1

GROUP -I (CIVIL)

SUBJECT :- Will, Probate, Succession Certificate

and Heirship Certificate-
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Introduction :-
1. The Indian Succession Act, 1925 (Hereinafter referred as
Act in short) deals with intestate and testamentary succession. Out
of the topics of this workshop, the Indian Successin Act incorporate
provisions with respect to Will, Probate, Succession Certificate,
whereas the Bombay Regulation VIII of 1827 deals with the
issuance of heirship certificate.

Definition of Will :-
2. Section 2(h) of the Indian Succession Act, 1925 envisages
that Will means the legal declaration of the intention of a person with
respect to his property, which he desires to take effect after his
death. Will has been defined in Corpus Juris Secundum as “A Will is
the legal declaration of a man’s intention, which is to be performed
after his death, or an instrument by which a person makes a
disposition of his property to take effect after his death”. The last will
and testament is a legal document that communicates a person’s
final wish pertaining to possession and dependents. A person’s last
will and testament outlines what to do with possession.

Scope of Will :-
3. Will is the testament of the testator. It is a posthumous
disposition of the estate of the testator directing the distribution of
his estate upon his death. It is not a transfer inter vivo. The two
essential characteristics of a Will are that it is intended to come into
effect only after the death of the testator and it is revocable at any
time during the lifetime of the testator. It is said that so long as the
testator is alive, a will is not be worth the paper on which it is written,
as the testator can at any time revoke it.
 .2.

4. The last Will and testament are governed by the Indian

Succession Act, 1925. A Will can be registered under the Indian
Registration Act, 1908 with the Sub-Registrar of the area where the
testator resides. It is not mandatory to register the Will. A Will made
by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of
the Indian Succession Act, 1925. However Mohammedan are not
governed by the Indian Succession Act, 1925 and they can dispose
of their property according to Muslim Law.

Proof of Will and Rule of burden of proof :

5. In order to establish legal proof of Will, it is necessary to
have proof of execution of it by the testator under sound state of
mind as per Section 59 of the Indian Succession Act. He should be
major at the time of execution of it. Further it is to be proved that,
the testator signed the Will or put his thumb mark on it, or it shall be
signed by some other person in the presence of testator and under
his direction as per Section 63(A) of the said Act. The signature or
thumb mark of the testator or the other person signing for him, shall
be so placed on the Will so that it shall appear that the testator was
intending to give effect to a Will.
6. Section 68 of the Evidence Act, 1872 deals with the proof of
execution of a document required by law to be attested. As per the
said section, a document requiring attestation by law could be used
in evidence only by examining at least one of the attesting
witnesses to prove its execution, if such witness is alive, and subject
to process of the Court, and capable of giving evidence. As per
proviso to the said section, no attesting witness is required to be
examined in case of registered document except Will, unless its
execution by the person who purports to have been executed, is
specifically denied. As per Section 69 of the said Act, if neither of
the attesting witnesses could be found, it could be proved by proof
of the handwriting of either of the attesting witnesses, and
handwriting of the executant thereof. As per Section 71, if the
attesting witness denied or does not recollect the execution of
document, its execution may be proved by other evidence.
 .3.

7. In the case of H.Venkatchala Aiyengar Vs. B. N.

Thimmajamma(AIR 1959 SC 443), the Apex Court observed that,
the propounder to succeed and prove the Will is required to prove
by satisfactory evidence that,

​ the Will was signed by the testator,

​ the testator, at the time, was in a sound and disposing state of
mind,
​ the testator understood the nature and effect of the disposition,
and
​ that the testator had put his signature on the document of his
own free will.

