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Ghafoor Khan Vs. Musammat Kalandari Begam - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.127
AppellantGhafoor Khan
RespondentMusammat Kalandari Begam
Cases ReferredMohammad Ali Khan v. Puttan Bibi
Excerpt:
muhammadan law - dower debt--succession certificate for a portion of debt--succession certificate act (vii of 1889), sections 2, 4, 6, 7 and 9--debt--nature of proceedings under the act--one debt gives rise to one cause of action--heir of a, creditor cannot sue for his share alone. - - ' 8. the proceedings under the said act are of a summary nature in which the court either decides the right of the applicant to the certificate or grants it to one who appears to have the best prima facie title thereto (section, 7). 9. in certain cases the court must, and in others it may, require, as a condition precedent to the granting of a certificate, a bond for indemnity of persons who may be entitled to the whole or any part of the debt (see section 9). it is thus evident that the proceedings are,..........that 'debt' in section 6(f) means the debt which is due to the deceased, i, e., the whole of the debt. an applicant for a probate or letters of administration, no doubt, is allowed to put a value on the amount of the assets of the deceased but he has to put a value on the assets as a whole and not on any portion thereof.16. article 12 of schedule i of the court fees act does, in no way, support the view that a succession certificate for a portion of a debt can be granted. the note in that clause is in the following terms:the amount of a debt is its amount, including interest, on the day on which the inclusion of the debt in the certificate is applied for, so far as such amount can be ascertained.' the ascertainment of the amount of the debt, in my opinion, is the ascertainment of the.....
Judgment:

Karamat Husain, J.

1. The facts are these. Musammat Kalandari Begam, one of the heirs of Musammat Gujrati Begam, deceased, applied for a Succession Certificate for the collection of a portion of the dower debt of Gujrati Begam. Her husband Ghaffoor Khan objected that no certificate for the collection of a portion of a debt could be granted.

2. The learned District Judge overruled the objection and granted the certificate. In his order, dated the 18th of February 1910, he said: 'I think the applicant is entitled to the certificate applied for by her for the balance of the dower debt after deducting the share of the same to which the objector is entitled and which is in his hand and of the share of Musammat Sahib Jan another heir which has become time-barred.'

3. The objector preferred an appeal to this Court and repeated the pleas he had raised in the Court below. The case owing to conflict of authorities was heard by a Bench of three Judges. It was urged for the appellant that a Succession Certificate for a portion of a debt could not be granted. In support of the contention reliance was placed on the following cases:

4. Muhammad Ali Khan v. Puttan Bibi 19 A. 129 and Bismilla Begam v. Tawassul Husain 32 A. 335 : 7 A.L.J. 256 : 5 Ind. Cas. 424.

5. The contention of the respondent was that a Bench of this Court in Akbar Khan v. Bilkisara Begam A.W.N.(1901) 125 granted a succession certificate for a portion of a dower debt and that the remarks of Edge, C.J. in Mohammad Ali Khan v. Puttan Bibi 19 A. 129 favoured the grant of a certificate for the collection of a portion of a debt. They are as follows:

It appears to us that the applicant must pay the duty for a certificate entitling him to collect the whole of the dower debt which at the date of the application was due and payable. In calculating what the amount of that debt was, the son's share by inheritance which has been discharged and the husband's share which he holds in his own hands in satisfaction of his own share in the inheritance, will be deducted, and the duty will be payable on the balance.

6. The decision of the case turns upon the construction to be put upon Section 4 of the Succession Certificate Act with special reference to the meaning assigned to the phrase 'his debt' in that section.

7. Before dealing with the section, the following points are to be noted. The Succession Certificate Act, 1889, as the preamble shows, has been enacted to 'afford protection to parties paying debts to the representatives of deceased persons.'

8. The proceedings under the said Act are of a summary nature in which the Court either decides the right of the applicant to the certificate or grants it to one who appears to have the best prima facie title thereto (section, 7).

9. In certain cases the Court must, and in others it may, require, as a Condition precedent to the granting of a certificate, a bond for indemnity of persons who may be entitled to the whole or any part of the debt (see Section 9). It is thus evident that the proceedings are, in no way, intended to determine the share of the applicant in the debt or to adjudicate upon the relative rights of the applicant and others therein.

10. This is not all. One debt creates one single and indivisible liability which gives rise to one single cause of action. One of the heirs of the obligee of a money bond in may not, therefore, sue for his share in the money due under the bond. See Kandhiya Lal v. Chandar 7. A. 313. The dower debt of a Muhammadan wife, whether prompt or deferred, is a 'debt' within the meaning of Section 2 of the Succession Certificate Act, 1889. Abdul Karim Khan v. Maqbul-un nissa 30 A. 315 : A.W.N. (1908) 113 : 5 A.L.J. 598.

11. A debtor, again, ought not to be harassed more than once for one debt and the multiplicity of suits in respect of one cause of action must not be allowed.

12. Some of the above-mentioned joints, among others not mentioned, brought into being Act XXVII of 1860, under; which the Calcutta. High Court in Wssel-un-Haq v. Gauhar-un-nisa Bibi 10 W.R. 105 : 1 B.L.R. (S.N.) 7 and Amir-un-nissa Barkat v. Srimati Afiat un-nissa 3 B.L.R. 404 : 12 W.R. 307 held that a certificate cannot be granted to different heirs according to their shares in the inheritance. Act XXVII of 1860 was re-placed by the Succession Certificate Act, 1889, Section 4 of which is as follows:

(1) No Court shall-

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased person or to any part thereof...except on the production by the person so claiming of:

(iii) A certificate granted under this Act and having the debt specified therein.

