S R ASWARTHANARAYANA Vs. GAJULA KRISNAIAH
LAWS(APH)-2005-10-4
HIGH COURT OF ANDHRA PRADESH
Decided on October 26,2005

S.R.ASWARTHANARAYANA,S.R.SREENIVASULU,R.RAMAKRISHNA Appellant
VERSUS
GAJULA KRISNAIAH Respondents


Referred Judgements :-

PEDDAMMA VS. DESU GURUNADHARAO [REFERRED TO]
L.I.C. OF INDIA VS. T.TIRUPATHAYYA [REFERRED TO]
S RAJYALAKSHMI VS. S SITAMAHALAKSHMI [REFERRED TO]
AKULA RANGAPPA VS. NARAYANA SWAMY [REFERRED TO]
T BALA GOUD VS. GOVT OF A P [REFERRED TO]


JUDGEMENT

B.Prakash Rao, J. - (1.)This case has come up before us on a reference made by a learned single Judge Sri Justice J.Chelameswar for an authoritative pronouncement, having regard to the conflict situation arising in view of two decisions reported in L.I.C. of India vs. T.Tirupathayya, AIR 1963 AP 153. and Akula Rangappa vs. Narayana Swamy, AIR 1988 AP 314. on the question as to whether a succession certificate is absolutely necessary for laying execution by the legal representatives of the deceased decree-holder.
(2.)The few facts, as necessary for consideration of this case, are that the suit was filed for recovery of certain amounts from the respondent certificate in their favour, no such application for execution is maintainable in view of Section 214 (1) (b) of the Succession Act, 1925 (for short 'the Act').
(3.)Having heard the counsel on either side and on perusal of both the decisions and the cases, which have been referred to across the Bar, it necessitates for us to consider the principles in this regard However, from the facts as narrated, there is no dispute that the petitioners laid the execution subsequent to the death of their father who obtained the decree. Therefore, with this background, it takes us back to the decision in L.I.C. of India (1 supra) wherein considering the said provision it was held that:
"Under the Hindu law, there is a distinction between succession and the devolution of property by survivorship. The Succession Act, as is indicated in the preamble, covers cases of succession only and cases of survivorship are not within the ambit of that Act, Where a family is a joint Mitakshara family and the amount sought to be recovered is an asset of the joint family, the plaintiff, who claims by survivorship, cannot be compelled to take out a succession certificate to enable him to recover the amount."
From the above and from the discussion made therein, it is quite amply clear that in case of survivorship in a joint family, the question of obtaining succession certificate does not arise in contra distinction to the succession. Therefore, it necessarily follows that where the legal representatives claimed through survivorship and not by succession, there is no necessity to seek any succession certificate under the aforesaid provision. However, when the claim rests on the succession from the deceased plaintiff/decree-holder, it mandates them to obtain a succession certificate.


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