8. In the case of Guro Vs. Atma Singh 1992(2) SCR 30= 1992
SCC (2) 507 the Apex Court observed that :
“With regard to proof of a Will, the law is well settled that.
The mode of proving a Will does not ordinarily differ from
that of proving any other document except as to the special
requirement prescribed in the case of a Will by Section 63 of
the Indian Succession Act. The onus of proving the Will is on
the propounder and in absence of suspicious circumstances
surrounding the execution of the Will, proof of testamentary
capacity, and signature of the testator as required by law is
sufficient to discharge the onus where there are suspicious
circumstances, the onus would be on the propounder to
explain them to the satisfaction of the Court before the Will
could be accepted as genuine. Such circumstances may be
a shaky signature, a feeble mind, and unfair and unjust
disposal of property or the propounder himself taking a lead
part in the making of the Will under which he receives a
substantial benefit. The presence of suspicious
circumstances makes the initial onus heavier and the
propounder must remove all legitimate suspicion before the
document can be accepted as the last Will of the testator.
The burden to prove that the Will was forged or that it was
obtained under undue influence or coercion or by playing a
fraud is on the person who alleges it to be so.”
 .4.

9. (1) In case of Beni Chand Vs. Kamla Kunwar reported in

AIR 1977 SC 63, The Hon’ble Supreme Court held that it is
incumbent on the prepounder of the Will to examine at least an
attesting witness to prove due execution of the Will. (2) If a person
has executed several Wills then a Will which was executed as a last
Will carries legal presumption and such last Will can be taken into
consideration. In case of Mahesh Kumar (dead) by Lrs V/s Vinod
Kumar and other reported in 2012(4) Mh.L.J., the Hon’ble High
Court held that the last Will can be taken into consideration if the
requirements of section 63 of the Indian Succession Act are fulfilled.
(3) In case of N.M.A. Abdul Mithalif V/s Syed Bibi Ammal And
ors. Reported in 1980 Supp (1) SCC 771; 1979 UJ 545 SC
Hon’ble Supreme Court observed, “There is no presumption that
attesting witness knows the contents of the documents”. (4) In case
of S.R. srinivasa & others vs. S. Padmavathamma, reported in
2010 AIR SCW 3935 Hon’ble Supreme Court held that mere
signature of scribe cannot be taken as proof of attestation without
evidence regarding other witnesses of Will. Section 71 has no
application to a case where one attesting witness, who alone had
been summoned, has failed to prove the execution of the will and
other attesting witnesses though are available to prove the
execution of the same, for reasons best known, have not been
summoned before the court Janki Narayan Vs. Narayan Namdeo
reported in (2003) 2 SCC 91.6.

Proprietry of Will in respect of Property Governing Special

Statute i.e. Tenancy and Tribal land :
10. The Legislature has restricted the right to inherit the right to
the tenancy of the premises let out for business, trade or storage to
any member of a tenant's family carrying on business, trade or
storage with the tenant at the time of his death. It is not open to the
Court by judicial construction to extend the said right to persons
who are not members of the tenant's family who claim under
testamentary succession.
 .5.

11. The word to assign or transfer in any other manner his

interest therein in Section 15 (1) of the Act has the effect of
prohibiting the disposition of the tenancy right by a Will in the
absence of a contract to the contrary. Prohibition against transfer of
tenancy rights by the tenants is aimed at protecting the landlord
from preventing the tenants to transfer the tenancy in favour of
strangers, friends or relatives for the purpose of disposing the
premises as if it was their own.
12. Restriction of Transfer of Agriculture land, Management of
uncultivated land and acquisition of estate are dealt under Bombay
Tenancy Act. Transfer of land to non-agriculturist is specifically
barred. Such land cannot be gifted, exchanged or leased or interest
in the land cannot be transferred so as to protect the land. Any
question if arises as to whether any living person can execute a
document in contravention of any law. The answer is always in
negative.

