All You Need to Know About ‘Succession Certificates’

The Indian system is a multicultural society with divergent religious groups being governed by their separate religious personal laws. In the instance of inheritance and succession, the general law applicable is the Indian Succession Act, 1925. If the deceased person is Muslim, for intestate succession he will be governed under The Muslim Personal law (Shariat) Application Act, 1937. In case of a Hindu (Including Buddhist, Sikh, Jains), he is controlled by the Hindu Succession Act, 1956.

In this article, we have dealt with the need, use and procedure for obtaining a Succession Certificate under the Indian Succession Act 1925, which is forms an important part of any intestate succession in India.

Intestate Succession And Testamentary Succession

When a person dies without a valid Will or any declaration, the way by which his estates and properties are inherited by his successors is known as intestate succession. The person is said to have died intestate if he did not make any testamentary allocation or disposition of all the property. Intestacy can be broadly classified into two categories- Total Intestacy and Partial Intestacy.

On the other side, if a person dies leaving behind a Will, the assets are inherited by his successors by the process of testamentary succession. Here, the property is executed as per his wish and bequest in the will.

Distribution Of Property By Means Of Intestate Succession Under Hindu Succession Act.

In case of a death of a Male Hindu, the property will first devolve upon Class I heir, but if the deceased does not have any Class I heir then it will be distributed among the people mentioned in Class II. Moreover, if he neither has any Class I heir nor any Class II heir, preferences will be given to his Agnates (people related wholly thorough male by blood or adoption) over Cognates (people related not wholly through male; by blood or adoption). If there is no agnate then only it will be distributed amongst the cognate.

On the other hand, the property of a Female Hindu shall first devolve, in equal measure, upon her sons and daughters (Including the offspring of any pre-deceased son or daughter) and her husband. Then it shall be distributed upon the heirs of her husband. If the husband has no heirs, it shall be transferred to her parents. If it is not feasible, then upon the heirs of her father and lastly, upon the heirs of her mother. It is to be duly noted that, if a Female Hindu inherits the property from her parents, it shall be devolved upon the heirs of her father if she has no children or grandchildren and in the case of inheritance from her in-laws, it shall be distributed among the in-laws heirs if she dies without children and grandchildren.

Meaning Of Succession Certificate

A Succession Certificate under the Indian Succession Act,1925 refers to a piece of document granted by a competent Court to collect debts and securities of the deceased as also to receive interests or dividends arising or accruing on such debts and securities. A Succession Certificate is granted under the provision of Part X of The India Succession Act, 1925.

The Succession Certificate does not provide the title to its holder but offers him the legal status as a trustee. In Shri Banarsi Dass v. Mrs. Teeku Dutta & Anr.[1] the Supreme Court held that

“The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons.”

It was also observed that “all that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased.

The grant of a certificate does not establish title of the grantee as the heir of the deceased.

A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application, the applicant has to adduce cogent and credible evidence in support of the application.”

Purpose Of Succession Certificate

The heirs of a deceased in the absence of a Will, is required to show beyond doubt their claims to the property and financial assets. A succession Certificate is required “for movable properties like provident fund, bank deposits, shares, loans and other securities.[2]”

What Is A ‘Legal Heir Certificate’

A document identifying the legal heirs of the deceased is known as legal heir certificate. If the deceased is the head of the family or any member of the family, this certificate can be obtained by the legal heir who is connected directly with the deceased such as the husband, wife, son, daughter, mother, or father.

This document helps to establish the relationship between the deceased and the legal heir. A legal heir certificate is required “to claim insurance, sanction and process family pension of the deceased employee, receive dues such as provident fund, gratuity, receive salary arrears, transfer assets and properties of the demised person or gain employment based on compassionate appointments.[3]”

How Is Legal Heir Certificate Different From Succession Certificate

1. A Succession Certificate is issued by a competent Court to the legal heirs of the deceased person. On a comparison with the legal heir certificate, a Succession Certificate holds more value. A legal heir certificate is issued by the Tahsildar of the district or from the Municipality / Corporation. It is basically a document to identify the legal heirs of the deceased.

2. A legal heir certificate is used to claim provident fund, salary arrears, pension, retirement benefit etc. But, a Succession Certificate is required to collect financial assets, movable properties and securities of the deceased.

3. A Succession Certificate has claim only on movable assets. A legal heir certificate is applicable for all the properties of the deceased.

4. The court fee required for issuing a Succession Certificate depends on the value of the property. Such fees are guided by the Court Fees Act. In West Bengal, the maximum Court Fee that can be charged is Rs. 50,000 (fifty thousand rupees). On the other hand, for issuing a legal certificate, a minimal amount is required for the stamp and the cost of affidavit.

5. The court in the case of Succession Certificate issues a notice on the newspaper for 45 days. If any person does not oppose to this advertisement, then succession Certificate is issued. This process is quite long and takes around 5 to 7 months. Time taken to issue legal heir certificate is only around 15 to 30 days.

