Source: Gujarat High Court

Why in News?

Recently, the Gujarat High Court in the matter of Umaben Jayantbhai Shah D/O Late Ramanlal N. Shah v. NA, held that the alternate place of jurisdiction under Section 371 of the Indian Succession Act, 1925 (ISA) can be invoked only if the petitioner demonstrates that the deceased had no permanent place of residence.

Background

• In this case, the petitioner preferred an application under section 371 of ISA seeking relief to issue succession certification in the name of the petitioner for different immovable securities.
• The Civil Court returned the plaint for filing the same before the Court having jurisdiction to grant succession certificate.
• Being aggrieved and dissatisfied with the order of the Civil Court, the petitioner filed this petition before the Gujarat HC.
• The HC noted that the petitioner failed to address the crucial issue of determining the ordinary residence of the deceased individuals at the time of their death. And so, no averments were made to that extent.
• The HC dismissed the petition.

Court’s observations

• Justice JC Doshi observed that Section 371 of the ISA stipulates two modes of determining territorial jurisdiction of courts for grant of succession certificate, the second mode is only an alternative which can be invoked if the petitioner demonstrates that the deceased had no permanent place of residence.
• The Court further observed that in order to invoke the second part of Section 371 and approach the Court within whose jurisdiction any part of the property is situated, the party moving the Court must show that the first part of the provision cannot be invoked since deceased had no permanent place of residence.

Legal Provisions

• Indian Succession Act, 1925
  • The Act came into force on 30^th September 1925, and it contains provisions relating to intestate and testamentary succession.
• Section 371, ISA
  • This Section states that the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate.
  • First part of this Section provides that application for succession certificate is maintainable within whose jurisdiction deceased ordinarily resided at the time of his death. That jurisdictional Court is authorized to grant succession certificate.
  • The second part of this Section spells that if the deceased had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, is competent to grant succession certificate.
  • In the Rameshwari Devi v. Raj Pali Shah (1988) case, the Allahabad HC held that a reading of Section 371 shows that it is only in those cases in which the deceased at the time of his death had no fixed place of residence that recourse to the second part of the section could be taken.