Civil Suit for Succession; Free Legal Advice

Civil Suit for Succession; Free Legal Advice

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SUCCESSION CERTIFICATE ISSUED DURING PENDENCY OF CIVIL SUIT REGARDING SUCCESSION

In this post we will discuss the grounds of issuance of Succession Certificate when the civil suit regarding the succession is pending.

Judgement Digest: Sarvinder Singh vs Tarlochan Singh And Another, PHHC.

The present revision petition has been filed under Section 388 (3) of the Indian Succession Act, 1925 (for short ‘the Act’).

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Facts of the case:

  1. The petitioner is husband and claiming to be the sole natural heir of Joginder Kaur, deceased, had filed an application under Section 372of the Act for grant of a succession certificate to him qua the debts in the form of Bank deposits in the name of said Joginder Kaur.
  2. On 14 January, 2009, in the petition contested by respondent No.1- Tarlochan Singh, son of the brother of C.R. No. 161 of 2011(O&M) [2] Joginder Kaur, the Civil Judge (Senior Division), Ferozepur, vide order had allowed the application and granted succession certificate under Section 372of the Act regarding the estate/ amount of Joginder Kaur, along with interest in favour of the petitioner authorizing him to collect the amount in the bank according to law. Exercising powers of the District Judge vested in him, the learned Civil Judge (Senior Division), under Section 373 (3) of the Act held the petitioner to be the person having prima facie the best title of the estate/ amount left by his wife. It is pertinent to observe here that unregistered Will propounded by respondent Tarlochan Singh dated December 27, 2002 was held to be surrounded by suspicious circumstances.
  3. The judgment dated January 14, 2009 was challenged by respondent No.2 by filing an appeal under Section 384(1) read with Section 388 (2) of the Act before the District Judge.
  4. The learned Appellate Court had set aside the succession certificate and dismissed the application filed by the petitioner under Section 372of the Act holding that the proper course for the succession Court was to keep the petition pending until the civil suit regarding the Will was decided by the Civil Court in Civil Suit filed by Tarlochan Singh in the Court of Civil Judge (Senior Division), Jalalabad – Tarlochan Singh Vs. Sarvinder Singh in which original Will dated C.R. No. 161 of 2011(O&M) [3] December 27, 2002 was lying attached and the validity of the Will was to be decided. The decision given by the Succession Court in summary proceeding was thus held to be perverse and the appeal was allowed vide judgment dated September 8, 2010.

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  1. Respondent Tarlochan Singh had filed a suit in the Court at Jalalabad regarding some immoveable properties left by Smt. Joginder Kaur on the basis of Will dated December 27, 2002 and had prayed that the proceedings under Section 372of the Act should be stayed till the decision of the civil suit. Said application was contested by the petitioner. The application under Section 10 CPC was dismissed by Civil Judge (Senior Division), Ferozepur vide order dated January 11, 2008.
  2. Said order was challenged by Civil Revision No. 359 of 2008 in the High Court but it was dismissed as per order dated July 31, 2008 passed by Surya Kant, J. The request of respondent to stay or adjourn the proceedings sine die till decision of civil suit at Jalalabad was rejected and the said decision attained finality, as such the impugned order dated C.R. No. 161 of 2011(O&M) [4] 8.9.2010 superseding the order passed by the High Court is invalid.
  3. As per Ld. Counsel, the provisions of Section 373(3) enjoins a duty upon the Court to grant the succession certificate in a summary manner to the applicant who has filed the application for the grant of certificate being the natural heir of the deceased.
  4. As per Ld. Counsel, the provisions of Section 387of the Act, no decision under the Indian Succession 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 proceedings between the parties and nothing in the 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 of any security, to account therefore to the person, lawfully entitled thereto.

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Judgement of the case:

  1. The judgment given by District Judge as defined under Section 2(bb) of the Act exercising the powers under Section 372 read with Section 388 (1) and (2) of the Act, is competent to issue succession certificate during the pendency of a civil suit regarding the succession.
  2. The rights of respondent Tarlochan Singh regarding the shop situated in Jalalabad and share in a plot situated at Jalalabad and the immovable property i.e., the bank accounts are the subject matter of the Will.
  3. In case law, Monica Bibli Sood Vs. Mrs. Kamal Seth and others, 2004 (3)CCC 212 in which it has been laid down that proceedings for obtaining succession certificate under Section 372of the Act cannot be stayed during the pendency of the suit as object of issuance of a succession certificate is clearly different as the said proceedings are summary in nature and the certificate does not result in deciding the issue finally between the parties. Even the proceedings in civil suit have not been held to be attracting the principle of res judicata by a decision in summary proceedings under Section 372 of the Act in the abovesaid judgment.

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  1. In Roma alias Raman Vs. Girdhari Lal Bijliwala and another, 1996 (1) C.R. No. 161 of 2011(O&M) [6] PLR 294, it was held in context to provisions of Section 373(2) and (3) of the Indian Succession Act that if the trial Court comes to a positive finding that a person applying under Section 372 of the Act is entitled to the amount claimed, it is necessary to grant a succession certificate in his favour. However, if the Court cannot decide the right to the certificate without determining intricate questions of law or fact, it may either refuse to grant the certificate leaving the parties to get their rights determined in a civil suit or in its discretion grant a certificate to the applicant if he appears to be a person having prima facie best title thereto.
  2. A similar question came up before the Apex Court in Madhvi Amma Bhawani Amma Vs. Kunjikutty Pillai Meenakshi Pillai, 2000 (3) RCR (Civil) 187 wherein it was held that the summary proceedings for the C.R. No. 161 of 2011(O&M) [8] grant of succession certificate will not be res judicata for any subsequent proceedings for determining the rights of the contesting parties.
  3. Considering the facts and circumstances of the present case in context to the provisions of Section 373(3) of the Act, this Court is of the opinion that the petitioner is the natural heir, as per the Hindu Succession Act. So far as defendant- respondent is concerned, he is the nephew (brother’s son of the deceased). The rights of any rival claimants are yet to be determined regarding the other immoveable properties. The order dated January 14, 2009 passed by Civil Judge (Senior Division) is hereby restored. Succession certificate will be issued to the petitioner after having furnished the indemnity bonds according to the rules and the petitioner is held entitled to collect the amounts along with interest till date, subject to furnishing indemnity bonds of Rs.10 lacs with one surety of the like amount with an undertaking that he will remain bound to indemnity the claim of any other rightful claimant, if found subsequently, according to law.

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