DAVE C. J. - (1.) THIS is an appeal by one Smt. Mooli Bai against the judgment of the District Judge, Jodhpur, dated 21. 11. 61, dismissing her application for a succession certificate.
(2.) THE facts giving rise to it are that the appellant presented an application under sec. 372 of the Indian Succession Act on 7. 9. 1959. It was averred by her that her mother Smt. Kesar widow of Ratanlal Tamboli died at Jodhpur on Phagun Sud 13, Smt. 2012, leaving no son behind her. She was survived by two daughters viz. the petitioner and one Smt. Dhapi Bai. She had given birth to one more daughter, namely, Chhoti, but she died in her lifetime leaving two sons Nena and Misria who are respondents in this appeal. It was stated by her that before her death her mother Smt. Kesar had executed a will on 19. 2. 56, bequeathing all her property in the petitioner's favour. THE petitioner went on to say that her mother had advanced a loan of Rs. 8,000/- to Abdul Hamid, Abdul Qadar and Abdul Jalil, who had executed a mortgage deed in her favour. THE mortgagors migrated to Pakistan and thereafter the competent officer Rajasthan, Alwar, ordered the mortgaged money to be given to her mother with interest. It was prayed that a succession certificate should be granted in the petitioner's favour to enable her to recover the said amount. The petitioner's application was contested by Smt. Dhapi Bai. She denied the will alleged to have been made by Smt. Kesar in favour of the petitioner. According to her, the petitioner had set up the will only to deprive her of her due share in the property left by her mother. It was prayed that the petitioner's application should be dismissed. The learned District Judge framed the following four issues on the said pleadings: - (1) Whether Smt. Dhapi Bai is also an heir of Smt. Kesar deceased as her daughter, and is entitled to inherit her share of the property of the deceased? (2) (a) Did Smt. Kesar execute a will in favour of Smt. Mooli Bai on February 19, 1956? (b) If so, was Smt. Kesar in a sound disposing mind at the time of making that will? (c) Had Smt. Kesar a right to make that will? (3) Is the property in dispute an ancestral property of Ratanlal? (4) What will be the relief? After the said issues were framed, the petitioner was called upon to lead evidence. In the meantime, an application was filed on behalf of Smt. Dhapi and it was contended that no succession certificate could be granted to the petitioner because she had set up a will and, therefore, she should have obtained either a probate or letters of administration. The learned Judge heard arguments on this question and came to the conclusion that "a succession certificate could only be granted to a successor and not to a person in whose favour a will was executed". He proceeded to say that "where a will has been executed by a person in favour of another person whether he or she be a relation or otherwise, the property would vest on the death of the testator in the person in whose favour the will had been executed and no property included in the will would be left for which a succession certificate can be claimed by the heir of the testator. A succession certificate is granted for a property which has been left by a person to be succeeded by his heir or the legal representative. Therefore, when no property can be said to have remained on account of the alleged will executed by Kesar, no application like the present one, is at at all maintainable. " It was contended on behalf of the petitioner that even if the will was ignored she was entitled to obtain a succession certificate, since she was admittedly the eldest daughter of her mother Smt. Kesar and on that score alone shew as entitled to get a succession certificate. This argument was also turned down by the learned Judge on the ground that since a will was alleged to have been executed by the petitioner there remained no property for the heir or legal representative of the deceased for which she could apply for a succession certificate. It was further observed that the petitioner could claim a succession certificate jointly with her sister, but not to her exclusion. It is urged by learned counsel for the appellant that the learned District Judge has committed an error in dismissing his client's application for a succession certificate on the mere ground that she had set up a will and also on the ground that she alone could not apply for a succession certificate. Learned counsel for the respondents has, on the other hand, tried to support the correctness of the impugned judgment. We have given due consideration to the arguments raised on either side and we think that the learned District Judge was not correct in holding that the appellant (petitioner before him) could not ask for a succession certificate simply because she had set up a will of her mother in her favour. The learned Judge seems to be under the impression that there could be only non-testamentary succession. It seems that he was labouring under the wrong impression that the word succession could not be testamentary. The word succession includes both intestate and testamentary succession (see Salmonds' Jurisprudence 11th Edn. page 483 ). The bare perusal of sec. 370 of