Revocation of Will and its grounds under different provisions

of the Indian Succession Act.
13. The Indian Succession Act provides various modes of
revocation of Will by the person who make it. Sections 69, 70 and
72 of the Indian Succession Act specifically provide different modes
or methods of revocation of Will.
14. If the testator who is not married, marries after making the
Will or by operation of law, the Will stands revoked. A void marriage
is treated as never having taken place and so it does not revoke a
Will made by either of party, while a voidable marriage does revoke
a Will already made by either of parties. On the other hand, there is
an exception to above general rule.

Concept of Will under Muslim Law :

15. There is no codified law for Wills by Muslims. It can be made
as per their religious texts. Also, Muslim Law of Will is not uniform
for all its sections. There are many differences amongst the Shias
and the Sunnis. The Muslim law of succession is based on the four
 .6.

sources of Islamic law, viz. (i) The Koran, (ii) The Sunna or
Tradition, (iii) Ijmaa or consensus of opinion, and (iv) Qiyas or
analogical deductions.

Testamentary Power and its Limits (Bequeathable one-third)

16. A Muslim does not possess an unlimited power of making
disposition by Will. There are two-fold restrictions on the power of a
Muslim to dispose of his property by Will, which are in respect of the
person in whose favour the bequest is made, and as to the extent to
which he can dispose of his property. This is obvious, because the
object behind this restriction is to protect the interests of the
testator’s heirs. No Muslim can make a bequest of more than one
third of his net assets after payment of funeral charges and debts. If
the bequeathed property exceeds one-third, the consent of other
heirs is essential (Sunni law). A bequest of entire property to one
heir to the exclusion of other heirs is void.
17. Where the heirs refuse to give their consent, the bequest
would be valid only to the extent of one-third of the property and the
rest of the two-thirds would go by intestate succession. In respect of
bequest of one-third to an heir, the consent of other heirs is required
in Sunni law, but not in Shia law. In case of a non-heir (stranger), the
consent of heirs is not required in both. A bequest made for pious
purposes is valid to the extent of one-third of the property, both
under Sunni as well as Shia law.

Exception :
18. The above rule of bequeathable one-third will not apply to a
case where the testator has no heir. The right of Government to take
the estate of an heir-less person will not, in any way, restrict the right
of a person to make a disposition of his property as he likes. Thus,
Government cannot step into property of heir-less person. The
‘1/3rd limit’ rule will not apply if a Muslim marries under the Special
 .7.

Marriage Act, 1954, because then he has all the powers of a

testator under the Indian Succession Act, 1925.
19. In Damodar Rasne Vs. Shahajasdbi 1988(2) Bom.C.R.
339= (AIR 1989 Bom 1).The Honourable Division Bench of the High
Court summarized the law as to Will under Mohammedan Law by
observing that ‘a Muslim cannot bequeath more than one-third of his
property whether in favour of a stranger or his heir when there are
heirs or other heirs left by him as the case may be.’ When however,
there are no heirs or other heirs left by him, he can dispose of his
entire property in favour of the stranger or the sole heirs as against
the right of the State to take by escheat. If the property bequeathed
is in excess of one-third of the estate, the excessive bequest is not
valid unless the heirs, or other heirs (if the bequest is in favour of
one or some of the heirs) give their consent. Under the Hanafi law,
the consent has to be given after the death of the testator, whereas
under the other schools of law, it can be given either before or after
the death of the testator. The estate bequeathed in excess of the
bequeathable third will be valid to the extent of the share of the heir
or heirs consenting to such excess whether the bequest is in favour
of the stranger or the heir or heirs. Where, however, there are more
bequests than one which together exceed one-third of the estate,
the bequests get reduced rateably. The bequests in favour of heirs
are discouraged under the Mohammedan Law, because the share
of the heirs are fixed and no bequest can be made to deprive the
heirs of their rightful share. The object is also to avoid internecine
disputes between the heirs. While bequest in favour of an heir,
according to
one Mohammedan School of law is entirely invalid even if it is
confined to the bequeathable third, according to another school, it is
valid only to the extent of one-third. It also, however, appears that
where other heirs consent to the bequest according to both
schools, the bequest is valid whether it is of one-third or of more of
the estate. Where only some of the heirs consent, it is valid to the
extent of the share of the consenting heir or heirs. Where a testator
dies leaving only a wife/husband as his/her heir no blood relations, if
 .8.

husband he is entitled to bequeath 5/6 of his estate and if a women

2/3 of her estate.

