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2019 DIGILAW 2565 (BOM)

Pradip v. Nil

2019-11-20

A.S.CHANDURKAR

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JUDGMENT A S Chandurkar, J. - Rule. Heard finally considering the short issue involved. 2. The petitioners had moved an application under Section 372 of the Indian Succession Act, 1925 (for short, ''the said Act'') for grant of succession certificate. According to the petitioners, the sister of the petitioner nos.1 to 5 and the mother of the petitioner no.6 namely Jyoti Prabhakar Kulkarni expired on 15.05.2011. Since the petitioners as blood relatives of the deceased claim to succeed to the properties left behind by the deceased, they moved the aforesaid application for being issued a succession certificate especially to claim amounts that were deposited in the bank. In those proceedings, the learned Judge of the trial Court just prior to the stage of delivery of judgment directed the petitioners to obtain a heirship certificate so that the claim could be decided on merits. Being aggrieved by that order, the petitioners have challenged the same. 3. Shri H.R. Gadhia, learned counsel for the petitioners submits by referring to various provisions of Chapter XIII Part X of the said Act that it was not necessary for the petitioners to have obtained a heirship certificate under the Bombay Regulations VIII of 1827 when they had prayed for grant of a succession certificate. He submits that there is a distinction between a succession certificate that is issued under Section 372 read with Section 374 of the said Act and a heirship certificate issued under the Bombay Regulations. It is his submission that a heirship certificate grants limited right of recognition as a legal heir but it confers no right to the property of the deceased. Since the petitioners intended to claim the amounts of the deceased deposited in the bank, obtaining the succession certificate was the only recourse available. Relying upon the decision in Ganpati Vinayak Achwal Versus Nil, (2014) 6 MhLJ 683 , it was submitted that a heirship certificate at the most could grant a formal recognition of the status of a party. Such certificate was not relevant nor was it a pre-condition for seeking a succession certificate. Hence, the trial Court was not justified in directing the petitioners to obtain such heirship certificate while adjudicating the application for grant of succession certificate. 4. Mrs. M.A. Barabde, learned Assistant Government Pleader who was requested to assist the Court does not dispute the aforesaid submission. Hence, the trial Court was not justified in directing the petitioners to obtain such heirship certificate while adjudicating the application for grant of succession certificate. 4. Mrs. M.A. Barabde, learned Assistant Government Pleader who was requested to assist the Court does not dispute the aforesaid submission. According to her there is a distinction between the procedure prescribed for obtaining a succession certificate and a heirship certificate. The procedure prescribed by Section 373 of the said Act for obtaining a succession certificate is distinct from the procedure prescribed for obtaining a heirship certificate in view of provisions of Section 390 of the said Act. Reference is also made to the provisions of Chapter XIV of the Civil Manual in that regard. 5. I have heard the learned counsel for the petitioners and the learned Assistant Government Pleader. I have perused the relevant provisions and I have also given due consideration to the aforesaid submissions. The petitioners seek grant of succession certificate and have thus made an application for the same under Section 372 of the said Act. The procedure as prescribed by Section 373 of the said Act has been followed and when the proceedings were to be finally decided the learned Judge of the trial Court called upon the petitioners to produce a heirship certificate. There is a distinction between the purpose for which a succession certificate and a heirship certificate is granted. A succession certificate enables the person named therein to claim a right to any security as defined by Section 370(2) of the said Act. A heirship certificate is merely for the convenience of the legal heirs and it is of no consequence while seeking to establish rights to any movable or immovable property left behind by the deceased. Grant of a heirship certificate is only a formal recognition of the status of the applicant as a heir. While a heirship certificate does not confer any right to property, a succession certificate can form the basis for claiming right to securities named therein. In any event, issuance of a heirship certificate would not by itself further the case of an applicant to be issued a succession certificate. This position has been clarified in Ganpati Vinayak Achwal (supra). However, a person obtaining a succession certificate is entitled to higher rights than a person in possession of a heirship certificate. In any event, issuance of a heirship certificate would not by itself further the case of an applicant to be issued a succession certificate. This position has been clarified in Ganpati Vinayak Achwal (supra). However, a person obtaining a succession certificate is entitled to higher rights than a person in possession of a heirship certificate. Hence, there was no justification on the part of the trial Court to direct a party who has applied for issuance of a succession certificate to obtain a heirship certificate. Thus, in absence of any legal justification, the impugned order is liable to be set aside. 6. Accordingly, the order dated 21.08.2019 is set aside. The trial Court shall proceed to decide the Succession Case in accordance with law. The Writ Petition is allowed. Rule accordingly. No costs.