court i.e the District Court and may file
a petition for a succession certificate.
(ii)
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 the succession certificate.
(iii)
The petition should specify details such as
the name of petitioner, relationship with the deceased,
names of all heirs of the deceased. Besides that time, date and place of death
along with the petition, death certificate and any other document that the
court may require may also be attached.
(iv)
The court, after examining the petition,
issues a
notice to all concerned parties and also direct issuing citation in a newspaper
and specifies a time frame (usually forty Five (45) days so as to enable any
prospective objections that may be raised. In case, there is no contest, then,
subject to satisfaction of the court an
order could be passed for issuing a succession certificate to the petitioner or
petitioners, as , if there is more
than one petitioner, then, the court may jointly grant them a
certificate, but, more than one certificate for a single asset cannot be
granted.
(v) While
granting certificate District Judge is required to specify
the debts and securities set forth in the application for seeking the
certificate, and may thereby entitle the person to whom the certificate is
granted (i) to receive interest or dividends on the securities; or (ii) to
negotiate or transfer the securities; or (iii) both to receive interest or
dividends or negotiate or transfer the securities.
The Court Fee is levied as a fixed percentage
of the value of the estate as prescribed under the Court-fees Act, 1870, (7 of 1870)).The
court fee is payable in the form of judicial stamp papers of the said amount.
The court fee in the aforesaid manner while issuing certificate is required to
be paid and generally it varies from 2 to 2.5% of the value of the assets.
How to
apply for ''Succession Certificate:
·
The Class 1 legal heirs or in absence
of class 1 legal heirs class II legal heirs of the deceased may apply for a succession
certificate to the estate of deceased, who may have died intestate. An
application is required to be made before the District Judge for this purpose
and a judge is appointed for this purpose. For instance, in New Delhi/Delhi Sr
Civil Judge/Guardian Judge is appointed as a special court for this
purpose. The application u/s 372 of ISA
1925 is therefore required to be preferred.
· The
petitioner must sign and verify the petition;
· The
residences of the other legal heirs of deceased must be mentioned;
· In
case of The Hindu Succession Act (Act XXX OF 1956), the names of the heirs must
be mentioned in the petition;
· The
right and entitlement of the petitioner is required to be mentioned;
· The
ordinary location of residence of the deceased or residence of deceased at the
time of his/her death is to be specified,
· The
property (or some of the property) of
the deceased should be within the limits of the Jurisdiction of the Court
concerned;
· The
debts and securities as to which the succession certificate is applied for,
should be clearly specified;
·
Pertinently, what is of further
importance is that a petitioner ought to clearly mention that there are no impediment
u/sec. Sub section (1) of Section 370 of the Act or any other provisions of the
Act or any other enactments for the time being in force, to the grant of
succession certificate or to the validity of it, in case of it was granted.
Although Section 370 of the
Indian Succession Act, 1925, specifically provides that a succession
certificate shall not be granted with respect to any debt or security in cases
where a right to such property is required to be established by obtaining Letters
of Administration or a Probate, in certain states, a probate and a succession
certificate are compulsory to transfer the title of an immovable property. It
is to be further noted that in the absence of a Will, banks and financial
institutions typically rely on the succession certificate and/or a legal heir
certificate.
Procedure for procuring a
Legal Heirship Certificate
While the Indian Succession Act,
1925 does not prescribe a method for obtaining a legal heir certificate, still,
Revenue Officers such as Tahsildars, Revenue Mandal officers or Talukdars, in
every Taluk issues a Legal Heriship Certificate. A legal heir certificate could
only relied upon for limited purposes and it is not construed as conclusive,
when it comes to determining the legitimate class of heirs of a deceased person
under the laws of succession, or the title of heirs to any disputed property
that belonged to the deceased. Thus, in disputed case a legal heir certificate shall
not have efficacy and the claimant must approach a civil court of competent
jurisdiction for determination of the rightful heirs.
What are the effects of a succession certificate?
The holder of a succession
certificate has a claim over the
property and assets of the deceased person and he will
have the authority to
represent the deceased in collecting debts and securities due to the deceased
or payable in his name, inherits the debts and other liabilities of the
deceased person. The succession certificate is valid throughout India. The
Indian Succession Act, 1925 governs the same. The Court can extend the
Succession certificate to any other immovable property of which the applicant
was not having knowledge at the time of filing of the application.
