Abrogation of Doctrine of Pious Obligation-Debt of a Deceased Father/Ancestor - Liability of the Legal Heirs

Abrogation of Doctrine of Pious Obligation-Debt of a Deceased Father/Ancestor - Liability of the Legal Heirs

-S.Muthu Maharajan, Deputy Director, Regional Centre of Tamil Nadu State Judicial Academy,

Madurai

 

Does a Legal Heir have an obligation to satisfy the debt of his/her deceased Father/Grandfather/Great-grandfather?

Ancient HinduLaw-MitaksharaLaw:

 

Mulla   Hindu  Law,   under  the   chapter   “Debts-Mitakshara   Law” concludes with the Summary of the chapter as thus—

1) The separate property of a Hindu is liable for the payment of his debts in his lifetime as well as after his death.

(2)   The undivided interest of a coparcener in coparcenary property isalways liable for the payment of his debts in his lifetime.

(3)  Sons, grandsons and great-grandsons are liable to pay the debts of their ancestor if they have not been incurred for an immoral or unlawful purpose. Their liability, however, is confined to their interest in the coparcenary property; it is not a personal liability so that a creditor of the ancestor cannot proceed against the person or against the separate property of the sons, grandsons or great-grandsons.

(4)    As sons, grandsons and great-grandsons are liable to pay the lawful debts of their ancestor to the extent of their interest in the coparcenary property, a creditor of the ancestor is entitled toattach and sell not only the interest of the ancestor, but also the interest of the sons, grandsons and great-grandsons in the joint family property in execution of a decree obtained by him against the ancestor alone.

(5)    As sons, grandsons and great-grandsons are liable to pay the lawful debts of their ancestor to the extent of their interest in the

coparcenary property, the ancestor can sell or mortgage not only his own interest, but the interest of the sons,grandsons and great-grandsons in the joint family property, to pay an antecedent debt of his own.

(6)   The undivided interest of a coparcener in coparcenary property is not liable for payment of his debts after his death, if it has devolved by survivorship only upon collateral members of the coparcenary.

Doctrine of Pious Obligation:-

 

In addition to the obligation imposed by the Mitakshara Law on the Son/Grandson/Great-Grandson, the doctrine of Pious Obligation is also applicable to a legal heir to satisfy the debt of his ancestor provided the debts are not of an immoral character. In Naradasmiriti Dharma sastras,it was illustrated that the obligation of the son was an independent obligation irrespective of the fact whether the son inherited any property from the father.

Furthermore, the Doctrine of Pious Obligation is not of a religious character applicable only to the Hindus. The issue, whether the doctrine of pious obligation according to the Mitakashra school of Hindu law is applicabletoVanniyaTamilChristianscameupforconsiderationbeforethe Hon’ble Supreme Court Three Judges Bench in Anthonyswamy v. M.R. Chinnaswamy Koundan, (1969) 3 SCC 15: AIR 1970 SC 223 and it was observed:

“But it was argued that the doctrine of pious obligation originated in Hindu religious belief and was opposed to the tenets of Christianity. It was said that the doctrine was not applicable to Tamil Vanniya Christians of Chittur Taluk. We are unable to accept this argument.Itis not a correct proposition to state that the doctrine of pious

obligation is of religious character or is inextricably connected with Hindu religious belief. .....................................

7. It is evident therefore that the doctrine of pious obligation is not merely a religious doctrine but has passed into the realm of law. The doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to  a share of the ancestral property and both these conceptions are co-related. The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust him by Hindu law but is a salutary counter balance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property.”

Therefore, in view of the scope of the Pious Obligation, the son, even though, has not inherited any property from his ancestor, is duty bound to satisfy the debts of his ancestor, if the debt is not of immoral character. In other words, the son is liable to pay the debt of his ancestor even from his separate property.

Hindu Succession Act,1956

 

The Hindu Succession Act, 1956, which applies to Hindus governed by both the schools, has brought about some radical changes in the law of successionwithoutabolishingthejointfamily,coparcenary,andjointfamily property. The effect of that enactment is very far-reaching, having repercussions also on the rights of coparceners and their legal position.So farastheliabilityofthespecifiedheirstosatisfythedebtofancestorsonthe ground of pious obligation is concerned, it was not initially disturbed by the Act, 1956. However, an amendment to Section 6 by the Hindu Succession (Amendment)Act, 2005 makes radical changes in the pious obligation.

Abrogation of the Doctrine of Pious Obligation:

 

The Hindu Succession(Amendment)Act,2005 has finally abolished the doctrine of son’s pious obligation. Amended Section 6(4) says as follows:

“Section 6. Devolution of interest in coparcenary property —

........

(4)      After the commencement of the Hindu Succession (Amendment)Act,2005,no court shall recognizeanyrightto proceed against a son, grandson or great-grandson for                the recovery        of       any  debt      due    from  his       father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law,of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before

the     commencement      of     the     Hindu     Succession      (Amendment)          Act,         2005, nothing            contained      in   this   subsection shall affect-

(a)    The right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b)    any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation —For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case maybe, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.”

