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Bai Nandkore Vs. Maganlal Varajbhukhandas Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 151 of 1911
Judge
Reported in(1911)13BOMLR1208; 12Ind.Cas.921
AppellantBai Nandkore
RespondentMaganlal Varajbhukhandas Shah
Excerpt:
succession certificate act (vii of 1889), section 26--grant of certificate on the applicants' furnishing security--appeal. ;an order passed under the succession certificate act, 1889, granting a certificate on the applicants' furnishing security is an order appealable under section ?6 of the act. ;bai devkore v. lalchand jivandas (1894) i. l.r. 19 bom. 790, distinguished. - - justice fulton, the other judge, in delivering judgment said that he felt satisfied that the assistant judge was right in following bhagwani v......in the madras high court in several reported cases and also by the calcutta high court.5. in the present case, however, as we have stated, the real question is which person was entitled to a grant of the certificate.6. the question has been argued as to the rights of the respective parties to the grant of a certificate, and the certificate has been granted after a consideration of those rights. that order granting the certificate was, in our opinion, appealable under section 26. the grant of the certificate does not under the act finally determine the rights of the parties. section 25 of the succession certificate act (vii of 1889) provides, 'no decision under this act upon any question of right between parties shall be held to bar the trial of the same question in any suit or in any.....
Judgment:

Basil Scott, Kt., C.J.

1. In this case there was a contest between the claimants as to the right to a succession certificate in relation to a share belonging to a deceased testator. One of the claimants claimed as the heir of the testator's sister who, the other claimant said, had only a life-interest, and the other claimant claimed as remainder-man under the will upon the termination of the life-interest of that sister.

2. The Subordinate Judge decided in favour of the heir of the sister whereas the Judge with appellate powers, on appeal, decided in favour of the remainder-man.

3. The order granting the certificate was accompanied by a condition that security should be given, and upon the strength of the existence of that condition, it is contended before us that no appeal lay from the order of the original Court, In support of this contention the decision of this Court in Bai Devkore v. Lalchand Jivandas ILR (1894) 19 Bom. 790 has been relied on.

4. Now that decision was given in a case where there was no contest apparently between two different persons claiming a succession certificate but the brother-in-law of the woman who claimed the succession certificate contended that the grant should not be made to her unless she was ordered also to furnish security, and the Judge ordered that she should furnish security upon taking the grant. It was against the order that she should furnish security that she appealed. It was held that no appeal lay. The acting Chief Justice states the grounds of the appeal to the District Court of Broach (1) that the order requiring security was erroneous, as she was the absolute owner of the moveables of her husband, (2) that the legislature did not intend that security should be required from absolute owners by right of heir ship. The question, then, before the High Court was whether the discretion of the original Court in deciding that security should be taken from the widow, ought to be interfered with in an application under Section 622. It is true that there is a paragraph in the judgment of the acting Chief Justice at page 793 which indicates that in his opinion, as in the opinion of the Allahabad High Court, a conditional order for the grant of the certificate would not be an order for the grant of the certificate. That expression of opinion was not necessary for the decision of the case. Mr. Justice Fulton, the other Judge, in delivering judgment said that he felt satisfied that the Assistant Judge was right in following Bhagwani v. Manni Lal ILR (1891) All 214 and holding that no appeal lay against the order of the Subordinate Judge requiring the petitioner to furnish security under Section 9 of Act VII of 1889 as a condition precedent to granting her a certificate. Then he goes on to say: 'It may be that when the Subordinate Judge makes a final order granting or refusing the certificate, such order, if unfavorable to the applicant, and the grounds on which it is based, will be appealable under Section 26;' so he treats the question before the Court as a question whether the order requiring security is appealable or not and holds that no appeal lies. This is the view which has been taken in the Madras High Court in several reported cases and also by the Calcutta High Court.

5. In the present case, however, as we have stated, the real question is which person was entitled to a grant of the certificate.

6. The question has been argued as to the rights of the respective parties to the grant of a certificate, and the certificate has been granted after a consideration of those rights. That order granting the certificate was, in our opinion, appealable under Section 26. The grant of the certificate does not under the Act finally determine the rights of the parties. Section 25 of the Succession Certificate Act (VII of 1889) provides, 'no decision under this Act upon any question of right between parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties.' We, therefore, do not think it necessary or desirable to express the opinion that we have formed as to the rights of the respective parties under the will of the testator.

7. We discharge the rule with costs.


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