1. This Court is confronted with a question, as to whether a succession certificate could be granted jointly to more than one person and with incidental question, as to whether such certificate could also be issued in the joint names of the person, who was objector and not the applicant?
2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is filed by the original applicant, who had preferred Civil Miscellaneous Application No. 103 of 2003 in the Court of learned 10th Additional Civil Judge, Junagadh under Section 372 of Indian Succession Act, 1925 (hereinafter referred to as the 'Act') praying for grant of succession certificate in respect of the debts and securities of deceased Diliprai Sanatanrai Baxi.
3. In the said application, the respondent herein lodged his objections, wherein it was pointed out that deceased Diliprai Sanatanrai Baxi had died leaving no heir but as per the 'Pedigree' provided in the objections, there were several persons, who were closely related to deceased Diliprai Sanatanrai Baxi, still the applicant did not disclose in application the facts about other heirs. This objection was accompanied by affidavit wherein it was categorically stated that the applicant was not the sole heir of deceased Diliprai Sanatanrai Baxi but the deponent/ respondent was also one of the heirs of deceased Diliprai Sanatanrai Baxi and in such circumstances, the applicant was not the only person entitled to get succession certificate under the law. It is further stated that succession certificate should be issued in the name of all heirs.
4. Because of such objection, since the issue became contentious, learned Trial Judge framed issues at exhibit 39 and the main issue is, as to whether the applicant proves that he is legal heir of deceased Diliprai Sanatanrai Baxi?
5. Before the Trial Court, the applicant examined himself at exhibit 59 and also examined two other witnesses. The applicant in his deposition stated that deceased Diliprai Sanatanrai Baxi was real brother of his father and after the death of deceased, he being nephew of the deceased was entitled to succession certificate. However, he did not disclose the names of other heirs in his chief examination but was compelled to disclose in his cross- examination, that the respondent was also nephew of deceased Diliprai Sanatanrai Baxi.
6. Though, the respondent has not given evidence before the learned Trial Judge, but from the above deposition of the applicant, it was established that the respondent was son of another brother of deceased Diliprai Sanatanrai Baxi.
7. Learned Trial Judge, recorded finding of fact that the applicant and the objector both being the heirs of deceased Diliprai Sanatanrai Baxi, both had equal interest in the properties of deceased Diliprai Sanatanrai Baxi. Learned Trial Judge thus partly allowed the application of the applicant and ordered to issue succession certificate in the joint name of applicant as also the objector-the respondent herein by order dated 6.12.2007.
8. The present appellant, therefore, challenged the above said order by filing Regular Civil Appeal No. 147 of 2007 in the Court of learned District Judge, Junagadh. The contentions raised by the appellant were to the effect that the appellant and his wife were looking after deceased Diliprai Sanatanrai Baxi, that the appellant was the only heir and therefore, by virtue of provisions of Sections 372, 373 and 375, the succession certificate could have been granted only in the name of appellant and there was no concept of granting joint succession certificate in favour of the person who was just objector, that grant of succession certificate in the name of objector would amount to partitioning the properties of the deceased when such could never be the intention of the legislature at the time of granting of the succession certificate under the provisions of Indian Succession Act, 1925.
9. Learned Appellate Judge, on independent appreciation of evidence available on record, came to the conclusion that since the respondent was also one of the heirs of deceased Diliprai Sanatanrai Baxi, he would have equal interest in the properties left by deceased Diliprai Sanatanrai Baxi, and therefore, it could not be said that learned Trial Judge has committed any error in ordering to grant of succession certificate in joint name of both the parties. Learned Appellate Judge, therefore, dismissed the Appeal of the appellant by judgment and order dated 09.04.2008, which is under challenge before this Court in this Appeal.
10. This Appeal was admitted by order dated 21.01.2010 on following substantial question of law.
“As to whether could there be an order in favour of rival parties namely the appellant as well as objectionist for receiving the certificate as if it was a partition suit?”
