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Abdul Gafur Mahmadsaheb Maniyar Vs. Jayarabi Ibrahim - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 359 of 1928
Judge
Reported in(1929)31BOMLR1093; 122Ind.Cas.833
AppellantAbdul Gafur Mahmadsaheb Maniyar
RespondentJayarabi Ibrahim
Excerpt:
.....person having prima facie the best title thereto. 13. now here it was clearly open to the learned trial judge to arrive at the conclusion which he did, as to what he thought prima facie was the true construction of this particular compromise decree. there were clearly grounds on which he could come to the conclusion prima facie that the shares carried all dividends accrued and to accrue. section 373 of the indian succession act contemplates that a succession certificate may be granted to a person having the best title to it. - if the judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to..........relates to a succession certificate granted to the estate of one abdul nabi. the learned trial judge granted two certificates. as regards certain properties described in the present proceedings as property a, be granted a certificate to the son ahmadsaheb and the widow sharifabi of abdul nabi, but he left out the daughters jairabi and ghudnma, who were opponents nos. 3 and 4 in the trial court. then as regards the property b, he granted a certificate to abdul gafur the son and rasulbi the widow of mabaniad husein. in doing so, the learned judge left out the daughter jaytumbi who was opponent no. 5 in the trial court.2. the property a and the property b in question had been the subject of litigation in which there had been a compromise decree as between the respective branches.....
Judgment:

Amberson Marten, Kt., C.J.

1. This civil revisional application relates to a succession certificate granted to the estate of one Abdul Nabi. The learned trial Judge granted two certificates. As regards certain properties described in the present proceedings as property A, be granted a certificate to the son Ahmadsaheb and the widow Sharifabi of Abdul Nabi, but he left out the daughters Jairabi and Ghudnma, who were opponents Nos. 3 and 4 in the trial Court. Then as regards the property B, he granted a certificate to Abdul Gafur the son and Rasulbi the widow of Mabaniad Husein. In doing so, the learned Judge left out the daughter Jaytumbi who was opponent No. 5 in the trial Court.

2. The property A and the property B in question had been the subject of litigation in which there had been a compromise decree as between the respective branches of Abdul Nabi and his brother Maharnad Husein. This compromise decree dated August 2, 1&26, is in cross appeals to this Court Nos. 308 and 620 of 1925, and is at p. 9 of our paper book.

3. The learned trial Judge granted these separate certificates because be took the view that under this compromise decree the property A went to the branch of Abdul Nabi, and the property B to the branch of Mahamad Husein. He also took the view that under this compromise decree the two daughters of Abdul Nabi, viz,, Jairabi and Ghuduma, and Mahamad Husein's daughter Jaytumbi were excluded, their rights having been bought up.

4. So far there does not appear to be any substantial dispute in the case. But what was disputed before the trial Judge by all the daughters, or at any rate by two of them, was that under the compromise decree the shares in certain mills no doubt were allotted to either the one branch or the other, but that those shares did not carry the dividends. The learned Judge, however, on looking at the decree itself thought that that contention was erroneous. And no doubt he relied on the fact that the body of the decree provides that the property mentioned in Division A of the schedule is assigned to one of the parties, and the property mentioned in Division B of the schedule is assigned to other of the parties. Then when one turns to the schedule, one finds that Division A is headed 'Shares with Dividends,' and when one turns to Division B, that also is headed 'Shares with Dividends,' Accordingly the learned Judge granted a certificate not only in relation to the corpus of the shares, but also as regards the dividends. The certificate expressly empowers the holders to receive interest, and dividends existing and future.

5. There was an appeal to the District Court against this decision. We understand that in fact there were two appeals, but at any rate we have one before us. There the learned District Judge in his judgment of September 29, 1928, arrived at a conclusion which is challenged by the present applicants, viz., Abdul Gafur and Rasulbi, the son and widow of Mahamad Husein, who had been granted by the trial Court a succession certificate as regards the property B. The view that the learned District Judge took was that the compromise decree, which I have referred to, did not include certain accumulated dividends between 1916 and 1926. He, therefore, held that that property went to the ordinary heirs of the parties, and that they were the proper persons to be granted a succession certificate.

6. He next proceeded to say in what shares they would beneficially take these accumulated dividends, and he ended:

I therefore direct that succession certificates in respect of the dividends accumulated up to August 2, 1926, be granted as follows.

