GULSHAN ALI Vs. ZAKIR ALI

JUDGEMENT

(1.) The suit out of which this appeal has arisen is one to recover a debt due on a simple mortgage, executed in favour of one Musammat Allah Jilai. The creditor died, and two persons, Musammat Said-un-nissa and Musammat Wahid-un-nissa, claiming to be her heirs, sold their rights to one Masit Ali, and the latter transferred his right to the plaintiff, Zikir Ali. The latter s suit was dismissed by the court of first instance on the simple ground that he had not produced a succession certificate. The lower appellate court has taken the opposite view and has remanded the case for trial on its merits.

(2.) The defendant appeals and the sole question is whether or not the plaintiff is bound to produce a succession certificate before he can receive a decree for the amount claimed. I should have had no difficulty in deciding this case, were it not for an expression of opinion by the two Judges of this Court who decided the case of Goswami Sri Raman Lalji v. Hari Das (1916) I.L.R. 38 All. 474. The point did not really arise for decision in that case, as was pointed out by Sundar Lal, J. The decree was a joint and several decree in favour of A and his wife. The wife died and A took out letters of administration. He then transferred the decree to Hari Das, i.e., his own rights and those of his wife. Hari Das applied for execution. The decree was a joint and several decree and as purchaser of A s rights alone, Hari Das was entitled to have it executed. Walsh, J., however, went into the point at length and held that it was not necessary for an assignee of a debt from the heir of a deceased creditor to produce a succession certificate, on the ground that he was not a person claiming to be entitled to the effects of a deceased person or to any part thereof, because from the date of the assignment the debt due to the deceased ceases to be part of the effects of the deceased. He held that the decision in Allah Dad Khan v. Sant Ram (1912) I.L.R. 35 All. 74 was no longer law in view of the fact that it was not accepted by the Judges who decided the case of Bang Lal v. Annu Lal (1913) I.L.R. 36 All. 21. Sundae Lal, J., remarked that it was not necessary to decide the point, though he was inclined to agree with Walsh, J., that the later ruling had overruled the earlier one.

(3.) This case was decided on the 13th of May, 1916. The attention of the learned Judges, as far as I can see from the report of the arguments, was not called to certain rulings of other High Courts to be found in Karwppasami v. Pichu (1892) I.L.R. 15 Mad. 419 and Mancha-ram Pranjivan v. Bai Mahali (1893) I.L.R. 18 Bom. 315, which take the opposite view, nor to the decision in Radhiha Prasad Bapucli v. The Secretary of State for India in Council (1916) I.L.R. 38 All. 488, which was decided on the 3rd of May, 1916, i.e., only ten days previously. The two former of these three cases take the opposite view to that adopted by Walsh, J. They were both quoted in the arguments put forward by the appellant in the third case which was decided by Banerji and Piggott, JJ. Attention was also called to the two cases of Allah Dud Khan v. Sant Ram (1912) I.L.R. 35 All. 74 and Bang Lal v. Annu Lal (1913) I.L.R. 36 All. 21. Yet the two learned Judges granted a succession certificate to an assignee from an heir of a debt due to a deceased person. Plggott, was a party to this decision as well as to the decision in Bang Lal v. Annu Lal (1913) I.L.R. 36 All. 21, which in Walsh, J s opinion overruled the decision in Allah Dad Khan v. Sant Ram (1912) I.L.R. 35 All. 74. Banerji J., remarked: "The only question which the Court had to decide was whether the applicant was the representative of the person to whom the debt was alleged to have been due," and in the result, holding him as an assignee from the heir to be the representative of the deceased, granted him the certificate. In this Piggott, J, acquiesced. In Bung Lal v. Annu Lal (1913) I.L.R. 36 All. 21 the distinguished that case from the one reported in Karuppasami v. Pichu (1892) I.L.R. 15 Mad. 419. In the latter case, as in the case now before us, no certificate had been obtained by any one. In Rang Lal v. Annu Lal(1913) I.L.R. 36 All. 21 the heir of the deceased had already obtained a certificate before she assigned the debt and the Judges hold that no further certificate was in the circumstances necessary. They remarked: "We are at least doubtful whether these plaintiffs could legally have obtained a succession certificate in their own names. They certainly could not have done so without first obtaining an order for the cancellation of the certificate already granted to Bichitra Kuar. We do not believe that the Legislature in enacting Act No. VII of 1889 intended either to take away from the holder of a succession certificate any right of transfer he might possess in respect of the corpus of the debt itself or to require that any such transfer should necessarily be followed by a revocation of the succession certificate already granted and the collection of fresh fees upon the grant of a second one in favour of" the transferee, The learned Judges also distinguished this case from that of Allah Bad Khan v. Sant Ram (1912) I.L.R. 35 All. 74 and pointed out that certain remarks made by the Judges who decided that case were unnecessary for the decision thereof and that they were unable to concur in the line of reasoning adopted, i. e., they did not agree that the person to sue for the debt is the person to whom the certificate was granted and that the assignee of the person to whom the certificate was granted could not sue by reason of the wording of Section 16 of the Act.