The term “succession” ordinarily means the transmission of the property and the transmissible rights and obligations of the deceased. The property may be ancestral or self-acquired property may devolves in two ways i.e., a) By testamentary succession i.e., the deceased died by executing will bequeathing his properties to specific heirs and b) By intestate succession when the deceased died intestate without executing Will or any deeds. The transmission could either be by way of a will or by the operation of law. Every law of succession defines the rule of distribution of property in case a person dies without making any Will. The property of the deceased person devolves upon the heirs. In this article, we shall discuss about the succession certificate.
The law on testate succession is governed by the Indian Succession Act, 1925 for all communities except Muslims. However, certain sections of this Act are applicable to testamentary succession by Muslims also. The law in relation to making of wills by Muslims is governed by the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. The law on intestate succession for different communities in India is as under:
- For Hindus, Sikhs, Buddhists and Jains: Hindu Succession Act, 1956
- For Muslims: Muslim Law (which is not codified and is different for Shias and for Sunnis)
- For Christians, Parsis, Jews and any community other than Hindus, Muslims, Sikhs Buddhists and Jains: Indian Succession Act, 1925.
Succession Certificate:
When a person dies without leaving a will is considered to have died intestate. In such cases in order to determine legal heir, a succession certificate has to be established in order to grant authority over the deceased’s assets, debts and security. The succession certificate is governed by the Indian Succession Act, 1925 which an object enables to certify the authenticity of the successor of a deceased person who has died without leaving a will. It not only secures the assets of the deceased but also provided indemnity to all person who was owing to the debt with respect to all the payments made them by the deceased. It is a mandatory procedure that is required to be followed in intestate cases. A succession certificate is the key in the absence of a will, a succession certificate will be the primary document through which the heirs can stake a claim to the assets of a deceased relative.
A Succession Certificate granted under this Act is a document giving authority to the person who obtains it, to represent the deceased for the purposes of collecting the debts and securities due to him or payable in his name. It is meant for the protection of debtors, so that they should know as to whom they can safely pay the debt due to the deceased person The Certificate does not establish the title of the grantee as the heir of the deceased, but only furnishes him with an authority to collect the debts and allows the debtors to make payment to the grantee without incurring any risk. The Succession Certificate empowers the grantee to collect the debts and securities due to the deceased and mentioned in the certificate.
Issuance of succession certificate does not give right of succession to the claimed property of a deceased person, because it does not determine the right, title and interest of the deceased person to a particular property or entire property. However, successor(s) of intestate deceased person is/are entitled to inherit the deceased person s property.
As per Section 370 of Indian Succession Act, when the deceased person has left a validly executed Will, the entire estate of the deceased person under that will vests on the executor of the will and in such cases Succession Certificate cannot be granted. Section 370 bars the grant of a succession certificate, inter alia, in cases where letters of administration (or probate) are mandatory. Letters of administration are mandatory in the case of Christians other than Indian Christians dying intestate1-to mention the most usual situation. The bar in section 370 should be limited only to cases where probate is mandatory.
Section 371 of the Indian Succession Act, lays down that “The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at the 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.” Thus, the Section lays down two alternative criteria for jurisdiction- (i) residence, or (ii) existence of assets. But primacy is given to the first; the second applied only if the first is not satisfied.
Under S. 380 of the Indian Succession Act, 1925 the district judge of the relevant jurisdiction has the authority to issue a succession certificate based on the petition made in the prescribed format within the jurisdiction where the deceased has resided.
Procedure for Obtaining Succession Certificate:
Step 1: Petition for Succession Certificate (S. 372):
To obtain succession certificate, a petition to the District Judge within whose jurisdiction the deceased person ordinarily resided at the time of his or her death or, if at that time he or she had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found.
A petition for succession certificate must contain the following particulars:
- Time of death of the deceased;
- Residence or details of properties of the deceased at the time of death within which Judge the jurisdiction falls under;
- Details of family or other near relatives of the deceased and their residential addresses;
- Proof of what right or what capacity he should be nominated as the successor of the departed;
- Complete details of any debt or security attached
- Sufficient evidence that the said asset does not fall under the restrictive cases and there is no dispute to his claim as a successor. thus, absence of any impediment to the grant of certificate;
Step 2: Grant of Certificate (S. 373):
On making the petition, if the District Judge is satisfied as to the ground of making the petition, can grant an opportunity of hearing to persons who, in his/her opinion, should be heard. After hearing all parties, the Judge can decide the right of the petitioner to be granted the succession certificate. The Judge would then pass an order for grant of certificate specifying the debts and securities set forth in the application empowering the person to receive interest or dividend or to negotiate or transfer or do both.
Contents of Certificate (S. 374):
The Succession Certificate will specify (1) the debts and securities mentioned in the petition and (2) the power either (a) to receive interest or dividends on, or (b) to negotiate or transfer; or (c) both to receive and to negotiate the interest or dividends on the securities.
Restriction on Succession Certificate (S. 375):
A court can sometime require a bond with one or more surety or sureties or any other security for rendering an account of debts and securities received by the petitioner of succession certificate for indemnifying the persons who may be entitled to any part of the debt or securities.
Extension of certificate: (S. 376)
A District Judge may, on the application of the holder of a certificate under this Part, extend the certificate to any debt or security not originally specified therein, and every such extension shall have the same effect as if the debt or security to which the certificate is extended had been originally specified therein. Upon the extension of a certificate, powers with respect to the receiving of interest or dividends on, or the negotiation or transfer of, any security to which the certificate has been extended may be conferred, and a bond or further bond or other security for the purpose mentioned in section 375 may be required, in the same manner as upon the original of a certificate.
Validity of Succession Certificate:
A succession certificate has validity throughout India. If a certificate is granted in a foreign country by an Indian representation accredited to that State, it should be stamped in accordance with the Court Fees Act 1870 to have the same effect in India as a certificate granted in India.
Effect of Succession Certificate:
Subject to the provisions of section 381 of the Indian Succession Act, 1955, the effect of the certificate with respect to debts and securities shall be conclusive against those who owe such debts or have a liability towards such security. This shall not contravene with section 370 which states that any succession certificate cannot be granted with regard to any debt or security which is determined as a right is required to be established by either probate or letter of administration.
Revocation of the Succession Certificate (S.383):
A Succession certificate so issued may be revoked for any of the following grounds.
- Process for obtaining the certificate was defective.
- Certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case.
- 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
- Certificate becomes useless and inoperative due to circumstances.
- A decree or order made by a competent Court in a suit or order proceeding with respect to effects comprising debts or securities specified in the Certificate renders it proper that the Certificate should be revoked.
Under Section 384 of the Act, against an order of the District Judge, in the matter of grant, refusal or revocation of certificate, a person may appeal to the appropriate High Court under the Civil Procedure Code within 90 days from the date of revocation.
Succession Certificate for Movable Properties:
Succession Certificate is a document which is issued by the court for claiming movable properties by the successors of the deceased. It is significant, and proper advice should be sought while making and implementing these. Mostly Banks don’t release funds or FDs without a document of this type granted to the successor. It is applied for movable assets like bank deposits, FDs, etc. If someone dies intestate, (without leaving a Will) it can be granted by the Civil Court to release the debts and securities of the one who is no more. It establishes the legitimacy of the heirs and gives them the authority to get the deposits and other assets transferred in their names. It is issued by the applicable laws of inheritance on an application filed by the beneficiaries in a court of relevant jurisdiction.
The first step for any beneficiary is to file for a succession certificate in the same court within whose jurisdiction the dead person resided, to inherit the assets of the deceased or even get them transferred in his name.
The document/certificate that is issued establishes the authenticity of the petitioner and gives him the authority to have the assets transferred to his name. Along with authority, the beneficiary will also carry with him the full responsibility and liability of honouring any debt or security attached to that particular property.
For all applications made by a recipient to a court of competent jurisdiction, the document in all cases is issued as per the applicable laws of inheritance.
Succession Certificate For Immovable properties:
In this case, we have situations when legal heirs stake ownership of title and possession. The title of a property can be transferred through a systematic process of transfer which can be based or done through a factum of a Will or Law of Natural Succession where class I legal heirs are the inheritors. Also, a transfer can take place when the person is alive too, through a Gift Deed. In other cases, a person can claim his right through a partition. After the completion of these procedures, the person stands entirely in ownership control. All related services can be taken care of by our firm, including getting documents and also sale if you want later on. Some instances of succession certificate:
- Even if an overseas citizen were to know details about land that he thinks belongs to him, in many cases he finds himself in a situation where either parent or an uncle/aunt has died without making a Will.
- Just knowing that a piece of land belongs to him, cannot help much proper documentation is needed to assert a claim.
- Some rules determine the manner in which all the assets of the deceased are passed on to the heirs.
- It is not easy for him to understand how to get legal heir certificates and he will always need appropriate advice on these matters.
Difference Between Legal Heir Certificate and Succession Certificate:
| Legal Heir Certificate | Succession Certificate |
| A legal heir certificate is a document which identifies the rightful successor, who then can claim the assets/properties of the deceased person. All eligible successors must possess this certificate to lay a claim over the deceased person’s property. | A Succession Certificate granted under the Indian Succession Act is a document giving authority to the person who obtains it, to represent the deceased for the purposes of collecting the debts and securities due to him or payable in his name |
| Legal heir certificate can be used for the purpose of transferring Electricity connection, Telephone connection/Patta transfer, House Tax, Bank Account, Filing of IT Returns etc. | A succession certificate is required for movable property such as shares, PFs, bank deposits, loans, or other securities, |
| The Taluq’s Revenue Officer / Tahsildar of the district can issue legal heir certificate. | The District Judge in the jurisdiction where the deceased usually lived at the time of his or her death, or, if the deceased did not have a permanent place of residence at the time of his or her death, the District Judge in the jurisdiction where any part of the deceased’s property falls, may grant a certificate. |
| The application for the legal heir certificate can be made only by spouse, children, parents, or siblings of the deceased | The application of succession certificate can only be made by legal heirs. |
| Legal heir certificate is issued in 15 to 20 days. | A period of 45 days is given for objections after which the hearing starts. |
| It is issued just to identify heirs of deceased person. | It is issued to establish validity and legality of the heirs and give them authority related to the assets and securities of the deceased persons. |
| Required Documents to obtain Legal Heir Certificate are Death certificate original, Identity Card, Ration Card, the name of Family members and relationship, an affidavit worth Rs. 20 on a stamp paper. | Required Documents to obtain succession certificates are death certificate of a deceased, time and place of death, the name of all legal heirs and relation with the deceased. |
| To issue legal heir certificate Rs.2 for a stamp and Rs. 20 for stamp paper for affidavit will be required. | For succession certificate, three percentage of total value of the property will be charged as a Fee. |
| Though a legal heir certificate can serve as a strong indicator, it is not conclusive. | A succession certificate also serves as evidence of representative status. |
Conclusion:
The law of succession regulates rules of property devolution in those cases where a person died intestate i.e., without making a will with respect to the transfer of his or her property. A Succession Certificate granted under the Indian Succession Act, 1925 is a document giving authority to the person who obtains it, to represent the deceased for the purposes of collecting the debts and securities due to him or payable in his name. It is meant for the protection of debtors, so that they should know as to whom they can safely pay the debt due to the deceased person.
If the head or a family member passes away, the next direct legal heir of the deceased such as wife/ husband/son/daughter/mother can apply for the Succession Certificate. If the deceased person is a Government Servant, then the legal heir certificate is issued for approval of family pension, or to get appointments on concerned grounds. Legal Heir certificate is also provided for transfer of property- movable and immovable assets. A Succession Certificate is required when someone inherits any immovable property or movable property under the various Property Laws in the country. Most of these issues come under the Hindu Succession Act. While some of them come under the community acts or the Indian Succession Act. Issues need to be known in the right perspective for both categories.
The Certificate does not establish the title of the grantee as the heir of the deceased, but only furnishes him with an authority to collect the debts and allows the debtors to make payment to the grantee without incurring any risk. The Succession Certificate empowers the grantee to collect the debts and securities due to the deceased and mentioned in the certificate. The succession certificate acts as an authentic document that guarantees that the person who claims to be the legal heir of the deceased property is legitimate.
Test Your Understanding:
- What is meant by ‘succession Certificate’?
- Write short note on a succession certificate for movable property.
- Write short note on a succession certificate for immovable property.
- Distinguish between legal heir certificate and a succession certificate.
- Explain procedure to obtain succession certificate.
- What is consequences of the issue of succession certificate?
- When can a succession certificate be revoked?
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