CHAPTER XIV PROCEEDINGS UNDER THE INDIAN SUCCESSION ACT, 1925 AND BOMBAY REGULATION VII OF 1827.

Transcription

1 CHAPTER XIV PROCEEDINGS UNDER THE INDIAN SUCCESSION ACT, 1925 AND BOMBAY REGULATION VII OF Attention is invited to Government Notification No. 5861, dated the 25 th October 1890, issued under section 26(1) of the Succession Certificate Act (VII of 1889), and printed at page 1259 of the Bombay Local Rules and Orders under Central Acts, Volume I, 1953 edition, under which all Civil Judges in this State have for the purpose of the said Act been invested with the function of a District Court. The Notification has also the effect of investing Civil Judges with the power to hear applications made under section 2 of Bombay Regulation, VIII of Although the Succession Certificate Act, 1889, has been repealed, the Notification dated 25 th October 1890, remains in force by virtue of section 24 of the General Clauses Act, Applications under section 2 of Regulation VIII of 1827 can be entertained by Civil Judges directly or when transferred to them by the District Judges (i) Under section 265 of the Indian Succession Act, 1925, the High Court has appointed all Civil Judges to act for the District Judge as delegates to grant probate and letters of administration in non contentious cases arising within the local limits of their respective jurisdiction. (ii) In exercise of the powers conferred by section 28 A(1) of the Bombay Civil Courts Act (XIV of 1869), the High Court has invested all Civil Judges (Senior Division), with all the powers of a District Judge to take cognizance of any contested proceeding under Indian Succession Act, 1925, arising within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges. (iii) In exercise of the powers conferred by section 28 A(1) of the Bombay Civil Court Act, (XIV of 1869), the High Court has invested all Civil Judges (Junior Division) with all the powers of a District Judge in the matter of issuing Succession Certificate limited to debts and securities to the extent of their pecuniary jurisdiction.

2 306. The attention of all Judges is invited to the provisions of section 291 of the Indian Succession Act, The Judges should always take security before granting letters of administration so that any failure to comply with the requirements of that section may not lead to unfortunate results. In every application for the grant of limited letters of administration duranteminor hatante, the applicant should state the minor's age. Such a statement shall be verified by an affidavit The stamp duty for certificates issued under the Indian Succession Act, 1925, should be levied on the market value of the properties and not on the face value. Before issuing the certificate, the Judge should ascertain what the market value of the properties is and recover the duty on such value. He should for this purpose insist on a affidavit and make such other enquiry as may be necessary. The certificates should be issued in the form set forth in Schedule VIII of the Act. The last column of the form should be correctly filled in Probate Duty should always be taken in the form of Court Fee Stamps. The Courts should not under any circumstances accept cash in payment of such duty Before passing an order for the grant of Letters of Administration, probates and the like, the Judge should, when necessary, require the production of the certificate of the Controller of Estate Duty, as required by section 56 of the Estate Duty Act, Certain forms which have been drawn up for use under the Indian Succession Act, XXXIX of 1925, are given at pages 97 and 98 of Volume II of the Civil Manual Notwithstanding any provisions to the contrary in Bombay Regulation VIII of 1827, certain provisions of Part X of the Indian Succession Act, 1925, are, by section 390 of that Act, made applicable to applications for certificates and certificates granted under the said Regulation The following note should be appended to certificates given under Bombay Regulation No. VIII of 1827 : The person, to whom this certificate is granted, or his representative, is required, within six months from the date of this certificate, or within such further time as the Court may from time to time appoint, to exhibit in Cort a full and true inventory of all

