PUNJAB-HARYANA HIGH COURT

KARAN SINGH VS MOLHAR AND OTHERS ON 6 MARCH, 2018

Summarised Judgement:

Introduction:

This is an appeal filed by the defendant against the judgment and decree of reversal passed by the lower Appellate Court; whereby while reversing the judgment and decree passed by the Trial Court, the suit filed by the defendant was ordered to be decreed.

Facts of the Case:

The brief facts of this case are that one Kartara was the owner of the suit property. He had three brothers and one sister. Kartara died unmarried and issueless. One of the brother, Gopala had five sons. The other brothers of 1 of 9 Kartara had also expired. Kartara had executed a Will dated 15.01.1980 in favour of the five sons of Gopala. Thereafter, the testator expired on 14.04.1980. After the death of Kartara, the mutation regarding his properties was entered in the name of five sons of Gopala. The sister of Kartara, namely Kartari Devi, filed the suit on 04.01.2001 challenging the mutation dated 11.09.1982 qua the properties of Kartara in favour of five sons of Gopala. Hence, Kartari Devi, sister of Kartara is the plaintiff in this case and nephews of Kartara, i.e. the sons of his brother Gopala, are the defendants in the present case.

In the plaint, the plaintiff has averred that the mutation entered in the name of the defendants, is illegal, null and void and was entered by the revenue authorities without any notice. It is further averred by her that she was not aware about the mutation because the defendants used to give her the share of the agricultural produce and represented to her that she should not bother about the entries in the revenue records. However, in the year 2000, she wanted to obtain loan by mortgaging her share in the suit property. At that time, she found that she had been excluded from the inheritance from her brother Kartara. Hence, she challenged the mutation.

Observation of Court:

Having considered the arguments raised by the learned counsel for the parties and perusing the record with their able assistance, this Court is of the considered opinion that the arguments raised by the learned counsel for the appellants or defendants deserve to be sustained. Admittedly, the mutation was sanctioned in the year 1982 and in the revenue records itself it is so mentioned that the mutation was being sanctioned on the basis of the Will executed by deceased Kartara and that the Will was produced before the revenue authorities.

Once the Will is the basis of sanction of the mutation which the plaintiff was challenging; the plaintiff was under duty to challenge the Will as well. Unless the Will itself is challenged by the plaintiff, the mutation only cannot be set aside. A bare perusal of the plaint filed by the plaintiff shows that there is not even a single line questioning the execution or the validity of the Will of the deceased Kartara in favour of the defendants.

Neither any issue is framed by the Court regarding the execution or validity of the Will of the deceased Kartara. Rather pleadings in plaint reflect her acquiescing to the Will in favour of defendants. In view of the above situation, it is not the bounden duty upon the defendants to lead evidence regarding the execution of the Will or to prove the Will by examining the witness as per Section 63 of the Indian Succession Act and Section 68 of Indian Evidence Act. The findings recorded by the lower Appellate Court in this regard are totally perverse and are liable to be reversed.

Judgement:

In view of the above, the judgment and decree passed by the lower Appellate Court are held to be perverse and non-sustainable. The same are set aside. The present appeal is allowed. The suit filed by the plaintiff/respondent herein is ordered to be dismissed.

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DELHI DISTRICT COURT

SMT. ASHRAFI DEVI VS SMT. GAYATRI DEVI ON 16 SEPTEMBER, 2008

Summarised Judgement:

Facts of the Case:

This is a succession petition filed by the petitioner Smt. Ashrafi Devi for the grant of Succession Certificate in her favour, in respect of debts and securities left behind by his deceased son Sh. Krishan Kumar, who died at Delhi on 15.03.2006, leaving behind besides petitioner, his widow and a daughter namely Smt. Gayatri (Jud./P.No.484 of 06/dtd.16.09.08/Smt. Ashrafi Devi Vs. State/total pages (6)/KK) Devi and Ms. Pratikcha Sharma, who are respondent No. 1 and 2 in this petition.

After filing of this petition, notice of filing of this petition was given to the general public by way of publication in the newspaper 'VIR ARJUN' dated 03.05.2007, but none has appeared from general public to oppose or contest the present petition. Notices were sent to respondents, in response to the notices, respondents No. 1 and 2 filed objections in this case.

An application under order 1 rule 10 CPC has been filed by the objector in which the obector request that since the objectors have claimed that Om Parkash has obtained amount from LIC therefore he becomes a necessary party and also the LIC becomes a necessary party in this case. In reply to the application the petitioner opposes it stating that Omprakash is neither a necessary nor a proper party. Admittedly Omprakash is brother of deceased and a brother of deceased does not fall in class one legal heir category.

Observation of Court:

Therefore, in view of the above, I am of the considered opinion that there is no impediment for grant of Succession Certificate in favour of petitioner Smt. Ashrafi Devi and also in favour of objectors No. 1 and 2 namely Smt. Gayatri Devi and Ms. Pratikcha Sharma in the service benefits of deceased Sh. Krishan Kumar. I, accordingly direct that a Succession Certificate be issued in favour of petitioner Smt. Ashrafi Devi and also in favour of objectors No. 1 and 2 namely Smt. Gayatri Devi and Ms. Pratikcha Sharma in equal shares that is 1/3rd share each in the service benefits that is DCRG, CGEGIS'80 of deceased Sh. Krishan Kumar, on filing of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days.

Judgement:

So far as pension and arrears of pension of the deceased are concerned, as per CCS Pension rules, the same is indivisible and payable to widow in case widow is alive and has not remarried. Thus, payment shall be exclusively right of the widow including arrears of pension, if any. The remaining service benefits be divided in the ratio of 1/3rd share each.

However, the objector Smt. Gayatri Devi also deposed that besides the securities proved by the petitioner, the deceased has also left behind a LIC bearing No. 3330370147 in which one Om Parkash was a nominee and who has already obtained the said LIC policy amount of Rs.1,13,325/-, vide Cheque No. 636853 dated 06.05.2006 drawn on Corporation Bank, Adil Bagh, Palam, New Delhi. Law is well settled that the nominee is merely a receiving hand and a nominee does not steps into the shoe of (Jud./P.No.484 of 06/dtd.16.09.08/Smt. Ashrafi Devi Vs. State/total pages (6)/KK) successor. Nominee accept money for and on behalf of successor as a trustee only. Thus, the petitioner as well as objectors being true successors are also entitled for that amount in the ratio of 1/3rd share each.

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DELHI DISTRICT COURT

MRS. GEETIKA BAHL VS SH. KRISHAN TIWARI ON 22 DECEMBER, 2018

Summarised Judgement:

Introduction:

This judgement shall dispose of the suit filed by the plaintiff for partition and permanent injunction against the defendants in respect of property bearing No. 9-A/82, W.E.A, Karol Bagh, New Delhi.

Facts of the Case:

Briefly stated the case of the plaintiffs is that late S. K. Tiwari the father of plaintiffs died on 07.06.2003 leaving behind Will dt 07.02.2003 executed in their favour thereby bequeathing his estate on all the plaintiffs in equal share.

Grandfather of the plaintiffs namely Sh. Desh Raj Tiwari had three sons and one daughter namely late Sh. Surender Kumar Tiwari, Sh. Krishan Tiwari i.e. efendant No.1, Sh. Rakesh Tiwari i.e. defendant No.2 and Smt. Nargis Vohra i.e. defendant No.3.

Grandfather of the plaintiffs owned a house bearing No. 9-A/82, W.E.A., Karol Bagh, New Delhi. The said House was the self acquired property of late Sh. Des Raj Tiwari. Sh. Des Raj Tiwari died on 20.01.2003 intestate. Father of the plaintiffs was residing/occupying the ground floor of the said property and defendant No.1 is residing on the second floor and defendant No.2 is residing on the first floor of the said property.

Unfortunately, Sh. S. K. Tiwari, the father of the plaintiffs died CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 2 of 14 on 07.06.2003 leaving behind plaintiffs as his only legal heirs and thus plaintiffs inherited the estate/properties, shares, rights in all the properties held, own and possessed by their father. It is stated that Sh. S.K.Tiwari by way of registered Will dated 07.02.2003 bequeathed his share in the partnership business and his 1/4th share in the immovable property bearing No. 9-A/82, W.E.A, Karol Bagh, Delhi in favour of his daughters i.e. plaintiffs in equal shares.

Observation of Court:

Admittedly, plaintiffs are settled in their matrimonial home but they do have legal right in the property in case their father was having share in the suit property. Defendant No. 3 did not dispute that plaintiffs are legal heirs but disputing that plaintiffs' father executed the Will in favour of plaintiffs. It has already been discussed herein before that irrespective of the Will plaintiffs being legal heirs are entitled to inherit the estate of deceased Sh. S.K. Tiwari particularly when no other Will is set up to have been executed by Sh. S.K. Tiwari. What defendant No. 3 is talking about is the physical possession of any part of the suit property by the plaintiffs but in the present suit neither defendants No. 1 and 2 nor defendant No. 3 have pleaded ouster of the plaintiffs from the suit property. In this circumstance principle that possession of one co-owner is on behalf of all co-owner is squarely applicable in the present suit and therefore plaintiffs being in legal possession are liable to pay fixed court fees. Hence, issue No.3 is decided in favour of the plaintiff and against the defendants.

Judgement:

Relief In view of the above discussion, suit of the plaintiffs is allowed and preliminary decree of partition is hereby passed in favours of the plaintiffs CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 13 of 14 thereby declaring that plaintiffs are jointly and each of the defendants are individually entitled to 1/4th share in the suit property bearing No. 9-A/82, W.E.A. Karol Bagh, Delhi.

Decree of permanent injunction is also hereby passed in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, assignee, legal heirs etc not to part with possession of the suit property or create third party interest in any manner in the suit property till the time suit property is partitioned by meats and bound or otherwise partition takes place.

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PATNA HIGH COURT

RENUKA BALA CHATTERJI VS ASWINI KUMAR GUPTA AND ORS. ON 27 JUNE, 1961

Summarised Judgement:

Facts of the Case:

The facts leading to the present appeal by defendant No. 1 may be stated in brief as follows: One Srimati Manorama Mazumdar, widow of Girish Chandra Mazumdar, the d on the 25th of April, 1936 leaving three daughters, Srimati Nirmala, Srimati Urmila and Srimati Amala. She had two other daughters, Srimati Framila and Srimati Simla who had predeceased her. Of the three surviving daughters. Srimati Amala the d on the 19th July, 1936 and Srimati Nirmala in 1939. Srimati Urmila is defendant No. 2 in the present suit and her son is defendant No. 3. Defendants 4 and 5 are sons of Nirmala and Bimala, respectively.

Plaintiffs 1 to 5 are sons of Framila deceased. An item of house property consisting of half of the suit house was acquired by Manorama Mazumdar by way of gift from a relation, and she was the absolute owner thereof. Similarly, another item of property, which was the adjoining half of the house already acquired by Manorama, was purchased by Amala out of her earnings, and she constructed a house on that land herself. She was the absolute owner thereof.

On the death of Manorama Mazumdar in April, 1936, Srimati Amala inherited her property as a Stridhan heir. She thus came in possession of both the halves of the suit house, one which had belonged to Manorama and the other belonging to herself. Within three months of the death of the mother. Amala the died in July 1936. Srimati Ninnala and Srimati Urmila, the two other surviving daughters of Manorama inherited Manoratna's property. They also inherited Amala's portion of the house as Her Stridhan heirs. While both the sisters were thus in possession of the suit house, Nirmala died in 1939, in which case Urmila, the present defendant No. 2, succeeded to the suit house and came in possession exclusively.

Observation of Court:

We have to look to the heirs in Class I given In the Schedule of the Act as that is applicable for the heirs of a male Hindu, and in that class persons available for the purpose of the present case will be the sons of the predeceased daughters of Girish Chandra; that is to say, Girish Chandra will be deemed to have the d on 19-7-1956, when Amala the and his predeceased daughters in that case Will be Bimala and Pramila who were dead before 1936. Their sons are the plaintiffs and defendant No. 5. Thus the plaintiffs are covered by Section 1 5 as heirs both of Amala and Manorama in regard to their absolute properties now in the hands of the limited owner, defendant No. 2. The appellant's objection against the maintainability of the present suit by the plaintiffs cannot thus prevail.

Judgement:

The result, therefore, is that none of the contentions of learned counsel for the appellant succeeds. The appeal is therefore, dismissed but, in view of the circumstances of the case and the legal points involved in it, there will be no order for costs in this Court.

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KERALA HIGH COURT

CHELLAMMA KAMALAMMA AND ORS. VS NARAYANA PILLAI PRABHAKARAN NAIR ON 17 DECEMBER, 1992

Summarised Judgement:

Question of Law:

The question referred to this larger Bench is one of great importance in respect of the rights of inheritance to females governed by the Marumakkathayam law in Kerala. The question is whether Section 17 of the Hindu Succession Act, 1956 which deals with succession to females continues to be in force and operative notwithstanding the commencement of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter referred to as 'the Joint Family Abolition Act, 1975'). A learned single Judge of this Court in Madhavi Amma v. Kalliani Amma, (1988) 2 Ker LT 964 and a Division Bench of this Court in Bhaskaran v. Kalliani, (1990) 2 Ker LT 749, have taken the view that the above-said Section 17 of the Hindu Succession Act, 1956 continues to be in force notwithstanding the Joint Family Abolition Act, 1975. It is the correctness of the said decisions that falls for consideration before us.

Facts of the Case:

The basic facts are not in dispute and are as follows: The property in question belongs to one Lakshmikutty Amma, who belonged to a Nair family and who died on 18-2-1982 leaving behind her, her husband (plaintiff) and her mother, one Chellamma. The dispute is in regard to the succession to the property held by Lakshmikutty Amma on the date of her death on 18-2-19.82. Her husband is claiming as legal heir under Section 15 of the Hindu Succession Act, 1956 on the basis that the effect of the Joint Family Abolition Act, 1975 was to make Section 17 of the Hindu Succession Act, 1956 inoperative.

The contest on the other side is raised by defendants 1 to 8 who are the legal heirs of Lakshmikutty Amma's mother, Chellamma, the said Chellamma having died on 8-9-1982 subsequent to Lakshmikutty Amma's death. Defendants 1 to 8 claim that their mother, Chellamma became the legal heir to the property of her daughter by virtue of Section 17 of the Hindu Succession Act, 1956. They contend that Section 17 continues to be operative even after the passing of the Joint Family Abolition Act, 1975. There is no dispute that the plaintiff married Lakshmikutty Amma in April, 1973 and the defendants 1 to 8 are the brothers and sisters of Lakshmikutty Amma and children of Chellamma. 9th defendant is the paternal uncle of late Lakshmikutty Amma.

The suit was filed for a declaration of title by the plaintiff over plaint A Schedule properties except in regard to the building in item 4 of plaint A Schedule and plaint B Schedule amounts deposited in Bank by Lakshmikutty Amma.

Observation of Court:

In the view that I have taken in regard to succession of Lakshmikutty Amma it is Section 15 of the Hindu Succession Act that is applicable and not Section 17. If that be so, the plaintiff who is her husband alone will be her heir as admittedly she died issueless. In that view of the matter, no interference is called for with the decree of the trial court and accordingly. I dismiss the appeal, but, in the circumstances, without any order as to costs.

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MADRAS HIGH COURT

P.KUPAMMAL VS KESAVAN ON 18 NOVEMBER, 2019

Summarised Judgement

Facts of the Case:

The case of the plaintiffs is that the property situate at Door No.94, Plot No.429, 7th Cross Street, Trustpuram, Pullyur Village, Kodambakkam, Chennai 600 024 in T.S.No.26, Block No.26 measuring an extent of 880 sq.ft. belonged to them. Originally, the said property was allotted by the Tamil Nadu Slum Clearance Board (in short, “the TNSCB”) to the first plaintiff's father, viz., Ponnan, who died on 01.03.1998, leaving behind his wife Kathayee Ammal and the first plaintiff. After the demise of the said Ponnan, the first plaintiff's mother Kathayee Ammal got a sale deed executed in her favour on 05.08.2005 and registered as Document No.3281 of 2005. During the life time, the plaintiff's father, Ponnan had put up a hut in an extent of 380 sq.ft in the front portion and a tiled house in an extent of 400 sq.ft. in the rear portion of the suit property and they were living there. The defendant is the nephew of the first plaintiff's father.

It is also stated that the first plaintiff, out of love and affection, had settled the entire "A" schedule property in favour of her three children. It is stated by the first plaintiff that during the life time of her father-Ponnan, he had permitted the defendant, who is his nephew, to occupy the front portion of the suit property. Thus, the defendant was in occupation of the front portion of the property measuring an extent of 380 sq.ft, which is described as "B" schedule property in the plaint. The first plaintiff alone is the sole legal heir of the deceased Ponnan and Kathayee Ammal, whereas the defendant claimed to be their legal heir based on the fabricated legal heirship certificate. Knowing the motive of the defendant, the plaintiff requested him to vacate and handover the possession of the "B" schedule property.

Observation of Court:

In view of the findings rendered qua additional issue No.(i) and (ii), issue No.1 is answered against the defendant holding that the defendant cannot be said to be the absolute owner of an extent of 380 sq. ft. forming part of A schedule property as mentioned the B Schedule property. Thus, this issue is answered in favour of the plaintiffs. Issue Nos.2 to 4 :

The first plaintiff became absolute owner of A schedule, which includes B schedule property. Accordingly, the Settlement Deed executed by her in favour of her children, who are arrayed as plaintiffs 2 to 4, is valid and the plaintiffs are entitled to the relief of delivery of vacant possession of B schedule property from the defendant. Thus, issue Nos.2 to 4 are also answered against the defendant favouring the plaintiffs.

Judgement:

In view of the above findings, C.S.No.562 of 2011 is decreed, as prayed for. Consequently, T.O.S.No.25 of 2017 is also decreed as prayed for. As a corollary, T.O.S.No.13 of 2015 is dismissed.

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BOMBAY HIGH COURT

PARVATABAI @ BEBY WD/O PARASRAM ... VS SUREEKHA @ REKHA WD/O DASHRATH ... ON 13 FEBRUARY, 2019

Summarised Judgement:

Introduction:

By this writ petition, the petitioner has challenged order dated 18/06/2018 passed by the Court of 11 th Joint Civil Judge Senior Division, Nagpur (Trial Court) in M.J.C. No.192 of 2017, whereby application filed by the petitioners below Exhibit- 18 for dismissal of the proceedings initiated by the respondent herein, was rejected.

Facts of the Case:

The facts leading to filing of the present writ petition are that the petitioners had filed an application for grant of legal heirship certificate under Bombay Regulation VIII of 1827 (hereinafter referred to "Regulation"). The said application was granted by the Court of Civil Judge, Junior Division, Nagpur by judgment and order dated 13/06/2017. An application was filed KHUNTE WP5447.18-Judgment 3/18 by the respondent on 02/03/2017 under the very same Regulation for grant of legal heirship certificate wherein the petitioners were made parties as non-applicants. The respondent specifically described certain properties in the said application and a declaration was sought to the effect that the respondent was legal heir of deceased Parasram Fakira More. It is not in dispute that the legal heirship certificate already granted in favour of the petitioners also pertained to the said deceased Parasram Fakira More.

Observation of Court:

Therefore, it is evident that the impugned order passed in the present case was not based on proper appreciation of KHUNTE WP5447.18-Judgment 17/18 the relevant provisions of law. Insofar as the judgment relied upon by the learned counsel for the respondent in the case of Manda R. Pande v. Smt.Jankibai S. Dubey (supra) is concerned, a perusal of the said case shows that a suit for declaration had been filed in respect of succession certificate with which the plaintiff was aggrieved. There is no quarrel with the proposition that under section 387 of the Act of 1925, an aggrieved party can certainly file a suit claiming aforesaid relief. Therefore, the said judgment would not be helpful to the case of the respondent. As regards the judgments relied upon by the learned counsel appearing for the petitioners, the said judgments reiterate the scheme envisaged in Part X of the aforesaid Act, which is also evident from a bare reading of the provisions contained in the said Part. Therefore, specific reference to the said judgments would not be necessary. This Court finds that the impugned order by the Court below is unsustainable.

Judgement:

Accordingly, the impugned order is quashed and set aside and the present writ petition is allowed. Consequently, the application below Exhibit-18 filed by the petitioner is allowed and KHUNTE WP5447.18-Judgment 18/18 the proceeding initiated by the respondent i.e. M.J.C. No.192 of 2017 before the Court below stands dismissed. It is made clear that the respondent would be at liberty to initiate appropriate proceedings under section 383 of the Act of 1925 for revocation of certificate granted in favour of the petitioners or for annulment of the certificate under clause 7 second of the Regulation or to file appropriate suit under section 387 of the Act of 1925 before the Competent Civil Court.

Rule is made absolute in the above terms. No costs.

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MADRAS HIGH COURT

VIJAYALAKSHMI VS THE REVENUE DIVISIONAL OFFICER ON 13 DECEMBER, 2019

Summarised Judgement

Introduction:

This writ petition has been filed for the issuance of writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the 2nd respondent in O.Mu.No.3669/2018/A3, dated 06/12/2018 and quash the same and consequently directing the 2nd respondent to issue Legal Heirship Certificate to the petitioners .

Facts of the Case:

The petitioners are the daughter and sons of late S.Bagvath Singh. The petitioners states that their father late S.Bagvath Singh had two wives and that through the first wife petitioners 1 to 3 were born and through second wife petitioners 4 to 6 were born. It is also stated that there is no dispute with regard to the status or relationship between the parties. It is the case of the petitioners that the first wife died long back and that their father married the second wife only after the death of the first wife. It is now admitted before this court that the second wife also died in the year 1999, even before the death of her husband. The Legal Heirship Certificate for the deceased second wife Raja Lakshmi is also produced before this Court to show that the petitioners 4 to 6 are her children.

When the application is submitted before the second respondent, the second respondent originally rejected the application on the ground that in respect of cases where there are more than one wife, the parties have to approach the Civil Court and they cannot approach the Tahsildar for issuance of Legal Heirship Certificate. Aggrieved by the same, the petitioners filed an appeal before the Revenue Divisional Officer, Melur.

Observation of Court:

Since the deceased had more than one wife, it is submitted by the learned Additional Government Pleader that the Tahsildar cannot issue the Legal Heirship Certificate. From the facts admitted among the persons interested, it is made clear that the second marriage is also valid as it was contracted after the life time of first wife. Hence, Tahsildar can not treat this case where more than two wives are claiming Legal Heirship Certificate. When the validity of the second marriage and the status of second wife is admitted, the children of second wife namely petitioners 4 to 6 have to be treated as legitimate children born to Mr.S.Bagvath Singh.

Judgement:

Accordingly, this writ petition is allowed and the impugned order passed by the second respondent, dated 06.12.2018 is hereby quashed. The second respondent is directed to issue the Legal Heirship Certificate to the petitioners by stating the petitioners are the legal heirs of the deceased, within a period of six weeks from the date of receipt of a copy of this order. No costs.

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MADRAS HIGH COURT

M.G.MAMTHA VS THE TAHSILDAR ON 6 FEBRUARY, 2018

Summarised Judgement:

Facts of the Case:

The first petitioner is the mother and the second petitioner is the adopted daughter of the first petitioner and her deceased husband by name Chandrasekar. These petitioners are aggrieved against the order of the respondent in refusing to issue them the Legal Heirship Certificate in pursuant to the death of the said Chandrasekar only on the reason that the second petitioner is Class II heir of the deceased and therefore, the petitioners have to approach the Civil Court and get remedy.

The case of the petitioners, in short, is as follows:

The first petitioner was married to the said S.Chandrasekar in the year 1987. As there was no issue out of their wedlock for long number of years, they have adopted the second petitioner, while she was 1 1/2 years old from the first petitioner's brother and his wife, on 24.11.1994, as per their family customs followed in that locality. A deed of adoption was entered into on 24.11.1994 and registered as Document No.18 of 1995 on the file of the Sub Registrar, Dhenkanikottai. The said Chandrasekar died intestate on 19.06.2017, leaving behind the petitioners as his legal heirs. All the records like School Transfer Certificate, Ration Card, Community Certificate carried the name of the second petitioner as daughter of late Chandrasekar and the first petitioner. An application was filed before the respondent on 03.07.2017, for issuing the Legal Heirship Certificate for the purpose of transferring patta and for operating bank accounts, etc., However, the said request was rejected by passing the impugned order, as stated supra.

Observation of Court:

In this case, the respondent has not doubted the genuineness of the documents produced by the petitioners in support of their claim including the deed of adoption. Therefore, there cannot be any legal impediment for the respondent in issuing a Legal Hiership Certificate to the petitioners, as sought for by them.

Judgement:

Accordingly, the writ petition is allowed and the impugned order is set aside. Consequently, the matter is remitted back to the respondent to issue the Legal Heirship Certificate of the deceased Chandrasekar to the petitioners. Such exercise shall be done by the respondent within a period of two weeks from the date of receipt of a copy of this order. No costs.

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MADRAS HIGH COURT

G.VENKATESAN VS THE TAHSILDAR ON 30 SEPTEMBER, 2016

Summarised Judgement:

Introduction:

This Writ Petition has been filed by the petitioner, challenging the order passed by the second respondent dated 07.04.2016 rejecting the petitioner's application for grant of legal heirship certificate on the ground that the petitioner's father V.Ganesa Sastrigal, died on 11.11.1997 and that 20 years have lapsed.

Facts of the Case:

According to the petitioner, the petitioner's father died on 11.11.1997 and he had obtained the death certificate of his father from Zone VIII of Corporation of Chennai in B & D.No.49678/97 issued by the Sanitation Inspector. The petitioner was residing at Jafferkhanpet, Chennai-83. It is further stated that his house and entire building collapsed due to the rain. Hence the petitioner shifted his residence from Jafferkhanpet to Chrompet during the month of April 2016. Then he applied for change of address in the petitioner's family card to the Taluk Supply Officer, Pammal and to various authorities. The petitioner submitted his application along with relevant documents before the first respondent to issue the legal heir certificate. Thereafter the first respondent had passed the impugned order in O.Mu.372/2016/A3 dated 08.06.2016. The petitioner had given self declaration duly signed by the Notary Public Advocate and the same was filed along with the application for issuing of legal heir certificate before the first respondent and the self declaration was considered by the first respondent. The third respondent vide report 01.04.2016, recommended to the first respondent and the same was not taken by the first respondent. Hence, the petitioner has filed the present writ petition.

Observation of Court:

According to the petitioner, the petitioner's father died on 11.11.1997 and he had obtained the death certificate of his father from Zone VIII of Corporation of Chennai in B & D.No.49678/97 issued by the Sanitation Inspector. The petitioner was residing at Jafferkhanpet, Chennai-83. It is further stated that his house and entire building collapsed due to the rain. Hence the petitioner shifted his residence from Jafferkhanpet to Chrompet during the month of April 2016. Then he applied for change of address in the petitioner's family card to the Taluk Supply Officer, Pammal and to various authorities. The petitioner submitted his application along with relevant documents before the first respondent to issue the legal heir certificate. Thereafter the first respondent had passed the impugned order in O.Mu.372/2016/A3 dated 08.06.2016. The petitioner had given self declaration duly signed by the Notary Public Advocate and the same was filed along with the application for issuing of legal heir certificate before the first respondent and the self declaration was considered by the first respondent. The third respondent vide report 01.04.2016, recommended to the first respondent and the same was not taken by the first respondent. Hence, the petitioner has filed the present writ petition.

Judgement:

Considering the above facts and circumstances of this case and also in the light of the order stated supra, this Court directs the first respondent to consider application submitted by petitioner afresh, after giving opportunity to all parties concerned, within a period of six months from the date of receipt of a copy of this order.

In view of the above, this Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.

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NOMINATION 

BOMBAY HIGH COURT

HARSHA NITIN KOKATE V. SARASWAT CO-OP. BANK LTD. - 101 SCL 145 - 20TH APRIL 2010

Summarised Judgement

Fact of the Case:

The Plaintiff married one Nitin Kokate on 3rd December 2004. Her husband expired on 5th July 2007. Nitin Kokate held certain shares in D- mat Account with the Depository Participant Cell of Defendant No.1. Her husband executed a nomination in the prescribed form following the prescribed procedure set out by the Depository Participant, Defendant No.1 Bank in favour of the Defendant No.3, his nephew on 11th July 2006. The Plaintiff claims an interest in the said shares as his heir and legal representative. She claims to have them sold.

This Suit is not concerned with the reason why she claims the sale of the shares. The Plaintiff must show her legal right, title and interest in those shares. If that is shown, the Plaintiff would be entitled to sell or transfer those shares or to hold them as her own.

Following question raised before the court -

    Whether intent of nomination is to vest property in shares which includes ownership rights thereunder in nominee upon nomination validly made as per procedure prescribed

Whether if procedure prescribed by law for nomination is followed, nominee would become entitled to all rights in shares to exclusion of all other persons

Whether upon nomination, nominee would be made beneficial owner and, therefore, all rights incidental to ownership would follow which would include right to transfer shares, pledge shares or hold shares.

Whether where plaintiff’s husband had executed nominations in respect of certain shares in D-mat Account with depository participant cell of defendant No. 1 in favour of his nephew, plaintiff would have no right to get shares of her deceased husband sold or to otherwise deal with same 

Observation & Judgement of Court:

A reading of Section 109A of the Companies Act and 9.11 of the Depositories Act makes it abundantly clear that the intent of the nomination is to vest the property in the shares which includes the ownership rights thereunder in the nominee upon nomination validly made as per the procedure prescribed,, as has been done in this case. These Sections are completely different from Section 39 of the Insurance Act set out (supra) which require a nomination merely for the payment of the amount under the Life Insurance Policy without confirming any ownership rights in the nominee or under Section 30 of the Maharashtra Co-operative Societies Act which allows the Society to transfer the shares of the member which would be valid against any demand made by any other person upon the Society. Hence these provisions are made merely to give a valid discharge to the Insurance Company or the Co-operative Society without vesting the ownership rights in the Insurance Policy or the membership rights in the Society upon such nominee. The express legislature intent under Section 109A of the Companies Act and Section 9.11 of the Depositories Act is clear.

Since the nomination is shown to be correctly made by her husband who was the holder of the Suit shares, the Plaintiff would have no right to get the shares of her deceased husband sold or to otherwise deal with the same. Consequently the Notice of Motion is dismissed.

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SUPREME COURT

RAM CHANDER TALWAR V. DEVENDER KUMAR TALWAR - 105 SCL 109 – 6TH OCTOBER 2010

Summarised Judgement

Fact of the Case

Appellant who was the nominee in the bank account held by his deceased mother claims full rights over the money lying in the account, to the exclusion of the respondent who is none else than his full brother. The claim is based on section 45 ZA of the Banking Regulation Act, which according to him, makes the nominee of the depositor the sole beneficiary, vested with all the rights of sole depositor.

Mr. Swetank Shantanu, counsel appearing for the appellants, strenuously argued that by virtue of sub-section 2 of section 45 ZA, the nominee of the depositor, after the death of the depositor acquires all his/her rights to the express exclusion of all other persons and, therefore, the respondent can not lay any claim to the money in the account or in regard to the articles that might be lying in the bank locker held by their deceased mother.

Following question raised before the Court

Section 45ZA of the Banking Regulation Act, 1949 - Provisions relating to certain operations of banking companies - Nomination for payment of depositors’ money –  

1. Whether section 45ZA(2) merely puts nominee in shoes of depositor after his death and clothes him with exclusive right to receive money lying in account and gives him all rights of depositor so far as depositor’s account is concerned but it by no stretch of imagination makes nominee owner of money lying in account.

2. Whether all monies receivable by nominee by virtue of section 45ZA(2) would, therefore, form part of estate of deceased depositor and devolve according to rule of succession by which depositor may be governed.

The submission is quite fallacious and is based on a complete misconception of the provision of the Act. Sub-section 2 of the 45ZA, reads as follows:-

Observation & Judgement of Court:

Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount to deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.

Section 45ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of section 45 ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed.

We find that the High Court has rightly rejected the appellant's claim relying upon the decision of this Court in V.N. Khanchandani & Anr. v. V.L. Khanchandani & Anr., (2000) 6 SCC.

The provision under Section 6(1) of the Government Saving Certificate Act, 1959 is materially and substantially the same as the provision of Section 45ZA(2) of the Banking Regulation Act, 1949, and the decision in V.N. Khanchandani applies with full force to the facts of this case. We find no merit in this appeal. It is, accordingly, dismissed.

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BOMBAY HIGH COURT

JAYANAND JAYANT SALGAONKAR V. JAYASHREE JAYANT  31ST MARCH 2015

Summarised Judgement

Fact of the Case:

Salgaonkar (Suit No.503 of 2014) is an action for administration of the estate of one Jayant Shivram Salgaonkar. The Plaintiff's Notice of Motion No. 822 of 2014 seeks reliefs in respect of his estate described in the list at Exhibit "A" to the Plaint. Item 9 of that list speaks of investments in Mutual Funds, etc. These are detailed in Exhibit "D" to the Plaint. This is a list of various investments in Mutual Funds and it shows the name of the 'nominee' in respect of each such investment. Defendants Nos. 5 and 6 seem to be the nominees in respect of the bulk of these mutual fund investments. In their Affidavits in Reply to the Notice of Motion, Defendants Nos. 5 and 6, represented by Mr. Rajendra Pai, learned Counsel, have specifically urged that these investments do not form part of the Jayant Salgaonkar's estate. They each claim to be exclusively entitled in law to 'succeed to' these investments qua such nominees, and they invoke, inter alia, Regulation 29A of the SEBI (Mutual Fund) Regulations, 1996. Defendant No.6 makes a similar claim on the basis of Section 45-ZA of the Banking Regulation Act, 1949 in respect of a fixed deposit receipt for Rs.50 lakhs with IDBI Bank.

In Ghatalia, probate is sought to the will of one Urmila S. Ghatalia. The Petitioner is one of the deceased's sons. The other son has consented to the grant of probate. The action is opposed by the deceased's daughter. At present, the controversy is only whether or not the daughter is entitled to file and maintain a caveat in opposition to the probate petition or whether this caveat must be held to be defective and non-est. In the course of the hearing, a settlement was suggested and was very nearly reached. The only contentious issue related to some of the deceased's investments.

Following question raised before the court -

1. Whether nominations under sections 109A and 109B of Companies Act and Bye-law 9.11 of Depositories Act, 1996 cannot and do not displace law of succession.

2. Whether nomination only provide company or depository a legally valid quittance so that it does not remain forever answerable to a raft of succession litigation and an endless slew of claimants under succession law.

3. Whether under sections 109A and 109B, company or depository gets a legally valid discharge, but nominee continues to hold in a fiduciary capacity and is answerable to all claimants under succession law.

4. Whether thus, ruling in Harsha Nitin Kokate v. Saraswat Co-operative Bank Ltd. [2010] 101 SCL 145 (Bom.) was per incuriam and not a good law.

Observation & Judgement of Court:

There are additional problems too. The 'statutory testament' is not subject to the rigour of the Succession Act. It does require witnesses, but not the discipline mandated by Section 63 of the Indian Succession Act. A nomination, though said to be a 'testament', requires no probate or other proof 'in solemn form'. Yet it is said to be a will. Witnesses need not be in the presence of the nominator. Yet it is said to be a will. Witnesses need not act at the instance of the nominator. Yet it is said to be a will. Witnesses need not see the nominator execute the nomination.

No nomination can be assailed on the ground of importunity, fraud, coercion or undue influence; Section 61 of the Indian Succession Act is wholly defenestrated, as is Section 59. Yet it is said to be a will. There can be no codicil to a nomination. Yet it is said to be a will.

In short, a nomination, in the Kokate formulation, is some sort of 'super-will', one that partakes of none of the defining traits of a properly executed will and none of the tests of its validity, one that is never displaced by a later, properly made will that deals with the very same property. Mr. Pai asks that we should place ourselves in the 'armchair of the nominator'. That, as it happens, is the same furniture used by a testator, and it simply cannot be that the view from that seat depends on the nature of the document before the executant.

There is no particular form for a will, but there are requirements attendant to its proper making. These do not apply to all nominations: even the requirement of witnesses is a matter of prudence rather than statute. If that be so, no nomination per se requires attestation, and if that be so, it is admissible in evidence under Section 68 of the Evidence Act, 1872 without the evidence of any witness (simply because a witness to a nomination is not, in any sense, an 'attesting witness'). But no will can be so read in evidence without such evidence.

From the fundamental definitions to the decisions cited, it is clear that a nomination only provides the company or the depository a quittance. The nominee continues to hold the securities in trust and as a fiduciary for the claimants under the succession law. Nominations under Sections 109A and 109B of the Companies Act and Bye-Law 9.11 of the Depositories Act, 1996 cannot and do not displace the law of succession, nor do they open a third line of succession. This is the consistent view of the Supreme Court in Khanchandai, Shipra Sengupta and of our Court Gustad Commissariat and Antonio Joao Fernandes, all decisions that preceded Kokate; and the submission made in paragraph 9 of Kokate was correctly placed and was in line with those decisions. Those decisions were all binding on the Kokate Court. They were neither noticed nor considered. The Kokate Court could not have taken a view contrary to those decisions. Kokate is, therefore, per incuriam.

This judgment does not dispose of the Notice of Motion in Salgaonkar or the application in Ghatalia. Those will be considered on their merits in view of the legal position enunciated above. Given that this judgment deals only with a question of law, there is no question of a stay of the judgment.

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BOMBAY HIGH COURT

SHAKTI YEZDANI V. JAYANAND JAYANT SALGAONKAR - 76 TAXMANN.COM 161 – 1ST DECEMBER 2016

Summarised Judgement

Introduction:

The issue which arises for consideration in this group of Appeals is whether the view taken by the learned Single Judge in the case of Harsha Nitin Kokate v. The Saraswat Co-operative Bank Limited and Others is correct. In Harsha Nitin Kokate's case, in paragraphs 24 and 25, it was held thus:

In the light of these judgments section 109A of the Companies Act is required to be interpreted with regard to the vesting of the shares of the holder of the shares in the nominee upon his death. The act sets out that the nomination has to be made during the life time of the holder as per procedure prescribed by law. If that procedure is followed, the nominee would become entitled to all the rights in the shares to the exclusion of all other persons. The nominee would be made beneficial owner thereof. Upon such nomination, therefore, all the rights incidental to ownership would follow.

This would include the right to transfer the shares, pledge the shares or hold the shares.

The specific statutory provision making the nominee entitled to all the rights in the shares excluding all other persons would show expressly the legislative intent. Once all other persons are excluded and only the nominee becomes entitled under the statutory provision to have all the rights in the shares none other can have it.

Further section 9.11 of the Depositories Act 1996 makes the nominee's position superior to even a testamentary disposition. The non- obstante Clause in section 9.11.7 gives the nomination the effect of the Testamentary Disposition itself. Hence, any other disposition or nomination under any other law stands subject to the nomination made under the Depositories Act.

Following question raised before the court -

1. Whether nominee does not get absolute title to property subject matter of Nomination under section 109A, reason is by its very nature, when a shareholder or a deposit holder or an insurance policy holder or a member of a Co-operative Society makes a nomination during his life time, he does not transfer his interest in favour of the nominee.

2. Whether nomination does not override law in relation to testamentary or intestate succession.

3. Whether provisions regarding nomination are made with a view to ensure that estate or rights of deceased subject-matter of nomination are protected till legal representatives of deceased take appropriate steps.

4. Whether vesting under section 109A does not create a third mode of succession. Whether object of provisions of Companies Act is not to either provide a mode of succession or to deal with succession.

5. Whether thus, a nominee of a holder of shares or securities appointed under section 109A read with Bye-laws under Depositories Act, 1996 is not entitled to beneficial ownership of shares or securities subject-matter of nomination to exclusion of all other persons who are entitled to inherit estate of holder as per law of succession.

6. Whether a bequest made in a Will executed in accordance with Indian Succession Act, 1925 in respect of shares or securities of deceased supersedes nomination made under provisions of section 109A and Bye-law No. 9.11 framed under Depositories Act, 1996.

Observation & Judgement of Court:

As regards the Appeal No.311 of 2015, it arises out of a Testamentary Petition. The Appellant appearing in person is right in contending that the issue of the effect of nomination is irrelevant for deciding the Application for grant of probate inasmuch as it is well settled that a testamentary Court dealing with the issue of grant of probate or letters of administration has no jurisdiction to decide the issue as regards the title of the deceased testator to his assets.

Therefore, the issue of effect of nomination could not have been gone into in the Appeal arising out of the Testamentary Petition filed by the Appellant in Appeal No.311 of 2015.

Hence, we pass the following order:

(a) Appeal No.313 of 2015 is hereby dismissed with no order as to costs;

(b) We make it clear that the impugned order stands confirmed as far as the Suit No.503 of 2014 is concerned;

(c) The impugned order stands quashed and set aside insofar as the Testamentary Petition No.457 of 2014 is concerned only on the ground that the issue of the sng 49 appeal-313n311.15 effect of nomination made by the testator cannot be gone into by the Testamentary Court in the probate proceedings. The Appeal No.311 of 2015 is accordingly allowed with no order as to costs. The answer of all the question is given in affirmative.

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SUPREME COURT

SMT. SARBATI DEVI V. SMT. USHA DEVI , 6TH DECEMBER 1983

Summarised Judgement

Fact of the Case:

Jag Mohan Swarup who was governed by the Hindu Succession Act, 1956 died intestate on June 15, 1967 leaving behind his son, Alok Kumar (plaintiff No. 2), his widow Usha Devi (defendant) and his mother Sarbati Devi (plaintiff No. 1) as his heirs. He had during his lifetime taken out two insurance policies for Rs. 10,000 each and had nominated under section 39 of the Act his wife Usha Devi as the person to whom the amount was payable after his death. On the basis of the said nomination, she claimed absolute right to the amounts payable under the two policies to the exclusion of her son and her mother-in-law.

Thereupon Sarabati Devi and Alok Kumar (minor) represented by his next friend Atma Ram who was the father of Jag Mohan Swarup filed a suit in Civil Suit No. 122 of 1970 on the file of the Ist Additional Civil Judge. Dehradun for a declaration to the effect that they were together entitled to 2/3rd share of the amount due and payable under the insurance policies referred to above. Usha Devi, the defendant resisted the suit. Her contention was that on the death of the assured, she as his nominee became absolutely entitled to the amounts due under the insurance policies by virtue of section 39 of the Act The trial court dismissed the suit. The first appeal filed by the plaintiffs against the decree of the trial court was dismissed by the District Judge, Dehradun. The second appeal filed by them against the judgment of the District Judge before the High Court of Allahabad was dismissed in limine under Rule 11, Order 41 of the Civil Procedure Code. The plaintiffs have filed this appeal after obtaining special leave under Article 136 of the Constitution.

The only question which requires to be decided in this case is - Whether, on policy-holder dying intestate, nominee would become entitled to absolute beneficial interest in amount received under life insurance policy to the exclusion of heirs of deceased.

Observation & Judgement of Court:

Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view.

The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauja Singh's case (supra) and in Mrs. Uma Sehgal's case (supra) do not lay down the law correctly. They are, therefore, overruled.

We approve the views expressed by the other High Courts on the meaning of section 39 of the Act and hold that a mere nomination made under section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured.

The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy, The amount; however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.

In view of the above conclusion, the judgments and decrees of the High Court, the first appellate court and the trial court are liable to be set aside. They are accordingly set aside. Since it is not disputed that the plaintiffs are under the law of succession governing them each entitled to 1/3 share in the estate of the deceased, it is hereby declared that each of the plaintiffs is entitled to 1/3rd share in the amount received under the insurance policies in question and the interest which may have been earned by its investment. The suit stands decreed accordingly.

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AS - 30122019