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Smt. Rizwana & Others v. Civil Judge & Others - WRIT - C No. - 44491 of 2007 [2007] RD-AH 16000 (25 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).




Smt. Rizwana and others Vs. Civil Judge [Sr.Div.] Alld. & others


Hon'ble Tarun Agarwala, J.

Part X of the Indian Succession Act deals with the property in respect of which the succession certificate may be granted, to whom it may be granted, who may grant it, and the procedure for granting a succession certificate. The purpose of granting a succession certificate is to facilitate the collection of debts and afford protection to the parties paying the debt to the representative of the deceased person. The grant of a succession certificate in favour of a particular person does not determine the question of title of the property in respect of which the succession certificate has been granted. It only enables the holder of the succession certificate to collect the debts and security due to the deceased person. The grant of a succession certificate merely confers on its holder an authority to realise the debt of the deceased and give a valid discharge to the debtor. It is the duty of the holder of the succession certificate to dispose of the amount in the proportion in which the heirs are entitled to it.

In proceedings initiated under Sections 372 and 373 of the Indian Succession Act, the Court does not enter into intricate questions of title. The Court only issues the certificate to the person who has the best claim and prima-facie title and leaves the parties to get the question of title decided by a regular suit if they so desire.

Any person, who has a beneficial interest in the debt or security may apply for a succession certificate. Upon an application being filed for a grant of succession certificate, the Court is required to make a summary enquiry. It is not the function of the Court to determine the question of title. The only matter after the service of the notice that the Court is required to decide is the right of the applicant concerned, that is to say, that the Court is required to inquire whether the applicant is the representative of the person to whom the debt was alleged to be due. The Court is not required to inquire into the existence or non-existence of the debt. Under Section 373[3] of the Act, the Court could grant a succession certificate to the applicant if the applicant appeared to be the person having a prima-facie, the best title thereto.

In the light of the aforesaid, the present matter is required to be adjudicated. Admittedly, Faiyaz Ahmad Ansari died on 17.6.2006 leaving behind his widow Smt.Rizwana, petitioner no.1, Varisha Faiyaz, Ayan Ahmad and Aman Ahmad and the children, namely, the petitioner Nos. 2,3 and 4, being his heirs and legal representatives. The Court below made the necessary enquiry and came to the conclusion that the petitioners were the rightful heirs and legal representatives of the deceased and further found that there were no other rival claimant. Consequently, the Court below granted a succession certificate to the petitioners holding that each of the petitioners were entitled to 1/4th share of the amount kept in the bank account of the deceased. The Court, while granting the succession certificate, imposed a condition namely, that 2/3rd of the amount would not be paid to the petitioner nos. 2,3 and 4 till such time they attain the age of majority and that during this period, the said amount would remain in a fixed deposit.

It transpires that the petitioner no.1 subsequently, moved an application to the court below praying that the interest on the said deposit may be given to the applicant on a monthly basis so that she could make proper arrangement for the upkeep of her children. This application was rejected by the court below by an order dated 26.3.2007. Aggrieved by this order, the petitioners have filed the present writ petition.

Heard Sri M.S. Haq, the learned counsel for the petitioners and the learned Standing Counsel, who was requested to assist the Court.

In my opinion, the Court below committed an error in imposing a condition on the issuance of the succession certificate. In my opinion, no condition can be imposed by the Court while granting a succession certificate. Admittedly, the petitioners are the legal heirs. They have the right to utilise the money in whatever fashion they like. The court is only required to make a summary enquiry in order to find out as to whether the petitioners are the rightful claimants or not. The court does not have any jurisdiction to impose a condition namely, that the amount would be kept in a fixed deposit for a certain period of time. In my opinion, the imposition of such a condition is clearly outside the domain of the jurisdiction of the court, while issuing a succession certificate under Section 373 of the Indian Succession Act. Infact, the Court while issuing a succession certificate is protected by the provisions of Section 375 of the Act, which allows the court to impose a condition precedent to the granting of a succession certificate by taking a surety or other sufficient security for the purpose of indemnifying such person or persons who could be entitled to the whole or any part of the debt.

In view of the aforesaid, the impugned order dated 26.3.2007 cannot be sustained and is quashed. The order dated 21.11.2006 of the court below imposing a condition directing that 3/4th of the amount would be kept in a fixed deposit is also set aside. The court below will accordingly, modify the succession certificate without imposing any such condition and, if necessary, take resort to the provisions of Section 375 of the Indian Succession Act. The writ petition is allowed. The consequential order shall be passed by the Civil Judge within two weeks from the date of the production of a certified copy of this order.




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