regarding issuance of succession certificate. Certificate
can be granted in respect of the property of the deceased
which goes to the heirs of the deceased. In the present
matter the brothers had claimed succession certificate in
respect of provident fund and gratuity amount and such
certificate can be issued in respect of provident fund as it
is treated as security. Provisions of Sections 372 and 373
of the Act show that inquiry involved in this application is
of summary nature and limited investigation is required to
be made. These provisions show that public notice is
required to be issued of this proceeding. Section 372 (3)
of the Act shows that even if intricate questions of law or
fact are involved which cannot be decided in summary
manner, the Court may grant the certificate if the
applicant has prima facie case. Thus in this provision even
when there is summary procedure given and there is
contest, the succession certificate can be issued. Inquiry
after framing of issues etc. is required if there is contest
but that inquiry is also summary in nature. The provisions
show that the purpose of giving such certificate is to give
authority to the holder of certificate to realize the debt or
security of the deceased and to give valid discharge. Thus,
this is only authority given to the holder of the certificate
to collect security or realize the debt and it needs to be
presumed that the amounts so collected need to be
disposed of in accordance with the rights of the persons
who are entitled to this amount. That is the duty imposed
on the person who is holding the certificate. This
certificate is conclusive as against the persons owing such
debt or who are liable to such security as provided in
section 381 of the Act. Thus, the certificate cannot be
used against the legal heirs of the deceased who have
better title.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AT AURANGABAD
Civil Revision Application No. 45 of 2015
Beersing Charan Karosiya
V
Tanhabai Pratap Karosiya
CORAM: T.V. NALAWADE, J.
DATE : 26th NOVEMBER 2015
Citation: 2016(6) ALLMR 333
1) Rule. Rule made returnable forthwith. Heard
both the sides by consent for final disposal.
2) The present proceeding is filed to challenge the
judgment and order of Regular Civil Appeal No.271 of
2009 which was pending in the Court of the Principal
District Judge, Ahmednagar. The appeal was filed by the
present respondent Nos.1 and 2 to challenge the decision
of application which was filed under section 383 of the
Indian Succession Act 1925 (hereinafter referred to as
"the Act"). In the application bearing Civil Misc.
Application No.81/2008 the present respondent Nos.1 and
2 had challenged the succession certificate granted in
favour of present petitioners in Misc. Application
No.91/2007 which was filed under section 372 of the Act.
The trial Court had refused to revoke the succession
certificate but the appeal is allowed by the District court
and the certificate is revoked.
3) The application bearing No.91/2007 which was
filed under section 372 of the Act was filed by present
petitioner Beersing Karosiya, a brother of deceased
Pratap Karosiya. The respondents of the said proceeding
were other brothers of Pratap. Pratap was working as
driver in Zilla Parishad Ahmednagar and he died on 20-2-
2007 while he was in service. Pratap had rendered
pensionable service. The amounts like provident fund,
gratuity and amount of insurance are payable in respect of
the service of Pratap from his office. The other brothers
had given no objection for giving certificate in favour of
Beersing. The procedure was followed like publishing
notice of the proceeding in news paper, publishing of
notice in Court campus etc. Nobody had taken objection.
Evidence on affidavit was given and on that basis the
certificate was issued on 11-2-2008.
4) In the application bearing No.81/2008 under
section 383 of the Act, Tanhabai, applicant No.1 of that
proceeding contended that she is widow of Pratap. Other
applicant Arjun of that proceeding contended that he is
son of Tanhabai born from Pratap. It was contended that
marriage of the deceased with Tanhabai had taken many
years back as per Hindu rites and custom and it was
contended that they are the legal heirs of Pratap. They
also contended that they had already obtained certificate
of heirship on 8-10-2007 in Misc. Application No.86/2007.
They contended that in the application filed by Beersing
under section 372 of the Act they were not parties and
they had no knowledge about filing of such application
though notice was published. They contended that by
playing fraud and by misleading the Court Beersing had
obtained the certificate. They contended that when
Beersing filed succession certificate in Zilla Parishad
office for getting aforesaid amounts they came to know
about issuance of such certificate. They admitted that
Beersing and respondents of proceeding No.81/2008 were
brothers of deceased Pratap but they contended that as
they are widow and son, the succession certificate cannot
be granted in favour of brothers of Pratap. They prayed
for revocation of the certificate. Tanhabai wants to claim
aforesaid amounts and the family pension.
