Back
High Court Of Calcutta
BHASKAR BHATTACHARYA, JYOTESH BANERJEE
SUDARSHAN SHAW - Appellant
Versus
SUBHAS SHAW - Respondent
F. M. A. 325 Of 2005
Decided On : 07/06/2005
SUCCESSION CERTIFICATE - ACT SECTION LIST - INDIAN SUCCESSION ACT, 1925 (ACT 39 OF 1925), SECTIONS 108, 276, 293, 370, 372 - SUMMARY: The Calcutta High Court held that in an application for a succession certificate, it is not necessary to provide the precise date of death of the deceased person. The court can infer the approximate time of death based on evidence presented, including the fact that the person has not been heard from for seven years. The court can also grant relief to the applicant if it is satisfied that the person was dead at the time of the application, even if the exact date of death is not known.
Fact of the Case:
The appellant applied for a succession certificate under section 372 of the Indian Succession Act, 1925, for the purpose of receiving the debts and security of his father, who had been missing since 1993. The application was rejected by the learned Chief Judge, City Civil Court, on the ground that there was no death certificate or other conclusive proof of the death of the missing person.
Finding of the Court:
The Calcutta High Court held that the learned Chief Judge erred in rejecting the application solely on the ground that there was no death certificate. The court held that the Act does not require that the fact of death be proved only by documentary evidence and that the court can infer the approximate time of death based on the evidence presented.
Issues: 1. Whether an applicant for a succession certificate is required to provide the precise date of death of the deceased person. 2. Whether the court can infer the approximate time of death based on evidence presented, including the fact that the person has not been heard from for seven years. 3. Whether the court can grant relief to the applicant if it is satisfied that the person was dead at the time of the application, even if the exact date of death is not known.
Ratio Decidendi: 1. The court held that the Act does not require that the applicant provide the precise date of death of the deceased person. 2. The court held that the court can infer the approximate time of death based on the evidence presented, including the fact that the person has not been heard from for seven years. 3. The court held that the court can grant relief to the applicant if it is satisfied that the person was dead at the time of the application, even if the exact date of death is not known.
Final Decision: The court set aside the order of the learned Chief Judge and directed the learned trial Judge to hear out the application on merit after giving a direction upon the applicant to disclose whether the mother of the missing person was alive on the date he was last seen.
( 1 ) THIS appeal is at the instance of an applicant under section 372 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act') and is directed against Order No. 22 dated 4th November, 2003 passed by the learned Chief Judge, City Civil Court at Calcutta in Act 39 Case No. 103 of 2000 thereby holding that in the absence of death certificate of the deceased the proceedings under section 372 of the Act was not maintainable unless the applicant gets a declaration as to the death of deceased by filing separate proceedings in a Civil Court.
( 2 ) THE appellant herein filed the aforesaid proceedings under section 372 of the Act for grant of Succession Certificate for the purpose of receiving the debts and security of one Subhas Shaw, his father, who was. last seen on 2nd May, 1993 and was missing from his place of residence at 37d/2, Hari Ghosh Street, calcutta - 6 from that day.
( 3 ) IN the said application, it was alleged that from 2nd May, 1993 the said subhas Shaw was not traceable, as a result, the applicant made general diary in the Burtolla Police Station on 24th May, 1993 and also gave information to the Calcutta Doordarshan Kendra, Golfgreen for telecasting the missing information and published the fact of missing with photographs under the heading "jankari Chahia" in "sanmarg", a Hindi Daily Newspaper on 3rd August, 1993, but till the date of filing of the application, nobody could give any information about the said person. In the meantime, seven years have passed and as such, it should be presumed that the said Subhas Shaw died on or about 2nd May, 1993.
( 4 ) AT the time of hearing of such proceedings, the applicant himself gave evidence in support of the statements made in the application and further stated that the D. C. D. D. , Lalbazar vide memo dated 23rd October. 2000 informed the wife of the missing person that all efforts to trace out the missing subject proved futile and the chance of tracing him out seemed to be very remote. The wife of the said Subhas Shaw also gave evidence in support of the application and no persons came forward opposing the application or contending that the whereabouts of the said Subhas Shaw was known to any person after the month of May, 1993.
( 5 ) THE learned Chief Judge by the order impugned herein has rejected the application on the ground that as here is no Death Certificate or any certificate showing conclusive proof of death of the missing person, the application was not maintainable inasmuch as the requirements of the provisions of grant of succession Certificate as provided in the Act had not been complied with.
( 6 ) BEING dissatisfied, the applicant has come up with the present appeal.
( 7 ) THE wife and other children of the said Subhas Shaw have supported the claim of the appellant.
( 8 ) MR. Manna, the learned advocate appearing on behalf of the appellant contended before us that if a person is not traceable for more than seven years, it is the duty of the Court to apply the principles laid down in section 108 of the evidence Act and after declaring the missing person to be dead, to grant the succession Certificate in favour of the applicant if other requirements of the relevant Statute are complied with.
( 9 ) SINCE the respondents were supporting the appellants and the point involved in this application is a very important one having far-reaching consequences not only in the matter of grant of Succession Certificate but also in the matter of grant of probate and letters of administration provided under the Act, we requested Mr. S. P. Roy Chowdhury, the learned senior advocate to assist this Court as amicus curiae for the purpose of disposal of this appeal. Mr. Roy Chowdhury notwithstanding his brisk professional engagements agreed and has made submissions supporting the appellant.
( 10 ) MR. Roy Chowdhury submits that under section 372 of the Act although discloser of time of death of the deceased is one of the require
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
