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Musammat Sughra Begam, Major and ors. Vs. Mohammad Mir Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All221; 61Ind.Cas.6
AppellantMusammat Sughra Begam, Major and ors.
RespondentMohammad Mir Khan
Cases ReferredGhafoor Khan v. Kalandari Begam
Excerpt:
succession certificate act (vii of 1889), section 4 - debt--certificate in respect of portion of debt, whether can be granted--proceeding under act, nature of. - - he calculates that 1/4th of the dower-debt has been automatically satisfied on the death of the lady, by reason of her husband's having inherited 1/4th share in her estate. 79. in that case the learned judges laid it down, in the most unqualified and uncompromising terms, that the dower, debt due to a muhammadan lady was a single debt, that the succession certificate act does not contemplate the granting of a certificate for the collection of any portion of a debt, and that, consequently, no succession certificate should be granted in a case like the present except for the collection of the entire debt. the view taken is,..........a brother and three daughters. an application for was succession certificate in respect of the dower-debt due to the lady was made by the brother, who is the respondent to this appeal. he asked for a succession certificate in respect of that share only of the dower-debt which he would inherit under the muhammadan law. the daughters objected that he should not be allowed a succession certificate for anything leas than the whole amount of the debt. the learned district judge has passed an order, which partly sustains and partly repeats the objection taken by the daughters. he calculates that 1/4th of the dower-debt has been automatically satisfied on the death of the lady, by reason of her husband's having inherited 1/4th share in her estate. he has also calculated, further, that any.....
Judgment:

1. This is an appeal arising out of a proceeding under the Succession Certificate Act. The point in issue is a simple one. A Muhammadan lady died leaving, as her heirs, a husband, a brother and three daughters. An application for was Succession Certificate in respect of the dower-debt due to the lady was made by the brother, who is the respondent to this appeal. He asked for a Succession Certificate in respect of that share only of the dower-debt which he would inherit under the Muhammadan Law. The daughters objected that he should not be allowed a Succession Certificate for anything leas than the whole amount of the debt. The learned District Judge has passed an order, which partly sustains and partly repeats the objection taken by the daughters. He calculates that 1/4th of the dower-debt has been automatically satisfied on the death of the lady, by reason of her husband's having inherited 1/4th share in her estate. He has also calculated, further, that any claim which one of the daughters might have in respect of her share in the dower-debt is now barred by limitation; hence he holds that the only valid debt not due, or recoverable from the husband, is the share of two of the daughters, amounting to 4/9thg of the whole, together with the share of the brother. He has, therefore, sailed upon the respondent to take out a Succession Certificate in respect of 4/9ths plus 1/12th of the entire debt. The daughters have brought the matter up to this. Court in appeal. The learned District Judge has referred to an older decision of this Court, Muhammad Ali Khan v. Puttan Bibi 19 A. 129 : A.W.N. (1896) 198 : 9 Ind. Dec. (N.S.) 85, a decision which does support the view taken by him; but he has overlooked the fact that the entire question was reconsidered by a Full Bench of this Court in Ghafoor Khan v. Kalandari Begam 9 Ind. Cas. 127 : 33 A. 327 : 8 A.L.J. 79. In that case the learned Judges laid it down, in the most unqualified and uncompromising terms, that the dower, debt due to a Muhammadan lady was a single debt, that the Succession Certificate Act does not contemplate the granting of a certificate for the collection of any portion of a debt, and that, consequently, no Succession Certificate should be granted in a case like the present except for the collection of the entire debt. The present case is quite indistinguish able on the facts from that decided by the Full Bench, and it might be sufficient for us to say that we are bound to accept the view of the law laid down by the Full Bench and to determine this case accordingly. Certain arguments have, however, been addressed to us in respect of which it is, perhaps, expedient that we should say a few words. The question now before us has been considered by the Calcutta High Court in two cases decided subsequently to the Full Bench case of this Court. These are Mohamed Abdul Hussan v. Sharifan 12 Ind. Cas. 593 : 16 C.W.N. 231 : 15 C.L.J. 384, Annapurna Dasya v. Nalini Mohan Das 23 Ind. Cas. 556 : 18 C.W.N. 836 : 42 C. 10. The case of Ghafoor Khan v. Kalandari Begam 9 Ind. Cas. 127 : 33 A. 327 : 8 A.L.J. 79 was oited in the Calcutta cases and the learned Judges of that Court expressly dissented from it. On this ground mainly an appeal has been made to us to refer the questions raised by this appeal for reconsideration by a complete Full Bench of this Court. It is to be observed that the difference of opinion between Allahabad and Calcutta goes very much further than the mere question of the dower-debt of a Muhammadan lady. The learned Judges in Calcutta have, in effect, looked at the whole matter from the point of view of the rights of a creditor when he comes to institute a suit for the