As per the amended Section 6(4), after the commencement of the amendment, no court shall recognize the right of a creditor to proceed against the son, grandson or great-grandson of a debtor, for debts contracted by the father, grandfather or great-grandfather solely on the ground of pious

obligation. The proviso to the sub-section stipulates that the right of a creditor to proceed against the specified heirs, or any alienations made in respect of, or in satisfaction of any such debts or obligations, before the coming into force of the amendment, are protected. An Explanation has been added to the effect that the expressions "son", "grandson" or "great- grandson" would be deemed to refer to such specified heirs who were born or adopted prior to the commencement of the amendment.

The doctrine of pious obligation thus stands abrogated to the extent that the specified heirs are not liable to satisfy such debts solely on the ground of pious obligation. The meaning and consequence of the amendment is that, if a debt has been contracted by the specified ancestor, the specified heirs are not under any obligation to satisfy the debt on the groundofpiousobligationalone.However,ifsuchheirhasexpresslyagreed to bind himself to fulfill the obligation, the provision will become redundant and inoperative. Thus, now the liability of the legal heirs to discharge debts of their father or ancestor extends only to the extent of the assets inherited by them as per the Mitakshara Law and the same has not been disturbed by the Hindu Succession Act. The children cannot be made to pay the debts outof their personal assets.

Provisions Under Civil Procedure Code:

 

It is also necessary to allude into the following provisions under the Code of Civil Procedure which states the liability of the Legal representatives.

50. Legal representative-(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to

the Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

52.Enforcement of decree against legal representative-(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment- debtor to the extent of the property in respect of whichhe has failed so to satisfy the Court in the same manner as if the decree had been against him personally.

53.Liability of ancestral property- For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

Conclusion:

 

A debt may be contracted by a Hindu male for his own private purpose, or it may be contracted by him for the purposes of the joint family. A Hindu may possess separate property and he may also be entitled to an

undivided interest in coparcenary property. The property of a Hindu, whether it is joint or separate, is liable for the payment of his debts both in his lifetime and after his death. The undivided interest of a coparcener in coparcenary property is always liable for the payment of his debts in his lifetime. His undivided coparcenary interest is also liable after his death, so faritisinthehandsofhislegalheirs.Whereafatherorpaternalgrandfather or paternal great-grandfather dies leaving private debts, in such a case, if the debts are not of an immoral character, the entire joint family property, including his son's undivided interest therein, is liable for the payment of his debts even after his death. This liability, however, is not a personal liability, i.e., the separate property of the legal heir is not liable to pay the personal debtsof the ancestor. Thus, a son/descendant as a legal heir has liability to the creditor to satisfy the debt contracted by his deceased father/ancestor to the extent of the property of the deceased which has come to his/her hands and has not been disposed of and also from their own interest in the joint family property but, not from the separate property of the said legal heir.

**********

Reference:

1.MullaHinduLaw,23rdEdition–LexisNexis

 

 

21.09.2021

Madurai

Agency Court has the jurisdiction to try all suits of civil nature, excepting suits of which their cognizance is either expressly or impliedly barred.

 

The Collector/Agent To The Government, ... vs The Bhadrachalam Division Lorry Owners ... on 1 February, 2002

WA 1491 of 1998

JUDGMENT
 

 S.R. Nayak, J.  and L.Narsimha Reddy J
 

1. The Collector/Agent to Government, Khammam District has filed this writ appeal against the order dated 9-4-1998 passed in W.P. No.33 of 1998 by the learned single Judge.

2. W.P.No.33 of 1998 was filed by the Bhadrachalam Division Lorry Owners Association, Bridge Road, Bhadrachalam, praying for Writ of Mandamus declaring the action of the Collector/Agent to Government-appellant herein, who is impleaded as 1st respondent in the writ petition, in entertaining the suit O.S.No.49 of 1996 filed by one Sri Chennupati Ramakotaiah Lorry Transport, Vijayawada, for perpetual injunction against the writ petitioner, as arbitrary, illegal and without jurisdiction.

3. It appears that the 3rd respondent filed suit O.S.No.49 of 1996 praying for the relief of perpetual injunction against the writ petitioner's association from interfering with his transport business along with an interlocutory application for temporary injunction. The said suit was entertained by the Collector/Agent to Government, Khammam district and that is why the Bhadrachalam Division Lorry Owners Association, against which injunction was sought before the Agency Court, filed the writ petition. Before the learned single Judge, it appears, it was contended that under Section 3 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, (for short, 'the Regulation'), a suit relating to lands could only be entertained by the Agency Court and not other kinds of suits. The learned Judge accepting the said contention of the writ petitioner held that the suit filed by the 3rd respondent is not maintainable and consequently, the learned Judge allowed the writ petition and declared that the suit filed by the 3rd respondent is not maintainable. Hence, this writ appeal by the Collector/Agent to Government, Khammam district.

4. Learned Government Pleader for Social Welfare would contend that the contention put forth before the learned Judge that under Section 3 of the Regulation only suits relating to the lands could be entertained and not any other suit is totally misconceived inasmuch as Section 3 of the Regulation does not deal at all with the jurisdiction of the Agency Court to entertain the suit. Learned Government Pleader would draw our attention to Rule 3 of the A.P. Agency Rules, 1924, (for short, 'the Agency Rules') framed by the Governor by virtue of the power conferred under Section 6 of the Scheduled Districts Act, 1874. Rule 3 of the Agency Rules reads-

"3. The Courts shall subject to the provisions herein contained have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred."

