® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ M.F.A. NO.2079 OF 2019 (ISA) BETWEEN:
K S NATRAJ S/O LATE K M SOMASHEKAR AGED ABOUT 74 YEARS RESIDENT OF NO.M-10 TOWNSEND, AVALAHALLI DODABALLAPUR ROAD BENGALURU-560064 ... APPELLANT (BY SRI.S. VIVEKANANDA, ADVOCATE) AND:
NIL ... RESPONDENT ***** THIS APPEAL IS FILED UNDER SECTION 384 OF THE INDIAN SUCCESSION ACT, AGAINST THE ORDER DATED 10/01/2019 PASSED IN P & SC NO.209 OF 2018, ON THE FILE OF THE X ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU (CCH-26), DISMISSING THE PETITION FILED UNDER SECTION 372 OF INDIAN SUCCESSION ACT, 1925.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, SURAJ GOVINDARAJ. J., DELIVERED THE FOLLOWING:
JUDGMENT 1. The appellant had filed the proceeding under Section 372 of the Indian Succession Act, 1925 (hereinafter referred to as the ‘Succession Act’ for the sake of brevity) for issuance of a Succession Certificate which came to be numbered as P&SC No.209/2018. The said P&SC No.209/2018 came to be dismissed by X Addl. City Civil and Sessions Judge, Bengaluru, by way of its order dated 10.01.2019. Being aggrieved, this appeal has been preferred.
2. The appellant has stated that he is the son of late Sri. K.M.Somashekar, who was holding equity shares in M/s Titan Watches Limited (now Titan Company Limited), as also several movable and immovable properties.
3. Late K.M.Somashekar was married to Smt.
Deviramma and they had two sons and a daughter (including the appellant). Late K.M.Somashekar expired in the year 1998, Smt. Deviramma also expired subsequently. He states that his sister and daughter of late K.M.Somshekar, Smt.Bhagya had predeceased her father leaving behind two sons. He has further stated that late K.M.Somashekar did not leave behind any Will. After his death, his widow, two sons and two sons of deceased daughter together partitioned his assets under a registered partition deed dated 7.11.2002.
4. As per the registered partition deed dated 7.11.2002, K.S.Prakash, youngest son of late K.M.Somashekar was allotted immovable property and the shares were allotted to the appellant.
5. In pursuance of the said partition deed, the Appellant had requested the Registrar of M/s Titan Company Limited to transfer the shares into his name on 26.10.2017. When the said Authority insisted on the petitioner obtaining a Succession Certificate, appellant had issued a legal notice on 2.05.2018 once again calling upon the Registrar to transfer the shares. Registrar again reiterated his stand requesting the appellant to obtain a Succession Certificate. Hence, the appellant filed P&SC No.209/2018 seeking for a Succession Certificate.
6. Following the procedure, after filing such a petition, the trial Court directed the appellant to take out a paper publication which was published on 21.06.2018 calling upon the general public to submit objections, if any, to the grant of Succession Certificate in favour of the appellant. Though the said publication was taken, none appeared nor were objections received to such grant.
7. Appellant examined himself as PW-1 and got Exs.P1 to P11 marked and thereafter, when the matter was posted for arguments, addressed his arguments and also filed written submissions.
8. The trial Court framed the following points for its determination based on the evidence on record and arguments:
i) Whether Succession Certificate can be issued in favour of the petitioner?
ii) What order?
9. The trial Court answered in the negative to the first point on the ground that the signatories to the partition deed were not made parties to the petition, the trial Court also observed that it was not known whether those signatories were alive or dead and if dead, then, participation of their legal heirs would be necessary to avoid multiplicity of proceedings. The trial Court also observed that the appellant had failed to examine any of the attesting witnesses to the partition deed or other parties to it, so as to prove the execution thereof. While observing that the partition deed was to be proved, the trial court held that it is not possible to hold that the petitioner alone was entitled for the Succession Certificate so as to claim rights over the movable shares. The trial court further observed that merely because notice was taken through paper publication and none appeared would not mean that nobody is having an interest in the litigation.
10. On the above grounds, the trial court was of the opinion that the petition was not maintainable and hence, answered point No.1 in the negative and therefore, dismissed the petition filed by the appellant under Section 372 of the Act vide order dated 10.01.2019.
