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Abdul Majid Vs. Shamsherali Fakruddin - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai
Decided On
Case NumberSecond Appeal No. 475 of 1937
Judge
Reported inAIR1940Bom285; (1940)42BOMLR521
AppellantAbdul Majid
RespondentShamsherali Fakruddin
DispositionAppeal allowed
Excerpt:
.....procedure code (act v of 1908), order xxii, rule 5-legal representative.;section 214 of the indian succession act, 1925, requires the judge to insist upon proof of representative title as a condition precedent to recovery through the court of debts from debtors of deceased persons before passing a decree, but the omission to obtain such proof cannot affect the jurisdiction of the court to try the suit. a decree passed in such a suit, if not appealed torn, remains a valid decree and cannot be regarded as a nullity for absence of representation.;the above rule applies equally to a suit brought by a creditor and continued after his death by his legal representative as to a suit brought by the legal representative of the deceased creditor.;santaji khanderao v. ravji (1890) i.l.r. 15..........that the decree was a nullity and was not binding on the defend-ants.3. section 214 of the indian succession act, 1925, 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, amongst other things, a succession certificate. in this case the suit was started by a creditor who died pending the suit, and his legal representatives were brought on record under order xxii of the civil procedure code, but a succession certificate was admittedly not obtained.4. the first point argued by mr. chundrigar for the appellants is that section 214 of the indian succession act does.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal against a decision of the District Judge of West Khandesh.

2. The plaintiffs sued to have it declared that the decree obtained by the defendants in suit No. 579 of 1932 was obtained by fraud and was not binding on the plaintiffs. The issue of fraud was decided against the plaintiffs. But a second point was taken in the plaint that the decree should be declared null and void on the ground that no succession certificate was produced. The learned Subordinate Judge dismissed the suit. He was of opinion that although no succession certificate was produced, that was a mere irregularity which did not vitiate thedecree, and he also expressed the opinion that the necessity for a succession certificate, being for the benefit of the debtor, could be waived. The decree, which is sought to be set aside, was a decree for money, and was a consent decree. In appeal the learned District Judge reversed the judgment of the trial Court on the ground that the omission to obtain a succession certificate was an illegality which vitiated the judgment, and he made a declaration that the decree was a nullity and was not binding on the defend-ants.

3. Section 214 of the Indian Succession Act, 1925, 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, amongst other things, a succession certificate. In this case the suit was started by a creditor who died pending the suit, and his legal representatives were brought on record under Order XXII of the Civil Procedure Code, but a succession certificate was admittedly not obtained.

4. The first point argued by Mr. Chundrigar for the appellants is that Section 214 of the Indian Succession Act does not apply where the suit was originally instituted by the creditor himself, but only applies where it is instituted by his legal representative. He says that the position of a creditor-plaintiff dying in a pending suit has to be dealt with under Order XXII. In my opinion, there is no substance whatever in that argument. Where a plaintiff dies, his legal representatives have to be brought on record under the provisions of Order XXII, and if that is not done, the suit abates. But Section 214 of the Indian Succession Act comes into operation only when the Court is called upon to pass a decree ; on that date there must be a succession certificate, otherwise the plaintiff is not entitled to judgment, and I can see no force in the argument that that construction of Section 214, which is in accordance with the plain language of the Section, is inconsistent with the provisions of Order XXII, Rule 5, which enable a Court to decide who are the legal representatives. That has nothing to dowith the obtaining of a succession certificate in the particular type of suit which is referred to in Section 214.

5. The next point taken is that, assuming that there should have been a succession certificate, the omission to obtain one did not affect the jurisdiction of the Court and did not render the decree a nullity. I am not prepared to go as far as the learned trial Judge in saying that the necessity for obtaining a succession certificate can be waived by the parties. The obligation is not merely one in favour of the debtor ; it benefits also those interested in thedeceased's estate by requiring that monies forming part of the estate shall only be paid to a person who has been considered suitable for the grant of asuccession certificate. But I am not prepared to agree with the learned District Judge's view that the omission to obtain a certificate renders the decree anullity. In effect Section 214 of the Indian Succession Act requires the Judge to insist upon certain evidence in support of the plaintiff's claim before passing a decree, but the omission to obtain such evidence cannot, in my opinion, affect the jurisdiction of the Court to try the suit. The provisions of Section 214 of the Indian Succession Act are no more peremptory than the provisions of Section 35 of the Indian Stamp Act, or Section 49 of the Indian Registration Act, which forbid the Court to receive certain documents in evidence. If the Court does, in breach of those provisions, improperly receive documents in evidence, that is an error which can be corrected in appeal, but it does not render the decree a nullity. In the same way the omission to obtain a succession certificate is good ground of appeal, but if the decree is not appealed from, in my opinion it remains a valid decree and cannot be regarded as a nullity.

6. In the present case the decree no doubt was a consent decree and therefore not appealable, and the learned Judge ought to have refused to pass a consent decree in the terms asked for unless a succession certificate was produced. That was decided by this Court in Santaji Khanderao v.Ravji 1890 I.L.R. 15 Bom. 105; but I am unable to agree with the learned District Judge that the omission of the learned trial Judge to insist upon proper evidence renders his judgment a nullity. Even if we had been prepared to make a declaration that the decree passed was a nullity, the only result would have been that the case would have had to go back to the original Court which passed the decree in order that it might pass a valid decree, because the suit being before it and the Court having jurisdiction, the Court was bound to pass a decree and not pass something which was a nullity. As the plaintiffs could obtain a succession certificate before the suit reached the trial Court, the appellants would not gain much by a declaration that the decree was a nullity. However, in my opinion, they are not entitled to such a declaration.

7. The appeal, therefore, must be allowed and the suit dismissed with costs throughout.

Sen, J.

8. I agree.


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