Probate :
20. As per Sec. 2(f) of the Indian Succession Act, 1925, probate
means the copy of a Will certified under the seal of the Court of
competent jurisdiction with a grant of administration to the estate of
the testator. Whereas ‘Will’ is defined to mean the legal declaration
of the intention of a testator with respect to his property which he
desires to be carried into effect after his death. Burden of proof that
the Will has been validly executed and is a genuine document is on
the propounder. The propounder is also required to prove that the
testator has signed the Will and that he had put his signature out of
his own free will having a sound disposition of mind and understood
the nature and effect thereof. If sufficient evidence in this behalf is
brought on record, the onus of the propounder may be held to have
been discharged. But, the onus would be on the applicant to remove
the suspicion by leading sufficient and cogent evidence if there
exists any. In the case of proof of Will, a signature of a testator alone
would not prove the execution thereof, if his mind may appear to be
very feeble and debilitated. However, if a defence of fraud, coercion
or undue influence is raised, the burden would be on the person
claiming so.
21. Probate is thus an authentication as to the genuineness of
the Will and an authorization to the executor to deal with the
property left by the deceased. Probate of a Will when granted,
establishes the
Will from the death of the testator and renders valid all intermediate
acts of the executor as such. Probate shall be granted only to an
executor appointed by the Will and such appointment can be either
express or implied. Probate cannot be granted to any person who is
a minor or is of an unsound mind nor to any association of
individuals unless it is a company which satisfies the conditions
prescribed by the State Government and published in the Official
 .9.

Gazette. If several executors are appointed, probate may be

granted to them simultaneously or at different times.
22. In Krishna Birla Vs. Rajendra Lodha, decided on
31.03.2008 in Civil Appeal No.2277/2008, the Honourable Apex
Court, while dealing with the meaning of caveatable interest, in para
60 of its Judgment observed that a person to whom a citation is to
be issued or a caveator, must have some interest in the estate of
the testator. Any person claiming any interest adverse to the testator
or his estate cannot maintain any application before the Probate
Court. His remedy would be elsewhere. The question with regard to
the degree of interest or the right which a caveator must show to
establish his or her caveatable interest before the Probate Court
should be considered having regard to the aforementioned legal
propositions.
23. In Lalita Krishnaraj Parekh Vs. Kirti Jagdish Mullani
reported in 2010(1)Mh.L.J.701, it has been held that probate Court
cannot decide the right and or title of property including the issue
whether the properties and assets as bequeathed are self acquired
properties of the deceased. In the matter of Rukmini Devi and
others Vs. Narendra Lal Gupta AIR 1984 SC 1866, the Hon'ble
Supreme Court held that the probate granted by a competent court
is conclusive of the validity of such Will until it is revoked and no
evidence can be admitted to impeach it except in a proceeding
taken for revoking the probate. A decision of the probate court
would be a judgment in rem which would not only be binding on the
parties to the probate proceedings but would be binding on the
whole world. Therefore, a solemn duty is cast on the probate court.

