MANSHA RAM MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) A. N. Varma, J. One Prem Chandra Mishra was employed with the opposite parties as a clerk. He died in harness on 6th April, 2007. The father of the deceased, Mansha Ram Mishra has approached this Court through the present petition praying for a direction to the opposite parties to clear the entire dues of his deceased son and the same be paid to him. It has further been prayed that a direction be also issued restraining the opposite parties from insisting for succession certificate for making payment of the dues of the deceased.

(2.) SHRI H. S. Jain, learned counsel for the petitioner argued that the department has absolutely no right to insist upon the production of the succession certificate for the purposes of payment of dues, as the petitioner being the father of the deceased and sole legal heir under Section 8 of the Hindu Succession Act is entitled to receive all the dues of his son. He further submitted that the petitioner should not be forced to the cumbersome procedure prescribed for obtaining a succession certificate by approaching the competent court of civil jurisdiction. He further argued that there is no rule in the department, where a legal heir can be deprived of the dues, which accrue to him, consequent upon the death of the member of the family.

(3.) SECTIONS 372, 373 and 374 of the Indian Succession Act read as follows : " 372. Court having jurisdiction to grant certificate.- (1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908), for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely : (a) the time of the death of the deceased ; (b) the ordinary residence of the deceased at the time of his death and if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made then the property of the deceased within those limits ; (c) the family or other near relatives cf the deceased and their respective residence ; (d) the right in which the petitioner claims ; (e) the absence of any impleadment under Section 370 or under any other provisions of this Act or any other enactment to the grant of the certificate or to the validity thereof if it were granted ; and (f) the debts and securities in respect of which the certificate is applied for. (2) If the petition contains any averment which the person verifying it knows or believes to be false or does not believe to be true that person shall be deemed to have committed an offence under Section 108 of the Indian Penal Code (45 of 1860 ). (3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof. 373. Procedure on application.- (1) If the District Judge is satisfied that there is ground for entering the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing- (a) to be served on any person to whom in the opinion of the Judge special notice of the application should be given ; and (b) to be pasted on some conspicuous part of the court-house and published in such manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit and upon the day fixed, or as soon thereafter as may be practicable shall proceed to decide in a summary manner the right to the certificate. (2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him. (3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determining in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. (4) When there are more applications than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants. 374. Contents of certificate.- When the District Judge grants a certificate he shall therein specify the debts and securities set forth in the application for the certificate, and may thereby empower the person to whom the certificate, is granted- (a) to receive interest or dividends on, or (b) to negotiate or transfer, or (c) both to receive interest or dividends on, and to negotiate or transfer the securities or any of them. "