Inheritance made easy

MUMBAI, March 6: Securing your share of inheritance would be a lot more easier now. The Bombay High Court has ruled that a prospective heir ...

MUMBAI, March 6: Securing your share of inheritance would be a lot more easier now. The Bombay High Court has ruled that a prospective heir should move only the high court, or the district courts, to get his/her heirship certificate.

The division bench of Justice V P Tipnis and Justice N Arumugham in their recent order clarified that there is no need for a prior declaration of the death of the person who bequeaths his properties to his heir.

The ruling has clarified much confusion over the formalities to be followed in obtaining heirship certificates and help litigants like Edmond D’Souza who wasted nearly 12 years trying to prove his heirship to his uncle Alex Gonsalves’s properties.

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D’Souza had moved the Bombay City Civil Court for grant of heirship to the properties of his uncle who was missing since January 1986. Gonsalves could not be traced in the intervening years and therefore was presumed to be dead. After due proclamation in newspapers and issuance of public notices, the principal judgedirected in September 1996 that D’Souza be given the heirship certificate. However, the judge later declared that D’souza’s petition was not maintainable since such issues are to be dealt with by the original side of a high court.

Accordingly, in July 1997, D’Souza filed an identical petition in the high court. As per procedure, an application was put before the Prothonotary and Senior Master of the high court. The Prothonotary observed that D’Souza’s petition does not declare the death of his uncle as per the provisions of the Indian Evidence Act. Also that a competent court should declare that the missing uncle is no more. The single judge hearing D’Souza informed him that his petition cannot be entertained till he seeks a declaration of his uncle’s death.

Aggrieved D’Souza moved the division bench which set aside the earlier rulings. The judges ruled that wherever high courts have Ordinary Original Civil Jurisdiction (like the BHC), such heirship petitions have to be filed in the high courts. In otherplaces, the district court exercises such powers.

Moreover, the judges ruled that the fact of death of the missing person will be dealt with in the petition, depending on the facts and circumstances of each case.