Where
a certificate in the form, in consonance with the stipulations of Second
Schedule has been granted by a Court outside the State or where a certificate
so granted has been extended in such form by such Court, the certificate shall,
when stamped in accordance with the provisions of the Court-Fees Act, with
respect to certificates under this Act, shall have the same efficacy in the other
State.
Revocation of
certificate–
The certificate may
be revoked , if
(a) the proceedings to obtain the certificate itself
was defective;
(b) the certificate
was obtained by fraud or by making a false suggestion, or by the concealment of
material facts from the court;
(c) the certificate was
obtained by raising false or untrue allegation of a fact though such allegation
may have been made inadvertently or by ignorance;
(d) the certificate
has become inoperative through circumstances;
(e) a decree or order
made by a competent Court in a suit or other proceeding with respect to effects
comprising debts or securities specified in the certificate.
PROVISIONS OF Appeal
The
Section 284, 299 and 388 of Indian Succession Act 1925 (ISA) shall be relevant.
As
per Section 299, any order passed by the District judge shall be appealable
before the High Court in accordance with the provisions of Code of Civil
Procedure.
Section
384 contains appellate provisions
that lies before high court. Appeal shall lie before high court in case of
granting or refusing to grant succession certificate or revoking the
certificate The limitation period shall be governed as per the provisions of
Civil procedure Code and Limitation Act, 1963. If it is the first appeal to the
high court the limitation period shall be Ninety (90) days, and in case of
second appeal on question of law u/s 100 of Code of Civil Procedure, the
limitation period again shall be 90 days from the date of the judgment passed.
Section
388 of ISA 1925 provides the investiture of authority before the courts
inferior to District Court and state government by notification may invest such
power available to District judge to the inferior court. Such power shall be
exercised by the inferior court, as if it was a District Judge under this part.
An
appeal under this section against the ord4er passed by such inferior court
shall lie before the District Judge and not to the high court. The Regular
Second Appeal (RSA) could be then preferred against the order of District
Judge, before the high court u/s 100 of Code of Civil Procedure. The Review and
Revisional power u/s 114 and 115 of Code of Civil procedure shall also be
available to the high court.
INVALID
CERTIFICATE & ITS EFFECT
A certificate
granted in respect of any of the effects of a deceased person shall be invalid
if there has been a previous grant of such a certificate or of probate or letters
of administration in respect of the estate of the deceased person and if such
previous grant is in force. This shall be deemed to supersede any certificate
previously granted under this Act in respect of any debts or securities
included in the estate.
However,
when a certificate under the ISA 1925 Act has been superseded or is rendered invalid
for its revocation, under section 18, or for any other reason, all payments Effect
on certificate of subsequent probate or letters of administration:–
(1) A grant of probate or letters
of administration under the Probate and Administration Act in respect of an
estate shall be deemed to supersede any certificate previously granted under
this Act in respect of any debts or securities included in the estate.
(2) When at the time of the grant
of the probate or letters any suit or other proceeding instituted by the holder
of the certificate regarding any such debt or security is pending, the person
to whom the grant is made shall, on applying to the Court in which the suit or proceeding
is pending, be entitled to take the place of the holder of the certificate in
the suit or proceeding.
No decision under this Act upon
any question of right between any parties shall be held to bar the trial of the
same question in any suit or in any other proceeding between the same parties,
and nothing in this Act shall be construed to affect the liability of any
person who may receive the whole or any part of any debt or security, or any interest
or dividend on any security to account therefore to the person lawfully
entitled thereto.
When a certificate under this Act
has been superseded or is invalid from any of the causes mentioned in section
22, the holder thereof shall, on the requisition of the Court which granted it,
shall have to deliver it up to that court and without any reasonable cause, if
he omits to do so, he is liable to be punished with fine which may extend to
one thousand rupees, or with imprisonment for a term which may extend to three
months, or with both.