11. I have heard learned advocates for the parties.
12. Learned Advocate Ms. Krishna Rawal for the appellant submitted that the Courts below have committed serious error in passing order for issuance of succession certificate in the joint name of the appellant and the respondent herein. She submitted that the succession certificate could be issued only in the name of the applicant and the objector to the application has got no locus-standi to get succession certificate issued in his name. She submitted that a person who wants succession certificate is required to follow proper procedure under the provisions of Sections 372 and to establish that he has also scrupulously complied with the requirement of such provisions. She submitted that for this purpose, only the person who makes application is recognized for getting the succession certificate and if there is no application by the person for getting succession certificate even if, such person is direct heir of the deceased person for whose property, succession certificate is asked for, then also such person is not entitle to get succession certificate issued in his name. She submitted that in any circumstances, law does not recognize issuance of succession certificate in the joint name of more than one person. She has literally taken the Court through the provisions of Sections 372 to 375 and also to the form in which the succession certificate is issued from Schedule 8 of the Act. As per her submission, the person who just lodge objection against issuance of succession certificate cannot be made entitle to get succession certificate issued in his name jointly with the applicant. She submitted that if the succession certificate was to be issued in joint names then also from the record, it was very much clear that the respondent was not only one more heir but there were other heirs and in that case the succession certificate was required to be issued in the names of other heirs also but the fact that the Courts below have not issued succession certificate in the names of other heirs would go to show that succession certificate could not have been issued in favour of the person, who was never the applicant. The respondent being simply objector was not entitle to get succession certificate issued in his name jointly like the other heirs. She thus submitted that the Courts below have exceeded in their jurisdiction by ordering to issue succession certificate jointly in the names of the appellant and the respondent. In support of her arguments Ms. Rawal has also relied on following judgments;
1. Smt. Ningamma and others Vs. smt. Sakamma and others reported in AIR 2001 Karnatka, Page 339.
2. Shyam Sundari Devi alias Sunita Devi Vs. Rajkishore Singh alias Rajkishore Parasad reported in AIR 1999 Patna, Page 5.
3. Vidhyadhari and others Vs. Sukhrana Bai and others AIR 2008 (2) SCC Page 238.
13. As against the above arguments of learned advocate for the appellant, learned advocate Mr. Devarshi D. Vaidya appearing for the respondent submitted that the appellant deliberately did not disclose at the initial stage in his deposition that the respondent was also nephew of deceased Diliprai Sanatanrai Baxi and would be equally interested in the properties of deceased Diliprai Sanatanrai Baxi. He submitted that when the appellant made application, he did not come with clean hands and suppressed material fact but ultimately in the cross-examination, the appellant had to disclose that the respondent was
that the application was opposed by the respondent to point out that the appellant was not the sole heir of deceased Diliprai Sanatanrai Baxi. He submitted that the respondent had also filed accompanying affidavit wherein the respondent had clearly stated that the appellant was not sole heir of deceased Diliprai Sanatanrai Baxi,but the respondent would be equally entitled to get succession certificate issued in his name and even the other heirs of deceased Diliprai Sanatanrai Baxi would also be equally entitled to get succession certificate along with the applicant in their names. Mr. Vaidya pointed out that the sole intention and purpose of filing affidavit was to urge before the Court, though not by direct application, that the respondent being equally situated with the appellant, was equally entitled to rights in the property of the deceased and would be equally entitled to get the succession certificate issued in his name too with the applicant. He, therefore, submitted that even if, there was no independent application made by the respondent, his request in the accompanying affidavit was for all purposes like an application which could be taken as joint application and therefore, the Courts below were justified to grant succession certificate in the joint names. He submitted that considering the interest of the parties in the property of the deceased the Court while exercising powers under Section 373 can certainly decide to grant certificate in the names of more than one person when the Court finds on the basis of the evidence that interest of more than one person is involved in the property of the deceased. Mr. Vaidya further submitted that there is no prohibition or bar in issuing succession certificate in the joint names of more than one person. Mr. Vaidya also read the provisions of Section 372 to 376 of the Act to point out that there is no prohibition in grant of joint certificate in the names of more than one person. Mr. Vaidya pointed out that while deciding the application for grant of succession certificate, the Court is enjoined with a duty to have regard to the extent of the interest of the parties concerned and fitness of the parties in other respects. He, therefore, submitted that the Courts below have not committed any error in ordering issuance of the certificate in the joint names of appellant as also the respondent. In support of his submission, learned advocate Mr. Vaidya relied on following authorities:
1. Narayanasami Vs. Kuppusami reported in ILR 19 Madras Page 497
2. State of Chhattisgarh and others Vs. Dhirjo Kumar Sengar reported in 2009 (13) SCC Page 600
14. Having heard learned advocates for the parties and having perused the judgment and order passed by Court below with the records and proceedings, it appears that there is no dispute that deceased Diliprai Sanatanrai Baxi had no direct heir but he was survived by his brothers' sons and other relatives. The appellant and the respondent are the sons of brothers of deceased Diliprai Sanatanrai Baxi. It has also come in evidence that there were other brothers and sisters of the parties. There is also no dispute that after the death of deceased Diliprai Sanatanrai Baxi, only the appellant had made application under Section 372 of the Act, for issuance of succession certificate in respect of properties left by deceased Diliprai Sanatanrai Baxi, particulars of which are given in the application itself. In the said application, the respondent filed his objection at exhibit 37 on 13.04.2005 and pointed out that the applicant was not the only heir of deceased Diliprai Sanatanrai Baxi. The relevant aspect of the matter is that the said objection was accompanied by an affidavit of the same date at exhibit 38 wherein the respondent clearly stated that the applicant was not the sole heir of deceased Diliprai Sanatanrai Baxi, there are other heirs also with the respondent and the applicant was not legally entitled to get succession certificate in his sole name, that the succession certificate should be issued in the names of heirs of deceased Diliprai Sanatanrai Baxi, that there is objection for grant of succession certificate only in the name of applicant.
15. It is required to be noted that on the evidence of the applicant himself, the Courts below have found as a matter of fact, that the applicant was not the sole heir of deceased Diliprai Sanatanrai Baxi but the respondent, being nephew of deceased Diliprai Sanatanrai Baxi, was equally the heir of deceased Diliprai Sanatanrai Baxi, and has equal interest in the properties of deceased Diliprai Sanatanrai Baxi. On the basis of such finding of fact and having regard to the interest of the parties in the properties of deceased Diliprai Sanatanrai Baxi, the Courts below came to the conclusion that the appellant and the respondent both would be entitled to issuance of the succession certificate in their names jointly.
15.1. Section 372(1) requires the person making an application for succession certificate to provide the particulars detailed thereunder.
Section 373, then provides for procedure on application. Sub-Section 1 and 2 thereof provide for deciding the application in a summary manner if it is possible for Judge to decide such application in a summary manner but if such application is not possible to be decided in a summary manner, then Sub-Section 3 provides that learned Judge may determine the questions of law or fact but he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. Sub- Section 4 thereof provides that when there are more applicants than one for a certificate, and if it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge, in deciding to whom the certificate is to be granted shall have regard to the extent of interest and the fitness in other respects of the applicants.
16. Section 375 then requires learned Judge to ensure, if he proposes to proceed under Sub- Sections 3 or 4 of Section 373, that the person in whose favour, he proposes to grant succession certificate to give one or more sureties, or other sufficient security for rendering an account of debts and securities received by him and for indemnity of persons who may be entitled to the whole or any part of debts and securities.
17. It appears that the above provision was made in Section 375 to see that the interest of all persons claiming right in the property of deceased could be preserved and secured, if one of such persons is to be granted succession certificate. At this stage, a reference to the decision in the case of State of Chattishgarh Vs. Dhirjo Kumar Sengar, AIR 2009 SC Page 2568 is required to be made. In the said decision Hon'ble Supreme Court has made following observations.
"A succession certificate can be granted in favour of any person. It may be granted to an heir or a nominee. By reason of grant of such certificate, a persons in whose favour succession certificate is granted becomes a trustee to distribute the amount payable to the deceased to his heirs and legal representatives. He does not derive any right thereunder. The succession certificate merely enabled him to collect the dues of the deceased. No status was conferred on him thereby. It did not prove any relationship between the deceased and the applicant. Even otherwise, the respondent and his father were entitled to the said dues being his heirs and legal representatives.”
18. Thus, it becomes very clear that the person who is granted succession certificate does not derive any right, but it just enables such person to collect the dues of the deceased on behalf of other interested persons in the property of the deceased.