5. The provision of Rule 3 of the Agency Rules is exactly similar to that of Section 9 of C.P.C. By virtue of Rule 3 of the Agency Rules, the Agency Court has the jurisdiction to try all suits of civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. At the outset, it needs to be noticed that an Agency Court is a substitute for a Civil Court in every respect in the Agency Areas and therefore, it has the same jurisdiction, which a Civil Court has under Section 9 of the Code of Civil Procedure. Generally speaking, Agency Courts like Civil Courts have plenary powers to try all suits which involve determination of any civil right. Only two things are required to give the jurisdiction, i.e., (i) dispute must be of a civil nature, and (ii) its cognizance must not be barred by other statute either expressly or by necessary implication. Ouster of Agency Courts jurisdiction cannot be readily inferred and the provisions of ouster have to be strictly construed. Out of one incident or transaction more than one cause of action may arise, each giving rise to an independent right. Every right has a remedy and exclusion of ordinary remedy will depend upon the ambit of machinery provided for in the provisions of exclusion. Therefore, all will depend upon host of factors like the nature of the grievance, grounds of challenge, nature of remedy provided for in the enactment and conditions attached to that remedy. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. In Ganga Bai v. Vijay Kumar1, the Apex Court held that a suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. A suit is expressly barred if a legislation in express terms says so. It is impliedly barred if a statute creates a new offence or a new right and prescribes a particular penalty or special remedy. In that event, no other remedy can, in the absence of contrary intention, be resorted to. In forming this opinion, we are fortified by the judgments of the Apex Court in K.S.Venkataraman and Co. v. State of Madras2, Munshi Ram v. Municipal Committee3 and the judgment of a Division Bench of Karnataka High Court in Khadi and Village Industries Commission v. N.S.Pai4, and also the judgment of Rajasthan High Court in Modern Machinery Stores v. District Judge5. However, two conditions are required to be fulfilled before an Agency Court can be said to be competent to try a suit, i.e., the suit must be of a civil nature; and (ii) the cognizance of such a suit should not have been expressly or impliedly barred. In Dhulabhai v. State of M.P.6 and Munshi Ram v. Municipal Committee (supra 3), the Apex Court suggested certain tests/fundamental principles to be borne in mind in deciding cases where the question of exclusive jurisdiction of Tribunal is raised. It is not the case of the writ petitioner that the jurisdiction of the Agency Court is ousted explicitly or impliedly by any other statute.

6. It cannot be gainsaid that the suit filed by the 3rd respondent in the Agency Court is a suit of civil nature seeking a civil remedy. Section 3 of the Regulation does not at all deal with the jurisdiction of the Agency Court to entertain the suits. On the other hand, Section 3 of the Regulation deals with transfer of immovable property by a member of a scheduled tribe. In view of Rule 3 of the Agency Rules and since it is not brought to our notice by the learned counsel appearing for the writ petitioner any other statute or statutory rule which bars the jurisdiction of the Agency Court to entertain a suit for perpetual injunction, we hold that the Agency Court has jurisdiction to entertain the suit filed by the 3rd respondent. In that view of the matter, with respect, we cannot sustain the order of the learned single Judge. However, learned counsel appearing for the 1st respondent-writ petitioner would contend that the impugned order need not be interfered at the instance of the Agent to the Government who constitutes the Agency Court because the plaintiff has accepted the order of the learned single Judge and it has not come forward to assail the validity of the same. The learned counsel for the writ petitioner contends that the Collector/Agent to Government, Khammam district, has no locus to assail the correctness of the order made by the learned single Judge. This contention of the learned counsel for the 1st respondent-writ petitioner is not acceptable to the Court. It is true that normally, a Court or a statutory quasi-judicial authority or Tribunal, is not permitted to assail the order of a superior Court or the Tribunal if its order is set aside or quashed by such superior Court or Tribunal on the ground that it is for the aggrieved parties to pursue further legal remedies and not for the Court or the Tribunal, as the case may be, because, they cannot be treated as aggrieved persons. But, here is an extraordinary situation and if the order of the learned single Judge is allowed to stand, the jurisdiction conferred upon the Agency Court under Section 3 of the Agency Rules would be restricted to entertaining the suits in respect of the land only and the jurisdiction of the Agency Court to entertain all other suits of civil nature would be ousted thereby substantially curtailing the jurisdiction of the Agency Court. The situation created by the order of the learned single Judge is drastic and far-reaching and it will create serious problems in the administration of justice in the Agency Areas of the State of Andhra Pradesh. In such situation, simply because the plaintiff who instituted the suit in the Agency Court has not preferred appeal against the order of the learned single Judge, that would not come in the way of the State and its authorities in assailing the correctness of the order of the learned single Judge. Therefore, it cannot be said that the Collector/Agent to Government, Khammam district has no locus standi to prefer this writ appeal against the order of the learned single Judge. It is also relevant to notice that the Collector/Agent to Government, Khammam district, was arrayed as 1st respondent in the writ petition and by the order under appeal, his jurisdiction to entertain the suit of the respondent No.3 is ousted. Looking from that angle also, the writ appeal filed by him is maintainable and could be entertained.

7. In the result and for the foregoing reasons, we allow the writ appeal and set aside the order dated 9-4-1998 passed by the learned single judge and dismiss writ petition No.33 of 1998 with no order as to costs.

