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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 21ST DAY OF OCTOBER, 2019

PRESENT

THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA

AND

THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

M.F.A. NO.2079 OF 2019 (ISA) BETWEEN:

K S NATRAJ S/O LATE K M SOMASHEKAR

AGED ABOUT 74 YEARS RESIDENT OF NO.M-10

TOWNSEND, AVALAHALLI DODABALLAPUR ROAD BENGALURU-560064 ... APPELLANT

(BY SRI.S. VIVEKANANDA, ADVOCATE)

AND:

NIL ... RESPONDENT

*****

THIS APPEAL IS FILED UNDER SECTION 384 OF THE INDIAN SUCCESSION ACT, AGAINST THE ORDER DATED

10/01/2019 PASSED IN P & SC NO.209 OF 2018, ON THE FILE OF THE X ADDITIONAL CITY CIVIL & SESSIONS JUDGE,

BENGALURU (CCH-26), DISMISSING THE PETITION FILED UNDER SECTION 372 OF INDIAN SUCCESSION ACT, 1925.

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, SURAJ GOVINDARAJ. J., DELIVERED THE FOLLOWING:

®

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JUDGMENT

1. The appellant had filed the proceeding under Section

372 of the Indian Succession Act, 1925 (hereinafter

referred to as the ‘Succession Act’ for the sake of

brevity) for issuance of a Succession Certificate

which came to be numbered as P&SC No.209/2018.

The said P&SC No.209/2018 came to be dismissed

by X Addl. City Civil and Sessions Judge, Bengaluru,

by way of its order dated 10.01.2019. Being

aggrieved, this appeal has been preferred.

2. The appellant has stated that he is the son of late

Sri. K.M.Somashekar, who was holding equity shares

in M/s Titan Watches Limited (now Titan Company

Limited), as also several movable and immovable

properties.

3. Late K.M.Somashekar was married to Smt.

Deviramma and they had two sons and a daughter

(including the appellant). Late K.M.Somashekar

expired in the year 1998, Smt. Deviramma also

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expired subsequently. He states that his sister and

daughter of late K.M.Somshekar, Smt.Bhagya had

predeceased her father leaving behind two sons. He

has further stated that late K.M.Somashekar did not

leave behind any Will. After his death, his widow,

two sons and two sons of deceased daughter

together partitioned his assets under a registered

partition deed dated 7.11.2002.

4. As per the registered partition deed dated

7.11.2002, K.S.Prakash, youngest son of late

K.M.Somashekar was allotted immovable property

and the shares were allotted to the appellant.

5. In pursuance of the said partition deed, the

Appellant had requested the Registrar of M/s Titan

Company Limited to transfer the shares into his

name on 26.10.2017. When the said Authority

insisted on the petitioner obtaining a Succession

Certificate, appellant had issued a legal notice on

2.05.2018 once again calling upon the Registrar to

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transfer the shares. Registrar again reiterated his

stand requesting the appellant to obtain a

Succession Certificate. Hence, the appellant filed

P&SC No.209/2018 seeking for a Succession

Certificate.

6. Following the procedure, after filing such a petition,

the trial Court directed the appellant to take out a

paper publication which was published on

21.06.2018 calling upon the general public to submit

objections, if any, to the grant of Succession

Certificate in favour of the appellant. Though the

said publication was taken, none appeared nor were

objections received to such grant.

7. Appellant examined himself as PW-1 and got Exs.P1

to P11 marked and thereafter, when the matter was

posted for arguments, addressed his arguments and

also filed written submissions.

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8. The trial Court framed the following points for its

determination based on the evidence on record and

arguments:

i) Whether Succession Certificate can be

issued in favour of the petitioner?

ii) What order?

9. The trial Court answered in the negative to the first

point on the ground that the signatories to the

partition deed were not made parties to the petition,

the trial Court also observed that it was not known

whether those signatories were alive or dead and if

dead, then, participation of their legal heirs would be

necessary to avoid multiplicity of proceedings. The

trial Court also observed that the appellant had failed

to examine any of the attesting witnesses to the

partition deed or other parties to it, so as to prove

the execution thereof. While observing that the

partition deed was to be proved, the trial court held

that it is not possible to hold that the petitioner alone

was entitled for the Succession Certificate so as to

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claim rights over the movable shares. The trial court

further observed that merely because notice was

taken through paper publication and none appeared

would not mean that nobody is having an interest in

the litigation.