19. Learned advocate Ms. Rawal for the appellant, however, while placing reliance on the decision in the case of Smt. Ningamma (Supra) submitted that the law is well settled for grant of succession certificate only to the applicant and the person who opposes grant of succession certificate is not entitle like the appellant to have succession certificate issued in his name. She drew attention of the Court to the observations made in paragraph 29 of the said judgment, which reads as under;
“In the instant case, it is clear that the respondents on their own did not choose to file the applications for grant of succession certificate in their name as the petitioners did in filing the application in P and SC 70/87 and as I further see, all that they did was only to oppose the grant of succession certificate by the City Civil Judge as prayed for by them in filing the application question. I do not find any good reason as to why the respondents did not recourse to filing of similar application as the petitioners did, particularly when they were also addressed with common endorsement as at Ex. P.11, calling upon them to approach the City Civil Court and thereafter approach the Corporation for the purpose of settling the dues in the account of the deceased-V. Puttaswamy.”
19.1. In my view, the above observations were made in the facts of the said case, however, the issue which has arisen in the present case was not directly involved therein.
19.1.2. Likewise in the decision of Shyam sundari Devi(Supra) relied on by the learned advocate for the appellant, the issue as to whether the succession certificate could be granted jointly and to the person who was the applicant, was not the controversy before the Patna High Court. The controversy before the Patna High Court was whether the proceedings for grant of probate or letters of arbitration could be converted into Title Suit or not? The Patna High Court has held that proceedings only for probate or letters of arbitration could be converted into Regular Civil Title Suit and Section 295 of the Act, has no application for grant of succession certificate, such is not the issue in the present case, therefore, this decision also will have no application in the facts of the case.
20. The decision in the case of Vidhyadhari (Supra) relied on by the learned advocate for the appellant could also be of no help to the appellant because in the said case, the issues like the case on hand had not arisen but the question was who could be the most fitted person to have the succession certificate, whether legally wedded wife or the another person claiming to be second wife with her children. In the said case, Hon'ble Supreme Court has held that legally wedded wife cannot become automatically entitle to succession certificate to the exclusion of second de facto wife and her children especially, when the deceased had made nomination in her favour to receive the benefits. In fact from this judgment of the Hon'ble Supreme Court, it becomes very clear that the succession certificate is just not be granted to the person who comes with the application. The Court has duty to decide the rival claims between the parties if such application is opposed by any other person and to find out having regard to the interest of such persons in the properties and other aspects, who is the better suited person to receive grant of the succession certificate.
21. Learned advocate Mr. Vaidya was right in his submission that there is no prohibition in grant of succession certificate in the joint names of more than one person. Sub-Section 3 of Section 373 provides that when Judge finds the questions of law and fact to be intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. There is much importance of last phraseology provided in Sub- Section 3. It would mean that wherever there is intricacy and difficulty for determining grant of succession certificate by way of summary procedure, it becomes incumbent upon learned Judge to find out the person having prima facie the pest title for grant of succession certificate. The Judge would thus be required to decide who is going to be the person having prima facie the best title to get the succession certificate in his name. Therefore, it is not possible to accept the contention of the learned advocate for the appellant that the succession certificate can be granted only to the applicant and not to the objector. While deciding who could be the person having prima facie of the best title, the Judge might find and come to the conclusion that there are more than one persons having prima facie of the best title to receive grant of succession certificate, therefore, the contention of the learned advocate for the appellant that the succession certificate cannot be granted in the joint names of more than one person can not be accepted. Sub-Section 4 deals with the situation where there are more than one applicants. In such situation having regard to the extent of the interest of the parties and the fitness in other respects of such persons, learned Judge is to find out best, suitable persons amongst the applicants on the basis of the extent of interest of such persons in the properties of the deceased and their fitness in other respects. However, the words applicants stated in the said Sub-Section cannot be read in a restrictive manner so as to say that the Judge who is deciding the issue of grant of succession certificate can find out the best person from amongst the applicants only. In my view, the purpose and intent of legislature for incorporating the phraseology “ having regard to the extent of interest and the fitness in other respects of the applicants” would mean that in a given case if the Judge finds that having regard to the extent of interest of the objector and other criteria of fitness such objector could be the best person to have a succession certificate, he could also be made entitled to receive succession certificate in absence of separate application because in the very proceedings pending before the Judge, at the instance of the objector, the details, particulars, facts as regards the extent of interest and fitness in other respects of the parties would be scanned and the Judge would be deciding ultimately on the basis of claims of the parties and evidence led by them. Therefore, even if no application was made by the objector, his claim could be considered like applicant for the purpose of grant of succession certificate in his favour. Such view would be, in fact, in furtherance of the object to curtail multiplicity of proceedings.