3 the property and credits in his possession under this certificate, and also, within one year from the same date or within such further time as the Court may from time to time appoint, to render to the Court a true account of the said property and credits, showing the assets which have come to his hands and the manner in which they have been applied or disposed of The following form may be used for an order to a person to whom a certificate has been granted or to his representative, to render accounts, etc : Application No. of in the District Court of residing at Taluka District is hereby informed that whereas a certificate under Bombay Regulation VIII of 1827 has been granted to you by this Court on 19 on your said application No. of 19 and whereas you have not exhibited in Court within the prescribed periods a full and true inventory of all the property and credits in our possession or a true account of the said property and credits showing the assets, which have been applied or disposed of, as required by the foot note appended to the said certificate, you are hereby required to produce the said inventory and true account in this Court on 19. If you fail to do this, you will be liable to punishment under section 176 of the Indian Penal Code, in accordance with sections 317 and 390 of the Indian Succession Act, XXXIX of Dated. District Judge. Civil When an administrator is appointed under section 10 of Regulation VIII of 1827, a proclamation in the Form contained in Appendix C of the said Regulation shall be prepared by the Nazir and issued under the signature and seal of the Judge Whenever an administrator is appointed under the aforesaid section 10, he shall, before entering upon the execution of his office, give security in a sum to be fixed by the Judge for the faithfully discharge of his trust as an administrator The Nazir, or any other person who is appointed an administrator of intestate property under Regulation VIII of 1827 shall receive no remuneration either until the estate is made over to a claimant under clause (3) or until it is sold and the proceeds are

4 deposited in the Public Treasury under clause (4) of section 10 of the said Regulation. When he parts with the custody of the intestate property in either of these ways, he may be allowed by the judge a fee not exceeding 5 per cent on the value of the property which he gives up, subject to the modification of the High Court on the complaint of any person interest. Provided that the District Judge may in his discretion and subject of the previous sanction of the High Court allow remuneration to an administrator who has been in charge of the estate for several years and who is required to retire before the proceedings are terminated Whenever any Magistrate is of opinion that property of intestates without known heirs should be sent to the District Court, he should report direct to the Judge, in the Form prescribed below in this Chapter, who, in the event of his concurring with the Magistrate, will order the Nazir at once to take possession, or, in the event of his differing, will direct the property to be returned, or left with the party having original possession. [See also section 84, Bombay Police Act, 1951 (Bombay Act XXII of 1951)] all expenses attendant on the issue of a proclamation regarding intestate property under Regulation VIII of 1827, section 10, shall be paid out of the estate of the intestate An annual return of property of persons dying intestate and without known heirs should be sent to the High Court in the form prescribed on page 265 of Chapter XXXVIII on Returns and printed at page 64 in appendix H of Volume II. From of report referred to in paragraph 337 above. No. of 19. From The Magistrate, To, The District Judge, Camp

5 Date Sir, I have received a report from Full name under section 83 of the Bombay Act XXII of section 19 of the Bombay Village Police Act, 1867 Age That the persons specified in the margin has died in Religion Town in Taluka leaving property as per Last address. Schedule hereto annexed (Appendix A). [Extract of Para. (2) of form of report referred to in Paragraph 337 above.] (2) It appears to me that the deceased has died intestate and without known heirs, and that the property is likely, if sold by public auction, to realise more than 400 Rupees net proceeds. I have, therefore, the honour, under section 84 of the Bombay Police Act, 1951 (Bombay Act, XXII of 1951), to request that you will take steps to deal with the property under the provision of section 10 of Regulation VIII of Schedule of Intestate Property. 1. Property dealt with under section 85 of the Bombay Police Act, 1951 (Bombay Act, XXII of 1951). (3) the information given in the papers before me regarding the deceased and the persons who may persons who may presumably be interest in the property, is summarized below. (4) I recommend that the usual proclamation may be posted at the following places, namely. Yours faithfully,

6 APPENDIX A TO LETTER No. DATED Schedule of intestate Property 1. Property dealt with under section 85 of Bombay Police Act XXII of 1951 : Description of property Value Date of 1. Live stock (Particulars) 2. Other property (particulars) realised Total : Sale 2. Property not dealt with under section 85 of the said Act : Other property. Cash Item Description Estimated value Remarks