Introduction “Mors certa est, vita non est” The above latin phrase meaning “Death is Certain, Life is Not” sums up the reality of life. As certain as Death is, it’s very timing is extremely uncertain and unpredictable. More often than not, it catches you when one least expected it!! Hence, Life is Uncertain.
An unexpected demise of a close relative comes as a bolt from the blue for the family and while they are yet mourning, they have to grapple with several succession formalities, such as, death certificates, execution of wills, transmission formalities, etc.
Ironic as it may sound, it is this certainty of death which throws up several uncertainties for the heirs which a deceased may leave behind. Quite often, the family, in its period of grief, overlooks some formalities which snowball into major problems subsequently. Let us look at some of the important formalities which the family of a deceased are faced with and some practical suggestions to deal with them.
‘Transmission’, ‘Succession’ and ‘Inheritance’ are three terms which one often comes across when dealing with the property of a deceased. It would be gainful to understand the meaning of these three terms:
Succession – Black’s Law Dictionary defines the term to mean the devolution of title to property under the law of descent and distribution. Inheritance – succession by descent – East v. Twyford, 9 Hare, 729
Transmission – Stroud’s Judicial Dictionary defines the term as transmission by operation of law, unconnected with any direct act of the party to whom the property is transmitted.
Doctor’s Certificate
The first formality which the deceased’s family needs to immediately comply with when a person dies, is to obtain a Doctor’s Death Certificate. This is the most important document which sets in motion a chain of events. Hence, it always helps to have a family physician. There have been cases where there is no family doctor and when a person dies at home, no doctor is willing to give the certificate.
The Doctor’s Certificate is required in Form 4A under Rule 7 of the Maharashtra Registration of Births and Death Rules, 2000, framed under the Registration of Births and Deaths Act, 1969. The Forms are issued by the Municipal Corporation of Greater Mumbai. It is very important that the Doctor mentions the name of the deceased correctly just as it appears in all legal documents. If the deceased used aliases, it may be worthwhile to add them also in the Certificate. Get multiple copies of this document since the original would have to be surrendered to the Municipality.
Police Report
Consider a situation where a person is pronounced dead on admission to a hospital or has died at home, but is unsuccessfully taken for resuscitation efforts to the hospital. The hospital would like to rule out foul play in such cases and also the need for a post-mortem.
Hence, in addition to a Doctor’s Death Certificate, the hospital would also require the family to lodge a Police Report. The local Police Station would take down the close relative’s statement in Marathi which would include, the number of members living with the deceased, their ages, occupation and whether or not the family suspects any foul play. The Police Station would also fill up two Forms, Form 4 and Form 5, and obtain the relative’s signature on the Report. The family would be well advised to understand the contents of the Report before signing the same. The Report would be retained by the Police Station.
If the Police suspect a foul play, then they would insist upon a post-mortem before allowing cremation. The hospital would also not hand over the body of the deceased, without this Police NOC or a post-mortem. One age-old issue which often crops up is that of Police jurisdiction. Which Police Station should the family go to? Should it be the one where the deceased resided or the one where the hospital was situated?
Death Certificate from Municipality
A cremation (assuming a Hindu deceased) would be allowed only on the basis of a Doctor’s Death Certificate. The original of the Doctor’s Death Certificate and Police Form 4 along with a copy of Police Form 5 should be handed over to the office of the crematorium where the cremation of the deceased is to take place. The office would hand over a receipt in lieu of all these documents which should be carefully preserved. These documents are transmitted by the crematorium to the local Municipality office. As always, get copies made of this document.
BMC’s Death Certificate
An application for a Death Certificate should be made to the office of the local ward of the Municipality in which the deceased resided. Normally, this application is to be made about a week after the death. Along with the application, a copy of the crematorium’s receipt should also be submitted. Care should be taken to fill in the details of the deceased as they appear in all legal documents.
The family can obtain as many copies of the Death Registry Certificate as they desire. It would be desirable to make copies of this Certificate and to get them Notarised by a Notary Public, since this is the most important document which would be required at several places.
Nomination
If the deceased has made Nominations in respect of his flat, bank account, Public Provident Fund, Insurance Policies, Demat Accounts, Mutual Funds, etc., then the nominee should intimate the fact of death along with a copy of the Death Certificate to these organisations. The assets would then stand in the name of the Nominee. It may be noted that the nominee is only a stop-gap arrangement till such time as the Will is executed or the assets are distributed in accordance with the Succession Law in case of intestate succession.
However, in the case of physical shares and demat accounts, the Nominee is both the legal and the beneficial owner and overrides what is stated in the Will. This is borne out by section 109A of the Companies Act, 1956 as well as the Bombay High Court’s decision in the case of Harsha Nitin Kokate v. The Saraswat Co-op. Bank Ltd, 112 (5) Bom. L.R. 2014. Clause 72 of the New Companies Bill, 2011 also carries forth this position. Hence, a person making his Will should ensure that the Nominee of his demat account is the same person who is the beneficiary of the same under the Will.
