Sunday, January 25, 2009

LHC instructions on Succession Certificates

SUCCESSION CERTIFICATES

Introductory.--
The following instructions are issued regarding the grant of certificates for the collection of debts on succession which previously were dealt with under the Succession Certificate Act, 1889. The provisions of that Act are now incorporated in the Succession Act, 1925.
2. Civil Judges empowered to grant certificates.-- All Civil Judges of the first and second class have been invested with the functions of a District Court for the purposes of granting succession certificates by Punjab Government Notification No.781, dated 15th July 1914, which continues to be in force--(vide General Clauses Act, 1897, section 24).
Forum of Appeal.-- Applications under Part X of the Succession Act, 1925, will usually be dealt with by Civil Judges and appeals from their orders granting, refusing or revoking certificates will lie to the District Judge. When a District Judge finds it necessary to deal with any application under the Act as an original Court the appeal will lie to the High Court under Section 384, sub-section (1) of the Act.
3. Turning to the procedure prescribed by the Act the following points should be borne in mind-
(a) Succession Certificate, etc., should be obtained by an heir for recovery of debts due to a deceased person.-- A Civil Court is prohibited in all cases from passing or executing a decree in a suit by or upon the application of a person claiming to be entitled to recover a debt or decree in favour of any person deceased, without the production of a probate or letters of administration, or a succession certificate granted under the Succession Act of 1889, or the Succession Act of 1925, or a certificate granted under the Administrator-General Act, III of 1913. In this connection attention is also drawn to the provisions of Order VII, Rule 4, of the Code of Civil Procedure, as to plaintiff's suing in a representative character. The grant of a probate, letters of administration or a succession certificate is not, however, an essential condition precedent to the institution of a suit, but the requisite probate, letters or certificate must be produced before the passing of a decree.
In the case of a Joint Hindu family when property passes by survivorship, no succession certificate is necessary (ef.,20 P.R., 1901)
(b) Definition of debt.-- The word "debt" as used in section 214, sub-section (1), is defined to include any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. The prohibition imposed on the Civil Courts does not therefore extend to Revenue Courts when dealing with suits under these heads (section 214, sub-section (2) ).
Certificate for a fraction of the debt.-- There was a difference of opinion amongst the High Courts as to whether a certificate could be granted with respect to a fraction of a debt but now by Act XIV of 1928 grant of such a certificate is made legal.
(c) Application for a Succession Certificate to be signed and verified. Its contents.-- The particulars to be specified in an application for a certificate are specified in section 372, and every application requires to be signed and verified in accordance with the provisions of the Code of Civil Procedure applicable to plaints; and subsection (2) of this section prescribes the manner of dealing with allegations contained in the application which may be found to be false. As the application now partakes of the nature of a verified plaint, great care should be taken to insist on its being properly and concisely drawn up, and that it is complete in regard to the matters required by section 372.
(d) Manner of inquiry and security to be taken from the grantee of certificate.-- The proceedings in hearing applications may be summary to some extent, in that intricate questions of law and fact need not be gone into, the person having the best title prima facie being granted the certificate. At the same time, the court is not relieved of the obligation to hear the parties and take sufficient evidence to enable it to decide who is the person best entitled to a certificate, as well as all other points which may ordinarily be necessary to enable it to dispose of the petition. If the summary power conferred by section 373, subsection (3), is followed in any case, the court is bound to demand security from the person to whom it proposes to grant the certificate as a condition precedent to such grant.
(e) Objections to application. Procedure in case of several claimants for a certificate.-- Persons objecting to an application by another person can be heard without themselves becoming applicants, but every person opposing an application who claims a certificate for himself, must file a proper application in the manner prescribed by section 372. Every such application must be disposed of by a separate order; but the question of right to a certificate among several applicants will generally be most conveniently heard in a single proceeding between the contending parties;
(f) Points to be considered in deciding the cases of rival claimants.-- In deciding which of several applicants is entitled to a certificate, it is open to the court to consider the extent of interest and the fitness in other respects of the several applicants;
(g) Application and certificate to contain details of debts and securities. Extension and amendment of the certificate.-- The debts and securities in respect of which a certificate is applied for must be detailed at length in the application and also in the certificate and the certificate must be limited in terms to the debts and securities specified in the application and also in the certificate-[section 372, sub-section (1), clause (f) and section (374)]. At the same time, the court is empowered (by section 376) to extend the certificate, on the application of the holder thereof, to any debt or security not originally specified therein, and otherwise to amend the certificate (section 378).
4. Form and contents of certificate.-- The particulars required in the certificate are specified in section 374, and the forms are prescribed by section 377, and will be found in schedule VIII. Courts should be careful to see that certificates are properly framed and that all necessary particulars and powers are duly inserted in the first instance, so as to obviate the necessity for subsequent amendment of the certificate.
5. Requisition of security from grantee of certificate.-- It has already been pointed out that, in any case in which a court proposes to grant a certificate upon summary inquiry, without determining any intricate question of law or fact which may be involved, security must be taken under section 375, sub-section (1), from the person to whom it is proposed to grant a certificate before it is granted. The same remark applies to action under section 373, subsection (4), of the Act, namely, when there are more applicants than one for a certificate, and more than one of them are found to be interested in the estate. It is, however, open to the court to demand security in any other case.
6. Court-fees in cash on application for a certificate or for its extension.-- Attention is drawn to the provisions as to court-fees contained in section 379 of the Succession Act, 1925, as substituted by the West Pakistan Amendment Ordinance No.XXXI of 1965. Where the District Judge allows an application for the grant of a certificate or for the extension of certificate, he shall calculate the amount of court-fee payable under the Court Fees Act, 1870, on the certificate or the extension of certificate and shall not grant the certificate or the extension of the certificate until the Court-fee so calculated has been paid by the applicant.
The amount of court-fee should be calculated according to the law in force on the date of the application, and it is not affected by any subsequent change in the law.
No specific procedure for obtaining or sale of the court-fee by or to the applicants for the grant of succession certificates has been prescribed and the general procedure in this behalf has to be followed.
#[7. Conclusiveness of certificate.-- A succession certificate under the Act has effect throughout Pakistan (section 380).]
8. Revocation of certificate.-- Provision is made in section 383 for revoking #[Succession] Certificate on certain grounds which are specified.
9. Grant of Probate or Letters supersedes succession certificate.-- Under Section 215, a grant of Probate or Letters of Administration, supersedes a #[Succession] Certificate granted under Part X of the Succession Act, 1925, or under the Succession Certificate Act, 1889.
10. Decision in Succession Certificate proceedings does not operate as res judicata.-- By Section 387 of the Act, no decision, given in dealing with an application #[for the grant of a Succession Certificate] under the Act, upon any question of right between any parties, bars the settlement of the same question by a competent Civil Court.
11. Surrender of the certificate if it is invalid or has been superseded.-- By section 389, the holder of a Succession Certificate, which has been superseded or is invalid from any of the causes mentioned in section 386, is bound to deliver it up on being required to do so by the court which granted it and may be punished for wilfully or without reasonable cause omitting to do so.

2 comments:

  1. Salam,
    How can be reject/ revoked a succession suit under the law, where there a petitioner conceal some fact from the court?
    Secondly, the petitioner given application to the court for two immoveable properties , one house is in another city and at the death of deceased he was not the owner?
    Thirdly, the opposition also taken application for division of agri land in the same court in which petitioner have been made contempt of court by constructing of boundary's wall on joint inheritance Baitak in village?
    Muhammad Tariq
    LLB Bannu
    03339741031

    ReplyDelete
  2. AoA"
    i f a succession certificate issued by the court but unwillingly the court missed to mentioned one of heirs in succession certificate so, it amount clarical mistake a susseccion certificate can be revoked/cancelled.The question is that 1. "such succession certificate" can be amended?
    2. If it will be amended so what is the provision prescribed under law?

    ReplyDelete

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