Courts Having Jurisdiction To Grant Succession Certificate

Section 371 of the Indian Succession Act,1925 deals with the jurisdiction of a court on granting Succession Certificate. It states that

“The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this part.[4]”

It was decided by the Allahabad High Court in Devesh Kumar v. Smt. Ram Devi & ors.[5] that Succession Certificated will be granted by the District Judge within whose jurisdiction the deceased was having any part of the property only if the deceased was not having any fixed place of residence at the time of his death; otherwise the place where the deceased was ordinarily residing at the time of his death would determine the jurisdiction of the Court.

In Km. Rakhi v. 1st Additional District Judge[6], Firozabad it was again reiterated that the second part of Section 371 of the Act would not be attracted unless first part is exhausted.

Application for Succession Certificate - Procedure

Section 372 of the Statute lays down the provision relating to application for Certificate of Succession. According to the Section

“Application for such 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.[7]”

The application should include the following particulars, namely –

• The time of the death of the deceased;

• 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;

• the family or other near relatives of the deceased and their respective residences;

• the right in which the petitioner claims;

• 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; and

• the debts and securities in respect of which the certificate is applied for;

• in West Bengal, such application shall also be accompanied by an Affidavit of Assets, sworn by all the applicants.

But it is to be noted that according to Section 370 of The Indian Succession Act 1925, a Succession Certificate shall not be granted with respect to any debt or security on which either grant of Probate under section 213 or Letter of Administration under section 212 is required.

Procedure The Judge Adopts On Receiving Such An Application

Section 373 of The Indian Succession Act,1925 lays down the procedure undertaken by the concerned District Judge on receiving an application under Section 372.

• According to this section, if the District judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing of it and cause notice of the application and of the day fixed for the hearing[8].

• The notice is to be served upon any person to whom, in the opinion of the judge special notice of the application must be given[9].

• The notice is to be pasted on some conspicuous part of the court-house and published in such other manner, if any, as the judge subject to any rules made by the High Court in this behalf thinks fit[10].

• When the Judge decides that the right of the applicant to the matters claimed in the application is there, the Judge shall make any order for the grant of the certificate to him[11].

• If, however, the Judge cannot decide upon the right of the applicant with respect to the certificate without determining the question of law or fact , which seem to be too complicated and difficult for determination summarily he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title to it[12].

• Finally, the Section states that where there are more applicants than one for a certificate and it appears to the judge that more than one of such applicants are interested in the estate of the deceased the judge shall have to decide as to whom the certificate is to be granted , taking into consideration the extent of interest and the fitness in respects of the other applicant[13].

Extent Of Succession Certificate

According to Section 380, a certificate granted under Part X of The Indian Succession Act, 1925 shall have effect throughout India[14].

Conclusion

Thus, a succession Certificate is a piece of document issued by the civil court to the legal heirs to collect the debts and securities in the absence of any will or notification by the deceased. Obtaining a Succession Certificate is extremely important for the legal heirs for getting access to any financial assets, securities and debts of the deceased.

References

[1] Shri Banarsi Dass v. Mrs. Teeku Dutta & anr., (2005) 4 SCC449 [2] BUSINESS STANDARD , https://www.business-standard.com/article/pf/here-s-why-succession-certificate-is-important-to-claim-financial-assets-117040601549_1.html (last visited Aug. 9, 2020) [3] CLEARTAX, https://cleartax.in/s/legal-heir-certificate-format-download (last visited Aug. 9,2020) [4] Indian Succession Act, 1925, ⸹371, No. 39, Acts of Parliament, 1925 (India) [5] Devesh Kumar v. Smt. Ram Devi & ors., (2013) 98 ALR178 [6] Km. Rakhi v. 1st Additional District Judge, (2000) 38 ALR 417 [7] Indian Succession Act, 1925, ⸹372, No. 39, Acts of Parliament, 1925 (India) [8] Indian Succession Act,1925, ⸹373(1), No. 39, Acts of Parliament,1925 (India) [9] Indian Succession Act,1925, ⸹373(1)(a), No. 39, Acts of Parliament,1925 (India) [10]Indian Succession Act,1925, ⸹373(1)(b), No. 39, Acts of Parliament,1925 (India) [11] Indian Succession Act,1925,⸹373(2), No. 39, Acts of parliament,1925 (India) [12] Indian Succession Act,1925,⸹373(3), No.39, Acts of parliament,1925 (India) [13] Indian Succession Act,1925,⸹373(4), No.39, Acts of parliament,1925 (India) [14] Indian Succession Act,1925,⸹380, No.39, Acts of parliament,1925 (India) This article has been authored by Ms. Abheri Roy, a student of the Department of Law, University of Calcutta.

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Succession Certificate.

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Succession Certificate

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Lawfield Associates is a nascent firm of lawyers, and is based at Kolkata, India. The Firm deals with all kinds of family law and succession matters starting from Succession Certificates, Will, Probate of Will, Property Disputes, Partition, and other civil litigation and non-ligation works.