Alternate Place Of Jurisdiction U/S 371 Indian Succession Act Can Be Invoked Only If Deceased Had No Fixed Place Of Residence: Gujarat High Court

Justice JC Doshi observed that in order to invoke the second part of Section 371 and approach the Court within whose jurisdiction any part of the property is situated, the party moving the Court must show that the first part of the provision cannot be invoked since deceased had no permanent place of residence.

In the facts and circumstances of the instant case where the two deceased passed away in the USA and at Mumbai respectively, the Court observed,

“...the petitioner relied upon second part of section 371 of Act to bring the petition within territorial jurisdiction of District Court, Vadodara by stating that some of the movable property is situated within local jurisdiction of District Court, Vadodara. Unless first part of section 371 of the Act is exhausted, the petitioner cannot straightway come before the Court below at Vadodara seeking relief of grant of succession certificate.”

“In order to invoke second part of section 371 of the Act to bring the petition within the territorial jurisdiction of Court below, the petitioner was required to fulfill criteria of “deceased had no fixed place of residence.” In present case, the petitioner has failed to demonstrate said criteria,” Justice Doshi added.

Court noted that the petitioner failed to address the crucial issue of determining the ordinary residence of the deceased individuals at the time of their death. No averments were made to that extent. Thus it held,

"In absence of any other pleadings / averments or ordinary residence of both the deceased, it can be presumed that they were ordinary residence of the place where they died. It was duty upon the petitioner to make averments to clarify about ordinary residence of deceased.”

Case Title: Umaben Jayantbhai Shah D/O Late Ramanlal N. Shah vs NA