Court Fees :
24. As per entry 12 of Schedule I of Maharashtra Court Fees
Act 1959, "The fee leviable for certificate under Bombay Regulation
VIII of 1827 shall be equal to fee leviable in the case of a probate
(Article 10) on the amount or value of property in respect of which
certificate is granted". As per entry 10 of Schedule I of The
Maharashtra Court Fees Act 1959, "Fee leviable in case of probate
 .10.

of a Will or letters of administration with or without Will annexed will

be two percent when the amount or value of the property in respect
of which the grant of probate or letters is made exceeds one
thousand rupees on the amount or value up to fifty thousand
rupees. Further, the fee leviable on the higher value is variable as
per the value of the claim. As per Section 29(1) of the Maharashtra
Court Fees Act, 1959, no order entitling the petitioner to the grant of
probate or letters of administration shall be made upon an
application for such grant until the petitioner has filed in the Court a
valuation of the property in the form set forth in the third schedule,
and the Court is satisfied that the fee mentioned in No.10 of the first
schedule has been paid on such valuation.
25. In the matter of Shashikant S/o Gangadhar Thorat and
Anil S/o. Gangadhar Thorat Vs. Punja S/o Gangadhar Thorat
and Ors. 2011 (5) MhLJ 245, the Hon’ble Bombay High Court
(Aurangabad bench) has held that the court fees Act shall have to
be strictly construed. The legislation in its wisdom has made
payable the court fees only on probate or letter of administration and
not on application by virtue of Section 29 and Clause 10 of
Schedule I. Interpreting it in any other manner would be negating
the said provision itself. The language of Section 29 and Clause 10
of Scheduled I of the Act of 1959 are unambiguous and do not admit
of any other interpretation. The Court Fees Act will have to be
strictly construed, unless and until the Court comes to the
conclusion that an order entitling the Petitioner to the grant of
probate is to be made till such time the Petitioner is not required to
pay the Court fees.

Succession Certificate :
26. Sections 370 to 390 of Part X of the Indian Succession Act,
1925 (ISA) deal with Succession Certificate. Apart from the above
said provisions, Chapter XIV of Civil Manual Para 304 to 319 deals
with the procedural aspect of such applications.

Succession Certificate-Meaning :
 .11.

27. Succession includes both intestate and testamentary

succession. Succession is the process by which one person
succeeds another in the occupation or possession of any estate or
the like. Succession Certificate entitles the holder to collect the
debts of the deceased or obtain rights to his shares and securities.
A Succession Certificate gives authority to the person who obtains
it, to represent the deceased for the purpose of collecting debts and
securities due to him or payable in his name. A Succession
Certificate is a document issued by a competent court (Civil Court)
certifying the rightful person/s to be the successor/s of a deceased
person. This certificate authorizes successor/s to realize debts and
securities of the deceased.

Jurisdiction :
28. As per Section 371 of Indian Succession Act, 1889, the
ordinary jurisdiction is conferred on the District Court in whose
jurisdiction any part of the property of deceased is found or where
the deceased last place of residence. As per Section 373 of Indian
Succession Act, 1889 the procedure for grant of Succession
Certificate is summary.

29. Requisition of Security from Grantee of Certificate

(Section 375) :
(1) The District Judge shall in any case in which he proposes
to proceed under sub-section (3) or sub-section (4) of
Section 373, and may, in any other case, require, as a
condition precedent while granting a certificate, that the
person to whom he proposes to make the grant shall give to
the Judge a bond with one more surety or sureties, or other
sufficient security, for rendering an account of debts and
securities received by him and for indemnity of persons who
may be entitled to the whole or any part of those debts and
securities. (2) The Judge may, on application made by
petitioner and on cause shown to his satisfaction, and upon
such terms as to security, or providing that the money
received be paid into Court, or otherwise, as he thinks fit,
assign the bond or other security to some proper person,
and that person shall thereupon be entitled to sue thereon in
 .12.

his own name as if it had been originally given to him and to

recover, as trustee for all persons interested, such amount
as may be recoverable thereunder.

30. Extension of Certificate (Section 376) :

(1) A District Judge may, on the application of the holder of a
succession 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. (2) 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 purposes
mentioned in section 375 may be required, in the same
manner as upon the original grant of a certificate.