10. On the above grounds, the trial court was of the

opinion that the petition was not maintainable and

hence, answered point No.1 in the negative and

therefore, dismissed the petition filed by the

appellant under Section 372 of the Act vide order

dated 10.01.2019.

11. Aggrieved by this Order dated 10.01.2019 passed in

P&SC No.209/2018, the appellant has filed the

present appeal impugning the said order by stating

that the trial court has not taken into consideration

the facts and materials placed on record; that the

trial Court has erred in holding that other legal heirs

are to be made parties to the petition; that there

was no requirement to examine any attesting

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witnesses to prove the execution of a registered

partition deed; law does not contemplate

examination of attesting witnesses to such a

document; it only contemplates such examination in

respect of compulsorily attestable documents; that

the trial Court failed to take note of the fact that a

paper publication inviting objections was published,

however, none objected. If at all anyone had any

objections, they would have appeared. There was no

need to serve notices on individual family members,

especially when they do not have any right over the

shares and hence, on the basis of the said

statements made in the appeal memorandum which

were reiterated during the course of arguments, the

appellant has sought for setting aside the order

dated 10.01.2019 passed in P&SC No.209/2018 by

the trial Court and consequently, he has submitted

that the petition as filed by the appellant has to be

allowed and Succession Certificate has to be granted

in his favour.

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12. As aforesaid stated, since the proceedings are for

grant of Succession Certificate, there are no

respondents in the proceedings before the trial Court

or before this Court. Public notice inviting

objections, if any, had already been published,

despite which there was no objection which was

received by the trial Court.

13. We have, therefore, heard learned counsel for the

Appellant and on the basis of the averments made in

the appeal memorandum and submissions made

during arguments, the points that arise for

determination by this Court are:

i) Whether it is necessary to examine

the parties to a registered partition

deed in a proceeding for grant of

Succession Certificate?

ii) Whether it is necessary to examine

the attesting witnesses to a registered

partition deed in proceedings for grant

of Succession Certificate?

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iii) Whether it is necessary for service of

notices to the parties to a registered

partition deed where the property has

been allocated to the person seeking

for Succession Certificate?

iv) What order?

POINT Nos.1 and 2:

14. Admittedly, the partition deed is a registered

document and is registered with the Registrar of

Assurances and all the requirements for such

registration under the Registration Act have been

complied with.

15. A registered partition deed is a public document

under Section 74 of the Indian Evidence Act, 1872

(‘Evidence Act’ for brevity). There is no requirement

to examine the witnesses to a registered partition

deed in terms of the proviso to Section 68 of the

Evidence Act. When a partition deed is registered

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under the applicable law by following due procedure,

which results in a presumption of its validity.

16. Ex-P11 is a certified copy of the partition deed

produced after obtaining the same in terms of

Section 76 of the Evidence Act. An examination of

the said certified copy of the partition deed indicates

that the said certified copy has been issued in

accordance with law and therefore, in terms of

Section 72 of the Evidence Act, there is a

presumption as to the genuineness of such certified

copies.

17. It was this certified copy of the partition deed which

was produced at Ex.P11, which was relied upon by

the appellant in P&SC No.209/2018, in respect of his

claim for issuance of a Succession Certificate in his

favour as regards the shares allotted to him in the

said deed. The document being registered and a

certified copy having been produced is sufficient

proof of the said document having been executed

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and registered and therefore, the document which

was exhibited ought to have been taken as proved

by the appellant.

18. Coming to the finding of the trial Court that the other

signatories to the partition deed had either to be

examined or an affidavit on their behalf had to be

filed in the proceedings indicating their ‘no objection’

to the issuance of Succession Certificate in the name

of the appellant, in our considered view, no such

requirement is contemplated, more so, when even in

relation to issuance of public notice inviting

objections, none appeared or objected to the

issuance of Succession Certificate. The very purpose

of issuance of public notice in matters relating to

issuance of Succession Certificate is to enable any

one having any objection to submit the same before

the Court seized of the matter. If the fact of no

objections having been filed to the said public notice

is ignored, then, there would be no purpose for

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issuance of public notice itself. Therefore, there is

no requirement either to examine either signatories

to the partition deed or an affidavit on their behalf to

be filed in support of the petition seeking for

issuance of Succession Certificate.