The
following provisions of Indian Succession Act 1925 which relates to application
for seeking succession certificates and some discerning provisions are as
under:
Sections 370-371 deals with grant of certificate
or restrictions, besides the jurisdiction of the Court granting certificate
Sections 372 -373 relates to filing application
for succession certificate and laying
down of procedure
Sections 374-375
refers to Contents of certificate and security from grantee of certificate
Sections 376-377
deals with extension of certificate and Forms of certificate
Section 378 prescribes the details of amendment
of certificate in respect of powers as to securities
Sections 379-380
deals with Mode of collecting Court-fees on certificates and Local extent of
certificate
Sections 381-382
deals with Effect of certificate, and effect of certificate granted or extended
by Indian representative in foreign State and in some other cases
Section 383 deals with Revocation of
certificate
Section 385
deals with Effect on certificate of previous certificate probate or letters of
administration
Section 386
deals with Validation of certain payments made in good faith to holder of
invalid certificate
Section 387 deals with Effect of decisions
under this Act and liability of holder of certificate thereunder
Section 388
deals with Investiture of inferior Courts with jurisdiction of District Court
for purposes of this Act
Section 389 relates to Surrender of superseded and
invalid certificates
The Hon’ble Delhi High Court in FAO No. 184/2017 has
held that “in cases where someone dies without a Will, succession can only be granted
to the legal heirs of that person, not the nominee”.
The Hon’ble Karnataka High Court in T. Ramaiah Vs.
K.S. Rooprad and others CRP No. 2152/1988 , has held that (i) The legal representative
may come on record in E.P. proceedings and trial Court need not insist them to
produce Succession certificate under Indian Succession Act.
In another Judgment the Hon’ble Supreme Court on 27.4.2000,
in between Madhavi Amma Bhavani Amma and others Vs. Kunjketty Pillai Meenaksh
Civil Appeal No. 1544 of 1990 , has held that “proceedings u/Sec.372 of the Act
for the grant of Succession certificate under Indian Succession Act would not
bar any party to the said proceedings to raise same issue in the subsequent
suit”. In another Judgment decided by the Hon’ble Supreme Court in Banarsi Dass
Vs. Teeku Dutta (Mrs) Civil appeal No. 2918/2005 u/s 372 of the Act for the grant of Succession
certificate under Indian Succession Act would not bar any party to the said
proceedings to raise the same issue in the subsequent suit”. It is further held
that before issuing Succession Certificate under Indian Succession Act, 1925, no
direction for DNA test could be passed.
The court also requires a bond with one or more
surety or sureties or any other security for rendering an account of debts and
securities received by the petitioner of succession certificate for
indemnifying the persons, in the event( though unlikely) any subsequent claim is raised.
Conclusion:
Law of succession after the enactment of Hindu
Succession Act 1956 and Hindu Succession (Amendment) Act 2005) have undergone a
sea change. The female child is now treated as coparcener from the time of birth
and without any fetter and are entitled to equal shares in the estate of
parents. The hiccups, as regards the applicability of Hindu Succession (Amendment)
Act 2005 it is now held by hon’ble Supreme Court that it will have retrospective
operation. The ambiguity prevailed as regards the entitlement of female child,
if her father had died before the enactment of the Amendment act is therefore put
to rest and irrespective of the time of death of father , a female child shall
be entitled to share in the estate of father, as much her brother shall be
entitled to. Whereas the Hindu Succession Act 1956 is applicable to Hindus, Sikhs, Budhist, Jains etc and
not applicable in case of Muslim, Christian, Jew and Parsi. Indian Successions
Act, 1925, on the other hand contains the procedure of filing succession
application and provisioning of succession certificates. In case of Hindus, as
regards mode and manner of succession is already entailed in HSA, 1956 being the
latter Act and even amendment in HSA 1956 in the year 2005 has stipulated changes
and the application for succession could be filed under Sections 372 of Indian
Succession Act 1925, only after factoring the shares and rights, as stipulated
under Hindu Succession Act 1956. The Succession Certificate is, therefore, a
document, which is issued by the court, for claiming movable properties by the
successors of the deceased and the certificate affirms as to who are the legal
heirs of the deceased. This may be enough for the legal heirs to administer properties.
The succession certificate has applicability all over the country, subject to limitation
that is carved out in the Indian Succession Act itself. In other words, Succession
Certificate is a document which is issued by a competent court thereby the
succession certificate holder can claim rights over movable properties as the
successors of the deceased, who may have died intestate. The Banks also oftenly demand succession
certificates for release of funds or FDs in the name of deceased. It
establishes the legitimacy of the heirs and accords them the authority to receive
the deposits and such assets of deceased and may get that transferred in their
names.
Anil
K Khaware
Founder & Sr Associate
Societylawandjustice.com
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