11. Aggrieved by this Order dated 10.01.2019 passed in P&SC No.209/2018, the appellant has filed the present appeal impugning the said order by stating that the trial court has not taken into consideration the facts and materials placed on record; that the trial Court has erred in holding that other legal heirs are to be made parties to the petition; that there was no requirement to examine any attesting witnesses to prove the execution of a registered partition deed; law does not contemplate examination of attesting witnesses to such a document; it only contemplates such examination in respect of compulsorily attestable documents; that the trial Court failed to take note of the fact that a paper publication inviting objections was published, however, none objected. If at all anyone had any objections, they would have appeared. There was no need to serve notices on individual family members, especially when they do not have any right over the shares and hence, on the basis of the said statements made in the appeal memorandum which were reiterated during the course of arguments, the appellant has sought for setting aside the order dated 10.01.2019 passed in P&SC No.209/2018 by the trial Court and consequently, he has submitted that the petition as filed by the appellant has to be allowed and Succession Certificate has to be granted in his favour.
12. As aforesaid stated, since the proceedings are for grant of Succession Certificate, there are no respondents in the proceedings before the trial Court or before this Court. Public notice inviting objections, if any, had already been published, despite which there was no objection which was received by the trial Court.
13. We have, therefore, heard learned counsel for the Appellant and on the basis of the averments made in the appeal memorandum and submissions made during arguments, the points that arise for determination by this Court are:
i) Whether it is necessary to examine the parties to a registered partition deed in a proceeding for grant of Succession Certificate?
ii) Whether it is necessary to examine the attesting witnesses to a registered partition deed in proceedings for grant of Succession Certificate?
iii) Whether it is necessary for service of notices to the parties to a registered partition deed where the property has been allocated to the person seeking for Succession Certificate?
iv) What order?
POINT Nos.1 and 2:
14. Admittedly, the partition deed is a registered document and is registered with the Registrar of Assurances and all the requirements for such registration under the Registration Act have been complied with.
15. A registered partition deed is a public document under Section 74 of the Indian Evidence Act, 1872 (‘Evidence Act’ for brevity). There is no requirement to examine the witnesses to a registered partition deed in terms of the proviso to Section 68 of the Evidence Act. When a partition deed is registered under the applicable law by following due procedure, which results in a presumption of its validity.
16. Ex-P11 is a certified copy of the partition deed produced after obtaining the same in terms of Section 76 of the Evidence Act. An examination of the said certified copy of the partition deed indicates that the said certified copy has been issued in accordance with law and therefore, in terms of Section 72 of the Evidence Act, there is a presumption as to the genuineness of such certified copies.
17. It was this certified copy of the partition deed which was produced at Ex.P11, which was relied upon by the appellant in P&SC No.209/2018, in respect of his claim for issuance of a Succession Certificate in his favour as regards the shares allotted to him in the said deed. The document being registered and a certified copy having been produced is sufficient proof of the said document having been executed and registered and therefore, the document which was exhibited ought to have been taken as proved by the appellant.
18. Coming to the finding of the trial Court that the other signatories to the partition deed had either to be examined or an affidavit on their behalf had to be filed in the proceedings indicating their ‘no objection’ to the issuance of Succession Certificate in the name of the appellant, in our considered view, no such requirement is contemplated, more so, when even in relation to issuance of public notice inviting objections, none appeared or objected to the issuance of Succession Certificate. The very purpose of issuance of public notice in matters relating to issuance of Succession Certificate is to enable any one having any objection to submit the same before the Court seized of the matter. If the fact of no objections having been filed to the said public notice is ignored, then, there would be no purpose for issuance of public notice itself. Therefore, there is no requirement either to examine either signatories to the partition deed or an affidavit on their behalf to be filed in support of the petition seeking for issuance of Succession Certificate.
19. At this stage, the purpose of registering a document under the Registration Act could be discussed. The purpose of registering a document under the Registration Act, 1908 (hereinafter for brevity ‘Registration Act’) is as under:
i) To provide information to the general public and/or a specific person who may deal with the property as to the nature and extent of rights which a person claiming under registered document may have, affecting that property;
ii) to enable the general public and/or a specific person who may deal with the property to find out whether any particular property with which they may be concerned, is subject to any legal obligation;
iii) To prevent forgeries and procurement of transfers by fraud or undue influence.
20. The most important purpose of registration is to secure that persons dealing with the property, where such dealings require registration, may rely upon the statements contained in the register of the Registrar of Assurances with confidence that the full and complete account of all transactions relating to or affecting the property is covered in such register.
21. The Hon’ble Apex Court in Suraj Lamps And Industries Private Limited –v- State of Haryana and Another, reported in AIR 2012 SC 206 has very succinctly captured the purpose of registration of documents in paragraph 10 which reads as under:
“10. In the earlier order dated 15.5.2009, the objects and benefits of registration were explained and we extract them for ready reference:
"The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration.
Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs. 100 and upwards to or in immovable property.
Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified."
Registration of documents makes the process of verification and certification of title easier and simpler. It reduces disputes and litigations to a large extent.”
22. There is a presumptive value to a registered document. In that, once a document is registered, it is presumed that the transaction is genuine and binding on the parties to the registered document. In the case of Vimal Chand Ghevarchand Jain & Ors vs Ramakant Eknath Jajoo, reported in (2009)5 SCC 713, it has been held that the registered deed of sale carries a presumption that the transaction was a genuine one. If the execution of a sale deed is proved, onus is on the person alleging otherwise to prove that the deed was not executed and it was a sham transaction. Thus, the burden to prove that it is not genuine lies on the person who alleges that it is not so.
23. It would also be apposite to refer to the decision of the Hon’ble Supreme Court in Vishwanath Bapurao Sabale vs Shalinibai Nagappa Sabale & Others, (2009) 12 SCC 101 wherein it was held as under:
“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”
24. In view of Section 60 of the Registration Act, the endorsement made by a Registering Officer of such document has a presumptive value regarding its validity in terms of Section 60(2) of Registration Act. Once a certificate is issued, sealed and dated by the Registering Officer, such a certified copy would be admissible in evidence for the purpose of proving that the document has been duly registered in the manner provided for by the Registration Act. Such a registration is prima facie binding on the executants of the document. There would be no need therefore to examine the executants unless the execution of the said document is denied by any one of the executants.
25. Further Section 3 being the interpretation clause under the Transfer of Property Act, 1882, defines ‘attested’ as under:
“Attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;
26. Attestation essentially is bearing witness to the execution of a document. Popularly when one signs as a witness to a Will, such a person is called the ‘Attestor’ and when one signs as a witness to any other document is called a ‘Witness’, though both Attestor and witness, by whatever name called, perform the same role of attesting the signature of the executor to a document.
27. In Ishwar Dass Jain –v- Sohanlal (dead) by LRs, reported in AIR 2000 SC 426, the Hon’ble Supreme Court had an occasion to deal with the requirement of examining an Attestor where the document not being a Will, was registered. The Hon’ble Supreme Court while referring to Section 68 of the Indian Evidence Act 1872 (hereinafter for brevity ‘Evidence Act’) has held thus:
“POINT 2: We shall first deal with the proof of the certified copy of the deed of mortgage. So far as the mortgage deed is concerned, the plaintiff filed a certified copy and called upon the defendant to file the original. The defendant refused to do so. The plaintiff, therefore, proceeded to file the certified copy as secondary evidence under sub-clause (a) of Section 65 of the Evidence Act. This was certainly permissible. The mortgage is a document required to be attested by two attestors under Section 59 of the Transfer of Property Act and in this case it is attested by two attestors. The mode of proof of documents required to be attested is contained in Section 68 to 71 of the Evidence Act. Under Section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of Court and is capable of giving evidence. But in case the document is registered- then except in the case of a will - it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed. This is clear from Section 68 of the Evidence Act. It reads as follows:
"Section 68: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied."
In the present case, though it was stated in the written statement that there was no relationship between the parties as mortgagor and mortgagee, the defendant admitted in his additional pleas in the same written statement that the mortgage deed was executed but he contended that it was executed to circumvent the Rent Control legislation. In fact, in his evidence as DW2 the defendant admitted the execution of the mortgage. It must therefore be taken that there was no specific denial of execution. Hence it was not necessary for the plaintiff to call the attestor into the witness box, this not being a will. The plaintiff could therefore not be faulted for not examining any of the attestors. Hence the mortgage stood proved by the certified copy. The Courts below were right in accepting that the deed was proved. Point 2 is decided in favour of plaintiffs- appellants.”
28. Section 68 of the Evidence Act deals with proof of execution of document required by law to be attested. Proviso to Section 68 of the Evidence Act deals with documents otherwise than a Will. A perusal of the proviso to Section 68 of the Evidence Act referred hereinabove categorically indicates that it would not be necessary to call an attesting witness to prove the execution of any document if it is not a Will, if it is not registered under the provisions of the Indian Registration Act, 1908, unless such execution is denied. Thus, the examination of an Attestor would be required if the documents sought to be proved is a Will, irrespective of whether it is denied or not. In case of documents otherwise than in case of a Will, there is no requirement to examine the attesting witness to any registered document unless the execution thereof is called in question. Thus, until the execution of a registered document, otherwise than a will is called in question, there is no need to examine the witnesses to such registered document.
