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Musammat Sharif-un-nissa Vs. Qazi Masoom Ali and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All139; 56Ind.Cas.380
AppellantMusammat Sharif-un-nissa
RespondentQazi Masoom Ali and anr.
Cases ReferredGhafoor Khan v. Kalandari Begam
Excerpt:
.....of act vii of 1889, in our opinion the order is in effect one refusing to grant a certificate to musammat sharif-un-nisa, the applicant, and we are bound to entertain the appeal. as matters now stand, musammat sharif un nisa is absolutely precluded from instituting a suit for the enforcement of what on the facts stated seems to be a perfectly just claim. the difficulties felt by the learned judges ofthis court in applying the terms of the sun-session certificate act to the case of a debt of a peculiar nature like the dourer debt of a muhammadan widow are obvious enough from the judgment delivered in the case above referred to. but this would involve treating the decree passed in favour of husain ali as equivalent to complete realisation of his share, which is not precisely the case,..........33 a. 327: 8 a. l. j. 79 as to the granting of a succession certificate for the collection of the dower debt of a muhammadan widow when her husband has died without satisfying her claim in respect of the sama. the essential facts of this case are quite simple. the appellant before us is the daughter of kazi masum ali by his wife musimmat kifayat fatima. that lady died with her dower-debt unpaid. her heirs under the mnhammadan law were her husband, to the extent of a one-fourth share, a brother named husain ali to the extent of a one-fourth share, and her daughter, the appellant, in respect of the remaining half share. husain ali applied for a succession certificate and the court to which he applied, following the principles laid down in the ruling to which reference has already been.....
Judgment:

1. This is a first appeal from an order passed under the Succession Certificate Act. The first point taken is that the order complained of is not an order re fusing a certificate, bat is an order refusing to revoke a certificate against which no appeal is provided by Section 19 of Act VII of 1889, In our opinion the order is in effect one refusing to grant a certificate to Musammat Sharif-un-nisa, the applicant, and we are bound to entertain the appeal. On the merits the case seems a clear one, except for one difficulty which has greatly influenced the decision in the Court below, namely, the principles laid down in the case of Ghafoor Khan v. Kalandari Begam 9 Ind, Cas. 127: 33 A. 327: 8 A. L. J. 79 as to the granting of a succession certificate for the collection of the dower debt of a Muhammadan widow when her husband has died without satisfying her claim in respect of the sama. The essential facts of this case are quite simple. The appellant before us is the daughter of Kazi Masum Ali by his wife Musimmat Kifayat Fatima. That lady died with her dower-debt unpaid. Her heirs under the Mnhammadan Law were her husband, to the extent of a one-fourth share, a brother named Husain Ali to the extent of a one-fourth share, and her daughter, the appellant, in respect of the remaining half share. Husain Ali applied for a succession certificate and the Court to which he applied, following the principles laid down in the ruling to which reference has already been made, compelled him to take out a succession certificate in respect of the entire amount of the dower debt which was stated in his application at Rs. 25,000. On the strength of this certificate Huaain Ali proceeded to institute a suit against Masum Ali, but in this suit he claimed only his own one fourth share of the dower debt. Ha made no attempt to recover on behalf of and for the benefit of Musammat Sharif-un-nisa the half share in the debt to which that lady was entitled. We understand that Husain Ali has obtained a decree but that this decree is still under appeal in this Court. Musammat Sharifun nisa thereupon applied to the Court below asking either that the certificate granted in favour of Husain Ali should be revoked and a fresh certificate made out in her name, or in the alternative that her name should be associated with that of Husain Ali in the same certificate to the extent of the half share claimed by her. The Court below has held chat no adequate case is made out under the provisions of Section 18 of the Succession Certificate Act (No. VII of 1889) for the revocation of the certificate granted to Husain Ali and that, on the principles laid down by the Full Bench of this Court in the ruling already referred to, it is impossible to grant a certificate in any form which would be of any use to Musammat Sharif un-nisa. The appeal before us is against the order of the Court below rejecting her application in toto. The position arrived at is, in our opinion, an impossible one and calls for rectification by this Court. As matters now stand, Musammat Sharif un nisa is absolutely precluded from instituting a suit for the enforcement of what on the facts stated seems to be a perfectly just claim. We think that the Court below could have revoked the certificate granted to Husain Ali, or at least have revoked the same in part, on more than one ground. In the first place, the proceedings which took place when Husa in Ali obtained his certificate were seriously defective in substance within the meaning of Clause (a) of Section 18 of Act VII of 1889. Musammat Sharif-un-nisa was at the time a minor and her father, whose interest in this matter was obviously opposed to hers, be being the debtor whose liability it was sought to enforce by means of the application, was allowed to accept service of notice on her behalf. We are not saying that Hasain Ali himself was to blame for this; but there was this serious defect in the procedure adopted by the Court. Over and above this, the certificate granted to Husain Ali has now become practically inoperative so far as Musammat Sharif-un-nisa's share in the debt is concerned, and the decree made in his favour by a competent Court for the recovery of a fractional share only of the dower debt renders it proper and desirable that some further order should be passed enabling Musammat Sharif-un-nissa to claim her legal rights. The learned District Judge would probably have taken very much the same view, but he felt himself constrained by the decision of this Court in Ghafoor Khan v. Kalandari Begam 9 Ind, Cas. 127: 33 A. 327: 8 A. L. J. 79 to hold that he could only choose between one of two courses, namely, rejecting Musammat Sharif-un nisa's application, or revoking altogether the certificate in favour of Husain Ali and granting a fresh certificate to Musammat Sharif-un nisa for the recovery of the entire amount of the dower-debt. The difficulties felt by the learned Judges ofthis Court in applying the terms of the Sun-session Certificate Act to the case of a debt of a peculiar nature like the dourer debt of a Muhammadan widow are obvious enough from the judgment delivered in the case above referred to. Undoubtedly it is impossible in dealing with the matter under the Succession Certificate Act to treat the dower debt as anything but a single debt due to the deceased woman, and the procedure laid down under the Act does not afford any suitable method for deciding conflicting claims as between the heirs of the deceased lady to specific shares in the debt claimed. We do not, therefore, desire to express any dissent from the principles laid down by the Full Bench of this Court, which indeed we are bound as a Divisional Bench to follow. At the same time it seems to us unnecessary to apply those principles beyond the original granting of the certificate. We are of opinion that, if a certificate has once been granted in respect of the entire debt, and it becomes apparent to the Court that circumstances have subsequently changed so as to bring into operation Clause (d) or (e), or both, of Section 18 of Act VII of 1889, it is open to the Court to pass orders having the effect of a partial revocation of the succession certificate once granted, or to modify the terms of that grant in such manner as the interests of justice may seem to require. It might be possible for us to treat Musammat Sharif-un nisa's share in the dower debt as representing the only debt now remaining to be paid to the heirs of the deceased lady; but this would involve treating the decree passed in favour of Husain Ali as equivalent to complete realisation of his share, which is not precisely the case, more particularly in view of the fact that an appeal is pending against the decree. Nor do we wish to pass any order which should throw difficulties in the way of Husain Ali's realising his claim, presuming it to be a just one. We think, however, that it is competent to us under the terms of the Act to pass the following order.

2. We revoke the certificate granted in favour of Husain Ali to the extent of half of the sum specified in the said certificate, namely, to the extent of Rs. 12,500, and we direct that a certificate for the realisation of this amount, as a debt alleged to be due from Masum Ali to Musammat Kifait Fatima, be granted in favour of the appellant Mutant-mat Sharif-un-nisa. The appellant is entitled to her costs of this appeal, including fees on the higher scale.


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