19. At this stage, the purpose of registering a document

under the Registration Act could be discussed. The

purpose of registering a document under the

Registration Act, 1908 (hereinafter for brevity

‘Registration Act’) is as under:

i) To provide information to the general

public and/or a specific person who

may deal with the property as to the

nature and extent of rights which a

person claiming under registered

document may have, affecting that

property;

ii) to enable the general public and/or a

specific person who may deal with the

property to find out whether any

particular property with which they may

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be concerned, is subject to any legal

obligation;

iii) To prevent forgeries and procurement

of transfers by fraud or undue

influence.

20. The most important purpose of registration is to

secure that persons dealing with the property, where

such dealings require registration, may rely upon the

statements contained in the register of the Registrar

of Assurances with confidence that the full and

complete account of all transactions relating to or

affecting the property is covered in such register.

21. The Hon’ble Apex Court in Suraj Lamps And

Industries Private Limited –v- State of

Haryana and Another, reported in AIR 2012 SC

206 has very succinctly captured the purpose of

registration of documents in paragraph 10 which

reads as under:

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“10. In the earlier order dated 15.5.2009, the

objects and benefits of registration were explained and

we extract them for ready reference:

"The Registration Act, 1908, was enacted with the

intention of providing orderliness, discipline and public

notice in regard to transactions relating to immovable

property and protection from fraud and forgery of

documents of transfer. This is achieved by requiring

compulsory registration of certain types of documents

and providing for consequences of non-registration.

Section 17 of the Registration Act clearly provides

that any document (other than testamentary

instruments) which purports or operates to create,

declare, assign, limit or extinguish whether in present or

in future "any right, title or interest" whether vested or

contingent of the value of Rs. 100 and upwards to or in

immovable property.

Section 49 of the said Act provides that no

document required by Section 17 to be registered shall,

affect any immovable property comprised therein or

received as evidence of any transaction affected such

property, unless it has been registered. Registration of a

document gives notice to the world that such a

document has been executed. Registration provides

safety and security to transactions relating to immovable

property, even if the document is lost or destroyed. It

gives publicity and public exposure to documents

thereby preventing forgeries and frauds in regard to

transactions and execution of documents. Registration

provides information to people who may deal with a

property, as to the nature and extent of the rights which

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persons may have, affecting that property. In other

words, it enables people to find out whether any

particular property with which they are concerned, has

been subjected to any legal obligation or liability and

who is or are the person/s presently having right, title,

and interest in the property. It gives solemnity of form

and perpetuate documents which are of legal importance

or relevance by recording them, where people may see

the record and enquire and ascertain what the

particulars are and as far as land is concerned what

obligations exist with regard to them. It ensures that

every person dealing with immovable property can rely

with confidence upon the statements contained in the

registers (maintained under the said Act) as a full and

complete account of all transactions by which the title to

the property may be affected and secure extracts/copies

duly certified."

Registration of documents makes the process of

verification and certification of title easier and simpler. It

reduces disputes and litigations to a large extent.”

22. There is a presumptive value to a registered

document. In that, once a document is registered, it

is presumed that the transaction is genuine and

binding on the parties to the registered document.

In the case of Vimal Chand Ghevarchand Jain &

Ors vs Ramakant Eknath Jajoo, reported in

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(2009)5 SCC 713, it has been held that the

registered deed of sale carries a presumption that

the transaction was a genuine one. If the execution

of a sale deed is proved, onus is on the person

alleging otherwise to prove that the deed was not

executed and it was a sham transaction. Thus, the

burden to prove that it is not genuine lies on the

person who alleges that it is not so.

23. It would also be apposite to refer to the decision of

the Hon’ble Supreme Court in Vishwanath Bapurao

Sabale vs Shalinibai Nagappa Sabale &

Others, (2009) 12 SCC 101 wherein it was held as

under:

“27. There is a presumption that a

registered document is validly executed.

A registered document, therefore, prima

facie would be valid in law. The onus of

proof, thus, would be on a person who

leads evidence to rebut the presumption.

In the instant case, Respondent 1 has

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not been able to rebut the said

presumption.”

24. In view of Section 60 of the Registration Act, the

endorsement made by a Registering Officer of such

document has a presumptive value regarding its

validity in terms of Section 60(2) of Registration Act.

Once a certificate is issued, sealed and dated by the

Registering Officer, such a certified copy would be

admissible in evidence for the purpose of proving

that the document has been duly registered in the

manner provided for by the Registration Act. Such a

registration is prima facie binding on the executants

of the document. There would be no need therefore

to examine the executants unless the execution of

the said document is denied by any one of the

executants.