Will
Assuming that there is a valid Will left behind by the deceased, the same should then be placed before the family of the deceased by the Executor of the Will. The Executor should start taking steps for transmission of the properties of the deceased. Again, it would be desirable to make copies of this Will and to get them Notarised by a Notary Public, since the Will would be required at several places.
Transmission of Flat where there is no Nomination
On the death of a person, his flat in a co-operative society can be transferred by the Society to his nominee, if a nomination was made, or to his Legal Heir. Section 30 of the Maharashtra Co-operative Societies Act, 1960 provides that in the event of the death of a member of a Society, the Society is required to transfer the member’s interest to the nominee or to such person as may appear to the Committee to be the heir or legal representative of the deceased member.
The Act does not define the term “heir”. The Supreme Court in the case of N. Krishnammal v. R. Ekambaram, 1979 AIR SC 1298, has defined the term as follows:
“…The word “heirs”, as pointed out by this Court in Angurbala Mullick v. Debabrata Mullick (1) cannot normally be limited to “issues” only. It must mean all persons who are entitled to the property of another under the law of inheritance.”
The Act also does not define who is a “Legal Representative”. Hence, one may refer to the Civil Procedure Code. Section 2(11) of the Code of Civil Procedure, 1908 that defines a “Legal Representative” as follows:
“(11) ” legal representative ” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;”
The decision of the Bombay High Court in the case of Om Siddharaj Co-Op. Hsg. Society Ltd v. The State of Maharashtra, 1998 (4) Bom. CR 506 is relevant:
“…On a plain reading of section 30, it is clear that on death of a member of the society, it is incumbent on the society to transfer the share or interest of the deceased member to” a person or persons nominated in accordance with the Rules”. It is only in the event of there being no nomination of any person, the society can transfer the share or interest of the deceased member to “such person as may appear to the committee to be the heir or legal representative” of the deceased member. The language of the section is clear and unambiguous. …..It is only if there is no nomination in favour of any person, that the share and interest of the deceased member has to be transferred to such person as may appear to the committee of the society to be the heir or legal representative of the deceased member.”
Hence, a co-operative society would be well within its rights to transfer the flat to the legal heirs of the deceased, if there is no nomination. The Society may, for its protection, insist upon a No Objection Certificate from the other legal heirs/representatives (if there are others than the transferee) and an Indemnity Bond from the transferee.
Transmission of Tenanted Property
A common misconception which most people have is that tenancy can be transferred or bequeathed by way of a will. Tenancy is a personal right of the tenant and hence, it cannot be transferred by way of any testamentary document. This principle has also been upheld by the Supreme Court in the case of Vasant Pratap Pandit vs Dr. Anant Trimbak Sabnis, 1994 SCC (3) 481. Tenancy passes on a tenant’s death to any member of his family who was residing with him at the time of his death. In the absence of such a member, it passes to any heir of the tenant. The Supreme Court in the above case has held that from a plain reading of the Rent Act, it is obvious that the legislative prescription is first to give protection to the members of the family of the tenant residing with him at the time of his death. The basis for such prescription seems to be that, when a tenant is in occupation of the premises, the tenancy is taken by him not only for his own benefit, but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well the tenancy was originally taken by the tenant. It is for this avowed object, that the Legislature has, irrespective of the fact whether such members are ‘heirs’ in the strict sense of the term or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there, the ‘heirs’ will be entitled to be treated as tenants as decided, in default of agreement, by the court. In other words, all the heirs are liable to be excluded, if any other member of the family was staying with the tenant at the time of his death.
Transmission of Land
In respect of any land belonging to the deceased, a Probate of the Will would be required, in case the deceased was a Christian or a Hindu, Sikh, Jain or Buddhist whose immovable properties are situated within the territory of West Bengal or the Presidency Towns of Madras and Bombay. A Probate would be required for effecting a change in the Record of Rights, 7/12 Extract, Property Card, etc.
Agricultural Lands of Deceased
U/s. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, any transfer, i.e., sale, gift, exchange, lease, mortgage with possession of agricultural land in favour of any non-agriculturist shall not be valid, unless it is in accordance with the provisions of the Act. An important exception to the provisions of section 63 is the case of succession to agricultural land by a non-agriculturist. Thus, even if the legal heirs of an agriculturist are non-agriculturists or the legatees under his will are non-agriculturists, the succession/bequest in their favour would be valid. In law, succession to property cannot lie in a vacuum and the Act would not override succession laws. The Act has no application to transmission of interest of holder on his death to his successor by any mode of succession of lands held by tenants.– Ghanshyambhai Nakheram v State of Gujarat, (1999) 2 Guj LR 1061.
