When is production of Succession Certificate mandatory?

Introduction:-

The  word ”Debt” has been defined under sub-section (2) of Section 214 of the Indian Succession  Act, which clearly specifies that the word ‘Debt’ includes any debt except rent, revenue or profits payable in respect of land used for agricultural purpose.  Under the Hindu Law, there are two schools. One is ”Dayabhaga” and another is ”Mitakshara”. ”Dayabhaga” school exists in Bengal, Assam and some part of Orissa whereas ”Mitakshara” exists in rest of India. This article is confined to discuss the point when ”production of succession certificate is mandatory”. To answer this point, it is important to the difference between  ”Succession” and ”Survivorship”. The rule is that Succession certificate would be necessary only in case of succession but not in a case of survivorship in a Joint Hindu Family as was observed in Sreeram Rangaiah (died) per LRs Vs. Gajula Krisnaiah – 2006 (1) ALT 186 ( D.B. ).   The concept of a birthright  (survivorship) at which a person acquires rights on his birth even if the ancestor is still alive is fundamental to an understanding of the coparcenary. See. B. Chandrakala Vs. A. Anuradha and another – 2015 (5) ALT 383 (DB).

”Succession” and ”Survivorship’‘:-

The law insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005, when a male Hindu dies after the commencement of the Hindu Succession Act, 1956.  leaving at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary as was held by the Hon’ble Supreme Court in Radhamma and others Vs. H.N. Muddukrishna and others- 2019 (2) ALT (SC) 139 (DB). The same principle of law is followed in Devireddy Suryanarayana Reddy (Died) per LRs Vs. Kusum Kasturamma and others – 2015 (5) ALT 802 holding that  whenever, a Hindu male, who is a member of coparcenary, dies before any partition in the family, his interest in coparcenary property would devolve by survivorship on other coparceners and not by succession, under Section 6 of Hindu Succession Act. Under Section 8 of Hindu Succession Act, after partition in Hindu family, the property fallen to the share of one of the coparceners becomes his separate property In case of death of such a Hindu male belonging to Mitakshara, intestate, the property fallen to his share devolves through succession in favour of his Class-I heirs.

 By survivorship under Mitakshara law persons acquire by birth an interest in the joint or coparcenary property. It is needless to state that on 9 September 2005, the Hindu Succession (Amendment Act), 2005 (Amendment Act) came into effect and daughters in a joint Hindu family, governed by Mitakshara law, were granted statutory right in the coparcenary property (being property not partitioned or alienated) of their fathers. Coparcenary begins with a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. The Mitakshara concept of coparcenary is based on the notion of son’s birth((in view of amendment daughter’s birth also ) right in the joint family property. On the death of the coparcenar his interest devolved not upon his legal heirs but upon remaining coparcenars equally. This is called as a right of survivorship.

On the contrary property, right to which accrues not by birth but on the death of the last owner is called as a right of succession . Thus the property which devolves on Sons, daughter, brothers, nephews, uncles, etc., upon the death of the last owner is by way of succession rights. These relations do not take a vested interest in the property by birth. Their right to it arises for the first time on the death of the owner. Succession rights of a Hindu are governed by Hindu Succession Act 1956. Under Section 30 of Hindu Succession Act 1956 any Hindu can can bequeath (give) his share in property by executing a testamentary (by will) document as provided under Indian Succession Act. In case no such documents are executed during life time then property of male and female Hindu is governed by Sec 8 and Sec 16 respectively of Hindu Succession Act 1956.

Case of survivorship not within the ambit of that Indian Succession Act:-

   Any case of survivorship not within the ambit of that Indian Succession Act, 1925.  Succession Act covers cases of succession only and not of survivorship.  Section 214  of Indian Succession Act, 1925 would not apply to a case where the devolution of interest is by survivorship i.e., if the devolution was not by survivorship, the provisions of Section 215 of  Indian Succession Act, 1925 will be adopted and a succession certificate would be necessary.

The Hon’ble High Court of Andhra Pradesh under the power conferred under Section 265 of the Act, appointed Subordinate Judges (now Senior Civil Judges) including the Additional Judges in City Civil Courts, ex-officio as District delegates under the Act.  As per ROC No.40/SO/72.2, the High Court, under Section 19(1) of Andhra Pradesh Civil Courts Act, 1972, authorized all the subordinate judges to take cognizance of any of the proceedings under India Succession Act, 1925  which cannot be disposed of by the District delegates. This aspect has been clarified by this High Court in CMA No.46 of 2010 dated 20.03.2010.

It is a matter for decision by civil court Question of Succession arises only if protected tenant obtained ownership certificate under Section 38-E of theA.P. (T.A.) Tenancy and Agricultural Lands Act, 1950. Of course, even then, revenue authority cannot decide the question of succession. See. Syed Abdul Majeed @ Mia Pasha and others Vs. Joint Collector-II, Ranga Reddy District and others – 2006 (5) ALT 754.

