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Aysha Beevi Mariya Ummal Kunju and ors. Vs. Abdul Karim Rahuma Beevi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 882 of 1970
Judge
Reported inAIR1972Ker64
ActsSuccession Act, 1925 - Sections 214; Code of Civil Procedure (CPC) , 1908 - Order 34, Rule 4
AppellantAysha Beevi Mariya Ummal Kunju and ors.
RespondentAbdul Karim Rahuma Beevi and ors.
Appellant Advocate P. Sukumaran, Adv.
Respondent Advocate G. Viswanatha Iyer, Adv.
DispositionPetition allowed
Cases ReferredA. Ramaswami v. Venkamma.
Excerpt:
- - this remark may be perfectly true. air 1952 nag 88, a case arose out of an application for execution by the decree-holder for the enforcement of the charge by the sale of the property in the possession of the judgment-debtor who failed to pay the maintenance allowance due to the decree-holder......the trial court following the decision in kundan lal v. banwari lal, 1969 all lj 946 held that the mortgage debt is also a ''debt' within the meaning of section 214 of the aforesaid act the allahabad high court lollowed an earlier full bench decision of that court in coming to that conclusion. the full bench decision in fateh chand v. muhammad bakhsh, (1894) ilr 16 all 259 (fb), where the chief justice edge held that a mortgagor is entitled to as much protection as any other debtor when he is sued by a person who claims to be entitled to the assets of a deceased creditor. this remark may be perfectly true. but, the protection to which the mortgagor is entitled ought to be the same whether the security is in the form of a simple mortgage or a mortgage by conditional sale.3. the other high.....
Judgment:
ORDER

E.K. Moidu, J.

1. The point that arises for determination in this Civil Revision Petition is whether a succession certificate should be obtained under Section 214 of the Indian Succession Act (Act 39 of 1925) by the legal representatives of the mortgagee when they seek to get a decree in a suit instituted by them to recover the mortgage money by the sale of the mortgaged property.

2. This question has arisen in a suit instituted by the revision petitioners against defendants 1 to 4. The revision petitioners and defendants 5 to 8 are the legal representatives of one Abdul Rahman Meeya Pillai, who died on 29-3-1961. The mortgage in question was executed in favour of the aforesaid Abdul Rahman Meeya Pillai. The petitioners alone instituted the suit though the defendants 5 to 8 supported them. The trial court following the decision in Kundan Lal v. Banwari Lal, 1969 All LJ 946 held that the mortgage debt is also a ''debt' within the meaning of Section 214 of the aforesaid Act The Allahabad High Court lollowed an earlier Full Bench decision of that court in coming to that conclusion. The Full Bench decision in Fateh Chand v. Muhammad Bakhsh, (1894) ILR 16 All 259 (FB), where the Chief Justice Edge held that a mortgagor is entitled to as much protection as any other debtor when he is sued by a person who claims to be entitled to the assets of a deceased creditor. This remark may be perfectly true. But, the protection to which the mortgagor is entitled ought to be the same whether the security is in the form of a simple mortgage or a mortgage by conditional sale.

3. The other High Courts In India did not agree to this view. The High Courts of Madras, Bombay, Calcutta, Patna, Nagpur and Travancore-Cochin held that the mortgage debt does not come within the ambit of a 'debt' defined under Section 214 of the Indian Succession Act.

4. The decision in (1894) ILR 16 All 259 (FB) has been expressly dissented from in the following decisions. (1) Mahomed Yousuff v. Abdur Rahim, (1899) ILR 26 Cal 839; (2) Palaniyandi Pillai v. Veerammal, (1906) ILR 29 Mad 77 and (3) Nanchand Kemchand v. Yenawa, (1904) ILR 28 Bom630. In the last of these decisions, the question was whether a personal decree which was prayed for could be described as a decree for payment of a debt. Their Lordships held that such a decree was a decree for payment of debt, but the final decree for sale of the mortgaged property could not be described as a decree for payment of a 'debt' within the meaning of that section. In Narayana Pillai v. Eravi Naravana Panicker, 1956 Ker LT 852 = (AIR 1957 Trav-Co 147) there is an observation that with regard to the execution against the property charged on the immovable property (sic) no succession certificate is necessary. These decisions had been followed in subsequent rulings.

5. In Ruprao Ranoji v. Ramrao Bhagwantrao. AIR 1952 Nag 88, a case arose out of an application for execution by the decree-holder for the enforcement of the charge by the sale of the property In the possession of the judgment-debtor who failed to pay the maintenance allowance due to the decree-holder. The claim for maintenance was made on the basis of a Will left by the deceased testator. Though the claim was to recover the maintenance due to the widow from the estate of the testator, the principle as to whether the debt would come within the definition of a 'debt' under Section 214 of the Indian Succession Act has to be considered in the light of the other decisions on the point

6. In Kaviraj Basudevanand v. Raghubir Saran Rastogi, AIR 1955 Pat 284 held that though a decree passed under Order 34, Rule 6, Civil P. C. may be a decree for payment of a debt, the final decree for the sale of the mortgaged properly cannot be described as a decree for payment of the 'debt' within the meaning of Section 214 of the Indian Succession Act and its execution cannot be held to be barred because the applicant has not produced a succession certificate along with his execution application.

7. In Raghubir Narain Singh v. Raj Rajeshwari Prasad Singh. AIR 1957 Pat 435, it was held that a final decree for the sale of the mortgaged property could not be described as a debt for payment of the 'debt' within the meaning of Section 214 and its execution cannot be held to be barred on the ground that the applicant has not produced a succession certificate along with his execution application. Lastly, it is held in A. Ramaswami v. Venkamma. AIR 1963 Andh Pra 135 that a debt contemplated by Section 214 would not include a debt for enforcement of the mortgagee's rights as against the mortgaged property as it is not a decree for debt. It is also pointed out that the mere fact that the personal remedy is still available to themortgagee would not make any difference. The earlier decisions of the High Courts of Madras. Calcutta, Bombay. Patna and Rangoon had been followed in that case. It is not necessary to eo into those cases. It is sufficient to say that no succession certificate is necessary in this particular case.

8. For passing a preliminary decree or final decree for sale of the property or even execution of the decree thereof for the realisation of the mortgage money in a suit or its execution instituted by the legal representatives of the mortgagees, they shall not be asked to produce a succession certificate as required by Section 214 of the Indian Succession Act, 1925 as the debt defined in that Section does not include a decree for the enforcement of the mortgagee's right as against the mortgaged property. In view of this finding. I am of the opinion that the order of the Munsiff cannot be sustained.

9. In the result, the Civil Revision Petition is allowed. The order to produce a succession certificate is set aside. The Munsiff will proceed with the trial of the suit on the other contentions. No costs.


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