Dismissal of succession case
santosh Pawar
(Querist) 18 February 2013
This query is : Resolved
Sir, we are three brothers and one unmarried sister. My sister died unmarried in the year 2010. Therefore one of my brother filed an application for succession of her bank balance (nearly 17 lakhs ) in which he is applicant and myself, our other brother as respondent (opponent). But in his application, he has clearly mentioned that we three brothers are her legal heirs and successor to her property( as our mother & father also expired before her death). But from last year in month of September 2012, my applicant brother (who filed the case) went to U.S. for two years for official work and will be returning to India end of 2014. As my applicant brother is absent from last six months, the said case is not proceeding further. Therefore Hon’ judge said case will be dismissed on next date. We tried to contact our applicant brother, but he is not responding neither he is ready to give NOC so that we can proceed further in the case. The case is on evidence and cross stage.
Sir, my question is in above condition how to proceed further or whether case will be dismissed and we will have to file new application for succession. We are staying in Pune, Maharashtra.
Arvind Singh Chauhan
(Expert) 18 February 2013
As you are the respondent you can't plea to adjourn the hearing. Only his advocate can seek further adjournments.
If court does not permit, it is better to, let the suit be dismissed in default that it can be filed later.
Devajyoti Barman
(Expert) 19 February 2013
If you are co applicant then get a POA executed in your favour so that at least you can represent yourself and your brother in the court of law.
prabhakar singh
(Expert) 19 February 2013
In a case of succession certificate every heir has right to apply for succession or to consent that it may be issued to any of them or in joint name of all.It is applicant your brother who requires NOC from you two otherwise it can be issued in joint name of you three all .
You have stated that 'the case is on evidence and cross stage'.
Any of you can support the application and can enter the witness box to prove contents of the application as witness of applicant and there is no need of cross as all of you have same and equal right ,title in the sum for which succession has been applied.I do not see there is adverse interest among you three as all are claiming under similar right.Even transposition can be applied to become applicant in addition to your brother.Legally speaking all of you three are applicants.
I think there is no third party objection to the application denying the right of you three brothers or claiming in addition to you three.
In my opinion if there is no third party objection,the case can proceed even in absence of your brother provided you two appear in witness box as applicant's witness to support that you three brothers are only heirs of your unmarried deceased sister hence succession be issued in joint name of you three all,also file the certified extract of the KUTUMB(family)REGISTER, the court shall pass the order of issuing certificate,then pay the c.f.duty and certificate would be issued.
This all can go smooth so long counsel engaged by your brother cooperates and there is no need of any adjournment.