Sections 214 and 215 of the Indian Succession Act, 1925:-

 As to the facts of this case, it is relevant to consider Sections 214 and 215 of the Indian Succession Act, 1925 which read as follows:-

214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons.—(1)No Court shall— (a)pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effect of the deceased person or to any part thereof, or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of— (ii) a certificate granted under section 31 or section 32 of the Administrator- General’s Act, 1913 (3 of 1913), and having the debt mentioned therein, or (iii) a succession certificate granted under Part X and having the debt sepcified therein, or (iv) a certificate granted under the Succession Certificate Act, 18891 (7 of 1889), or (v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889 having the debt specified therein. (2) The word ‘‘debt’’ in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.
215. Effect on certificate of subsequent probate or letters of administration.— (1)A grant of probate or letters of administration in respect of an estate shall be deemed to supersede any certificate previously granted under Part X or under the Succession Certificate Act, 1889 (7 of 1889)1, or Bombay Regulation No.VIII of 1827, in respect of any debts or securities included in the estate. (2) When at the time of the grant of the probate or letters any suit or other proceeding instituted by the holder of any such certificate regarding any such debt or security is pending, the person to whom the grant is made shall, on applying to the Court in which the suit or proceeding is pending, be entitled to take the place of the holder of the certificate in the suit or proceeding: Provided that, when any certificate is superseded under this section, all payments made to the holder of such certificate in ignorance of such supersession shall be held good against claims under the probate or letters of administration.

 

Important Rulings:-

In Kotipalli Apparao v. Jakkam Venkanna, (1969) 2 Andh WR 479 wherein it was held by a Hon’ble Bench of the Andhra Pradesh High Court that “Having regard to the aforesaid interpretation of the provisions of Section 214 (1)(b) of the Indian Succession Act by a Bench of this Court, we have to agree with the Court below that it is not open to the petitioner to apply for execution of the decree obtained by the father without obtaining and producing a succession certificate as he claims by succession and not by survivorship.” Their Lordships were pleased to hold that “unless a succession certificate is produced the execution  proceedings should not be taken by a person who succeeded to the property on the basis of the will executed by the deceased decree-holder.”

In S. Rajyalakshmi vs S. Sitamahalakshmi AIR 1976 AP 361, it was observed that when the devolution of interest was not by survivorship under Section 214 (1) (a),  no decree could be passed unless a succession certificate was produced.

In Khader Bee and others vs. Mohammad Vazir and others ,  2001 (2) ALT 513, the Hon’ble Court considered the question whether the Succession certificate as contemplated under Sec. 214 of the Indian Succession Act, 1925 is required for the purpose of executing a decree obtained in the suit for partition of immovable properties. It wa held that The  word “debt” has been defined under sub-section (2) of Section 214 of the Indian Succession Act, which clearly specifies that the word ”debt” includes any debt except rent, revenue or profits payable in respect of land used for agricultural purpose. The question raised in this revision petition has been considered by this Court in Rama Seshagiri Rao vs. N. Kamalakumari – AIR 1982 AP 107. This Court while interpreting Section 214 of the Indian Succession Act has held as under: ‘Where execution petition was filed by the legal representative of the deceased decreeholder for execution of the decree for maintenance with charge the legal representative would not be required to obtain a Succession certificate before executing the decree for maintenance and for execution of a decree for costs. xxx xxx xxx A suit to recover money due on a simple mortgage by sale of the mortgaged property is a suit for recovery of debt, but it is a suit to enforce a charge on immovable property and no Succession certificate need be obtained by the heirs of the mortgagee to recover the money, therefore, an application for execution of a mortgage decree for realisation of the amounts by sale of the mortgaged property is not an application to obtain an order for payment of bebt.’. Untimately,  In the present case, it was held that ”execution proceedings have been filed in pursuance of the decree obtained in the suit for partition of immovable properties. Hence, Succession certificate is not required as contemplated under Section 214; since it is not a debt within the meaning of sub-section (2) of Section 214 of the Indian Succession Act.

In another case in S. Rajayalakshmi vs. Smt. S. Sitamahalakshmi – AIR 1976 AP 361 , this Court considered the applicability of Section 214 of the Act. This Court held that the Succession certificate is necessary, if a debt is sought to be recovered, for the purpose of other items of the decree, Succession certificate is not necessary.

In Akula Mabukhan vs Rajamma And Ors – AIR 1963 AP 69 . for the proposition, it was held that if the execution petition is already filed by the decree-holder that execution petition could be continued by the legal representative without producing a succession certificate, but once the execution petition is filed by the legal representative himself, the succession certificate cannot be dispensed with therefore, the lower court erred in holding that no succession certificate is required.