8. Before parting with this case, another submission made by the learned counsel for the 1st respondent be noted. According to the learned counsel, the suit filed by the 3rd respondent is not maintainable even otherwise on the grounds of lack of territorial jurisdiction in the Agency Court, the subject matter of the dispute etc., We do not wish to express any opinion on this contention of the learned counsel for the 1st respondent. If that is the case, it is permissible for the 1st respondent to raise all these pleas before the Agency Court for its consideration and decision.

Adverse Possession - Once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed.

Supreme Court of India

Ravinder Kaur Grewal vs Manjit Kaur on 7 August, 2019

Equivalent citations: (2019) 3 ICC 641, AIR 2019 SUPREME COURT 3827, AIRONLINE 2019 SC 804, 2019 (6) ABR 57, (2019) 10 SCALE 473, (2019) 262 DLT 1, (2019) 2 CLR 437 (SC), (2019) 2 ORISSA LR 478, (2019) 2 RENTLR 1, (2019) 3 ALL RENTCAS 161, (2019) 3 CURCC 171, (2019) 3 KER LT 865, (2019) 3 PAT LJR 420, (2019) 3 PLR 584 (SC), (2019) 3 RAJ LW 2255, (2019) 4 CGLJ 16, (2019) 4 CIVILCOURTC 1, (2019) 4 MPLJ 196, (2019) 4 RECCIVR 1, (2019) 6 ALL WC 5239, (2019) 6 MAD LJ 96, (2019) 6 MAH LJ 87, 2019 (8) SCC 729, (9) 206 ALLINDCAS 75, AIR 2019 SC (CIV) 2707

Author: Arun Mishra

Bench: M.R. Shah, S. Abdul Nazeer, Arun Mishra

                                                    1

                                                                         REPORTABLE

                                   IN THE SUPREME COURT OF INDIA

                                    CIVIL APPELLATE JURISDICTION

                                     CIVIL APPEAL NO.7764 OF 2014

         RAVINDER KAUR GREWAL & ORS.                              …APPELLANT(S)

                                                VERSUS

         MANJIT KAUR & ORS.                                       …RESPONDENT(S)

                                                  WITH

                         SPECIAL LEAVE PETITION (CIVIL) NOS.8332­8333 OF 2014

         RADHAKRISHNA REDDY (D) THROUGH LRS.                      …PETITIONER(S)

                                                VERSUS

         G. AYYAVOO & ORS.                                        …RESPONDENT(S)

                                            JUDG MENT

         ARUN MISHRA, J.

 59.  We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.

60. When we consider the law of adverse possession as has developed vis­à­vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.

61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff.

62. Let the matters be placed for consideration on merits before the appropriate Bench.

A proceeding for grant of Succession Certificate which in any case is summary in nature, the persons holding debts and securities are not required to be impleaded. DRAFT ARGUMENTS

 BEFORE THE HON'BLE PRL. SENIOR CIVIL JUDGE, ______________

SOP No.     2025

Between

________________________________________________________...PETITIONER/CLAIMANT

VERSUS

STATE BANK OF INDIA

...RESPONDENT

WRITTEN ARGUMENTS ON BEHALF OF THE PETITIONER/CLAIMANT

MAY IT PLEASE YOUR LORDSHIP,

The present written arguments are submitted on behalf of the Petitioner/Claimant in response to the preliminary objection raised by the Respondent, State Bank of India (hereinafter referred to as "SBI"), contending that the Succession Petition is not maintainable unless SBI Mutual Funds is impleaded as a party.

It is humbly submitted that the objection raised by the Respondent is misconceived, legally untenable, and contrary to the settled principles governing the grant of Succession Certificates under the Indian Succession Act, 1925.

I. THE OBJECT AND SCOPE OF A SUCCESSION CERTIFICATE

1. Statutory Framework: The grant of a Succession Certificate is governed by Part X (Sections 370 to 390) of the Indian Succession Act, 1925 (hereinafter referred to as "the Act").
2. Purpose: A Succession Certificate is a legal document issued by a competent court to establish the authenticity of the rightful successor(s) to the movable assets (debts and securities) of a deceased person who died intestate (without leaving a Will). Its primary purpose is to afford protection to persons paying debts or delivering securities to the holder of the certificate, ensuring a valid discharge of their liability. It facilitates the collection of debts and securities and enables the certificate holder to negotiate or transfer them.
• Reference: Section 381 of the Indian Succession Act, 1925, which states: "Payments bona fide made in respect of debts or securities to the holder of a certificate granted under this Part shall, in the absence of fraud or collusion, be a full discharge to the person making the payment, and all payments so made shall be deemed to have been made to the person rightfully entitled thereto, notwithstanding any defect whatsoever in the title of the person to whom the certificate was granted."
3. No Determination of Title: It is crucial to understand that a Succession Certificate does not determine the legal title to the property. It merely provides an indemnity to the debtor or financial institution against claims from other potential heirs. It does not confer a general power of administration over the estate of the deceased. The certificate holder is merely authorized to collect the debts and securities.
• Case Law: In Smt. Madhvi Amma Bhawani Amma and Ors. vs. Kunjikutty Pillai Meenakshi Pillai and Ors., the Hon'ble Supreme Court of India held that "the grant of the certificate gives to the grantee a title to recover the debt due to the deceased, and payment to the grantee is a good discharge of the debt." This emphasizes the protective nature of the certificate for the debtor, not a declaration of absolute ownership.
• Case Law: In Banarsi Dass v. Teeku Dutta (Smt.) and Anr., AIR 2005 SC 2198, the Hon'ble Supreme Court reiterated that a Succession Certificate "does not establish a title of the grantee as the heir of the deceased, but only furnishes them with authority to collect their debts and allows the debtors to make payments to them without incurring any risk."

