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Ram Kuar and anr. Vs. Sardar Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All352
AppellantRam Kuar and anr.
RespondentSardar Singh
Excerpt:
act no vii of 1889 (succession certificate act) sections sand 7 - certificate to collect debts--minor. - .....the grant of such certificate. no one opposed the grant, and the district judge made an order granting a certificate as prayed. after the grant of the certificate had been made musammat ram kuar and musammat mahtab kuar, filed an appeal against the order of the district judge, on the grounds that there was no legal evidence of permission to adopt the minor having been given by the deceased creditor to his wife, and that a certificate should not have been granted. this question which has been argued before us is--can in law a certificate under act vii of 1889 be granted to a minor? that is the only question which has been presented to us for consideration in argument. it has been contended on behalf of the appellants that a certificate under act no. vii of 1889 cannot be granted to a.....
Judgment:

John Edge, C.J. and Burkitt, J.

1. Kunwar Sardar Singh, minor, made an application to the District Judge of Aligarh by his next friend under Act No. VII of 1889, for a certificate to collect debts alleged to have been due to his alleged adoptive father, then deceased. Notice to persons who might have been interested in opposing the application were duly served. These persons had three several opportunities of opposing the grant of such certificate. No one opposed the grant, and the District Judge made an order granting a certificate as prayed. After the grant of the certificate had been made Musammat Ram Kuar and Musammat Mahtab Kuar, filed an appeal against the order of the District Judge, on the grounds that there was no legal evidence of permission to adopt the minor having been given by the deceased creditor to his wife, and that a certificate should not have been granted. This question which has been argued before us is--can in law a certificate under Act VII of 1889 be granted to a minor? That is the only question which has been presented to us for consideration in argument. It has been contended on behalf of the appellants that a certificate under Act No. VII of 1889 cannot be granted to a minor although he appears and applies for it through his next friend. Mr. Dwarka Nath Banerji, in his argument, was compelled to admit that it was not intended that a debt due in such a case to a minor should by effluxion of time become barred by limitation, and he contended that any near relation of such a minor might apply for, and obtain, a grant of a certificate to himself to collect the debts which might be due to the minor. For that purpose Mr. Dwarka Nath Banerji had further to contend that the grant of a certificate gave the holder of such certificate a cause of action. In our opinion the grant of a certificate neither given a cause of action nor is it a part of the cause of action. Section 4 of Act No. VII of 1889 suggests quite the contrary. That Section does not debar a person entitled from suing until such person has obtained a certificate, but merely prohibits the Court from making the decree in favour of such person until that person has produced a certificate under the Act, or one or other of the documents referred to in the section. If the granting of a certificate was part of the cause of action, it would follow that no suit would lie unless before the commencement of the suit a certificate had been obtained. Now, in our opinion, the Legislature intended under Act No. XXVII of 1860 and under Act No. VII of 1889 that a person to whom a certificate might be granted should be a person who had some title or interest in the debt to collect which a certificate is applied for, and that a mere interest in the minor or in the person entitled to sue for the debt is not sufficient to entitle a stranger, or even a relation, to a certificate. That is the conclusion which we draw from Section 3 of Act No. XXVII of 1860, from Clause (d), Sub-section 1 of Section 6 of Act No, VII of 1889, from Clause (6) of Sub-sections 1 of Section 7 of the same Act, and from Sub-sections 2, 3 and 4 of Section 7 of the same Act. Now the Legislature has not prohibited, by Act No. VII of 1889, the grant of a certificate to a minor through his next friend, nor was there any such prohibition in Act No. XXVII of 1860. Where the Legislature considered that probate or administration should not be granted to a minor, it said so expressly. Such prohibition will be found in Sections 183 and 189 of Act No. X of 1865 and in Section 8 of Act No. V of 1881. As far back as 1879, the Calcutta High Court in Kali Coomar Chatterje v. Tara Prosunno Mookerjee 5 C.L.R. 517, inferentially decided that a certificate to collect debts under Act No. XXVII of 1860 might be granted to a minor through his next friend. In our opinion the Calcutta Court was right. We dismiss this appeal with costs.


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