13. The plain meaning of the phrase 'his debt' in what has been quoted is the whole of the debt due by the debtor to the deceased. It cannot mean a portion of that debt. Such a meaning, firstly, is against the canons of interpretation, for the natural meaning of the term debt' is not a share of some one in that debt: secondly, it is, opposed to the scheme of the Act which has been enacted to afford protection to debtors and has nothing to do with the convenience of the applicant or his right to or share in the debt thirdly, it will cause the splitting of an indivisible liability; and, fourthly, it will lead to the harassing of a debtor more than once on one cause of action and to multiplication of suits thereon.

14. This Court in view of the above reasons held, in Shitab Dei v. Debi Prashad 16 A. 21 that separate certificates to different persons for partial collection of debts could not be granted, and in Mohammad Ali Khan v. Puttan Bibi 19 A. 129. it was ruled that a certificate for the collection of a portion of a debt could hot be given. Edge, C.J. said: 'He (the father of the deceased wife) had applied for a certificate entitling him to collect debts to the amount of Rs. 1,50,000. It was necessary under Section 4 of Act No. VII of 1869 that he should have a certificate. The Judge declined to grant such certificate unless the applicant paid the 2 per cent. duty on the whole debt, i.e., the debt of eleven lakhs odd, which was due to the Muhammndan lady. There has been a uniform series of decisions in this Court according to which a certificate cannot be granted to collect a part only of a debt. There is no decision of this Court or, so far' as We know, of any other Court which says that an applicant for a certificate, either under this Act or under the former Acts must apply for a certificate to collect all the debts due to this deceased. We think it would be against public policy that a certificate to collect part only of a debt should be granted, as it would tend to multiplication possibly of suits in respect of one liability and the harassment of debtors.'

15. The ruling in Jamnd Prasad v. Mathura Prasad 16 A. 129 was followed in Bismilla Begam v. Tawassul Husain 32 A. 335 : 7 A.L.J. 256 : 5 Ind. Cas. 424. It is, however, argued that the remarks of Edge, C.J., in Mohammad Ali Khan v. Putttan Bibi 19 A. 129 which have been cited by the learned Vakil for the respondent, favour the grant of a certificate for the collection of a portion of a debt. There is no force in this. The point for decision in that case was whether a certificate for the collection of a portion of a debt could or could not be granted and the decision thereon was that it could not. That being so, the remarks towards the end of the judgment are mere obiter dicta. Chamier, J., in Akbar Khan v. Bilkisara Begam A.W.N.(1901) 125 doubts the correctness of the decision in Mohammad Ali Khan v. Puttan Bibi 19 A. 129 and is of opinion that the word 'debts' in Section 6(f) of the Succession Certificate Act 1889, means debts due, i.e., alleged to be due from debtors to the person applying for the certificate. With due respect to the learned Judge, there is nothing in Section 6(f) to show that the term debts' means a portion of the debt to which the applicant is entitled. Neither that section nor any other section of the Act aims at determining the share of the applicant in the debt. Reading that term in the light of the phrase 'his debt' in Section 4 of the Act, it becomes clear that 'debt' in Section 6(f) means the debt which is due to the deceased, i, e., the whole of the debt. An applicant for a probate or Letters of Administration, no doubt, is allowed to put a value on the amount of the assets of the deceased But he has to put a value on the assets as a whole and not on any portion thereof.

16. Article 12 of Schedule I of the Court Fees Act does, in no way, support the view that a succession certificate for a portion of a debt can be granted. The note in that clause is in the following terms:

The amount of a debt is its amount, including interest, on the day on which the inclusion of the debt in the certificate is applied for, so far as such amount can be ascertained.' The ascertainment of the amount of the debt, in my opinion, is the ascertainment of the amount of the whole debt and not of the share of the applicant therein. It is the ascertainment which an accountant would make. Juristic facts which may affect the debt or any portion of it, such as the absence of right to the debt in the applicant, fraud, limitation, the absence of cause of action or the like, cannot be taken into account in ascertaining its amount for the purpose of obtaining a succession certificate. The determination of such facts is the exclusive function of a Court of Justice in a regular suit and may often involve intricate and difficult questions of law and facts which are not to be decided in a summary proceeding.

17. The only plea which favours the grant of a succession certificate for the collection of a portion of a debt is based on sympathy with the applicant. It is urged that it will be a great hardship to make an applicant, who is entitled to a fractional share of a debt only, to pay duty upon the whole of that debt. This, however, is a matter of pure sentiment and, in the absence of an express rule of law to that effect, Courts of Justice can take no notice of the hardship and the more so when there are considerations which point the other-way. A person entitled to one-tenth of a debt has pay the full Court-fee payable on the whole of the debt and the hardship involved cannot save him from such payment. One of the mortgagers, whose Share in the property mortgaged is 1/30, cannot, on the ground of hardship, be allowed to sue for the redemption of l/30 of the property on payment of 1/30 of the full Court-fee. A plaintiff, who sues for Rs. 20,000 and obtains a decree for Rs. 1,000 only, cannot, on the basis of the hardship claim a refund of the Court-fee on Rs. 19,000.

18. For the above reasons, I would allow the appeal and dismiss the application for a succession certificate for collection of a portion of the dower debt with costs including in this Court fees on the higher scale.

Knox, J.

19. I fully agree with the above. It is a matter for the Legislature to consider whether the hardship to which my learned brother has alluded should not be relieved by a change in the statute.

Griffin, J.

20. I agree.

21. The order of the Court is that the appeal be allowed, the order of the lower Court set aside and the application dismissed with costs which will include in this Court fees on the higher scale.


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