II. NECESSARY PARTIES IN A SUCCESSION PETITION

1. Statutory Requirement: Section 372 of the Indian Succession Act, 1925, outlines the particulars required in an application for a Succession Certificate. It specifies details such as the time of death, ordinary residence of the deceased, family or near relatives, the right in which the petitioner claims, and the debts and securities for which the certificate is applied.
2. Absence of Mandate to Implead Debtors/Institutions: Significantly, Section 372 of the Act does not mandate the impleadment of the debtors or the institutions holding the securities (such as banks or mutual funds) as necessary parties to the petition. The focus of the petition is on establishing the right of the applicant to collect the debts and securities of the deceased, not on adjudicating a dispute with the debtor.
3. Role of the Financial Institution: The role of SBI, or for that matter, SBI Mutual Funds, is merely that of a custodian of the funds/securities. They are the disbursing agency, not a claimant to the estate. Their interest is limited to ensuring that they pay the legitimate heir and are protected from future claims, which is precisely what a Succession Certificate provides.
4. No Adversarial Claim: There is no adversarial claim being made against SBI Mutual Funds in the present petition. The petition is not seeking a decree for payment against them, but rather an authorization for the Petitioner to collect the assets. The grant of a Succession Certificate does not prejudice the rights of the mutual fund or the bank; rather, it protects them.
5. Distinction from Civil Suits: A Succession Petition is a summary proceeding, distinct from a regular civil suit where all parties whose presence is necessary for a complete and effective adjudication of the dispute must be impleaded. The scope of a Succession Petition is limited to determining who is entitled to collect the debts and securities.

The Petitioner herein is relying on the Judgment in the case of Sushila Devi Vs. State & Ors. in CM(M) No.985/2017, decided on 12.09.2017 by the Delhi High Court which explicitly held that "Before granting such Succession Certificate, in a proceeding for grant of Succession Certificate which in any case is summary in nature, the persons holding debts and securities are not required to be impleaded."

Further the Petitioner also relying on the Judgment of the Rajasthan High Court, in Aruna Derashri vs. Learned District Judge, S.B. Civil Writ Petition No. 4796/2019, decided on 16.04.2019, which also explicitly held that proceedings under Section 372 of the Indian Succession Act, 1925, can proceed without impleading the State Bank of India and other entities holding securities as party

III. MUTUAL FUNDS AS "SECURITIES" UNDER THE ACT

1. Definition of "Security": Section 370(2) of the Indian Succession Act, 1925, defines "security" for the purposes of Part X, including "any stock or debenture of, or share in, a company or other incorporated institution." Mutual fund units clearly fall within the ambit of "securities" as they represent an interest in an incorporated institution (the Asset Management Company or the Trust managing the mutual fund).
2. No Separate Entity for Mutual Fund: SBI Mutual Funds is essentially a part of the broader financial services offered by SBI or an entity closely associated with it. Even if it were a separate legal entity (an Asset Management Company), its function remains that of a holder of securities, not a claimant to the estate. The principles regarding the non-necessity of impleading the debtor/custodian remain the same.

In light of the foregoing submissions, it is humbly prayed that this Hon'ble Court may be pleased to:

1. Dismiss the preliminary objection raised by the Respondent, SBI, regarding the non-impleadment of SBI Mutual Funds.
2. Hold that SBI Mutual Funds is not a necessary party to the present Succession Petition.
3. Proceed with the hearing and grant the Succession Certificate as prayed for by the Petitioner/Claimant.

And for this act of kindness, the Petitioner/Claimant shall ever pray.

DATE:     -07-2025

PLACE:                     Counsel for the Petitioner.

 

LAND ACQUISITION MATTERS- ROLE OF COLLECTOR AND ROLE OF COURT IN FIXING COMPENSATION

 ROLE OF COLLECTOR/ LAO

Key Components of Compensation under Land Acquisition Act, 1894:

1. Market Value of the Land (Section 23(1) Firstly):
• This was the main component. The Collector determined the market value as on the date of the preliminary notification (Section 4 notification).
• Basis for Market Value: Primarily based on:
• Sale instances of comparable lands in the vicinity around the date of notification.
• Opinions of experts.
• Yield method (for agricultural land).
• Supreme Court's role: The Court consistently emphasized that market value should be the "fair market value" and not just the minimum. They often looked at the "potentiality" of the land, meaning its future development possibilities, even if it was agricultural land at the time of acquisition. However, significant deductions for development costs (often 30-50%) were common in urbanizable areas, assuming the acquirer would undertake development. This was a point of contention and often led to lower awards.
2. Solatium (Section 23(2)):
• An additional amount for the compulsory nature of the acquisition.
• Initially, it was 15% of the market value. However, with the 1984 amendment, it was increased to 30% of the market value. This was a significant enhancement, influenced by judicial pronouncements on the inadequacy of compensation.
• Supreme Court's Importance: The Supreme Court affirmed the mandatory nature of solatium, considering it an integral part of fair compensation for the landowner's involuntary parting with their land.
3. Additional Amount / Interest (Section 23(1A)):
• Inserted by the 1984 amendment. An amount calculated at the rate of 12% per annum on the market value for the period commencing from the date of publication of the Section 4 notification till the date of the award or taking possession, whichever is earlier. This was intended to compensate for the delay between the initial notification and the award.
4. Interest on Enhanced Compensation (Section 28 & 34):
• If the court enhanced the compensation on reference (Section 18), interest was payable on the enhanced amount.
• Section 34: Interest at 9% per annum for the first year from taking possession, and 15% per annum for any period beyond one year, if compensation wasn't paid or deposited.
• Supreme Court's role: There was considerable litigation and Supreme Court rulings on whether solatium and additional amount also attracted interest. The general trend was to allow interest on the total amount, including solatium and additional market value, to ensure complete recompense.
5. Rehabilitation and Resettlement (R&R) Benefits:
• None as a statutory right under the LAA, 1894. Any R&R provided was largely through ex-gratia schemes or administrative policies of the acquiring body/government, which varied widely and were not enforceable rights. This was a major lacuna of the old Act.
• Supreme Court's view: While the LAA, 1894, did not have statutory R&R, the Supreme Court, in later years, started emphasizing the need for some form of rehabilitation, especially for vulnerable sections, through administrative directions or by interpreting "public purpose" broadly to include consideration for displaced persons. However, this was not a consistent statutory right.

Calculation Formula (Simplified under LAA, 1894, post-1984 amendment):

Total Compensation = Market Value of Land + Solatium (30% of Market Value) + Additional Amount (12% interest on Market Value) + Value of Structures/Trees (if any) + Interest on enhanced compensation (if awarded by court).

Example with the same scenario under LAA, 1894:

Scenario (Same as before):

• Land Area: 2 acres (8094 sq. meters approx.)
• Location: Rural area (but no multiplier factor applied under 1894 Act based on rural/urban).
• Date of Section 4 Notification: January 1, 2023 (equivalent to SIA notification for market value determination)
• Date of Collector's Award: January 1, 2025 (2 years later)

Data Gathering & Application of (Limited) Supreme Court Principles:

1. Determining Market Value:
• Under the 1894 Act, the Collector would primarily rely on comparable sale instances around January 1, 2023.
• Let's assume the market value determined by the Collector is ₹500 per sq. meter (as the Act didn't have the "highest of the two" clause or multipliers based on rural/urban).
• The Supreme Court's influence would primarily be on ensuring that the comparable sales were genuinely reflective and that potentiality was considered, even if deductions for development were applied. For simplicity, we stick to ₹500/sq. meter.
• Market Value of Land: 8094 sq. meters * ₹500/sq. meter = ₹40,47,000
2. Value of Assets Attached:
• Well and trees assessed at: ₹1,00,000. (This component was generally similar).

Calculation:

• A. Market Value of Land: ₹40,47,000
• B. Value of Assets: ₹1,00,000
• C. Sub-total (A+B): ₹40,47,000 + ₹1,00,000 = ₹41,47,000
• D. Solatium (30% of Market Value, i.e., of A): ₹40,47,000 * 30% = ₹12,14,100
• E. Additional Amount (12% per annum on Market Value (A) for 2 years):
• 12% of ₹40,47,000 = ₹4,85,640 per year
• For 2 years = ₹4,85,640 * 2 = ₹9,71,280
• F. Total Monetary Compensation (C + D + E): ₹41,47,000 + ₹12,14,100 + ₹9,71,280 = ₹63,32,380

G. Rehabilitation and Resettlement (R&R) Benefits:

• None as a statutory right. The family might receive some ex-gratia payment or assistance if the acquiring body had a specific policy, but it wasn't guaranteed by the Act.

Comparison and Key Differences:

Feature	LARR Act, 2013 (New)	LAA, 1894 (Old)
Market Value Basis	Higher of Stamp Duty Value, Average Sale Price (last 3 yrs, 50% deeds), or Consented Value. Multiplier for rural areas (1.0-2.0).	Primarily Sale Instances. No statutory multiplier. Deductions for development common.
Multiplier Factor	Yes (1.0-2.0 for rural, 1.0 for urban)	No
Solatium Rate	100% of the total compensation (market value + assets + multiplier)	30% of the market value (post-1984 amendment).
Additional Amount	12% on market value from SIA notification to Award/Possession	12% on market value from Section 4 notification to Award/Possession (post-1984 amendment).
R&R Benefits	Statutory right (housing, livelihood, subsistence, etc.)	No statutory right; largely discretionary ex-gratia payments or policy-based.
Transparency	SIA, public hearings, R&R plans, consent requirements	Limited transparency, no mandatory SIA or public hearings.
Total Monetary Compensation in Example	₹1,37,33,168	₹63,32,380

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Supreme Court's Influence on LAA, 1894:

Even under the LAA, 1894, the Supreme Court, through a series of judgments, tried to make the compensation more "just" within the confines of the Act:

• Potentiality: Consistently held that the market value must include the "potentiality" of the land, i.e., its future use and development possibilities.
• True Market Value: Emphasized that the market value should be the "true" market value, often directing higher compensation than initially awarded by the Collector if the evidence suggested undervaluation.
• Interest on Solatium: After much debate, the Supreme Court clarified that interest was indeed payable on the solatium component, ensuring that the full compensation attracted interest for delays.
• Severance Damages, etc.: Upheld other claims like damages for severance, injurious affection, etc., as provided under Section 23(1) of the Act.