Forms of Certificate and Extended Certificate :

31. The certificates shall be granted and extensions of certificate
shall be made, as nearly as circumstances admit, in the Forms set
forth in Schedule VIII. Where a District Judge has not conferred on
the holder of a certificate any power with respect to a security
specified in the certificate, or has only empowered him to receive
interest or dividends on, or to negotiate or transfer, the security, the
Judge may, on application made by petition and on cause shown to
his satisfaction, amend the certificate by conferring any of the
powers mentioned in section 374 or by substituting anyone for any
other of those powers.

Effect of Certificate (Section 381) :

32. Succession certificate shall, with respect to the debts and
securities specified therein, be conclusive as against the persons
owing such debts or liable on such securities, and shall,
notwithstanding any contravention of section 370, or other defect,
afford full indemnity to all such persons as regards all payments
made, or dealings had, in good faith in respect of such debts or
securities to or with the person to whom the certificate was granted.
 .13.

Effect of decision under this Act, and Liability of Holder of

Certificate thereunder :
33. No decision upon any question of right between any parties
to certificate proceedings shall be held to bar the trial of the same
question in any suit or in any other proceeding between the same
parties, and nothing in this Part shall be construed to affect the
liability of any person who may receive the whole or any part of any
debt or security, or any interest or dividend on any security, to
account therefor to the person lawfully entitled thereto.

Revocation of Succession Certificate :

34. A certificate granted under this Part may be revoked for any
of the following causes, namely:- (a) that the proceedings to obtain
the certificate were defective in substance; (b) that the certificate
was obtained fraudulently by the making of a false suggestion, or by
the concealment from the Court of something material to the case;
(c) that 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; (d) that the certificate has become useless and
inoperative through circumstances; (e) that a decree or order made
by a competent Court in a suit or other proceeding with respect to
effects comprising debts or securities specified in the certificate
renders it proper that the certificate should be revoked.
35. Where a succession certificate has been superseded or is
invalid by reason of the certificate having been revoked, all
payments made or dealings had, as regards debts and securities
specified in the superseded or invalid certificate, to or with the
holder of that certificate in ignorance of its invalidity, shall be held
good against claims under any other certificate.

Heirship Certificate :
36. Heirship Certificates are issued under the Bombay
Regulation VIII of 1827. Civil manual Chapter XIV provides for
detailed procedure for the same.
 .14.

37. The legal position with regard to grant of heirship certificate

is made clear by the Hon’ble Bombay High Court in Ganapati
Vinayak Achwal Vs. Nil, Reported in [2014 (6) Mh.L.J.683]. It was
held, “An heirship certificate does not bestow the status of an heir
upon a person. Grant of such a certificate is only a formal
recognition of his existing status as an heir. An heir or executor or
legal administrator, by his such status, can assume management of
the property of the deceased even without a formal recognition by
the Court”.
38. A person may obtain heirship certificate in any of the three
situations i.e.
if he so desires
(i) where his right as an heir is disputed, and

(ii) in order to give confidence to the persons in possession of or

indebted to the estate and to deal with them.
Hence, grant of heirship certificate is solely, for the convenience of
the heir. Beyond that, it is of no significance. The heirship certificate
is applicable for both movable as well as immovable property of the
deceased person. The person being recognized as heir may
assume the management, or sue for the recovery, of the movable or
immovable property in conformity with the law of usage applicable to
the disposal of the said property.

Object Scope of the Certificate :

39. Rule 7 of the Bombay Regulation VIII 1827 speaks about
use of the certificate and power of the holder of the certificate. As
per said Rule an heir, executor or administrator, holding the proper
certificate, may do all acts and grant all deeds competent to legal
heirs, executors or administrators and may sue and obtain judgment
in any court in that capacity.
40. The scope of the inquiry is limited to ascertain the claim of
heirship of the applicant. The Court is not required to determine title
of the deceased or the person claiming heirship certificate to any
 .15.

property. The Court is only required to consider whether the person

claiming heirship certificate is the heir of the deceased.