25. Further Section 3 being the interpretation clause

under the Transfer of Property Act, 1882, defines

‘attested’ as under:

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“Attested”, in relation to an instrument,

means and shall be deemed always to have

meant attested by two or more witnesses each of

whom has seen the executant sign or affix his

mark to the instrument, or has seen some other

person sign the instrument in the presence and by

the direction of the executant, or has received

from the executant a personal acknowledgement

of his signature or mark, or of the signature of

such other person, and each of whom has signed

the instrument in the presence of the executant;

but it shall not be necessary that more than one

of such witnesses shall have been present at the

same time, and no particular form of attestation

shall be necessary;

26. Attestation essentially is bearing witness to the

execution of a document. Popularly when one signs

as a witness to a Will, such a person is called the

‘Attestor’ and when one signs as a witness to any

other document is called a ‘Witness’, though both

Attestor and witness, by whatever name called,

perform the same role of attesting the signature of

the executor to a document.

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27. In Ishwar Dass Jain –v- Sohanlal (dead) by LRs,

reported in AIR 2000 SC 426, the Hon’ble

Supreme Court had an occasion to deal with the

requirement of examining an Attestor where the

document not being a Will, was registered. The

Hon’ble Supreme Court while referring to Section 68

of the Indian Evidence Act 1872 (hereinafter for

brevity ‘Evidence Act’) has held thus:

“POINT 2: We shall first deal with the proof of

the certified copy of the deed of mortgage. So

far as the mortgage deed is concerned, the

plaintiff filed a certified copy and called upon the

defendant to file the original. The defendant

refused to do so. The plaintiff, therefore,

proceeded to file the certified copy as secondary

evidence under sub-clause (a) of Section 65 of

the Evidence Act. This was certainly permissible.

The mortgage is a document required to be

attested by two attestors under Section 59 of

the Transfer of Property Act and in this case it is

attested by two attestors. The mode of proof of

documents required to be attested is contained

in Section 68 to 71 of the Evidence Act.

Under Section 68, if the execution of a

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document required to be attested is to be

proved, it will be necessary to call an attesting

witness, if alive and subject to the process of

Court and is capable of giving evidence. But in

case the document is registered- then except in

the case of a will - it is not necessary to call an

attesting witness, unless the execution has been

specifically denied by the person by whom it

purports to have been executed. This is clear

from Section 68 of the Evidence Act. It reads as

follows:

"Section 68: If a document is required by law

to be attested, it shall not be used as evidence

until one attesting witness atleast has been

called for the purpose of proving its execution, if

there be an attesting witness alive, and subject

to the process of the Court and capable of giving

evidence:

Provided that it shall not be necessary to call

an attesting witness in proof of the execution of

any document, not being a will, which has been

registered in accordance with the provisions of

the Indian Registration Act, 1908, unless its

execution by the person by whom it purports to

have been executed is specifically denied."

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In the present case, though it was stated

in the written statement that there was no

relationship between the parties as mortgagor

and mortgagee, the defendant admitted in his

additional pleas in the same written statement

that the mortgage deed was executed but he

contended that it was executed to circumvent

the Rent Control legislation. In fact, in his

evidence as DW2 the defendant admitted the

execution of the mortgage. It must therefore be

taken that there was no specific denial of

execution. Hence it was not necessary for the

plaintiff to call the attestor into the witness box,

this not being a will. The plaintiff could therefore

not be faulted for not examining any of the

attestors. Hence the mortgage stood proved by

the certified copy. The Courts below were right

in accepting that the deed was proved. Point 2 is

decided in favour of plaintiffs- appellants.”

28. Section 68 of the Evidence Act deals with proof of

execution of document required by law to be

attested. Proviso to Section 68 of the Evidence Act

deals with documents otherwise than a Will. A

perusal of the proviso to Section 68 of the Evidence

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Act referred hereinabove categorically indicates that

it would not be necessary to call an attesting witness

to prove the execution of any document if it is not a

Will, if it is not registered under the provisions of the

Indian Registration Act, 1908, unless such execution

is denied. Thus, the examination of an Attestor

would be required if the documents sought to be

proved is a Will, irrespective of whether it is denied

or not. In case of documents otherwise than in case

of a Will, there is no requirement to examine the

attesting witness to any registered document unless

the execution thereof is called in question. Thus,

until the execution of a registered document,

otherwise than a will is called in question, there is no

need to examine the witnesses to such registered

document.

29. In the instant case, the appellant had produced a

certified copy of the registered partition deed in

order to assert his case. Such certified copy is a

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public document in terms of Section 74 of the

Evidence Act. The manner of obtaining a certified

copy of a public document is as stated in Section 76

and Section 77 of the Evidence Act. A certified copy

may be produced in proof of contents of the public

document and there is a presumption as to

genuiness of certified copies in terms of Section 79

of the Evidence Act.

