1. This is a defendant's appeal. Two points were raised in the memorandum of appeal, one being of limitation which has not been pressed, and the second being that the lower appellate Court erred in law in remanding the case and in directing that the succession certificate be taken in evidence by the lower Court.
2. The facts involved are very simple. The defendant executed a promissory-note in favour of one Kanhaiya Lal whose legal representatives transferred it to the plaintiff-respondent, Mangat Rai. Mangat Rai brought the suit out of which this appeal has arisen for recovery of the money due on the promissory note.
3. The defendant-appellant was absent as also the other defendants who were only formal parties, being representatives of Kanhaiya Lal. An ex parte decree was made against all the defendants. Defendant 1, Bhuddat Singh, filed an appeal before the District Judge and among the other points taken by him one was that the production of a succession certificate was necessary before a decree could be made in favour of Mangat Rai. It was argued that the appeal should have been allowed and the suit should have been dismissed outright by the learned District Judge, and complaint is made of the fact that the learned Judge allowed the succession certificate to be filed before him and ha remanded the suit to the lower Court to pass a fresh decree. Against this order of remand this appeal has been filed. The contention is that the decree passed by the first Court was a wrong decree and the subsequent production of the succession certificate could not validate the decree. Reliance has been placed on two cases by the learned Counsel for the appellant. One is a Full Bench decision of this Court Fateh Chand v. Muhammad Bakhsh (1894) 16 All. 259 and the other is Kasumari Das v. Mahkhu : AIR1927All227 . As regards the first case, the relevant remarks will be found at p. 266. It will be noticed that the remarks there made were in the nature of an obiter dictum, although the obiter dictum made in a Full Bench case is to be treated by me with all respect.
4. The remark on which reliance is placed is that the subsequent production of a succession certificate cannot have a retrospective effect. The facts of the case however were that the first Court dismissed the suit for want of a succession certificate. The lower appellate Court remanded the case to the first Court, to give the plaintiffs an opportunity to file a succession certificate. That Court again dismissed the suit, because the succession certificate filed was an incomplete one. In second appeal it was contended before this Court that the complete succession certificate having been obtained after the dismissal of the suit by the Subordinate Judge but prior to the decree made by the District Judge, the High Court should accept the succession certificate and reverse the decree of the District Judge. It was pointed out by this Court (see para. 1, p. 266) that the complete succession certificate was never produced before the District Judge, although it had been obtained before the District Judge made his decree. The remarks therefore that were made in the case are in the nature of an obiter dictum. In the second case two learned Judges of this Court professed to follow the Full Bench decision. In that case the suit in the first Court was dial, missed, because the plaintiff in spite of time being granted to him for the production of a succession certificate failed to produce one. A succession certificate was filed in the lower appellate Court but the learned Judge professing to follow the Full Bench decision, Fateh Chand v. Muhammad Bahhsh (1894) 16 All. 259, refused to accept the succession certificate and dismissed the appeal. Its judgment was upheld by the High Court. It will be noticed that in this case, as also in the Full Bench case, the suit had already been dismissed by the Court of the first instance, and there was no decree in favour of the plaintiff.
5. In the case before me the facts are just the other way. The suit was decreed by the Court of first instance. There was no plea in the Court of first instance that a succession certificate was not produced. If such a plea had been taken the Court of first instance would surely have given the plaintiff an opportunity to produce a succession certificate. The Succession Certificate Act is partially, at any rate, a fiscal enactment, and it is to be administered as far as possible leniently and must be construed in favour of the subject. The Court of first instance, therefore would have, I take it for granted, given a reasonable amount of time to the plain-tiff to produce a succession certificate if an objection had been taken before it. The objection was taken for the first time in appeal, and the appellate Court accepted, and, in my opinion, rightly, the succession certificate. The case is very similar to that of Zahur Main v. Puran Singh A.I.R. 1924 Pat. 525. There as here the objection as to want of succession certificate was taken for the first time in appeal, and two learned Judges of the Patina High Court, held that, in the circumstances, the lower appellate Court was bound to grant time for the production of a succession certificate. The learned Judges of the Patna High Court were supported in their view by a Madras decision in Ammasi Kutti Gounden v. Appalu A.I.R. 1916 Mad. 20 a decision by two learned Judges. The case before me is entirely similar to the Patna and Madras cases and is quite dissimilar to the Allahabad cases relied on by the learned Counsel for the appellant.
6. As regards the Allahabad decision, I have already pointed out that the remark made in the Full Bench case was in the nature of an obiter dictum and in the later case this fact was not brought to the notice of the learned Judges who decided it. The Calcutta High Court in Mooralidhar Roy Chowdhury v. Mohini Mohan Kar A.I.R. 1915 Cal 837 held that a succession certificate, although not filed in the first Court, could be taken by the first appellate Court, and remanded the case to the first Court of appeal, so that it might accept the succession certificate and made a decree. As I am at present advised, the view taken by the two learned Judges of the Calcutta High Court is the proper view of law, inasmuch as the succession certificate is mainly required for fiscal purposes, and the provisions ought to be so applied as to work the least hardship. The other party to the case may be fully compensated by award of costs for the inconvenience suffered by him owing to the plaintiff's default. The result is that the appeal fails and is hereby dismissed with costs. Leave to appeal is asked for and is refused.