Despite these judicial interpretations, the inherent limitations of the LAA, 1894, particularly the absence of statutory R&R and the lower solatium rate, made it inadequate for truly fair compensation, which ultimately led to its repeal and replacement by the LARR Act, 2013. The new Act fundamentally changed the landscape of land acquisition by making R&R a statutory right and significantly enhancing monetary compensation

 

ROLE OF THE COURT (CIVIL COURT) UNDER LAA, 1894

The "Court" under the LAA, 1894, played a crucial role in adjudicating disputes arising from the Collector's award. It had the power to enhance compensation and resolve title/apportionment disputes.

1. Reference under Section 18 of LAA, 1894 (Objection to Award)

• When it arises: Section 18 allowed any "person interested" who had not accepted the Collector's award (often by receiving it "under protest") to apply to the Collector to refer the matter to the Court. The objections could be regarding:
• Measurement of the land.
• The amount of compensation.
• The persons to whom it was payable.
• The apportionment of the compensation.
• Court's Function: The Court would then re-evaluate the compensation based on the evidence presented by the landowner and the acquiring body. It was a de novo (fresh) determination, not merely a review of the Collector's decision.

How the Court Calculated/Determined Compensation on a Section 18 Reference:

The Court's primary objective was to determine the "true market value" as on the date of the Section 4 notification and ensure fair compensation as per Section 23 of the LAA, 1894.

1. Re-determination of Market Value (Section 23(1) Firstly): This was the most frequent and significant ground for enhancement. The Court would consider:
• Comparable Sale Instances: Landowners would present sale deeds of similar lands in the vicinity that were sold around the date of the Section 4 notification, which were typically for higher values than what the Collector had considered. The Court would meticulously analyze these "sale exemplars" for their genuineness, proximity, size, development potential, and comparability.
• Potentiality of the Land: The Supreme Court consistently held that the market value should include the "potentiality" or "future development prospects" of the land. Even if agricultural, if it was situated near a developing urban area or a main road, its potential for commercial or residential use would be factored in. This was a key area where courts often enhanced compensation.
• Expert Evidence: Reports from government-approved valuers or other expert witnesses would be considered.
• Deductions for Development: It was common practice for courts to apply deductions for development costs (e.g., 30% to 50%) when valuing large tracts of undeveloped land based on sales of small developed plots. This was to account for the costs of roads, drainage, public amenities, etc., that the acquiring authority would incur. The Supreme Court often refined how these deductions should be applied to prevent arbitrary reduction of compensation.
• Other Methods: In the absence of direct sale exemplars, the Court could resort to other methods like the yield method (for agricultural land) or the belting method (valuing land in belts away from a main road).
• Supreme Court's Directives: The Courts were heavily guided by Supreme Court judgments which emphasized:
• Highest Bona Fide Exemplar: The highest bona fide sale exemplar was often considered as the benchmark, with suitable adjustments.
• No Speculative Valuation: While potentiality was considered, the valuation could not be purely speculative.
• Rejection of Basic Value Register: The Supreme Court clarified that stamp duty ready reckoner values (like the "Basic Value Register") were for fiscal purposes and could not be the sole basis for market value determination under the LAA, 1894.
2. Damages (Section 23(1) Secondly to Sixthly): The Court would also assess and award damages for:
• Standing crops and trees: If the Collector undervalued or omitted these.
• Severance: Damage sustained by the landowner by reason of severing the acquired land from his other land.
• Injurious Affection: Damage caused to the landowner's other property by reason of the acquisition or the use of the acquired land.
• Forced Change of Residence/Business: Reasonable expenses incurred due to a change of residence or place of business.
• Loss of Earnings: Loss of profits or earnings during the interval between notification and taking possession.
3. Solatium (Section 23(2)): Once the "market value" (as re-determined by the Court) and any other damages under Section 23(1) were finalized, the Court would mandatorily add 30% solatium on this total. If the basic compensation was enhanced, solatium automatically increased.
4. Additional Amount / Interest (Section 23(1A)): The Court would re-calculate this at 12% per annum on the enhanced market value from the date of the Section 4 notification until the date of the award or possession, whichever was earlier.
5. Interest on Enhanced Compensation (Section 28): This was a crucial aspect. If the Court enhanced the compensation over the Collector's award, it would also award interest on this enhanced amount.
• Rate: 9% per annum for the first year from taking possession.
• Rate: 15% per annum for any period beyond one year from taking possession, if the enhanced compensation wasn't paid.
• Supreme Court's Stance: The Supreme Court consistently clarified that this interest was payable on the entire enhanced amount, including the enhanced solatium and additional amount, to ensure full recompense for the period the landowner was deprived of their property and the full compensation.

Example of Court's Calculation (Enhancement Scenario under LAA, 1894):

Let's use the same scenario and assume the Collector's award was low.