29. In the instant case, the appellant had produced a certified copy of the registered partition deed in order to assert his case. Such certified copy is a public document in terms of Section 74 of the Evidence Act. The manner of obtaining a certified copy of a public document is as stated in Section 76 and Section 77 of the Evidence Act. A certified copy may be produced in proof of contents of the public document and there is a presumption as to genuiness of certified copies in terms of Section 79 of the Evidence Act.
Applying the above to the present case, there being no objection whatsoever received, the presumption is in favour of the validity of the certified copy of the registered partition deed. There is, therefore, no need to examine the executants or witnesses/attestors to such a registered document as there was no controversy with regard to the valid execution of the document.
Point Nos.1 and 2 are related and answered in the negative and in favour of the appellant herein.
Point No.3:
30. In terms of Ex.P11 i.e., registered partition deed, it is found that the subject shares have been allotted to the appellant herein. The Succession Certificate sought for is limited to those shares. The trial Court ought to have taken into consideration the said allotment being made by the parties by mutual consent and the same having been acknowledged to be final and conclusive amongst them. It is also noted in the partition deed, that the same shall not be revoked by any party. The fact of the appellant being a legal heir and being a party to the partition deed is not in dispute. Hence, the trial Court ought to have considered these aspects and not insisted upon service of notice to the parties to a registered partition deed where the property has been allocated to the person seeking for Succession Certificate.
31. A Succession Certificate is issued to the legal heirs of a deceased person to establish the authenticity of the heirs and give them authority to inherit or prosecute debts, securities and/or other assets of the deceased. The purpose of Succession Certificate is limited to such debts and securities which the deceased was entitled to and facilitates collection of debt on succession and affords the protection to the parties paying a debt to such recognized Succession Certificate holders against any claim by third parties. It is well known that most of the companies would request for a Succession Certificate before transferring any security in the name of a person claiming to be an heir of the deceased. It is for this reason that the appellant has sought for issuance of a Succession Certificate in order to obtain transfer of shares and securities held by the deceased in the name of the appellant.
32. The procedure for consideration of an application for Succession Certificate is prescribed in terms of Section 373 of the Succession Act. In the event the District Judge being of the opinion that any other person ought to be served with notice in the matter, he should order so. In the present matter, the District Judge could not have placed the said onus on the appellant if he had any doubt. In fact, a perusal of the impugned order does not indicate any doubt but only requires an examination of the signatories to the partition deed by abundant caution. The Succession Certificate could have also been issued in terms of Section 375 of the Succession Act by calling upon the appellant to execute an indemnity bond in the event of anyone else claiming the shares, subject matter of the petition.
33. The trial Court held that the other signatories to the partition deed had either to be examined or an affidavit on their behalf had to be filed in the proceedings indicating their ‘no objection’ to the issuance of Succession Certificate in the name of the appellant. In our considered view, and as discussed above, no such requirement is contemplated, more so, when even after issuance of a public notice inviting objections, none appeared or objected to the issuance of Succession Certificate. The very purpose of issuance of a public notice in matters relating to issuance of Succession Certificate is to enable anyone having any objections to submit the same before the Court seized of the matter. If the fact of no objection having been filed to the said public notice is ignored, then, there would be no purpose for issuance of public notice itself. Therefore, there is no requirement either to examine either of the signatories to the partition deed or an affidavit on their behalf to be filed in support of the petition seeking for issuance of Succession Certificate when they have not objected to the public notice issued through court. The public notice itself being a general notice inviting any member of the general public to object if they so desire, there is no requirement to once again issue a specific notice to the other executants of the registered document. Point No. 3 is hence answered in the negative.
34. In view of the above, we hold that the order dated 10.01.2019 passed by the X Addl. City Civil and Sessions Judge, Bangalore in P&SC No.209/2018 is not in accordance with law and hence, is set-aside.
35. In terms of section 371 of the Indian Succession Act, which is reproduced hereunder, the District Court has the power to issue succession certificate/s.
“371. Court having jurisdiction to grant certificate.—The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he 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.”
36. Since the power to grant Succession Certificate is vested in the District Court, the matter is remanded to the District Judge to consider the petition filed by the appellant in accordance with law and in terms of the observations hereinabove made expeditiously at any rate within a period of two months from the date of receipt of certified copy of this order. For this purpose the appellant to appear before the Court below on 02/01/2020 without any further notice from the said Court.
The appeal is disposed of accordingly.
Sd/- JUDGE Sd/- JUDGE ln