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2025 DIGILAW 691 (MAD)

Sandya Mohanan v. Bavani

2025-01-30

TEEKAA RAMAN

body2025
ORDER : Rmt.Teekaa Raman, J. This petition has been filed under Section 372 of the Indian Succession Act, 1925 read with Order XXV Rule 6 of the Madras High Court Original Side Rules in the matter of the certain debts in respect of late Vishwanathan Nair. 2. The petitioner herein Sandya Mohan who has filed this petition is a resident of Chennai. The respondent Bavani, who is the wife of Late Vishwanathan Nair showing the address at Malapuram, Kerala. 3.According to the petitioner, the petitioner is the wife of the brother-in-law of the deceased while the respondent is the wife of the deceased. The petition proceeds on the basis that since the owner of the various deposits mentioned in the schedule is died as no issues and she is the only survivor of the Late Vishwanathan Nair and hence she is entitled to all bank deposit to the Late Vishwanathan Nair. She has annexed the entire property Fixed Deposit amount to the tune of Rs.21,00,000/-. She enters in the witness box and examined herself as PW1 and marked Ex.P1 to Ex.P29. Death certificate of Viswanathan Nair is Ex.P1 and Aadhar Card is Ex.P2. Death certificate and legal heir certificate of Leelavathy Amma is marked as Ex.P4 and Ex.P5 and death certificate and legal heir ceritificate of Mohanan is marked as Ex.P6 and Ex.P7. Aadhar card of the petitioner is marked as Ex.P8. Ex.P9 to Ex.P19 relating to various pass books and deposit receits made by the said Late Vishwanathan Nair and Ex.P20 to Ex.P26 are relating to communication between the party and the deceased Vishwanathan Nair with the Bank and the communication by the Bank with the petitioner to call upon her to produce the succession certificate. Paper publication was effected and marked as Ex.P28. 4. Heard the learned counsel for the petitioner. 5. According to the petitioner Counsel since the whereabouts of the respondent is not known for more than 7 years, the Court has to presume that the respondent is dead and she is the only survivor in the branch of the deceased Vishawanathan Nair and hence seeks the certificate in respect of several Fixed Deposit to the tune of Rs.21,00,000/- be granted to the petitioner and the petitioner further undertakes to file surety as required by this Court. 6. 6. On perusal of the petition at para No.16, it is specifically stated that “petitioner states that notice of this petition may be served on Mrs. Bavani”. Wife of Late Vishwanathan Nair residing at Koolody House, Chellur, Naduvattam Village, Kuttipuram, Malapuram, Kerala- 679 591 and paper publication was effected. 7(a). The learned counsel would state that at para No.10 of the petition as well as the evidence of PW1 she has stated that after the death of the said Vishwanathan Nair, the respondent/wife of Late Vishwanathan Nair could not be contacted and the deceased did not have any Clause-I, legal heirs and hence succession certificate may be granted to the petitioner. Even as per the petition averments, the respondent is alive and address is mentioned as extracted at para No.16 of the petition assumes significance. 7(b). The scope of the succession certificate as contemplated under Section 373(3) of the Indian Succession Act which provides procedure before the Court is provided. The proceedings under the Indian Succession Act for the issuance of Succession Certificate concerns only with prima facie right to collect the amount and sub Section 3 and 4 of the Section 376 is clear to the effect that the Judge need not decide the right to the certificate without determining the question of law or it appears to prima facie the best title thereto. However, it remains to be stated that there is a specific version in the Sub Section 3 of Section 376 is that grant a certificate to the applicant if he appears to the person having prima facie best title thereto. 8(a). This Court is of the considered view that the succession certificate application entitles the petitioner to collect the asset. It is only for the purpose of collection, the succession certificate is issued but the title is not decided. 8(b). However, in the instant case, it is the specific case of the petitioner that at the time of the death of the original depositor by name Vishwanathan Nair, he has left no Clause-I legal heir, but she had herself stated in the petition that the wife of the deceased namely, Bavani is residing in Kerala in the above stated address. However, in the instant case, it is the specific case of the petitioner that at the time of the death of the original depositor by name Vishwanathan Nair, he has left no Clause-I legal heir, but she had herself stated in the petition that the wife of the deceased namely, Bavani is residing in Kerala in the above stated address. Therefore the very allegation or the averment made in the petitioner and the affidavit that the said Vishwanathan Nair died without any Clause-I legal heir has no legs to stand since wife of the deceased is the Clause-I heir as per Hindu Law. Therefore when the Clause-I heir is admittedly alive even as per the pleadings of the petitioner is extracted supra, this Court is unable to accept and uphold the contention advanced by the learned counsel for the petitioner that the deceased Vishwanathan Nair died without Clause-I heir. 8(c). The scope of the enquiry under Section 372 of the Indian Succession Act for the purpose of issuance of succession certificate and the scope of the certificate so issued are as stated supra. When the wife is very much alive, it cannot be stated that the said Vishwanathan Nair died without Clause-I legal heir. The entire case has been filed under the premise that there is no Clause-I heir for the said Vishwanathan Nair. Hence, I find that the petitioner has not made out a prima facie case to the best title thereto and hence the certificate to the application can be made only if it appears to the person having prima facie best title thereto and the procedure that has to be adopted for granting succession certificate is summary procedure and wife of the deceased is said to be living in Kerala State in the above stated address. In a summary proceedings, this Court cannot decide the title. It is the scope of the above stated provision of law and when the wife is said to be alive it cannot be stated that the said Vishwanathan Nair died without any Clause-I heir and thus I find both on fact and law the prayer cannot be granted. 9. In this view of the matter, this Original Petition is dismissed . It is open to the petitioner to seek appropriate relief before the appropriate forum under the appropriate provision of law.