If any person acquires any right by virtue of succession, survivorship, inheritance, etc., in any land, then, as per the Maharashtra Land Revenue Code, 1966, he must give a notice of the same to the Talathi within 3 months of such event. The Talathi would then enter such changes in a Register of Mutations which would alter the original record of rights.
U/s. 4 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, the ceiling on the holding of agricultural lands is per “Family Unit”. This is a very unique and important concept introduced by this Act. It is very essential to have a clear picture as to who is and who is not included in one’s ceiling computation, since that could make all the difference between holding and acquisition of the land. A family unit is defined to mean a person and his spouse or more than one spouse if that be the case – thus, if a person dies leaving two or more widows, then they would constitute one consolidated family unit for considering the ceiling – State of Maharashtra v. Smt. Banabai And Anr. (1986) 4 SCC 281. His minor children are also included in the definition of a family unit.
A very interesting scenario arises in the case of testate/intestate succession. For instance, there is a person who is holding land up to the maximum limit permissible. His major son is also independently holding another piece of land up to the maximum limit permissible. The father dies and his sole legal heir is his son. On his death, the land becomes that of the son. Can the son contend that since he has received the land by inheritance, the ceiling should not apply to the second land received by him? The Supreme Court had an occasion to consider this issue in the case of State of Maharashtra v. Annapurnabai and others, AIR 1985 SC 1403. The facts were that the declarant died pending determination of excess ceiling area. A contention was raised that consequently on his death the proceedings stand abated and that therefore, the authorities have no jurisdiction to proceed further with the determination of the excess land under the Act. The Supreme Court held that until the proceedings are completed, there is no abatement and the excess ceiling land has to be computed pursuant to the declaration under the provisions of the Land Ceiling Act and that therefore, the
Government continues to have jurisdiction to determine the excess land. It held that the heirs and legal representatives of a deceased holder cannot be treated as independent tenure holders for fixing ceiling. Therefore, each heir would not be treated as independent tenure holders for fixing the ceiling in respect of agricultural land.
Similarly, the Supreme Court in Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tathed 1982 SCR (3) 218 held that the persons on whom his ‘holding’ devolves on his death would be liable to surrender the surplus land as on the appointed day, because the liability attached to the holding of the deceased would not come to an end on his death. The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance than what they would have got if the death of the person had taken place after the acquisition of surplus land by the Government.
Further, a person holding surplus land, i.e., land in excess of the ceiling area, cannot transfer the same. In Kewal Keshari Patil v State of Mah, 1966 Mah LJ 94 it was held that a Will is not a transfer. When the Will was executed, it is not a transaction which is contravening the ceiling under the Act.
Dwelling House
The Hindu Succession Act earlier made a special provision in respect of partition of dwelling-houses which has now been omitted with effect from 9th September, 2005. A dwelling house has been defined as a house wholly inhabitated by one or more members of the family of the deceased at the time of his death – Narsimaha Murthy v. Susheelabai (1996) 3 SCC 644. It has also been held to mean the home or abode or residence of a person – K Ratnsawamy, (1980) 2 SCC 548.
The Act originally provided that where a Hindu (male or female) died intestate leaving behind both male and female heirs specified in Class I, and his/her property included a dwelling-house wholly occupied by members of his/her family, then, any such female heir could not claim partition of the dwelling-house until the male heirs choose to do so. However, the female heir was entitled to have a right of residence in such house. If such female heir was a daughter, then she was entitled to a right to residence in the dwelling-house only if she was unmarried or had been deserted/separated from her husband, or was a widow. Thus, the section prevented female members from claiming partition of a dwelling-house till such time as the male members decided to do so.
In 2005, this section has been deleted altogether to remove the inequalities. Now, a daughter of the family will also inherit a dwelling house under the provisions of the Act and she can also ask for a partition of such dwelling house where the male members are residing. Thus, a married daughter has a right to ask for a partition of a house where her brother is residing on the death of their father. This is an important provision which should be borne in mind.
Transmission of Demat Account in case of Joint Holders
In several cases, it so happens that the names of the husband and wife are added as first and second holders in demat accounts. The Will of the husband also provides that after his demise, all his assets go to his wife. In such an event, transmission of the demat account from the first holder to the second holder is a relatively easy process.
An application needs to be made to the depository for simultaneous closure of the joint account and transfer of all the securities to a new sole account of the second holder, i.e., the wife. Thus, as a result, all the securities would stand transmitted to a new sole account belonging to the wife, who was the second holder in the husband’s joint account. This application only requires a copy of the Death Certificate and KYC details of the second holder.
(to be continued….)