Applying the above to the present case, there being

no objection whatsoever received, the presumption

is in favour of the validity of the certified copy of the

registered partition deed. There is, therefore, no

need to examine the executants or

witnesses/attestors to such a registered document as

there was no controversy with regard to the valid

execution of the document.

Point Nos.1 and 2 are related and answered in

the negative and in favour of the appellant herein.

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Point No.3:

30. In terms of Ex.P11 i.e., registered partition deed, it

is found that the subject shares have been allotted

to the appellant herein. The Succession Certificate

sought for is limited to those shares. The trial Court

ought to have taken into consideration the said

allotment being made by the parties by mutual

consent and the same having been acknowledged to

be final and conclusive amongst them. It is also

noted in the partition deed, that the same shall not

be revoked by any party. The fact of the appellant

being a legal heir and being a party to the partition

deed is not in dispute. Hence, the trial Court ought

to have considered these aspects and not insisted

upon service of notice to the parties to a registered

partition deed where the property has been allocated

to the person seeking for Succession Certificate.

31. A Succession Certificate is issued to the legal heirs of

a deceased person to establish the authenticity of

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the heirs and give them authority to inherit or

prosecute debts, securities and/or other assets of the

deceased. The purpose of Succession Certificate is

limited to such debts and securities which the

deceased was entitled to and facilitates collection of

debt on succession and affords the protection to the

parties paying a debt to such recognized Succession

Certificate holders against any claim by third parties.

It is well known that most of the companies would

request for a Succession Certificate before

transferring any security in the name of a person

claiming to be an heir of the deceased. It is for this

reason that the appellant has sought for issuance of

a Succession Certificate in order to obtain transfer of

shares and securities held by the deceased in the

name of the appellant.

32. The procedure for consideration of an application for

Succession Certificate is prescribed in terms of

Section 373 of the Succession Act. In the event the

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District Judge being of the opinion that any other

person ought to be served with notice in the matter,

he should order so. In the present matter, the

District Judge could not have placed the said onus on

the appellant if he had any doubt. In fact, a perusal

of the impugned order does not indicate any doubt

but only requires an examination of the signatories

to the partition deed by abundant caution. The

Succession Certificate could have also been issued in

terms of Section 375 of the Succession Act by calling

upon the appellant to execute an indemnity bond in

the event of anyone else claiming the shares, subject

matter of the petition.

33. The trial Court held that the other signatories to the

partition deed had either to be examined or an

affidavit on their behalf had to be filed in the

proceedings indicating their ‘no objection’ to the

issuance of Succession Certificate in the name of the

appellant. In our considered view, and as discussed

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above, no such requirement is contemplated, more

so, when even after issuance of a public notice

inviting objections, none appeared or objected to the

issuance of Succession Certificate. The very purpose

of issuance of a public notice in matters relating to

issuance of Succession Certificate is to enable

anyone having any objections to submit the same

before the Court seized of the matter. If the fact of

no objection having been filed to the said public

notice is ignored, then, there would be no purpose

for issuance of public notice itself. Therefore, there

is no requirement either to examine either of the

signatories to the partition deed or an affidavit on

their behalf to be filed in support of the petition

seeking for issuance of Succession Certificate when

they have not objected to the public notice issued

through court. The public notice itself being a

general notice inviting any member of the general

public to object if they so desire, there is no

requirement to once again issue a specific notice to

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the other executants of the registered document.

Point No. 3 is hence answered in the negative.

34. In view of the above, we hold that the order dated

10.01.2019 passed by the X Addl. City Civil and

Sessions Judge, Bangalore in P&SC No.209/2018 is

not in accordance with law and hence, is set-aside.

35. In terms of section 371 of the Indian Succession Act,

which is reproduced hereunder, the District Court

has the power to issue succession certificate/s.

“371. Court having jurisdiction to grant certificate.—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 under this Part.”

36. Since the power to grant Succession Certificate is

vested in the District Court, the matter is remanded

to the District Judge to consider the petition filed by

the appellant in accordance with law and in terms of

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the observations hereinabove made expeditiously at

any rate within a period of two months from the

date of receipt of certified copy of this order. For this

purpose the appellant to appear before the Court

below on 02/01/2020 without any further notice

from the said Court.

The appeal is disposed of accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

ln