7. Then he sets out the shares, viz., to Easulbi one-sixteenth and so on to seven persons in all.

8. There is nothing in the judgment before us to show what the learned District Judge proposed to do as regards the other property mentioned in the succession certificate granted by the trial Judge, except that according to his judgment in the middle of page 5 he set aside the order of the lower Court. I say this because I do not understand his judgment. Nobody has contended before us that the two original certificates granted by the trial Judge were to remain with the exception of the accumulated dividends, and that a third certificate was to be granted in respect of the accumulated dividends.

9. There appear to be many objections to the course that the learned District Judge took. In the first place he was exercising in effect the jurisdiction of a probate Judge. He was not sitting as an ordinary civil Judge to dispose of a suit for the administration of a particular estate Consequently he would have had no jurisdiction, say, to construe the will in order to decide finally who were the persons beneficially interested in the estate. All he had the jurisdiction to decide was who the proper persons to be granted the certificate or supposing it was a case' of probate', to whom the grant of probate or letters of administration should issue. In determining that point, he might have to consider who, for instance, were the persons best entitled to call for the administration, and who were the heirs.

10. In the present case, he would have to look at the compromise decree to see who were the persons claiming to be entitled to the property. But it was not for the learned District Judge to go and say that that particular property, when received, should be paid as to a certain fraction to A and as to another fraction Nor do I think ought one to grant a certificate in fractions. Personally I have never seen such an order. For instance, I have never heard that probate should be granted to two executors to the extent of half to each, or letters of administration to the extent of a quarter to each of four persons. That to my mind is entirely wrong. Executors or administrators or holders of certificates are all in the trustees in a fiduciary position and what the beneficial interests of any of them may be in the property or estate ought to form no operative part of the order granting

11. But that after all is a matter of form. The question of substance is, to whom ought the Court to grant a certificate, and whether there are any adequate grounds for upsetting the discretion which the learned trial Judge exercised in holding that, under certain circumstances the proper persons to be granted a certificate should be certain beneficiaries other than the daughters.

12. Under Section 373 of the Indian Succession Act 1925, Sub-section (3), it is provided that:-

If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.

Then under Sub-section (1) the Judge should proceed to decide in a summary manner the right to the certificate. Then under Sub-section (4) where there are more applicants than one for a certificate, he may,

in deciding to whom the certificate is to be granted, have regard to the extent of interest and the titnesa in other respects of the applicants.

13. Now here it was clearly open to the learned trial Judge to arrive at the conclusion which he did, as to what he thought prima facie was the true construction of this particular compromise decree. There were clearly grounds on which he could come to the conclusion prima facie that the shares carried all dividends accrued and to accrue. That decision of course would only be for the sole purpose of deciding to whom the certificate should be granted. It would in no way prevent the daughters from challenging the matter in a subsequent suit.

14. Now here I wish to be particularly careful, and to explain that in giving our decision we in no way intend to prejudice the rights of the daughters Jairabi and Ghuduma and Jaytumbi in challenging in an ordinary civil suit the claim of their opponents that the shares in question carried all unpaid dividends. For that very reason I do not express my opinion on the true - construction of this compromise decree. I only go so far as to say, as I have already intimated, that it was a discretion which, in my opinion, the trial Judge could properly exercise.

15. I may also say that I do not think that it was correct under the circumstances for the learned District Judge to have overruled the discretion of the trial Judge on this question as to whom the certificate should be granted, 1 repeat that the question as to who is really entitled to the past dividends can be determined in proper proceedings in the ordinary way.

16. Therefore on the substance of the matter I would hold that the learned District Judge should not have introduced the names of these three daughters amongst the persons entitled to the certificate, and that he should not have held that these daughters were entitled beneficially to the particular shares and the accumulated dividends in question.

17. The result is that in my opinion the order of the learned District Judge should be set aside.

18. Now what would be the proper order for us to make if this matter was res Integra. I should view with disfavour the granting of separate certificates to one man as regards property A, and to another as regards property B, Sneaking generally the main idea of probate or administration is that the grant should be of all the property to one individual or to two or more jointly But here there are curious circumstances. In fact the order of the trial Judge has been acted on : the shares in question have been transferred to the holders of the certificates, and the disputed dividends have been paid over to them. That being so, we think that we should not set aside the order of the trial Judge and direct that one certificate should be granted instead of two.

19. Some time was occupied by a statement of counsel which fortunately turns out to be incorrect, viz., that Abdulgafur is a minor. On calling, however, for the original certificate we find that Abdulgafur is described as aged about 26, be that the suggestion that the learned Judge wrongly granted the certificate to a minor does not in fact arise. We have called for the other certificate that was granted, but that is not before the Court. We understand that it is the subject of another appeal pending before the District Court. Why the parties could not have brought all their proceedings before one Court we do not know. 'But at any rate we have all the three daughters before us in these proceedings, and the order that we propose to make will not affect the son Ahmad and the widow Sharifabi of Abdul Nabi, who are not before us.