the Indian Succession Act, would show that the grant of a succession certificate is barred by that section only with respect to that debt or security to which a right is required by sec. 212 or sec. 213 to be established by letters of administration or probate. It is conceded by learned counsel for the respondents before us that the debt, in respect of which the succession certificate was sought in the present case, was not one to which the right was required by sec. 212 or sec. 213 of the Indian Succession Act; to be established by letters of administration or probate. It was not appreciated by the learned District Judge that the petitioner had referred to the will of her mother only to exclude other heirs and she could not be refused a succession certificate simply because a will was set up by her. It is clear from the record of the lower court that as many as four issues were framed and the case was fixed for evidence of the petitioner to be led about the execution of the will by her mother. It was not proper on the part of the court to shut out the petitioner's evidence, on the one hand, to prove the execution and the genuineness of the will and to presume, on the other hand, that because a will was made by Smt. Kesar in the petitioner's favour the property vested in her immediately on Smt. Kesar's death and, therefore, a succession certificate could not be asked for. The existence of the alleged will might have been an impediment to the grant of a succession certificate in favour of others, but it could not serve as an impediment to the grant of a succession certificate in her own favour. The will could only strengthen her claim to the succession certificate and it could not deprive her of the same. It was no doubt open to the petitioner to apply for grant of letters of administration with the will or with the authenticated copy of the will annexed, but it is not easily understandable how the petitioner could be refused a succession certificate on that account. It was not alleged by Smt. Dhapi Bai that she was a preferential heir to Smt. Kesar in comparison with the petitioner. She only claimed to be an heir of the same degree. The question to be considered by the District Judge, under the circumstances, was whether the succession certificate should have been granted to the petitioner alone and, if so, whether a further order under sec. 375 of the Indian Succession Act imposing conditions on the petitioner to safeguard the interest of other claimants was necessary. In Kalidas Fakirchand V. Bai Mahali (1), Kalidas Fakir Chand and Karsandas Amirchand had applied to the District Court for a certificate under sec. 6 of Act VII of 1889, to enable them to collect the debts due to deceased Punja Jaglivan. It was averred by them that Punja had made a will appointing them trustee to collect his debts. Bai Mahali had also applied for a certificate on the ground that she was Punja's heir. She disputed the genuineness of the alleged will. The District Judge rejected both the applications on the ground that the validity of the will could not be settled in a summary proceeding. On appeal the High Court remanded the matter for re-hearing. At the re-hearing Bai Mahali withdrew her application, but the Judge held that as Kalidas and Karsandas claimed a certificate as executors of the will and not as heirs, they should take out probate of the will. He, therefore, refused their application. On appeal to the High Court it was observed as follows: - "the duty of the District Judge in carrying out the remand order of the High Court was confined exclusively to determining whether the applicants or the heir of the deceased was entited to the certificate. Moreover, the District Judge could not refuse the certificate simply because the applicants might have asked tor probate, as the case does not fall under sec. 1 clause (4) of the Succession Certificate Act, 1889. " The order of the court below was reversed and the case was sent back for a fresh decision. The same view was followed in Dave Liladhar Kashiram v. Bai Parbati (2), where it was reiterated that the District Judge had no ground for supposing that sec. 1, clause 4 of Act VII of 1889, precluded the applicant from obtaining a certificate under the Act. In Ramutti and another vs. Padamanabha Chetti (3), it was held that "an executor appointed by a will, for which probate need not be obtained and has not been obtained, is not exempted from the requirement of sec. 214, Succession Act to produce a succession certificate before he can get a decree for a debt due to the testator's estate. In that case it was contended that "such an executor does not claim "on succession" within the meaning of the section. " But this argument was repelled and it was observed that cl. (b) (1) of the section (in sec. 214 of the Indian Succession Act) includes among persons "so claiming", i. e. , on succession executors who have obtained probate. " We, therefore, allow the appeal, set aside the order of the learned District Judge and remand the case back to that court with direction to proceed in the matter in the light of the above observations. In the circumstances of the case we leave the parties to bear their own costs in this Court. . ;