Jurisdiction :
41. As per para 304 to 315 of the Chapter XIV Of Civil Manual,
Civil Judge Senior division has been vested with all powers of
“District Judge” to take cognizance in contested proceeding under
Succession Act, which may be transferred by the District Judge. The
Hon’ble High Court has appointed all the Civil Judges to act for the
District Judge as delegates to grant such certificates.

Procedure of Contested and Uncontested Applications :

42. Rule 3 of the Bombay Regulation VIII of 1827 lays down the
procedure for uncontested application for Heirship Certificate. Rule
3 provides that if at the the expiration of the time mentioned in the
proclamation, no sufficient objection has been made, the Court shall
forthwith receive such proof as may be offered of the right of the
person making the claim, and, if satisfied, shall grant a certificate in
the form contained in Appendix B, declaring him the recognized heir,
executor or administrator of the deceased.
43. Rule 4 of the Bombay Regulation VIII of 1827 lays down the
procedure for a contested application for Heirship Certificate. As per
this Rule 107 if, before the expiration of the time, any objection is
made by any person. Court is required to 'investigate summarily' the
grounds of the objections. The court has to evaluate the grounds of
the objections of the objector and the right claimed by the applicant.
In determining the same, court should examine the witness and take
other evidence as may be adduced by the parties. After examination
of evidence brought on record, the court may proceed to either grant
or refuse a certificate.
44. But if from the evidence adduced, it appears that the
question in issue between the parties is of a complicated or difficult
nature, the Court may suspend the proceedings in the application
for Certificate until the question has been tried by a Regular Suit
instituted by one of the parties.
 .16.

45. The Civil Judge Junior Division has powers to deal with
contested application for heirship certificate.
As per Section 291 of the Indian Succession Act, before
granting letters of administration, security must be taken. It also
provides for appending the note as above to the certificate. These
provisions also provide for charging of stamp duty and for supply of
forms and further procedure after appointing an administrator.
46. In the case of Olympia Monica D’souza and ors. V/s. Mr.
Arun Keshav Joshi (Writ Petition No.303/2013), the Hon’ble High
Court has held:-
“It was necessary for the learned Trial Judge to decide
the objections raised by the respondents on merits in view of
Chapter1, Rule (4) of the Bombay Regulations VIII of 1827.
Rule (4) requires the Court before whom the application for
heirship certificate is pending to decide the objections raised
by any third party thereto and decide the same. The learned
Trial Judge, instead of deciding the objections, resorted to
para 233 of the Civil Manual for transferring the proceedings
from his Court. Thereafter, the District Court has transferred
the proceedings to the Court of Civil Judge, Senior Division.
The petitioin is, therefore, allowed and the rule is made
absolute in terms of prayer clause (a). The Court of Civil
Judge Junior Division, Jalgaon is directed to decide the
objections raised by the respondents to the application filed
by the petitioners, as required by Chapter I, Rule (4) of the
Bombay Regulations VIII of 1827”.

Revocation of Certificate of Heirship Certificate :

47. As per section 390 of Indian Succession Act, 1889
provisions under Section 383 of Indian Succession Act are made
applicable to certificates granted under the Bombay Regulation VIII
of 1827. Therefore, the certificate granted under Rule 2 of Bombay
Regulation can be revoked on the causes mentioned in Section 383
of Indian Succession Act, 1889.

Appeal :
 .17.

48. The provision of Sections 388 and 384 of Indian Succession

Act are applicable to Heirship Certificate also. The provisions of
Section 384 of the Indian Succession Act, 1925 pertains to filing of
appeals, which reads as under :-
(1) Subject to the other provisions of this Part, an appeal
shall lie to the High Court from an order of a District Judge,
granting, refusing or revoking a certificate under this Part,
and the High Court may, if it thinks fit, by its order on the
appeal, declare the person to whom the certificate should be
granted and direct the District Judge, on application being
made therefor, to grant it accordingly, in supersession of the
certificate, if any, already granted.
(2) An appeal under Sub-section (1) must be preferred
with the time allowed for an appeal under the Code of Civil
Procedure, 1908 (5 of 1908).
(3) Subject to the provisions of sub-section (1) and to the
provisions as to reference to and revision by the High Court
as to review of Judgment of the Code of Civil Procedure,
1908 (5 of 1908), as applied by Section 141 of that Code, an
order of a District Judge under this Part shall be final.

