Gujarat High Court

Rakeshkumar Ramanbhai Patel vs None on 20 February, 2024

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     C/FA/4559/2023                               JUDGMENT DATED: 20/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4559 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE DEVAN M. DESAI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      RAKESHKUMAR RAMANBHAI PATEL
                                Versus
                                NONE
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Appearance:
MR GOPAL M PANDYA(3400) for the Appellant(s) No. 1
MR VISHAL T. PATEL(6518) for the Appellant(s) No. 1
for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                              Date : 20/02/2024

                             ORAL JUDGMENT

1. Heard learned advocate Mr. Vishal T. Patel for

the appellant. Perused the record.

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2. By way of this appeal under Section 384 of the

Indian Succession Act, the challenge is made against the

order dated 14.8.2023 passed by the learned Additional

Civil Judge, Dehgam, District Gandhinagar in Civil Misc.

Application No.8 of 2022.

3. The brief facts leading to filing of the present

appeal are as under:

3.1 The present appellant filed Civil Misc.

Application No.8 of 2022 for `Succession Certificate' of

movable property of late Natvarlal Chhotalal Patel and his

wife Champaben Natvarlal Patel, under Section 372 of the

Indian Succession Act, 1925. The appellant claimed to be

the nephew of late Natvarlal Chhotalal Patel who passed

away on 16.11.2021 and his wife late Champaben

Natvarlal Patel passed away on 10.1.2017 at Dehgam. The

relationship between the appellant and deceased are that

of nephew, uncle -aunty.

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4. Submissions of learned advocate for the

appellant are as under:

4.1 The appellant filed Civil Misc. Application No.8

of 2022 for `Succession Certificate' of the movable

property of late Natvarlal Chhotalal Patel and his wife

Champaben Natvarlal Patel, under Section 372 of the

Indian Succession Act, 1925.

4.2 The original applicants were taking care of the

deceased during their life time as Natvarlal Chhotalal Patel

and his wife Champaben Natvarlal Patel had no issue out

of their wedlock.

4.3 It is further submitted that deceased Natvarlal

Chhotalal Patel and his wife Champaben Natvarlal Patel

have expired without making any testamentary instrument.

The appellants are the heirs falling under Class - I

category of the Hindu Succession Act. It is also submitted

that the application for `Letter of Administration' under

Section 217 read with Section 278 of the Act wherein the

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notice was affixed on the conspicuous part of the Court

and a general notice was also issued in Sandesh

Newspaper widely circulated in Gandhinagar District.

Pursuant to the said public notice, objections were not

raised by any interested person or brothers and sisters of

the appellants who are mentioned in paragraph no.4 of the

application. The death certificate of Natvarlal Chhotalal

Patel and his wife Champaben Natvarlal Patel were

produced on record. Power of Attorney of Rakeshkumar

Ramanbhai Patel was examined vide Exh.11 and there was

no cross examination of the said Power of Attorney holder.

In nutshell, the application was uncontested. However, the

learned Additional Civil Judge on 14.8.2023 dismissed the

application on the ground that except oral evidence, the

appellants have not produced evidence in support of the

application. Being aggrieved by the judgment and order,

the present appellant has preferred this First Appeal.

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5. Learned advocate for the appellant has relied

upon Sub-section 2 of Section 373 of the Indian Succession

Act, 1925, which reads as under:-

"373(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

6. Learned advocate for the appellant has submitted

that procedure on application being made by the applicant

is summary proceedings as contemplated under Section 373

of the Indian Succession Act. Sub-section 3 of Section 373

of the Indian Succession Act contemplates that even if the

Court cannot decide the right to the certificate without

determining the questions of law or fact which seem to be

to intricate and difficult for determination in a summary

procedure, the Court may grant the certificate in favour of

the appellants.

7. Learned advocate for the appellant has submitted

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that the learned trial Court has committed grave error of

law in not taking into consideration the provisions of Sub-

section 3 of Section 373 of the Indian Succession Act while

deciding an application.

8. Learned advocate for the appellant has further

relied upon the following decisions in support of his

submission:

(i) Maharani Adhirani Kamsundari Vs. District Judge reported in 1999 LawSuit(Pat) 1;

(ii) Beersing Charan Karosiya; Kisan Charan Karosiya Vs. Tanhabai Pratap Karosiya reported in 2015 LawSuit(Bom) 2509.

9. I have considered the submission of learned

advocate for the appellant and the record and proceedings

placed before this Court. The application was filed by the

appellant seeking 'Succession Certificate' of the movable

properties as mentioned in Schedule-A of the application

The relationship between the appellant and the deceased

are that of nephew and uncle-aunty. Deceased Natvarlal

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Chhotalal Patel and his wife Champaben Natvarlal Patel

had no legal heir and they expired intestate on 16.11.2021

and 10.01.2017 respectively at Dehgam, District-

Gandhinagar.