5) Misc. Application No.81/2008 was contested by
present applicants, brothers of Pratap. They denied that
deceased was married and Tanhabai is widow of the
deceased and Arjun is son of the deceased. They
contended that the deceased had nominated his younger
brother Indal for getting the amounts in the office of Zilla
Parishad. They contended that Beersing was taking care
of Pratap during his last days. They contended that
Tanhabai had married with one Mohan Sonawane and
respondent No.2 was born to Tanhabai from said Mohan
Sonawane. They contended that Saraswatibai and Indubai
are other two issues of Tanhabai born from Mohan
Sonawane. They contended that Arjun is married and his
issues also are using the surname as Sonawane. They
contended that Tanhabai had not taken divorce from
Sonawane and she had not performed marriage with
deceased Pratap. They contended that by misleading the
Court, Tanhabai has obtained heirship certificate and they
had no knowledge about pendency of the proceeding filed
by Tanhabai for issuance of such certificate. They
contended that they were not party to the said proceeding
and so the said certificate is not binding on them.
6) Both sides gave evidence in Application No.81
of 2008. The Court considered the evidence given by both
sides, both documentary and oral, and the trial Court held
that there was no evidence on the marriage of Tanhabai
with Pratap. As there was no material to show that
Tanhabai and Arjun have better title, the trial Court had
dismissed the application. The learned Principal District
Judge held that as already heirship certificate was issued
in favour of Tanhabai and as it was not cancelled or
revoked, this circumstance needs to be considered against
brothers of Pratap. The Appellate Court held that there is
evidence to show that Tanhabai had admitted Pratap in his
last days in the hospital and this circumstance is
consistent with her case. The Appellate Court further held
that there was cohabitation between Tanhabai and
deceased Pratap and so there was sufficient material to
make out case of relationship of husband and wife.
7) On one hand there was heirship certificate
granted in favour of Tanhabai under the provision of the
Bombay Regulations Act 1827 and on the other hand
relationship of the applicants from the proceeding
No.81/2008 with Pratap was not disputed by Tanhabai. In
view of these circumstances, the schemes of both these
Acts need to be considered and the material needs to be
considered to ascertain as to whether there was sufficient
material on the basis of which the certificate granted
under section 372 of the Act could have been revoked.
8) The provisions of the rules made under the
Bombay Regulations Act 1827 show that they are framed
for recognition of heirship. The provisions show that
ordinarily even without having such certificate the heirs
can manage the property of the deceased and they can
sue or defend the proceedings in respect of property of
the deceased both movable and immovable. In spite of
this position of law, if the heirs request for certificate, the
procedure required in this Act needs to be followed. The
procedure involves issuance of proclamation. If no
objection is taken to the proceeding, the recognition can
be granted by the Court. If there is objection and the
objection involves the questions which are complicated or
difficult, the Judge has power to suspend the proceeding
till issues are tried by regular suit. The procedure further
shows that refusal to give recognition does not finally
determine the rights and the party who had come to the
Court, can file suit for establishing the claims. Thus no
title to the property is decided and only recognition to
heirs of the deceased is given if the proceeding is not
contested as already observed.
9) In Part X of the Act there are provisions
regarding issuance of succession certificate. Certificate
can be granted in respect of the property of the deceased
which goes to the heirs of the deceased. In the present
matter the brothers had claimed succession certificate in
respect of provident fund and gratuity amount and such
certificate can be issued in respect of provident fund as it
is treated as security. Provisions of Sections 372 and 373
of the Act show that inquiry involved in this application is
of summary nature and limited investigation is required to
be made. These provisions show that public notice is
required to be issued of this proceeding. Section 372 (3)
of the Act shows that even if intricate questions of law or
fact are involved which cannot be decided in summary
manner, the Court may grant the certificate if the
applicant has prima facie case. Thus in this provision even
when there is summary procedure given and there is
contest, the succession certificate can be issued. Inquiry
after framing of issues etc. is required if there is contest
but that inquiry is also summary in nature. The provisions
show that the purpose of giving such certificate is to give
authority to the holder of certificate to realize the debt or
security of the deceased and to give valid discharge. Thus,
this is only authority given to the holder of the certificate
to collect security or realize the debt and it needs to be
presumed that the amounts so collected need to be
disposed of in accordance with the rights of the persons
who are entitled to this amount. That is the duty imposed
on the person who is holding the certificate. This
certificate is conclusive as against the persons owing such
debt or who are liable to such security as provided in
section 381 of the Act. Thus, the certificate cannot be
used against the legal heirs of the deceased who have
better title.
10) The provision of section 383 of the Act, which
provides for revocation of the certificate, gives the
grounds on the basis of which the certificate can be
revoked. One of the grounds is that procedure which was
conducted to obtain the certificate was defective in
substance and there is another ground that the certificate
was obtained fraudulently. These two grounds are
considered by the Appellate Court.