• Collector's Award (as per previous LAA, 1894 calculation example):
• Market Value: ₹40,47,000 (based on ₹500/sq.m.)
• Value of Assets: ₹1,00,000
• Solatium (30% on MV): ₹12,14,100
• Additional Amount (12% on MV for 2 yrs): ₹9,71,280
• Total Monetary Compensation by Collector: ₹63,32,380

Now, the landowner seeks reference to the Court under Section 18. They present strong evidence (recent sale deeds) that comparable lands in the vicinity were genuinely selling for ₹650 per sq. meter around the Section 4 notification date, and argue that the Collector undervalued the land.

Court's Re-calculation:

1. Re-determined Market Value (by Court): The Court, convinced by the evidence, determines the market value should be ₹650 per sq. meter.
• Market Value of Land: 8094 sq. meters * ₹650/sq. meter = ₹52,61,100
2. Value of Assets: Remains the same (₹1,00,000), as there was no dispute on this.

Court's Enhanced Compensation Calculation:

• A. Market Value of Land: ₹52,61,100
• B. Value of Assets: ₹1,00,000
• C. Sub-total (A+B): ₹52,61,100 + ₹1,00,000 = ₹53,61,100
• D. Solatium (30% of Market Value, i.e., of A): ₹52,61,100 * 30% = ₹15,78,330
• E. Additional Amount (12% per annum on new Market Value (A) for 2 years):
• 12% of ₹52,61,100 = ₹6,31,332 per year
• For 2 years = ₹6,31,332 * 2 = ₹12,62,664
• F. Total Monetary Compensation awarded by Court (C + D + E): ₹53,61,100 + ₹15,78,330 + ₹12,62,664 = ₹82,02,094

G. Interest on Enhanced Compensation (Section 28): The Collector's award was ₹63,32,380. The Court enhanced it to ₹82,02,094. Enhanced Amount = ₹82,02,094 - ₹63,32,380 = ₹18,69,714 Interest would be payable on this ₹18,69,714 from the date of taking possession until payment, at 9% for the first year and 15% thereafter (as per Section 28 and 34).

Result: The Court has enhanced the compensation from ₹63,32,380 (Collector's Award) to ₹82,02,094, plus interest on the enhanced amount.

No Statutory R&R: Crucially, even the Court under the LAA, 1894, could not award statutory R&R benefits because the Act did not provide for them. Any R&R would remain ex-gratia or policy-based outside the scope of the Act.

2. Reference under Section 30 of LAA, 1894 (Dispute as to Apportionment or Title)

• When it arises: Section 30 of the LAA, 1894, allowed the Collector to refer a matter to the Court if there was a dispute regarding:
• The apportionment of the compensation amount among various interested persons.
• The persons to whom the compensation (or any part thereof) was payable (i.e., a title dispute).
• Court's Function: The Court's role here was purely to determine the rights of the claimants to the already fixed compensation amount. It would not re-determine or enhance the total compensation amount. Its jurisdiction was limited to deciding who gets what share of the money.

How the Court Calculated/Determined on a Section 30 Reference:

1. Adjudication of Title: The Court would examine all evidence related to ownership, inheritance, purchase, or any other claim to title. This often involved complex legal questions and the application of property law, family law, etc.
2. Apportionment: Based on its determination of title, the Court would apportion the already determined total compensation amount among the rightful claimants according to their respective shares or interests.
3. Depositing Compensation: Until the dispute was resolved, the Collector would deposit the compensation amount in the Court, and the Court would hold it pending its decision.

Example of Court's Calculation (Apportionment Scenario under LAA, 1894):

Assume the Collector has awarded ₹63,32,380 for a piece of land. A dispute arises between two brothers (X and Y) and their deceased sister's children (Z) over their shares in the compensation. The Collector refers the matter under Section 30.

Court's Process:

• The Court will not change the ₹63,32,380 amount.
• It will hear all parties (X, Y, and Z). They will present their claims, family tree, succession documents, or any other relevant evidence.
• The Court will apply the relevant personal law (e.g., Hindu Succession Act, Muslim Personal Law) to determine the legal heirs and their respective shares.
• Based on its findings, the Court will pass an order for apportionment. For instance, if it finds X and Y have 1/3 share each, and Z (representing their mother's share) has 1/3 share:
• Brother X: 1/3 of ₹63,32,380 = ₹21,10,793 (approx)
• Brother Y: 1/3 of ₹63,32,380 = ₹21,10,793 (approx)
• Children of Sister Z: 1/3 of ₹63,32,380 = ₹21,10,794 (approx)

Key Supreme Court Judgments reflected:

• Market Value Principles: The numerous Supreme Court judgments on "market value" under Section 23(1) of the LAA, 1894, heavily influenced how Courts dealt with Section 18 references. Cases like Special Land Acquisition Officer v. M.K. Rafiq Saheb, Mehrawal Khewaji Trust v. State of Punjab, and Land Acquisition Officer v. Jasti Rohini provided guidelines on comparable sales, potentiality, and deductions.
• Mandatory Solatium and Interest: The Supreme Court consistently upheld the mandatory nature of solatium and the payment of interest on the enhanced compensation (including solatium and additional amount) under Sections 23(2), 23(1A), 28, and 34.
• Scope of Reference: The Supreme Court clarified that the Court's jurisdiction under Section 18 was limited to the objections raised in the reference application. It couldn't widen the scope beyond what was referred by the Collector. However, it had full power to redetermine the market value.