22. At this stage, reference is required to be made to the decision in the case of Dulia Devi Vs. Dulia Devi, reported in AIR 2001 Allahabad, Page 195. In the said case, this very issue as to whether a succession certificate could be granted in favour of the objector /opposite party was under consideration. Learned single Judge of Allahabad High Court has held in paragraph 7 as under:
“I have considered the arguments. No doubt it was true that the applicant alone has made the application for issue of succession certificate. However, the opposite parties filed objections and requested that such succession certificate be issued in their names. Therefore, the controversy in this case regarding the issue of certificate could be decided and it was not necessary for the opposite parties to move a fresh application for issue of succession certificate. The opposite parties in their objection made a request for issue of certificate and therefore, for the purpose of Sections 372,373 of the Indian Succession Act, 1925 the opposite parties shall be deemed to be applicants to issue succession certificate. There is no bar that the succession certificate cannot be issue in favour of the objectors. The multiplicity of the suits should never be encouraged. The matter for issue of succession certificate question could be decided in the application moved by the applicant itself and therefore, there was no necessity for moving of fresh application by the opposite parties. The entire evidence was considered and the certificate has been issued in favour of the person found best entitled.”
22.1. The above decision, fortifies my view that there is no bar in granting succession certificate in favour of objector, if the objector is found to be best suitable person. In such case, in order to avoid multiplicity of the proceedings, the Judge is empowered and entitled to grant of succession certificate even in favour of the objector.
23. I also find that there is no prohibition in grant of succession certificate in the joint names of more than one person. If the Judge while deciding the rival claims of the parties finds having regard to the extent of interest and the fitness in other respects that the person claiming and the person objecting are having equal interest and of the same fitness in other respects or if the Judge finds that the objector is having more extent of the interest in the properties of the deceased but it is not possible to grant of succession certificate exclusively to the objector then in such circumstances succession certificate could be granted even in favour of more the one person especially, when there is no prohibition engulfed in provisions of Section 373. At this stage, reference to the decision relied on by Mr. Vaidya on this issue is required to made. In the case of Daw Ohn Bwint and others (Supra), the Rangoon High Court was confronted with the issue whether joint succession certificate could be granted in favour of more than one persons under Section 373 (4) of the Act. Rangoon High Court has held that though it may be inconvenient in grant of succession certificate to more than one persons jointly, yet there is nothing illegal in grant of such succession certificate. In another decision relied on by Mr. Vaidya in the case of Ningamma and others (Supra), Madrash High Court did not interfere with the order passed by learned District Judge, who ordered grant of joint certificate in the name of both the parties who were before the Court.
24. In light of the above and considering the provisions of Sections 372 and 373 read with Section 375, I am of the view that grant of succession certificate jointly in the name of more than one person is not illegal.
25. In the case on hand the Courts below have found that both the parties have equal interest in the properties left by deceased Diliprai Sanatanrai Baxi. This finding of fact reached by both the Courts below has not been assailed. Therefore, I do not find any error committed by the the Courts below in grant of succession certificate in the joint name of the appellant as also the respondent.
26. In light of the above, I hold that there could be an order in favour of rival parties namely the applicant as well as the objector for receiving the succession certificate jointly. Grant of succession certificate can never be termed as granting partition suit. The certificate holders hold the certificate just for the purpose of receiving the debts and securities of the deceased persons on behalf of rightful claimants.
26. I therefore, do not find that the Courts below have committed any error in passing the impugned judgment and decree. The Appeal is, therefore, required to be dismissed, accordingly, the same is dismissed.
Braj..
[C.L. Soni, J.]