10. Pursuant to the application, public notice was

issued in the local widely circulated daily newspaper

"Sandesh" in the Gandhinagar District edition. Pursuant to

the said publication of notice, no-one objected against the

granting of `Succession Certificate.' The testimony of

Power of Attorney holder of the appellant has also gone

unchallenged.

11. The limited question which is to be considered

by this Court is that whether while considering an

application under Section 372 of the Indian Succession Act,

1925 strict proof of evidence as contemplated under the

Indian Evidence Act is required or not?

12. Before that, the provisions of Sections 372 and

373 of the Indian Succession Act would be apposite to

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reproduce:-

"Section 372. Application for certificate. --

(1)Application for such a 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 (5 of 1908) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:--

(a)the time of the death of the deceased;

(b)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;

(c)the family or other near relatives of the deceased and their respective residences;

(d)the right in which the petitioner claims;

(e)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

(f)the debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code, 1860 (45 of 1860).

(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof."

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"Section 373. Procedure on application.--

(1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing--

(a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given, and

(b)to be posted 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, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.

(2)When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

(3)If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too 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.

(4)When 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 may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants."

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13. Section 372 of the Indian Succession Act deals

with the application for Certificate and the District Court

shall grant certificate on completion of he particulars

mentioned in the provisions. The application for certificate

under Section 372 of the Indian Succession Act is for

granting the certificate in respect of any debt or debts due

to the deceased creditor or in respect of portions thereof.

14. Section 373 of the Indian Succession Act deals

with procedure after the application for certificate is filed

before the District Court. On close perusal of Section 373

of the Indian Succession Act, gives a power to the Court

to grant the Certificate after proceeding in a summary

manner. Thus, the Courts are required to deal with the

application under Section 372 of the Indian Succession Act

in a summary manner without asking for strict proof as

contemplated under the Indian Evidence Act, 1872. The

said Section gives a power to the Court in granting

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Certificate. Even in any contingencies, the Court cannot

decide the right to the certificate without determining the

questions of law or fact which seems to be too intricate

and difficult for determination in a summary procedure,

eventhough, the Court has wide powers to grant certificate

in favour of the appellants, more particularly, when there

is no contest in granting the Certificate.

15. In the present case, the learned Court has

committed an error of law in not deciding the application

in a summary manner as prescribed under Sections 372

and 373 of the Act but has expected the appellant to

prove the contents of the application by giving detailed

evidence. In my view, the learned trial Court has

committed grave error of law in accepting further details

in evidence of other brother and sister of the appellants.

More particularly in absence of any contest in the

application.

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16. In the case of Maharani (supra), in para-7 the

Patna High Court has observed that an inquiry to be made

is not to be elaborate or lengthy, it is to be in a summary

manner though its exact nature will differ from case to

case.

17. The learned trial Court has failed to appreciate

that the particulars as envisaged under Section 372 of the

said Act are complied with by the appellants.

18. In the case of Beersing (supra) in paragraph No.9,

the Hon'ble Bombay High Court has observed as under:-

"In Part X of the Act there are provisions regarding issuance of succession certificate. Certificate can be granted in respect of the property of the deceased which goes to the heirs of the deceased. In the present matter the brothers had claimed succession certificate in respect of provident fund and gratuity amount and such certificate can be issued in respect of provident fund as it is treated as security. Provisions of Sections 372 and 373 of the Act show that inquiry involved in this application is of summary nature and limited investigation is required to be made. These provisions show that public notice is required to be issued of this proceeding. Section 372 (3) of the Act shows that even if intricate questions of law or fact are involved which cannot be decided in summary manner, the Court may grant the

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certificate if the applicant has prima facie case. Thus in this provision even when there is summary procedure given and there is 10 CRA 45 of 2015 contest, the succession certificate can be issued. Inquiry after framing of issues etc. is required if there is contest but that inquiry is also summary in nature. The provisions show that the purpose of giving such certificate is to give authority to the holder of certificate to realize the debt or security of the deceased and to give valid discharge. Thus, this is only authority given to the holder of the certificate to collect security or realize the debt and it needs to be presumed that the amounts so collected need to be disposed of in accordance with the rights of the persons who are entitled to this amount. That is the duty imposed on the person who is holding the certificate. This certificate is conclusive as against the persons owing such debt or who are liable to such security as provided in section 381 of the Act. Thus, the certificate cannot be used against the legal heirs of the deceased who have better title."

19. Thus, this Court has taken into consideration the

materials placed on record and the provisions of the Indian

Succession Act, 1925, the learned trial Court has

committed grave error and has gone beyond the scope of

Sections 372 and 373 of the Indian Succession Act, 1925.

20. In view of the totality of the facts and the

provisions of law, the impugned judgment and order dated

14.08.2023, is hereby quashed and set aside and Civil

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Misc. Application No.8 of 2022 is allowed. Accordingly,