“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XVI]
Justice V Ramkumar
1 Oct 2023 9:13 AM GMT
COURT HAVING JURISDICTION TO GRANT SUCCESSION CERTIFICATE
Q. 77 Which is the Court having jurisdiction to grant a Succession Certificate?
Ans. The Court having jurisdiction to grant a Succession Certificate is the District Judge within whose territorial limits the deceased ordinarily resided at the time of his death. (Vide Section 371 of the Indian Succession Act). If at that time the deceased had no fixed place of residence then the Court having jurisdiction will be the District Judge within whose territorial limits any property of the deceased may be found. (Vide Section 371).
WHETHER A COURT INFERIOR TO THAT OF THE DISTRICT JUDGE CAN BE INVESTED WITH THE POWER OF THE DISTRICT JUDGE
Q.78 Can a Court inferior to that of the District Judge be invested with the power of the District Judge for grant of a Succession Certificate ?
Ans. Yes. Under Section 388 of the Act the State Government may by notification in the Official Gazette invest any Court inferior in grade to that of a District Judge with the power to exercise the functions of a District Judge under PART X of the Act. Thereupon, such Inferior Court shall have concurrent jurisdiction with the District Judge to exercise powers under PART X of the Act. (Vide Section 388 (2) of the Act). In the State of Kerala the State Government, in exercise of their power under Section 388 (1) of the Indian Succession Act issued two notifications on 06-02-1958 which read as follows:-
"i) In exercise of the powers conferred by sub-section (1) of S.388 of the Indian Succession Act, 1925 (Act XXXIX of 1925), and in supersession of all previous notifications investing Courts of subordinate Judges with power to exercise the functions of a District Judge under Part X of the said Act, the Government of Kerala hereby invest all Courts of subordinate Judges in the State with power to exercise the functions of a District Judge under Part X of the Act within the local limits of their respective jurisdiction.
ii) In exercise of the powers conferred by sub-section (1) of S.388 of the Indian Succession Act, 1925 (Act XXXIX of 1925) and in supersession of all previous notifications investing Courts of Munsiffs with power to exercise the functions of a District Judge under Part X of the said Act, the Government of Kerala hereby invest all Courts of Munsiffs in the State with power to exercise the functions of a District Judge under Part X of the Act within the local limits of the respective jurisdiction."
Thus, all subordinate Judges and Munsiffs in the State of Kerala have been invested with the power to exercise the functions of a District Judge under PART X of the Indian Succession Act. If so, all the Sub Judges and Munsiffs exercising the said power have concurrent jurisdiction as that of the District Judge. In Parvathi Amma A. v. K. M. Gowri Amma 2016 (1) KLT 522 = 2016 (1) KHC 405 – K. Abraham Mathew - JJ, a learned single Judge of the High Court of Kerala has taken the view that a Munsiff so empowered under Section 388 (1) of the Act cannot exercise jurisdiction for entertaining an application for Succession Certificate under Section 372 of the Act exceeding the pecuniary jurisdiction of the Munsiff as determined by Section 13 of the Kerala Civil Courts Act, 1957. In my view, with due respect, the above pecuniary limit cannot be attributed to the Munsiff who is exercising concurrent jurisdiction with that of the District Judge under Section 388 (1) of the Act. (Vide para 4 of Kesava Pillai v. Bhageeradhi Amma 1963 KLT 102 = 1963 KHC 23 – T. C. Raghavan - J).
PROCEDURE FOR THE ISSUE OF SUCCESSION CERTIFICATE
Q.79 What is the procedure for the issue of a Succession Certificate ?
Ans. The procedure for the issue of Succession Certificate is laid down in Sections 363 of the Act. The contents of the Succession Certificate should be as provided in Section 374 of the Act. The Succession Certificate to be issued should conform to the Form said fourth in Schedule VIII read with Section 377 of the Act. The certificate should also show the debts and securities in respect of which said certificate is issued. In case any other debt or security not originally specified in the certificate has been found, the holder of the certificate can apply for an Extension Certificate under Section 376 of the Act. In Manicherry Saseendran v. P. V. Leela 2011 (2) KLT 866 = 2011 (2) KHC 745 = AIR 2011 Kerala 158 – K. T. Sankaran - J, a learned Judge of the High Court of Kerala has taken the view that a person claiming right under a Will need not necessarily obtain a Succession Certificate in order to claim any debt or security and that it is sufficient that he gets a Probate or Letters of Administration with or without the Will annexed. The above decision is in perfect accord with Section 214 of the Indian Succession Act as per which any of the five documents referred to in the said Section is sufficient for a person to claim the debts or security due from debtors of a deceased person.
NO res judicata
Q.80 Will not the grant of a Succession Certificate de bar a party to the proceedings from raising the same issue in a subsequent suit ?
Ans. No. The grant of Succession Certificate will not debar a party to the said proceedings to raise the same issue in a subsequent suit in view of Section 387 of the Indian Succession Act, 1925. The proceedings for grant of Succession Certificate will not fall under Explanation VIII to Section 11 CPC so as to operate as res judicata. (Vide Madhavi Amma v. Kunjikutty Pillai 2000 (2) KLT 518 = ILR 2001 Kerala 248 (SC) – A. P. Misra, M. B. Shah - JJ; Joginder Pal v. Indian Red Cross Society (2000) 8 SCC 143 = AIR 2000 SC 3279 – 3 Judges – K. T. Thomas, R. P. Sethi, S. N. Variava - JJ).
S. REVOCATION OF SUCCESSION CERTIFICATE
Q.81 Can a Succession Certificate be revoked by the Court and if so, on ward grounds?
Ans. Yes. A Succession Certificate issued under PART X of the
Indian Succession Act, 1925 can be revoked by the Court for any of the causes enumerated in Section 383 of the said Act. The said Section reads as follows:-
“383: Revocation of certificate - A certificate granted under this Part may be revoked for any of the following causes, namely:-
(a) that the proceedings to obtain the certificate were defective in substance;
(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;
(c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
(d) that the certificate has become useless and inoperative through circumstances;
(e) that 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 renders it proper that the certificate should be revoked”.
APPEALS FROM ORDERS GRANTING OR REFUSING OR REVOKING A SUCCESSION CERTIFICATE
Q.82 Does an appeal lie against the grant, refusal or revocation of a Succession Certificate?
Ans. Where a Succession Certificate has been granted or refused
or revoked by the District Judge, an appeal shall lie to the High Court under Section 384 of the Indian Succession Act, 1925. The said Section reads as follows;-
“ 384: Appeal - (1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.
(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908).
(3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by Section 141 of that Code, an order of a District Judge under this Part shall be final”.
COURT FEE PAYABLE FOR SUCCESSION CERTIFICATE
Q.83 What is the Court fee payable for a Succession Certificate?
Ans. The application fee for the issue of a Succession Certificate is
payable under Article 11 (l) of Schedule II of the Kerala Court Fees and Suits Valuation Act, 1959. The Court fee payable for a Succession Certificate has been prescribed in Article 7 of Schedule I of the Kerala Court Fees and Suits Valuation Act, 1959.