In K. Laxminarayan vs V. Gopalaswami And Anr. – AIR 1963 AP 438, where Hon’ble Sri Justice Kumarayya, J, (as the then was) was pleased to hold that Section 214 would not apply to a case where the devolution of interest is by survivorship i.e., if the devolution was not by survivorship, the provisions of Section 215 will be adopted and a succession certificate would be necessary.

In Radhamma and others Vs. H.N. Muddukrishna and others– 2019 (2) ALT(SC) 139 ( D.B. ), it was held that The law insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005, when a male Hindu dies after the commencement of the Hindu Succession Act, 1956 leaving at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary. In fact, as was held in Moturu Umadevi and others Vs. Bandaru Himmath Venkata Kumar and others , 2017 (3) ALT 574 , the succession is governed by the provisions of Section 6 of the Act and not by survivorship.

In only to To recover a decree debt by a legal heir of deceased decreeholder, production of succession certificate is mandatory, as was held in Sreemanthula Kesavachari (died) per L.R. Sreemanthula Rajeswaramma v. Yayyavuru Vallamma (died) per L.Rs.- 2008 (1) ALT 1. It is thus clear that cases of survivorship not within the ambit of that Indian Succession Act, 1925.  Succession Act covers cases of succession only and not of survivorship.

In L.I.C. Of India v. T. Tirupathayya – AIR 1963 AP 353 , this Court held as follows:

‘Under the Hindu Law, there is a distinction between succession and the devolution of property by Survivorship. The succession Act, as is indicated in the preamble, covers cases of succession only and cases of survivorship are not within the ambit of that Act.  Where a family is a joint Mitakshara family and the amount sought to be recovered is an asset of the joint family, the plaintiff, who claims by survivorship  cannot be compelled to take out a succession certificate to enable him to recover the amount.’

In Venkatalakshmi v. The Central Bank5, the Madras High Court held that:‘The object of taking out a Succession certificate under section 214 of the Indian Succession Act is to give security to the debtors paying the debts due to the deceased and thus facilitate the collection of debts on succession. The purpose of the Act is not to enable litigant parties to have an opportunity of litigating contested questions of title to property. When a Bank is satisfied that the applicant is entitled to collect the debts it should not prescribe onerous conditions which are in no way necessary for its safety.’

In Shrimati Sankar v. Pila Debi – 76 C.W.N. 400 , the Calcutta High Court held that:’Section 214 (1) (a) of the Indian Succession Act is only a bar to the institution of execution proceeding by a person claiming on Succession.  There is no bar to the continuance of execution proceedings which have already been initiated by the deceased Decree Holder.’

In Tojraj v. Mt. Rampyari  – AIR 1938 NAGPUR 528 , the Bombay High Court Nagpur Bench held that: ‘Where a decree-holder dies during the pendency of his application and his heir or legal representative applies for substitution of his name for that of the deceased decree-holder, the Court cannot on that application proceed with the execution unless Succession certificate is produced which falls within the scope of Section 214 (1) (b) of the Indian Succession Act.’

In Mathura Prasad Jamuna Prasad v. Ghasi Ram @ Rajen –  1997 M.P.L.J. 187 , the M.P. High Court held that: ‘Where the execution sought by the legal heirs of the decree holder after his death, Section 214 (1) (b) is applicable and Succession certificate is necessary.’

In Bhaiyaji v. Jogeshwar Dayal Bajpai , the Allahabad High Court held that:

‘The non-production of the documents mentioned in Section 214 (a) is no bar to a suit, but clause-(b) is a bar for passing of a decree.’

In Jadab Bai v. Puranmal – AIR 1944 NAGPUR 243, the Nagpur High Court held that: ‘Where money decree has been obtained by the decree holder, succession certificate has to be obtained by the widow to execute the decree.’

In Abdul v. Shamseali – AIR 1942 BOMBAY 285 , the Bombay High Court held that: ‘The necessity for obtaining a succession certificate cannot be waived by the parties. The obligation is not merely one in favour of the debtor; it benefits also those interested in the deceased’s estate by requiring that money forming part of the estate shall only be paid to a person who has been considered suitable for the grant of a succession certificate.’

In S. Rajyalakshmi v. S. Sitamahalakshm – AIR 1976 AP 361 , the A.P. High Court held that: ‘If the representative of the decree holder is not a person on whom the interest has developed by survivorship, it will be necessary for him to obtain a succession certificate to recover a debt in execution proceedings under Section 214 (1) (b), if the execution petition itself is filed by him.  Therefore, in a case where an execution application is filed by the legal representative of the deceased, succession certificate would be necessary when a “debt’ is sought to be recovered.  But when the execution is only for recovery of costs, no succession certificate is essential.’

