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2023 DIGILAW 718 (GUJ)

SUNILBHAI PANCHANBHAI MAKWANA v. NANIBEN BIJALBHAI SOLANKI

2023-05-02

ANIRUDDHA P.MAYEE

body2023
JUDGMENT : ANIRUDDHA P. MAYEE, J. 1. The present First Appeal impugns the judgment and order dated 10.12.2018 passed by the Additional Civil Judge, Bhuj-Kachchh in Civil Misc. Application No. 56 of 2016. 2. The brief facts leading to the present First Appeal are as under: 2.1 The appellant herein is the brother of deceased- Shri Sukdevbhai Panchabhai Makwana, who expired on 06.03.2016 at village-Kavitha, Taluka-Bawla, District-Ahmedabad after getting retired from service on 18.11.2014. The wife of the deceased-Sukdevbhai Panchabhai Makwana, namely Smt. Lakshmiben Sukdevbhai Makwana had pre-deceased the said Sukdevbhai Panchabhai Makwana on 29.10.2013. Both the deceased had died issueless. The appellant herein was residing with his deceased-brother for most of the time after the death of Smt. Lakshmiben Sukdevbhai Makwana. The deceased-Sukdevbhai Panchabhai Makwana was working in the Gujarat Agricultural Department till his retirement on medical grounds on 18.11.2014. 2.2 It is the case of the appellant that his brother, deceased -Sukdevbhai Panchabhai Makwana, had left behind properties, being House No. M998 in 63 MIG plan Kailash Nagar Bhuj, developed Gujarat Housing Board located in revenue Survey No. 870/P. Bank Locker No. 758 (key no. 60240) in State Bank of India, Dhanidhar Char Rasta, Ahmedabad. Retirement Benefits such as gratuity, pension, insurance claim, provident fund, etc. Accordingly, the appellant herein, preferred the Civil Misc. Application No. 56 of 2016 under Section 372 of the Indian Succession Act along-with the said application. The appellant also annexed the affidavits of the three sisters of the deceased- Sukdevbhai Panchabhai Makwana, stating that they endorse the contents and averments in application for Succession Certificate and give their consent for the grant of such Certificate. By the impugned judgment and order dated 10.12.2018, the learned Additional Civil Judge, Bhuj-Kachchh was pleased to dismiss the application for Succession Certificate holding that the scope of the issuance of the Succession Certificate under Section 372 of the Indian Succession Act is confined only to the extent of debts and securities. Hence, the First Appeal. 3. The learned counsel appearing for the appellant submits that the learned Trial Court has misread the provisions of Section 372 of the Indian Succession Act. He submits that the appellant herein has prayed for the Succession Certificate to the movable and immovable properties, and the retiral benefits of the deceased brother, who had died issueless and his wife had also pre-deceased him. He submits that the appellant herein has prayed for the Succession Certificate to the movable and immovable properties, and the retiral benefits of the deceased brother, who had died issueless and his wife had also pre-deceased him. He submits that the sisters of the deceased-Sukdevbhai Panchabhai Makwana had also consented for grant of Succession Certificate to the appellant and they had no objection for the same. He submits that the appellant was only the legal heir. Learned counsel for the appellant has relied on the judgment reported in 2017 SCC Online Del 7963 of the Delhi High Court, wherein, the High Court has granted the Succession Certificate holding that it is the entitlement to the estate/movable properties which is to be ascertained in favour of the person making such application for the formal Succession Certificate to be issued. No other contentions have been raised by the learned counsel for the appellant. 4. Heard the learned counsel for the appellant and perused the documents on record. 5. At the outset, it is noted that the respondents are the real sisters of the deceased and the appellant herein. They have filed an affidavit in the proceedings before the learned Trial Court stating that they have no objections if a Succession Certificate is issued to the appellant herein in the present proceedings. Also, though, the respondent sisters have been duly served with the notice, none has chosen to appear in the present proceedings. 6. In the present case, it would be beneficial to refer Section 372 of the Indian Succession Act, which reads as under: “372. Application for certificate: (1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely: (a) the time of the death of the deceased. (b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits. (c) the family or other near relatives of the deceased and their respective residences. (b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits. (c) the family or other near relatives of the deceased and their respective residences. (d) the right in which the petitioner claims. (e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted. (f) the debts and securities and respect of which the certificate is applied for. (2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code, 1860 (45 of 1860). (3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.” 