recovery of his debt in a Civil Court, They point out that no creditor can be completed to sue for the whole of the debt due to himself, it would be quite open to him to remit a portion of the debt and institute a suit for the balance only. For these and other reasons, the learned Judges in Calcutta have some to the conclusion that there is nothing in the Succession Certificate Act, VII of 1889, to prevent a certificate being granted in respect of a portion only of a particular debt due to a deceased person. From this view our Court has entirely dissented, and in the main for two distinct reasons. Our Judges have been of opinion that one of the principal objects of the Succession Certificate Act is the protection of debtors from the danger of having to meet successive claims in respect of a single debt and, perhaps, in the end, being forced to pay more than the entire amount of the debt. They have pointed out that a proceeding under the Succession Certificate Act is not a suitable forum for the determination of conflicting claims or for the specification of the shares in a debt due to the estate of a deceased person respectively falling to different heirs, successors or legal representatives of that person. The view taken is, that the intention of the Succession Certificate Act is, that the Court should choose that one claimant who seems prima facie to have the best title and, after taking such security from him as may suffise to safeguard the interests of all other claimants, to grant him a single certificate in respect of the entire debt, thus throwing upon him the responsibility of dealing with any other claims and ensuring for the benefit of the debtor a complete discharge of his entire liability, more he has settled with the holder of the Succession Certificate. The other argument which has weighed with the Full Bench of this Court is, that the Succession Certificate Act may be regarded as, in part at any rate, a fiscal Statute, and that the object of the Legislature may well have been that no person should be permitted to realise any portion of a debt due to the estate of a deceased person until the Government's claim to duty under the Succession Certificate Act in respect of the entire debt had been duly met. Taking these arguments into consideration, we are dearly of opinion that it is not expedient that the law as settled for this Court, and the Courts subordinate to it, by the Full Bench decision in Ghofoor Khan v. Kalandari Begam 9 Ind. Cas. 127 : 33 A. 327 : 8 A.L.J. 79, should now be unsettled or reconsidered, because the learned Judges in Calcutta have taken so divergent a view of the effect and purpose of Act VII of 1889. It has been pressed upon us in argument that it might be possible to draw a destination in the present case between the effect of the Judge's finding that the claim of one of the daughters has become barred by limitation, and his finding that the husband's share in the estate of his deceased wife operated so as to satisfy a definite fraction of the dower-debt from the moment of the lady's death. On this latter point the respondent certainly has an arguable case. It might well be suggested that, whatever meaning may be put upon Section 4 of Act VII of 1889, the fact would still remain that the debt due to the heirs of the lady, from the moment of her death, was no more than the original dower-debt less the share taken by inheritance by her husband in the same. The point as now put to us was not specifically considered by the learned Judges who decided the case of Ghafoor Khan v. Kalandari Begam 9 Ind. Cas. 127 : 33 A. 327 : 8 A.L.J. 79; but we have come to the conclusion that, the point being in itself a narrow one, and, as we have suggested, a very arguable one, it does not seem worth while to unsettle the broad view of the law laid down in the Full Bench decision of this Court for the sake of any theoretical hardship inflected on particular individuals in the case of claims to the dower debt of a deceased Muhammadan lady. After all, although, as a matter of fact, a Muhammadan husband's share in the estate of his deceased wife is a definite fraction, independent of the devolution of the rest of the estate, the fact remains that it is impossible to write off any fraction of the debt as satisfied without departing from the broad principal followed by the Fall Bench of this Court, when they held that a proceeding under the Succession Certificate Act was not the proper forum for the ascertainment of the shares of different claimants in a particular debt due to the estate of a deceased person. For these reasons, we have decided that the proper course for us to follow is to abide by the decision of the Fall Bench of this Court as it stands, and to apply it to the facts of this case. This appeal must, therefore, in substance succeed, that is to say, we must set aside the order of the District Judge. At the same time, we think that the respondent ought to be given a further opportunity of taking out a Succession Certificate in respect of the entire dower-debt due to the deceased lady, on such terms as to security as the Court below may think proper. We, therefore, send the case bask to the Court below to be readmitted on to the file of pending application, in order that the respondent may be allowed an opportunity of amending his application and of paying further succession duty in respect of that portion of the debt which has been exempted from the operation of the order under appeal. The appellants are entitled to their costs of this appeal.


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