20. We propose, therefore, to direct that the order of the trial Judge granting separate certificates as regards the properties A and B should be restored.

21. As regards the question of costs, we do not see from the copy extract of the order of the trial Court before us that any order as to costs was made there. But if there was, we propose to leave it undisturbed. We notice, however, that in the judgment of the District Court the present applicants were directed to pay their opponents' costs. That being so, the order as to costs we will make is that the present respondents (the original opponents Nos. 3, 4 and 5) do pay the applicants' costs of this application, and also of the appeal to the District Court.

22. Our order restoring the order of the trial Judge will be without prejudice to any suit which the three daughters Jairabi, Ghuduma and Jaytumbi, or any of them, may be advised to bring in relation to their claim to be entitled to the accumulated dividends, or any part thereof.

23. A question of security is raised by the learned Counsel for the respondents, but I rather fancy this arose out of some question put to him by the bench. However, nobody seems to have raised any objection in certain security, although the certificate in question was granted as long ago as October 1927. Further, under Section 375 of the Indian Succession Act, the learned Judge has to consider whether security should be obtained in certain cases, and in some cases it is imperative on him to require security. At any rate we do not propose to go into that question. Any application should first be made to the Court of first instance. But probably it will be found that the remedy, if any, of these daughters is to bring a civil suit and to ask for the appointment of a receiver or otherwise. Then their rights will be decided in that suit, and the point inter alia of limitation will no doubt be considered. Speaking for ourselves, we refuse to give any direction about security at this late stage of the proceedings.

Murphy, J.

24. The petitioners were the original applicants in Miscellaneous Application No. 22 of 1927 in the Court of the First Class Subordinate Judge, for a certificate under Act XXXIX of 1925 in respect of certain shares of some mills at Sholapur standing in the name of Abdul Nabi. Applicant No. 1 Abdul is Abdul Nabi's nephew, and applicant No. 2 Basulbi was Jatababi his brother's wife. Opponents Nos. 1 and 2, Ahmad and Sharifabi, pleaded that according to a partition decree made by the High Court in connection with cross appeals Nos. 308 and 320 of 1925, they were entitled to a certain proportion of these shares. Opponents Nos. 3, 4 and 5 opposed the application on the ground that the accumulated dividends to August 1926, the date of the compromise decree in the High Court, had never been, and still remained to be, divided.

25. The learned Subordinate Judge disallowed this last contention and granted a certificate to the applicants in respect of what he considered had been allotted to their share in the compromise decree. He granted a similar certificate to opponents Nos. 1 and 2 for their so allotted chare by the same decree, There was an appeal from this order to the learned District Judge of Sholapur, and contentions were made by opponents Nos. 3, 4 and 5 similar to those they had raised in the original Court.

26. The learned District Judge in coming to a different conclusion considered that the accumulated dividends had not been dealt with by the decree, and that he was entitled to go into the question of the rights of these opponents and the heirs of Abdul Nabi. He made an order specifying what the right of each such person was according to his share, and set aside the original Court's order.

27. The original applicants are the petitioners in this Court. I agree that the learned District Judge's order cannot be supported. Section 373 of the Indian Succession Act contemplates that a succession certificate may be granted to a person having the best title to it. And Sub-section (8) of that section is to the effect that:-

If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.

The provision as to a case where there are more applicants than one for a certificate, and where more than one of such applicants is interested, is, that (Sub-section (4)) :-

the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants.

28. I think it was this sub-section which led the learned Subordinate Judge to grant the certificates to two of the parties before him. But it does not seem to me that the section authorized Abdul the learned District Judge to go into the question of the rights of the parties under the compromise decree of 1925, and definitely to decide what their respective shares were.

29. In these circumstances I agree that amending the order made by the District Court would probably only lead to further complication in the matter, and that the District Judge's order must be set aside, and that made by the original Court restored, as proposed in the judgment just pronounced by the learned Chief Justice.

30. Per Curiam. Order of District Judge set aside. Order of trial Judge restored. Respondents (original opponents Nos. 3, 4 and 5 to pay costs of applicants of this revisional application and of appeal to District Judge. Above order to be without prejudice to any suit which respondents or any of them may be advised to bring re their claim to accumulated dividends on certain shares mentioned in the succession certificate.


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