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madamadvocate syeda   25 November 2023

Succession Application Or Suit for Admn

Hi
we are 2 sons and 4 sisters .

I am one of legal heir out of 6. we 5 legal heirs decided to divide the desceased house equally and filed a petition before district court in 2021, after 3years of death of father.
The 6 LH /brother shown his disagreement to equal formula, but he didn't joining court proceeding in any manner neither in favor nor filling objections. he is Just silent. Court also not giving any order , 5 years have passed.
He says he has some investment in house so he claims more share than equal .
matter unnecessary pending. Will it be appropriate that we request court to convert Succession Application in Suit and issue notice to the 6 th LH . so that the application/Suit , reaches to finality.


Learning

 10 Replies

Sanjana Singhania (Seo expert)     25 November 2023

Yes, it would be appropriate to request the court to convert the Succession Application into a Suit and issue a notice to the 6th LH. This would allow the court to formally consider the 6th LH's objections and make a final decision on the division of the property.

Here are some of the reasons why it would be appropriate to convert the Succession Application into a Suit:

  • The 6th LH has not formally objected to the Succession Application, but he has indicated that he disagrees with the equal division of the property. By converting the application into a Suit, the court can give the 6th LH a formal opportunity to state his objections and provide evidence to support his claim for a larger share of the property.
  • The matter has been pending for five years without a resolution. Converting the application into a Suit would allow the court to move forward with the proceedings and make a final decision on the matter.
  • The 6th LH's silence is not a bar to the court issuing a notice to him. The court has the power to issue notices to parties who are interested in the proceedings, even if they have not formally objected.

If the court converts the Succession Application into a Suit, the 6th LH will be served with a notice of the proceedings. He will then have the opportunity to file a written statement of defence, in which he can state his objections to the equal division of the property and provide evidence to support his claim for a larger share. The court will then hold a hearing to consider the evidence of all of the parties and make a final decision on the matter.

Converting the Succession Application into a Suit is a formal step that will help to move the proceedings forward and ensure that all of the parties have a fair opportunity to be heard. It is also the best way to ensure that the matter is resolved in a timely and efficient manner.

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madamadvocate syeda   25 November 2023

Sir , I. am highly thankful to your reply.
1 Like

T. Kalaiselvan, Advocate (Advocate)     25 November 2023

You have stated to have filed a suit for partition and no where you have stated that a sucession application has been filed or pending before any court..

A succession applicaiton is not necessary for inheriting the immovable property.

If there is a dispute amoing the legal heirs about dividng the property then the suit for partition before a civil court is a proper remedy and solutiuon, which you have already done.

Now since one of the the defendants is not appeaaring before court neither he has filed objection or written statement then the court would set him exparte and proceed with the further proceedeings of the case.

It is not understood that why your advocate  has not proceeded with the procedures meant  for this by pressurising the court to set the absenting defendant as exparte.

You can instruct your advocate to put pressure on court to set him exparte and begin the trial to dispose the case expeditiously since it is pending very long  

 

Dr. J C Vashista (Advocate and Legal Consultant)     26 November 2023

I agree with learned experts, ask your lawyer to put pressure on the court (suit for partition) and deliver verdict after proceeding ex-parte against the 6th LH who is not participating the proceeding.

You may consider to change your lawyer if not satisfied with his / her performance. 

madamadvocate syeda   26 November 2023

Thank you Sirs for your professional advises.

Rudrawar Narayanreddy (Law Practice)     03 December 2023

Petition u/s 372 is in chapter x of indian succession act. There is no provision to convert succession certificate proceedings into suit like one in probate proceedings.

Therefore with draw petition filed u/s 372 and file suit.

madamadvocate syeda   03 December 2023

Thank you so much Sir.

Rudrawar Narayanreddy (Law Practice)     05 December 2023

I have uploaded this Article on Lawyers club and it is yet to be published

Jist of the article

The succession certificate proceedings is summary proceedings, therefore the same do not bar filing of any suit and seeking declaration of status of parties, partition etc

Section 383 (e) provides for revocation

(e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked.

387. Effect of decisions under this Act, and liability of holder of certificate thereunder.-No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.

Therefore, the proceedings taken up in chapter x of Indian succession act does not, bar the parties to file suit

MADHVI AMMA BHAWANI AMMAAND OTHERS Vs. KUNJIKUTTY PILLAI MEENAKSHI PILLAI AND OTHERS  (2000) AIR(SC) 2301

JOGINDER PAL Vs INDIAN RED CROSS SOCIETY AND OTHERS in (2000) AIR(SC) 3279

COMMISSIONER OF ENDOWMENTS AND OTHERS Vs. VITTAL RAO AND OTHERS reported in (2005) AIR(SC) 454

Parties are entitled for exclusion of time spent in 14 of limitation act

There must be pleading

“the plaintiff has been prosecuting with due diligence succession Proceeding and is prosecuted in good faith in a court which had limited jurisdiction and now to get finality it is advised to file suit withdrawing succession certificate and therefore I am entitled for exclusion of time spent in Succession proceeding”

The Hon’ble Karnataka  high court has held in judgement VASANTHA KUMARI AND OTHERS Vs. RANI SHANTHAAND OTHERS AIR 2015 Kar 167 held the suit filed will not be barred.

madamadvocate syeda   06 December 2023

Thank you Sir , for detailed reply.

T. Kalaiselvan, Advocate (Advocate)     07 December 2023

You are welcome for your appreciations.


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