In L.I.C. of India v. T. Tirupathayya (supra) a Division Bench of this High Court, while considering the scope of Section 214 of the succession Act, 1925, held as follows:

 ‘Under the Hindu Law, there is a distinction between succession and devolution of property by survivorship. The succession Act, as is indicated in the preamble, covers cases of succession only and cases of survivorship are not within the ambit of that Act.  Where a family is a joint Mitakshara family and the amount sought to be recovered is an asset of the joint family, the plaintiff, who claims by survivorship, cannot be compelled to take out a succession certificate to enable him to recover the amount.’

In S.D. Thapa v. M.P. Regmi – AIR 1958 ASSAM 81 , the Gauhati High Court held that: ‘Section 214 of the Indian succession Act only prohibits recovery of a debt against the debtor in the absence of a Probate or succession certificate. Where the suit is not against a debtor the provisions of the section are not attracted, nor does the section speak of any certificate in cases where a Probate has been granted.’

Appeal:- So, by virtue of the aforesaid conferment of powers, the Senior Civil Judges also have been entertaining the succession O.Ps as District delegates. As per Section 384 of the Act, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a succession certificate. Pasumarthi Srinivas Vs. Nil.; 2017 (2) ALT 523 (Division Bench):-Following the letter Roc No.408/SO-3/2009, dated 01.11.2011 of the Registrar General, Andhra Pradesh High Court, Hyderabad, the Government of Andhra Pradesh issued   G.O.Ms.No.11 dated 08.02.2012, which reads thus:

ORDER:

The Registrar General, High Court of Andhra Pradesh, Hyderabad, in his letter read above, has forwarded the Draft Notification with regard to the Conferment of powers on Senior Civil Judge Courts to entertain Original Petitions filed under the Indian Succession Act, 1925.

2. The Government after careful examination of the matter have decided to approve the Draft Notification with regard to the Conferment of powers on Senior Civil Judge Courts to entertain Original Petitions filed under the Indian Succession Act, 1925.
3. Accordingly, the following Notification will be published in an Extraordinary issue of the Andhra Pradesh Gazette.

NOTIFICATION

In exercise of the powers conferred by sub-section (1) of section 388 of the Indian Succession Act, 1925 (Central Act 39 of 1925) and of all other powers here unto enabling the Governor of Andhra Pradesh hereby confers powers on all the Principal Senior Civil Judges, where there are more than one Senior Civil Judges Court and Senior Civil Judges Court where only one Court is functioning at such station to entertain original petitions filed under the Indian Succession Act, 1925 and shall exercise the functions of District Judge under Part-X of the said Act within their respective jurisdictions.

So, by virtue of above G.O. the Government in concurrence with the High Court of Andhra Pradesh, by virtue of the powers conferred under Section 388(1) of Indian Succession Act, 1925, have issued notification conferring powers on all the Senior Civil Judges to entertain original petitions filed under Indian Succession Act, 1925 and to exercise the functions of District Judge under Part-X of the said Act within their respective jurisdictions.

Conclusion:-

Under the Hindu Law, there is a distinction between succession and the devolution of property by Survivorship. The succession Act, as is indicated in the preamble, covers cases of succession only and cases of survivorship are not within the ambit of that Act.  From the above, it is sum up to conclude that Section 214 of the Indian succession Act only prohibits recovery of a debt against the debtor in the absence of a Probate or succession certificate. Where the suit is not against a debtor the provisions of the section are not attracted, nor does the section speak of any certificate in cases where a Probate has been granted. In Muppidi Chandra Mohan Reddy and another Vs. Methuku Santosh, Jangaon District, rep by his SPA Holder and Natural Guardian Methuku Narsimha Rao- 2018 (5) ALT 537,  it was held that Succession certificate is conclusive proof of succession and vests right in such person to claim the properties belonging to deceased. Section 384 of  Indian Succession  Act, 1925  is subject to the other provisions of Part X, which means the said section is subject to Section 388 as per which, against the order passed by an inferior Court, an appeal shall lie before the District Judge and not before the High Court.   As I discussed above, ‘Section 214 of the Indian Succession Act only prohibits recovery of a debt against the debtor in the absence of a Probate or succession certificate. Where the suit is not against a debtor the provisions of the section are not attracted.  As was held in Pasumarthi Srinivas’s case (supra), by virtue of G.O. Ms. No.11 dated 08.02.2012 the Government in concurrence with the High Court of Andhra Pradesh, by virtue of the powers conferred under Section 388(1) of Indian Succession Act, 1925, have issued notification conferring powers on all the Senior Civil Judges to entertain original petitions filed under Indian Succession Act, 1925 and to exercise the functions of District Judge under Part-X of the said Act within their respective jurisdictions.

-x-