Who This Guide Is For

• FamilySpouses, children and parentsAsked by a bank, employer or company for proof of heirship.
• CommonClaimants of duesNeed to collect money, shares or securities left by the deceased.
• PlanningFamilies unsure which paperNot sure whether to apply for heirship, a succession certificate or probate.

This guide covers the position in Maharashtra, where Bombay Regulation VIII of 1827 still operates alongside the Indian Succession Act, 1925.

The Law Behind Heirship Certificates

• Bombay Regulation VIII of 1827, Section 1: an heir, executor or legal administrator may assume management of, or sue for recovery of, the property without first applying to a court to be formally recognised.
• Section 2: an heir who wants formal recognition applies to the court. The Judge issues a proclamation inviting objections within one month, and if no sufficient objection is made proceeds to receive proof of the right.
• Sections 3, 4 and 7: if satisfied, the court grants a certificate declaring the applicant the recognised heir. The holder may do acts a legal heir may do, but the certificate confers no right to the property and does not finally determine or injure anyone’s rights.
• Indian Succession Act, 1925, Section 214: no court may pass a decree against a debtor of the deceased in favour of a person claiming succession, or execute such a decree, without production of probate, letters of administration, a succession certificate with the debt specified, or a certificate under Bombay Regulation VIII of 1827.
• Sections 370 and 372: a succession certificate under Part X covers debts and securities. The petition goes to the District Judge and must state the death, residence, relatives, the right claimed and the debts or securities sought.
• Sections 381 and 390: a District Judge’s certificate is conclusive against persons owing the debts and protects good faith payments. Section 390 applies several of these provisions to Regulation certificates granted after 1 May 1889.

Heirship Certificate and Succession Certificate Compared

People use “legal heir certificate” for different papers. In Maharashtra the court routes are these two, and they work differently.

When a Certificate Is Required

• DebtsSuing a debtor of the deceasedA court cannot decree or execute a debt owed to the deceased for a claimant without one of the Section 214 documents.
• SecuritiesShares, bonds and similar assetsPart X defines securities to include government securities and shares or debentures of companies.
• DemandedAn institution asksSection 381 protects payers who act in good faith on a certificate, so holders of the deceased’s money may ask for one.

When it is not required

• To take over management of the estate, because Section 1 of the Regulation lets an heir do so without recognition from the court.
• To prove a right that the law says must be proved by probate or letters of administration. Section 370 bars a succession certificate in that situation.
• As proof of ownership. The Regulation says in terms that a certificate gives no title.

Steps to Obtain an Heirship Certificate in Maharashtra

1. Find out what is actually demanded. Ask the office to name the document: heirship certificate, succession certificate, or probate or letters of administration.
2. Apply to the correct court. The Regulation gives the power to the Zilla Court, which the Bombay High Court has equated with the District Judge, the principal civil court of original jurisdiction.
3. Proclamation issues. The Judge issues a proclamation in Appendix A form inviting objections within one month.
4. If nobody objects, the court receives proof of the right and, if satisfied, grants a certificate in Appendix B form.
5. If someone objects, the Judge fixes a day on at least eight days’ notice to the parties and summarily investigates. If the question is complicated or difficult, proceedings may be suspended until a regular suit decides it.

Correct Court and Jurisdiction

• Applications under the Regulation go to the Zilla Court, read in line with the definition of District Judge in the Indian Succession Act as the judge of the principal civil court of original jurisdiction.
• In the Bombay High Court’s decision in Anthony Fernandes, the Bombay City Civil Court was held not to be a Zilla Court for this purpose, and the High Court, where it has ordinary original civil jurisdiction, was treated as a deemed District Court. This matters for Mumbai.
• For a succession certificate, the petition is made to the District Judge. If the deceased’s residence was outside that judge’s area, the petition must state the property of the deceased within it (Section 372(1)(b)).
• A revenue officer or tahsildar is not the authority named by the Regulation or by the Succession Act for these certificates.

Objections, Refusal and Appeal

• Refusal of a certificate does not finally decide the applicant’s rights, and a suit to establish the claim remains open (Regulation, Section 8).
• A certificate can be annulled by the Zilla Court on proof that another person has a preferable right (Section 7). A holder remains accountable to everyone interested in the property.
• Section 384 of the Succession Act gives an appeal to the High Court from an order of a District Judge granting, refusing or revoking a succession certificate, within the time allowed for appeals under the Code of Civil Procedure, 1908. Section 390 applies Section 384 to Regulation certificates granted after 1 May 1889, so far as it can be applied.
• The time limit and the court fee depend on the order and the current rules, so confirm both before filing. They are not stated here.

Evidence a Court Will Look For

• Proof of the death of the person, and the date and place of death.
• Proof of the applicant’s relationship to the deceased, and details of the family and other near relatives.
• The deceased’s last residence, and details of any property or the debts and securities involved.
• Any will, as a will may mean that probate or letters of administration, and not a heirship certificate, is the right paper.
• A true petition. Under Section 372(2), a statement the signer knows or believes to be false is treated as an offence.

Advantages and Limitations

Decisions That Help

Common Mistakes to Avoid

• Assuming a certificate is needed for every death, and delaying everything while waiting for one.
• Applying for an heirship certificate when the institution actually asked for a succession certificate, or probate.
• Treating the certificate as proof of ownership of land or a flat.
• Leaving out relatives from the petition.
• Forgetting that the proclamation period is one month before proof is received.

Practical Next Steps

1. Get the demand in writing from the bank, employer, company or court.
2. Check whether there is a will and gather death and relationship documents.
3. Pick the route: Regulation certificate, succession certificate, or probate or letters of administration.
4. Take advice on the petition and the current fee and filing practice of the court concerned.

Frequently Asked Questions

Sources