1. This is an appeal against an order of the District Judge of Bareilly rejecting the application of the appellant, Musammat Shadi Jan, for a certificate under Section 4 of the Succession Certificate Act (VII of 1889).
2. The facts of the case are as follows:
Ahmadi Bagam, the daughter of Musammat Shadi Jan, was the wife of one Raza Ali, and died on the 10th May 1914.
2. She left as heirs her mother, six sons, two daughters and her husband.
3. It is admitted that the dower debt which Raza Ali owed his wife at the time of her death amounted to Rs. 2,000.
4. The wife's heirs were, therefore, entitled to specific shares of this debt in accordance with the Muhammadan Law of inheritance, and the share of the wife's mother was 1/6th. The result was that Musammat Shadi Jan had a good claim against Raza Ali for Rs. 12,000 and to that extent Raza Ali became the debtor of Musammat Shadi Jan.
5. On the 23rd October 1914 Raza Ali himself died leaving as heirs his six sons, his two daughters and his mother, Musammat Najm-un-nissa, who became entitled to Raza Ali's estate in the following shares, namely:
6 sons 60 sihams2 daughters 10 DoMother 14 Do
so that the mother's share of the estate was 14/84 = l/6th.
6. According to Muhammadan Law each heir is liable for debts due from the deceased to the extent only of a share proportionate to his share of the estate, so that Raza Ali's mother became liable to pay a l/6th share of her son's debts. The latter included, as has been said, a debt' of Rs. 12,000 due to Musammat Shadi Jan, and she filed a suit to recover from Musammat Najam un nissa the latter's share of this debt, ie., Rs. 2,000. In the suit she impleaded as pro forma defendants the other heirs of Raza Ali. To enable her to get a decree against Najm-un nissa for this sum she applied to the District Judge for a Succession Certificate, and the learned Judge, relying upon a Fall Bench decision of this Court Ghafoor Khan v. Kalandari Begam 9 Ind. Cas. 140, 33 A, 337 : 8 A. L.J. 119. , has refused the application on the ground that no certificate under the Act can be granted in respect of part of a debt, treating this sum of Rs. 2,000 as part of the dower debt which Raza Ali once owed to his wife.
7. The facts of the case new before us are different from those which the Fall Bench had to consider, the important distinction being that in the latter case the husband from whom the dower debt was due was still alive and was being sued. In my opinion the principles laid down in the ruling referred to have no application in the present case. We are not dealing here with a claim against the debtor of a deceased person, The creditor, Musammat Shadi Jan, is still alive, and she is making a claim against one of the heirs of her deceased debtor. After his wife's death Raza Ali, by operation of the Muhammadan Law of inheritance, became the debtor of Musammat Shadi Jan to the extent of Rs. 12,000 and that liability continuing up to the time of his death, has now descended in specified shares to his heirs, one of whom is Musammat Najm-un-nissa.
8. In these circumstances it appears to me that Musammat Shadi Jan is not required by law to take out any certificate under the Act for the purpose of enabling her to obtain a decree for this sum of Rs. 2,000 against Musammat Najm-un-nissa, and I would hold that her application should fail on this ground, and not upon the ground stated by the Court below.
9. As this, then, is not a case in which a certificate should be granted, I would dismiss the appeal, making no order as to costs as the respondent has made no appearance.
10. I agree. I am satisfied that no certificate is necessary and that a decree ought not to be refused on this ground.
11. The appeal is dismissed. We make no order regarding costs.