IMPORTANT JUDGMENTS(WHERE PUBLIC INTEREST IS AT LARGE)AND CIRCULARS OF THE HON'BLE HIGH COURT WILL BE POSTED IN THIS BLOG FOR USE OF STAKE HOLDERS OF LEGAL FRATERNITY
Friday, 12 September 2025
Tuesday, 19 August 2025
Reconstructed document, by virtue of legal fiction, assumes the character of original document for all purposes, including the Stamp Act.
A.P HIGH COURT
Writ PetitionNo.4143 of 2021 dt: 15-06-2021
ORDER:
A short but important question arises for consideration in this writ petition is whether the District Registrar can refuse to levy and collect stamp duty and penalty on a reconstructed document transmitted to him by civil Court on the ground that the document sent to him is a xerox copy ?
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12. In the light of above law, the proceedings of the 3rd respondent in refusing to impound, levy and collect the Stamp duty and penalty on the xerox copy of the sale agreement is legally unsustainable.
As a sequel, interlocutory applications pending, if any, shall stand closed.
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Tuesday, 12 August 2025
Saturday, 2 August 2025
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
Wednesday, 30 July 2025
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.
Tuesday, 29 July 2025
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 visà vis 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.
Tuesday, 15 July 2025
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
- 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").
- 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."
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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).
- 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:
- Dismiss the preliminary objection raised by the
Respondent, SBI, regarding the non-impleadment of SBI Mutual Funds.
- Hold that SBI Mutual Funds is not a necessary party to
the present Succession Petition.
- 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.