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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY INTESTATE JURISDICTION

TESTAMENTARY PETITION NO.595 OF 2005

...

Yallapragada manjulata Rao ...Petitioner

v/s.

Yallapragada Shankar Rao ...Deceased

...

Mr.Anilkumar Manon for the Petitioner.

Mr.P.G.Lad, AGP for State.

...

CORAM: D.K.DESHMUKH, J.

DATED: 25TH AUGUST ,2006

P.C.:

1. The Petitioner has filed this petition for

succession certificate in relation to share of a

Housing Society.

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2. The facts are that one Yallapragada Shankar Rao

expired on 29th May, 1999 without leaving behind any

Will. According to the Petitioner she is widow of

the deceased. She is entitled to 1/3rd share in the

flat of the society left behind by the deceased.

According to averments in paragraph 7 of the

Petition, the Petitioner needs the succession

certificate for the purpose of transferring the

property in her, which was previously owned by the

deceased. It prima facie appears that the deceased

was holding a flat in the Building of Trishul

S.S.S.P. Unit 14 Co-op. Hsg. Society Ltd. and was

also holding share of that society.

3. An objection has been to the maintainability of

the petition under Section 370 of the Hindu

Succession Act. The objection is that an application

for succession certificate can be made only in

relation to debts and securities. The term

"security" is defined by sub-section (2) of Section

370. A share of co.operative Housing Society which

carries with it right to occupy the flat in the

building of the society is not a security.

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4. The learned Counsel appearing for the Petitioner

relying on the judgment of the Supreme Court in the

case of Ramesh Himmatlal Shah v/s. Harsukh Jadhavli

Joshi, AIR 1975 SC 1470 submits that the share of the

co.operative society is a security within the meaning

of sub-section of Section 370.

5. As the objection raised by the office also

involves the question of court fee payable, I had

issued notice to the State Government, I have heard

the learned Government Pleader appearing on behalf of

the State Government.

6. For the purpose of deciding the objection it is

necessary to refer to the provisions of Section 370

of the Indian Succession Act. Section 370 reads as

under:-

370. Restriction on grant of certificates

under this Part.- (1) A succession certificate

9hereinafter in this Part referred to as a

certificate) shall not be granted under this

Part with respect to any debt or security to

which a right is required by section 212 or

section 213 to be established by letters of

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administration or probate;

Provided that nothing contained in this

section shall be deemed to prevent the grant

of a certificate to any person claiming to be

entitled to the effects of a deceased Indian

Christian, or to any part thereof, with

respect to any debt or security, by reason

that a right thereto can be established by

letters of administration under this Act.

(2) For the purposes of this Part, "security"

means-

(a) any promissory note, debenture, stock or

other security of the Central Government or of

a State Government;

(b) any bond, debenture, or annuity charged

by Act of Parliament (of the United Kingdom)

on the revenues of India;

(c) any stock or debenture of, or share in, a

company or other incorporated institution;

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(d) any debenture or other security for money

issued by, or on behalf of, a local authority;

(e) any other security which the (State

Government may, by notification in the

Official Gazette, declare to be a security for

the purposes of this Part.

7. Perusal of the above provision makes it clear

that succession certificate can be issued only in

respect of any debt or security. The learned Counsel

appearing for the Petitioner relies on provisions of

Section 370(2)(c). According to him what he is

seeking is transfer of share in a Co.operative

Society. Perusal of section 218 shows that for

administration of estate of a person who dies

intestate and was a Hindu, letters of administration

has to be secured. Section 370 is in the nature of

exception to Section 218 in relation to debt and

security. The question, therefore, to be considered

is whether a share certificate issued by a

co.operative Housing Society to a member who holds

flat in the building of the Housing Society is a

security within the meaning of sub-section 2 of

Section 370. Perusal of the judgment of the Supreme

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Court in the case of Ramesh Shah (supra), specially

the observations made by the Supreme Court in

paragraph 19 & 20 shows that share certificate issued

by the Co.operative Society carries with it the right

to occupy the flat in the building of the society.

Therefore, transfer of a share certificate carries

with it an interest in the immoveable property namely

right to occupy the flat and therefore, it will not

amount to a security within the meaning of

sub-section (2) of Section 370. Perusal of the

petition shows that even the Petitioner has

understood the situation in the same way, in asmuch

as in paragraph 7 of the petition the Petitioner

herself said that she requires succession certificate

for transferring the property in her name. Though it

is true that subsequently affidavit has been filed

seeking correction, but in view of the judgment of

the Supreme Court relied on by the Petitioner herself

to my mind it is clear that transfer of share of a

Co.operative Housing Society transfers with it right

to occupy a flat. A share certificate issued by the

Co.operative Housing Society is linked with the right

to occupy a flat in the building of the society and

therefore, the application for succession certificate

would not be maintainable.

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. The objection raised by the office to the

maintainability of the petition is therefore, upheld.

It is held that the application for succession

certificate in so far as the shares of Trishul

S.S.S.P.Unit 14 Co.operative Hsg.Society is not

maintainable.

8. In view of this order, it will be necessary for

the Taxing Master to reconsider the issue and make a

fresh order. It is accordingly so ordered.

...

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