This article was written by Siddharth Bansal student of Guru Gobind Singh Indraprastha University
Being a multicultural and diversified country, India is not only depicting a nation of masses but also enshrines a number of practical laws abiding structure with trustworthy and reliant banner of hearing the problem of each and every sector so living in India.
Where exists diversity, there exists property and conflict rising situations. To handle and analyze every aspect from the core in order to provide just and fair decision it was essential to formulate a legal procedure to resolve the conflict between the parties.
It has been observed from times that in India, family disputes are prevalent on the matter of property ownership and its acquirement by unfair means. Studies revealed that a little spark leads to even the cases of murders and conspiracy among domestic, professional and social setup just in the name of property. Feeling the urgent need to put a stop on the blot Indian Succession Act came into a picture in the year 1925.
The act abides the deceased or the applicant legal acquirement of property in specific share according to proper procedure in black and white in reliability, validity and objectivity concerns. It covers the succession on both fair and unfair grounds. In fair cases, a neat and clean chit is produced in proceedings whereas in unfair forfeited property grounds, various sections and penalty suffrage are imposed in consolidation.
State government, over and above the central government holds an authority at basic platform to judge the validity of an applicant for succession through various procedures. In a country like India different culture and socially given identity is taken care of and so do the state government while succession and foreseeing a certificate. A person may be of any religion, caste, creed, sex, tribe or sector, etc. but a full-fledged structure is given before hand to the state government for initiating the procedure. They take into concern mainly sections 5-45, 58, 191, 212, 213, 215-369 of the Succession Act to render a certificate at large.
The state government not only initiates a succession process but can also revoke the application in the cases of forged documents or using any sort of unfair means at any stage.
Although, here it is crucial to give light to the fact that some people are exempted from various sections of the above stated act, however they come under the category of ‘exempted persons’. Exemption does not mean exclusion at par; rather certain specific sections are in practice in regard to such cases.
Same act got amended in the year 2005 overcoming certain drawbacks as The Hindu Succession (amendment) act, 2005. With effect from the predestined date, central government issued a notice in official gazette in this regard issuing the major changes and amendments so done for officials as well as general public. The major focus was relied upon Hindu family domain as the creed was in majority and was having grave number of issues rising out of male dominance over females at that time calling for urgent help with full cry.
Section 6 of the basic act got amended as devolution of interest in coparcener’s property.
Under the province of joint Hindu family, the daughter of a coparcener shall deem to:
- A certain share in the property whether movable or immovable in the same regard as shared by the son.
- To exercise the same rights over the property succession if she would be a son.
- Liable for holding concerned debts and liabilities in regard to coparcener’s property as the son would be liable. However, any event depicting a partition or testamentary succession before 20th December, 2004 shall not be taken into account a valid share of daughter.
As far as the procedure of succession in accordance to the act is concerned, the following sections would clarify the procedural proceedings.
Section 371: Court having procedural jurisdiction to grant certificate for succession.
The deceased residing at certain place from time, or a place where he dies, at that time the associated have a legal approach to the district judge in jurisdiction within the pursuit of that territorial extent at that time. The district judge shall look out for legal formalities and can render a certificate to the deceased.
On the contrary, residential proof is quite vital for initiating the procedure; therefore people withholding any sort of proof may face difficulty.
Section 372: Application for certificate.
- As per the code of civil procedure, 1908, a petition duly signed and verified can be presented before the district judge for initiating the succession procedure and granting a certificate within the enclosures of valid and materialistic proofs in black and white, provided original or duly attested, listing:
- Death certificate of the deceased.
- En enclosure of certain rights being claimed in proper format.
- Residential proofs of relatives so concerned or neighbors for verification purposes.
- Residential proof of the deceased at the time of the death to approach a concern jurisdicted district judge.
- The detailed layout of debt and liabilities over the succession claimed for.
- The validity enclosure under section 370 to ensure fair proceedings and just successions.
- If the application found false, forged, cons pirated or using unfair means, then the applicant or the practitioner shall be imposed an offensive deed under section 198 of Indian Penal Code.
Section 373: Procedure on application.
- Once the enclosures are verified properly, the district judge holds account to pass on the application on next level and grant a fixed date to the applicant and its relatives for hearing. On the day of hearing, all the perspectives of the applicant and deceased are taken into account before the judge and in accordance with the decision of supreme power the process of granted is imposed to next platform of succession.
- The judge after possessing a complete legal procedure false free and true, being satisfied presents an order to grant a certificate.
- In any case the judge fails to satisfy himself in any regard or fall short of any legal formality; no judge shall pass an order to grant a certificate in the vacuum of jurisdiction on fair grounds.
- Sometimes more than one applicant comes in a picture to claim the same property or succession of the deceased. In such cases the judge shall conduct formulated hearings in prescribed legal proceedings and shall grant a certificate to the party possessing valid, relevant and true medium and interests of application.
The procedure above stated presented a clear picture of how to apply and get a certificate within the pursuit of legal framework. But the question arises how to avail such a procedure. The question is still unheard and craving for answer loud and clear. The masses are fighting over the property disputes at present, reason being they are not aware of the formulated structure. They need to be aware at first; secondly the main hindrance in the succession is about going through the complicated enclosures and documented work.
The whole procedure is decentralized in three stages which is making it more vulnerable to false meetings and pending cases. If the district judge would present the date of hearing at the time of verification of enclosures only, the situation would be different and less burdensome.
Repetitive actions should be minimized and a concrete structure is needed at present to give succession procedure a successful benchmark.
In the conclusion, it would be worthy stating that property, movable or immovable, if remains unclaimed get forfeited by the government after a legally set tenure of waiting for any application to arise. Although the detailed study presents the fact that in spite of having a proper framework only few cases are heard in virtual and fair manner and numbers of cases are still just moving to and fro from court to property and property to court.