STATE Vs. DEVASSY LONAPPAN
HIGH COURT OF KERALA
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(1.) THIS is an appeal by the defendant - the Government of travancore-Cochin - in O. S. No. 100 of 1951 of the Court of the District Judge of trichur. The suit was for the rent of certain buildings which the plaintiff obtained in pursuance of the registered will of his uncle, Ext. A, dated 21. 2. 1944. The testator died on 7. 8. 1121 and the rent claimed was for a period subsequent to his death, namely, for the period between Karkatakam 1123 and medom 1126.
(2.) THE only contention urged by the learned Government pleader in support of the appeal is that the lower court was in error in decreeing the suit in the absence of the plaintiff's compliance with the provisions of S. 213 and 214 of the Indian Succession Act, 1925, which was extended to this State by the Part B States (Laws) Act, 1951.
S. 214 of the Act provides that: "no Court shall. . . . 'pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof' except on the production, by the person so claiming, of 'a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased'. " There is no doubt that the section can have no application to the present case as the rent claimed in the suit accrued due subsequent to the death of the testator and such rent can in no sense be considered as a debt due to the deceased.
Learned counsel for the State invited our attention to abinash v. Probodh (10 I. C. 357 ). That decision came up for consideration in a. I. R. 1929 Calcutta 661 (664 ). Rankin, C. J. , (with whom the other four judges agreed) said: "as regards the case of Abinash v. Probodh I desire to observe that I do not think that questions of this character can be decided merely upon the principle that it is not necessary or advisable 'to place a narrow and restricted construction upon the provisions of the Succession Certificate Act"'; that it is: "very necessary to point out that this section is a restrictive section and must be carefully and accurately construed" "i demur very strongly, for example, to a contention that arrears of rent accruing due in respect of premises comprised in the deceased's estate in respect of a period subsequent to his death cannot be recovered without a succession certificate. There can be no question under s. 214 of treating something as due to the deceased or to his estates by any kind of legal fiction or analogy. "
(3.) S. 213 (1) of the Indian Succession Act provides: "no right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. " It is clear from the wording of the section that it will apply only to cases in which the right is claimed under a will. The plaintiff definitely stated in Para. 6 of his plaint that the Government has treated him as the owner of the property subsequent to the death of his uncle: and that for the said and other reasons the non-payment of the rent by the Government was in no way justified:
The written statement filed on behalf of the State does not specifically traverse the allegation or challenge its veracity. In ext. D2 dated 30. 12. 1950 the Assistant Supply Officer called upon the plaintiff to effect certain repairs to the building which he considered necessary and in ext. D dated 12. 2. 1951 he drew his attention to the earlier letter and said: "in case you fail to execute the required repairs within a fortnight, you are informed that the repairs will have to be attended departmentally and the cost thereof will be adjusted from the rent of the building due to you". No witness was examined on behalf of the State and there was no cross-examination of the plaintiff's witness on the relevant point.;
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