7. A bare reading of Section 372, and more particularly, Section 372(1)(f) shows that a Succession Certificate under this Section can be applied for only in respect of debts and securities and it cannot be granted in respect of movable and immovable properties. This interpretation is further supported by the provision under Section 372(3). Further, Section 377 provides for grant of such extension of Succession Certificate to any additional debt or security and also provides for the Certificate as well as the Extension of Certificate in the form as provide in schedule-8. 8. Part-X of the Indian Succession Act provides for grant of Succession Certificates. 9. Section 374 of Indian Succession Act provides for the contents of such Succession Certificate. Section 377 provides form of Certificate and Extended Certificate in the form set forth in schedule-8. Section 381 provides for the effect of such Certificate. The section reads thus: “381. 8. Part-X of the Indian Succession Act provides for grant of Succession Certificates. 9. Section 374 of Indian Succession Act provides for the contents of such Succession Certificate. Section 377 provides form of Certificate and Extended Certificate in the form set forth in schedule-8. Section 381 provides for the effect of such Certificate. The section reads thus: “381. Effect of certificate.-Subject to the provisions of this part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, not-withstanding any contravention of section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom he certificate was granted.” 10. Therefore, the perusal of the provisions mentioned hereinabove shows that Succession Certificates in Part-X of the Indian Succession Act relate only to any debt or security. Schedule-8 of the Act further prescribes the form in which such a Certificate is to be issued which also states only about debts and securities. 11. In the considered opinion of this Court, a conjoint reading of the sections under Chapter-X and the provisions of Section 372 in respect of grant of Succession Certificate merely entitles the holder of the Certificate with an authority to realize the debts of the deceased and to give an authority to discharge a debt and it is unconnected with the right to the estate of the deceased owner. 12. The learned trial Court has rightly held that the scope of the issuance of succession certificate is confined only to the extent of debt and security and such power at this juncture cannot be utilized for obtaining succession certificate in respect of other properties such as movable, immovable and benefits pertaining to pension and insurance, as made in the present application. 13. The learned counsel for the appellant has relied on the judgment referred in 2017 SCC Online Del 7963 in the case of Indrani Chakravarti and Another vs. State NCT of Delhi through of Secretary. 13. The learned counsel for the appellant has relied on the judgment referred in 2017 SCC Online Del 7963 in the case of Indrani Chakravarti and Another vs. State NCT of Delhi through of Secretary. A perusal of the said judgment shows that the said First Appeal was filed under Section 299 of the Indian Succession Act, 1925 which covers the proceedings initiated under Chapter-IV of the Indian Succession Act relating to the practice in granting and revoking the probates and letters of administration. It seems the proceedings were initiated under Chapter-IV, and therefore, the First Appeal came to be filed under Section 299. 14. In the present case, the appellant has filed an application for grant of Succession Certificate under Section 372 of the Act. Upon rejection of the same, the present First Appeal is filed under Section 384 of the Indian Succession Act. Therefore, the said judgment relied upon by the learned counsel for the appellant will not be applicable in the facts and circumstances of the present case. 15. In view of the aforesaid observations and the legal interpretation of Section 372 of Indian Succession Act, this Court is of the opinion that no interference is called for in the impugned judgment and order. The learned trial Court has rightly interpreted the provisions of Section 372 of the Indian Succession Act. 16. The present First Appeal is devoid of merits and the same is dismissed accordingly. No order as to costs. 17. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly.