A succession certificate cannot be granted to a petitioner when a legal heir, such as the deceased's wife, is alive, as per Hindu Law.

ORDER :

Rmt.Teekaa Raman, J.

This petition has been filed under Section 372 of the Indian Succession Act, 1925 read with Order XXV Rule 6 of the Madras High Court Original Side Rules in the matter of the certain debts in respect of late Vishwanathan Nair.

2. The petitioner herein Sandya Mohan who has filed this petition is a resident of Chennai. The respondent Bavani, who is the wife of Late Vishwanathan Nair showing the address at Malapuram, Kerala.

3.According to the petitioner, the petitioner is the wife of the brother-in-law of the deceased while the respondent is the wife of the deceased. The petition proceeds on the basis that since the owner of the various deposits mentioned in the schedule is died as no issues and she is the only survivor of the Late Vishwanathan Nair and hence she is entitled to all bank deposit to the Late Vishwanathan Nair. She has annexed the entire property Fixed Deposit amount to the tune of Rs.21,00,000/-. She enters in the witness box and examined herself as PW1 and marked Ex.P1 to Ex.P29. Death certificate of Viswanathan Nair is Ex.P1 and Aadhar Card is Ex.P2. Death certificate and legal heir certificate of Leelavathy Amma is marked as Ex.P4 and Ex.P5 and death certificate and legal heir ceritificate of Mohanan is marked as Ex.P6 and Ex.P7. Aadhar card of the petitioner is marked as Ex.P8. Ex.P9 to Ex.P19 relating to various pass books and deposit receits made by the said Late Vishwanathan Nair and Ex.P20 to Ex.P26 are relating to communication between the party and the deceased Vishwanathan Nair with the Bank and the communication by the Bank with the petitioner to call upon her to produce the succession certificate. Paper publication was effected and marked as Ex.P28.

4. Heard the learned counsel for the petitioner.

5. According to the petitioner Counsel since the whereabouts of the respondent is not known for more than 7 years, the Court has to presume that the respondent is dead and she is the only survivor in the branch of the deceased Vishawanathan Nair and hence seeks the certificate in respect of several Fixed Deposit to the tune of Rs.21,00,000/- be granted to the petitioner and the petitioner further undertakes to file surety as required by this Court.

6. On perusal of the petition at para No.16, it is specifically stated that “petitioner states that notice of this petition may be served on Mrs. Bavani”. Wife of Late Vishwanathan Nair residing at Koolody House, Chellur, Naduvattam Village, Kuttipuram, Malapuram, Kerala- 679 591 and paper publication was effected.

7(a). The learned counsel would state that at para No.10 of the petition as well as the evidence of PW1 she has stated that after the death of the said Vishwanathan Nair, the respondent/wife of Late Vishwanathan Nair could not be contacted and the deceased did not have any Clause-I, legal heirs and hence succession certificate may be granted to the petitioner. Even as per the petition averments, the respondent is alive and address is mentioned as extracted at para No.16 of the petition assumes significance.

7(b). The scope of the succession certificate as contemplated under Section 373(3) of the Indian Succession Act which provides procedure before the Court is provided. The proceedings under the Indian Succession Act for the issuance of Succession Certificate concerns only with prima facie right to collect the amount and sub Section 3 and 4 of the Section 376 is clear to the effect that the Judge need not decide the right to the certificate without determining the question of law or it appears to prima facie the best title thereto. However, it remains to be stated that there is a specific version in the Sub Section 3 of Section 376 is that grant a certificate to the applicant if he appears to the person having prima facie best title thereto.

8(a). This Court is of the considered view that the succession certificate application entitles the petitioner to collect the asset. It is only for the purpose of collection, the succession certi