11) The learned counsel for the brothers placed
reliance on two reported cases of this Court like (1) AIR
2007 Bombay 193 (Vaijantabai vs. Janardhan) and AIR
1997 Bombay 275 (Sharad v. Ashabai). In the first case
when a proceeding was filed by real brothers of the
deceased for succession certificate and objection to it was
taken by a lady and her two issues by contending that she
was the widow of the deceased and the issues were born
from deceased and when their relationship with the
deceased was challenged by the brothers of the deceased,
this Court held that burden was on this lady and her
issues to prove the relationship. This Court held that
though the inquiry involved is of summary nature, there
has to be minimum material for a party to be entitled to
the succession certificate and in that case it was held that
brothers of the deceased were on higher pedestal than the
aforesaid lady and her issues whose relationship with the
deceased was not proved. In the second case, in a probate
proceeding this Court held that when status of the wife
was in dispute it would not be proper to give declaration
under section 263 of the Act. Under section 5 of the Hindu
Marriage Act 1955 marriage of a Hindu is void when the
spouse from the first marriage is alive. There is specific
contention against Tanhabai that she had married with
one Mohan Sonawane. There is another contention that
there was no marriage between this lady and deceased
Pratap.
12) The record of the proceeding of the brothers of
the deceased shows that respondent No.2 Arjun was using
the name of Mohan as his father and he was using
surname as Sonawane. There is school leaving certificate
at Exhibit 46 in that regard. This record shows that year
of birth of Arjun was recorded in the school as 1967. At
Exhibit 47 there is similar record in respect of sister of
Arjun. She had also used her surname as Sonawane. The
year of her birth was shown in the school record as 1963.
Witness like Headmistress of the school which issued
these two certificates is examined by the brothers of
Pratap to prove this record. There is more material
produced by the brothers like bona fide certificate of son
of Arjun showing that the son of Arjun is also using the
surname as Sonawane. In view of this record it was
necessary for Arjun to step into witness box to give
evidence in that regard. But no such evidence is given.
13) The brothers of Pratap have given more
evidence by examining Ravindra, employee of office of the
Collector to show that ration card was issued for the
family of Vijay, brother of Pratap and with the family of
Vijay, Pratap was living. This record is duly proved. It
needs to be mentioned that the lady Tanhabai has
admitted relationship of Beersing with Pratap.
14) On the other hand, Tanhabai gave evidence on
oath that her marriage with Pratap was solemnized in the
year 1972. However, no specific year of the marriage
was given in the application filed for revocation of the
certificate. No evidence is given to prove the marriage
and no independent witness is examined to prove that
Tanhabai was cohabiting with Pratap. No evidence
regarding birth of the issues is given. Tanhabai is relying
on one circumstance like she had admitted Pratap in the
hospital during his last days. One doctor is examined to
prove this circumstance. Though one ration card is
produced, no evidence was given to prove this record by
Tanhabai.
15) The aforesaid record which is proved by
brothers of Pratap shows that prior to 1967 Arjun and his
sisters were born but Tanhabai is claiming that her
marriage took place with Pratap in the year 1972. She
came to the Court with specific contention that the issues
were born to her from Pratap. There is no record
whatsoever of the year pre-2001 with this lady even to
show cohabitation. The difference in the age of Arjun and
Pratap was hardly 10 years as per the record on which
they want to rely. All these circumstances are against
Tanhabai. But these circumstances are not at all
considered by the District Court. Surprisingly the District
Court has made observation that the society had accepted
Tanhabai as wife of Pratap when no one is examined even
to prove cohabitation.
16) The learned counsel for Tanhabai placed
reliance on a case reported as 2015(6) Mh.L.J. 11
(Laxmidevamma vs. Ranganath) (Supreme court). In this
case the Apex Court has laid down that when there are
concurrent findings of fact such findings cannot be upset
by High Court unless the findings recorded by lower
Courts are shown to be perverse. There cannot be any
dispute over this proposition. The finding of the trial Court
is in favour of the brothers and there was material of
aforesaid nature in favour of the brothers. On the other
hand there was virtually nothing with Tanhabai to prove
the marriage or even cohabitation but the District Court
has set aside the order of the trial Court and has revoked
the succession certificate. In view of the submissions
made by learned counsel for Tanhabai, this Court holds
that opportunity needs to be given to her to lead evidence
to prove that there was marriage and the marriage was
legal. In view of this, this Court holds that the decision
given by the District Court and trial Court need to be set
aside and the matter needs to be remanded to the trial
Court. Before remanding the matter it needs to be
mentioned that the certificate issued in favour of Tanhabai
under the provision of Bombay Regulation Act 1827
cannot be considered against brothers of deceased in view
of the scope of provisions of that Act and in view of
Section 383 of the Act which provides that only certificate
issued like succession certificate, probate, letter of
administration prior to the date of issuance of certificate
in question can be considered. The trial Court also needs
to keep in mind that succession certificate can be granted
after making out prima facie case and it may be revoked
only when the aforesaid grounds are made out for
revocation of the certificate. It is necessary for Tanhabai
to show that she had married with Pratap and this
marriage was legal.
17) In the result, the proceeding is allowed. The
judgment and order of the District Court and trial Court
are hereby set aside. The matter is remanded back to the
trial Court for fresh trial. The parties to appear before the
trial Court on 8th January 2016. Rule made absolute in
the above terms.
Sd/-
(T.V. NALAWADE, J. )
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