Succession Certificate is for debts & securities
Succession Certificate (SC) is the certificate that is granted exclusively in respect of debts and securities to which the deceased person was entitled to. This is what the Section 370 read with Section 214 of the Indian Succession Act (ISA) states. Therefore, one can apply for a SC only in respect of debts and securities.
That a succession certificate can be issued only in respect of debts or securities is reinforced from the wording of Section 372 (3) of ISA. The Section clarifies that an application for a succession certificate can be made in respect of any debt or debts due to a deceased creditor or in respect of portions thereof.
The Section 376 of ISA provides for the grant of extension of succession certificate to any additional debt or security. Section 377 of ISA says that the certificate as well as extension of certificate shall be in the forms set forth in Schedule VIII of ISA and the form is intended to enlist the Debts and Securities only.
Debt has not been defined in the act
The expression Debt has not been defined under the Act. The said expression has not been defined under the General Clauses Act as well. If so, one has to go by the ordinary meaning of the said expression.
A debt therefore means any pecuniary liability whether payable in presenti or in future to another in return for money, services, goods or any other obligation. A debt is also property and is heritable and assignable as it is understood in law.
The term securities means
In the case of securities, the Section 370 (2) of ISA enumerates the securities envisaged by the section. They are as follows:
- any promissory note, debenture, stock or other security of the Central Government or of a State Government;
- any bond, debenture, or annuity charged by Act of Parliament (of the United Kingdom) on the revenues of India;
- any stock or debenture of, or share in, a company or other incorporated institution:
- any debenture or other security for money issued by, or on behalf of, a local authority;
- any other security which the (State Government) may, by notification in the Official Gazette, declare to be a security for the purposes of this Part.
Succession Certificate never declares succession
The succession certificate never declares who the successors of the property of the deceased are and the ratio in which they would get their shares, unlike many people would think.
In application for SC what the court decides is who can apply for such a certificate and what property it is applied to. The court cannot determine any question relating to the title or giving any other incidental relief in an application for SC.
The question that whether a debt due to the deceased is really due or not is not a matter, which can be decided in an application for a succession certificate. The right of the applicant to the certificate and the question of the existence or non- existence of the debts/securities in respect of the application are the things that the court ascertains.
Which court issues the certificate?
The certificate is issued by the District Court or High Court – both have concurrent jurisdiction to hear and decide a petition. The Section 371 of the Act gives an indication regarding the court having a jurisdiction to grant succession certificate.
It is 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, who is empowered to issue a Succession Certificate.
The Section 388 of ISA confers power on the State government to invest any inferior court with the power to exercise the functions of a District Judge.
Subordinate courts have jurisdiction in Kerala
In exercise of the said power under Section 388 (ql) of ISA, Kerala government issued notification C.NO. 29988/57/HD on 31st January 1958, investing courts of subordinate judges in Kerala with power to exercise the functions of a District Judge under Part X of ISA, within the local limits of their respective jurisdiction and under Section 388(21) of the ISA investing all courts of Munsiffs in the State with power to exercise the functions of a District Judge under Part X of the Act within the local limits of their respective jurisdiction.
Therefore, both the Munsif Courts and the Sub Courts in Kerala State have concurrent jurisdiction to issue Succession Certificate.
Courts follow miscellaneous proceedings under CPC
The succession certificate is issued on miscellaneous proceedings under section 141 of the CPC. The court follows summary trial in proceedings.
The contesting parties cannot raise complex contentions in regard to the title of the property. When there are rival contentions from different parties, the contentions have to be settled by an Original Suit in a civil court.
What the petition should contain?
A petition for the certificate should contain the relationship of petitioner with the deceased along with other details. The time, date, place of death details should be mentioned in it and the death certificate and any other documents as the court may require should be attached. Anyone who has prima facie a beneficial interest can apply for the certificate.
The petition should specify each debt and security in detail. The details of all heirs have to be included in the petition. The petition should be a signed and verified one by the plaintiff.
The petition for succession certificate should set forth the following facts:
- The time of the death of the deceased
- Ordinary residence of the deceased at the time of his death
- The family /other near relatives of the deceased and their residence
- in case of the Hindu Succession Act (Act XXX of 1956), the names of
- the heirs must be mentioned in the petition.
- The absence of any impediment under any law to the grant of the certificate
- The debt and securities in respect of which the certificate is applied for
- the petitioner must sign and verify the petition
- the right of the petitioner should be mentioned;
Newspaper publication required
A newspaper notification specifying a time frame – usually one and a half month – within which anyone can file objections also, needs to be issued. It roughly takes around 6 – 8 months to receive a Succession Certificate. Some judicial officers issue them within two months.
In case there is a Will the court will dismiss the petition
If a Will of the deceased is found to have been in existence during the court proceedings, the court can dismiss the application for the certificate.
A succession certificate shall not be granted with respect to any debt or security in cases where a right to such property is required to be established by obtaining letters of administration or a probate.
Court can ask for security
The court can ask the applicant of the certificate to furnish security such as a bond with one or more surety or securities, or other sufficient security, for rendering an account of debts and securities received by him, in the form set forth in Schedule VIII of the Indian Succession Act 1925.
Improperly issued certificate can be revoked
A certificate already issued can be revoked when the proceedings were found defective or for any of the following grounds:
- that the proceedings to obtain the certificate were defective in substance.
- that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;
- that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
- that the certificate has become useless and inoperative through circumstances;
- that a decree or order made by a competent Court in a suit or other proceedings with respect to effects comprising debts or securities specified in the certificate renders if proper that the certificate should be revoked. (Vide Section 383 of the Act).
If a Succession Certificate has been issued to a person not entitled to the same, it can be revoked under Section 383 (e) of ISA.
However all payments made, in regard to debts and securities specified in a superseded or invalid certificate, by a person with the holder of that certificate out of his ignorance of its supersession of invalidity shall be considered good.
Appeal will lie to the High court
An appeal can be filed about an order on the certificate in the high court but no second appeal is provided for.
The certificate, in addition, clothes the parties who are paying the debt to the legatees with due protection.
The Certificate is valid pan India
By virtue of Section 380 of the Act, a succession certificate granted under Part X of ISA has effect throughout India.
The Certificate will afford full indemnity to all persons owing the debts or liable on the securities specified in the certificate as regards all payments made or dealings had in good faith in respect of such debts or securities or with the grantee of the Succession Certificate.
Certificate grants the right to collect debt only
If the court is satisfied with the facts in the application, it will issue a succession certificate specifying the debts and securities.
The certificate empowers the grantee a title to recover the debt due to the deceased and authority to sue for debt recovery. The debtor can pay the debt amount to the certificate holder to get a full discharge.
The certificate grants the applicant only the right to collect the debt but not the right to the debt. That means the collected debt is not the property of the certificate holder.
The certificate makes its holder equivalent to a trustee. The District Court declares only the holder’s right to the certificate but not the right to the estate.
When legal heirs reside outside India
Where the legal heirs are residing outside India a legal heir can file an application through Power of Attorney. The personal presence of the individual before court is not at all required for the purpose of obtaining Succession Certificate.
Further reading
- Indian Succession Act, 1925
- Vishalakshi v Bank of India [2006 (2) KLT 488]