49. In Vithal Ramchandra Mali V/s Smt. Laxmi Ganpati Mali

& another, 2006 (4) ALL MR 389, order of grant of succession
certificate u/sec. 372 of the Indian Succession Act, 1925 was under
challenge. The question to be decided in the appeal was whether
appeal u/sec. 384 of the said Act of 1925 against the decision of the
learned Civil Judge, Senior Division will lie to the High Court or to
the District Court. In the said matter, the Hon’ble Bombay High
Court held that appeals against the judgments and orders will lie to
the District Judge, irrespective of value of subject matter of
application for succession certificate.

50. In the case of Smt. Nola Jonathan Ranbhise Vs/ The

Union of India, 2014 (4) ALL MR 181, The Hon’ble Bombay High
Court, Division Bench has held that sub sections 2 and 3 of the
section 28-A of the Bombay Civil Courts Act, 1869 are inconsistent
 .18.

with and repugnant to section 299 of the Indian Succession Act,

1925 and the same accordingly stand impliedly repealed. It is
further held that every order made by a District Judge under the
Indian Succession Act, 1925 or every order made by a Civil Judge
invested with the powers of District Judge or a District Court, as the
case may be, under the Indian Succession Act, 1925 in terms of
sub-section (1) of section 28A of the Bombay Civil Courts Act, 1869,
shall be subject to appeal to the High Court in accordance with the
provisions of the Code of Civil Procedure, 1908 applicable to
appeals, irrespective of whether the amount or value of the subject
matter exceeds or does not exceed ten lakh rupees.
 .19.

Difference between Succession Certificate and Heirship

Certificate

Sr.No. Succession certificate Heirship certificate

Provision

1 Sections 370 to 390 of Part X Bombay Regulation

of Indian Succession Act, VIII of 1827 deals
1925 deal with Succession with the Heirship
Certificate Certificate. Provisions
of Part X of the Indian
Succession Act are
also applicable.

Nature of Property

2 Certain movable property i.e. Both movable and

debts and securities immovable
properties.
Property is not
required

Right under Certificate

3 It gives right to the holder of It is a formal

certificate to recover the debt recognition of person
to negotiate or transfer the as heir. No right is
property. created.

Who can apply

4 Under section 372 of the In case of Heirship

Indian Succession Act, it is Certificate only an
open to any person to apply heir, executor or
for the certificate though administrator
ordinarily an heir of deceased desirous to have his
is expected to apply for the right formally
same. recognized, can apply
certificate for the
same.
 .20.

Special Notice

5 As per Sec. 373 (1)(a), the No such special

Court shall cause a special notice is required to
notice of the application to be be issued in case of
served on any person to Heirship Certificate
whom, in the opinion of the and a proclamation is
Judge, it should be given. issued in the form
contained in
Appendix A, inviting
all persons who
dispute the right of
the applicant to
appear in Court and
enter their objections.

Proceeding

6 In case of intricate question In case of intricate

arising in the proceeding the question arising in the
court to grant certificate to a proceeding the court
person who prima-facie shall suspend the
appears to be entitled and proceeding till the
direct the party to get the right right of decided by
decided by competent court. the competent court.

Conclusion :
51. The law is not oblivious of the difficulties suffered by
legal heirs and representatives of deceased, and has thus provided
for various modes of summary determination of representation of
estate and its administration. The life after death in material world is
thus sought to be less hassle free.

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