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Ammini Ammal Vs. Lekshmi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberA.S. No. 107 of 1956 (E)
Judge
Reported inAIR1957Ker90
ActsSuccession Act, 1925 - Sections 372, 373 and 373(2); Hindu Succession Act, 1956 - Sections 14
AppellantAmmini Ammal
RespondentLekshmi and ors.
Appellant Advocate A.S. Krishna Iyer, Adv.
Respondent Advocate T.S. Venkiteswara Iyer,; C.S. Ananthakrishna Iyer and; R
DispositionAppeal dismissed
Cases ReferredSee Yamuna Bai v. Padmanabhan Acharier
Excerpt:
.....like a plaint and shall set forth inter alia the right under which the petitioner claims and the debts and securities in respect of which the certificate is applied for. section 373 by clause (1) provides that if the judge is satisfied that there is ground for entertaining the application, he shall fix a date for hearing and issue certain notices and upon the dale fixed or as soon thereafter as may be practicable 'shall proceed to decide in a summary manner the right to the certificate'.clause (2) of the section says when the judge decides the right thereto to belong to the applicant, the judge shall make an order for the grant of the certificate to him. ' clause (3) then says 'if the judge cannot decide the right to the certificate without determining the questions of law or fact..........as a condition of granting the certificate that the case is one in which the debt was due to the deceased person within the meaning of section 214. a reasonable and sensible claim to be enabled to proceed against a third party as being a debtor of a deceased person is sufficient for the purpose of ' clothing the court with jurisdiction under section 373 and may be regarded as ground for entertaining the application.'in another portion of the judgment, the learned chief justice observed:'prima facie a person disputing the title of the deceased to the debts in question is only putting himself out of court, showing good reason why some willing person other than himself should be authorised to assert the claim ' in the right of the deceased. no doubt there may be baseless claims for a.....
Judgment:

Varadaraja Iyengar, J.

1. This appeal arises put of an application made in the Court below by the 1st respondent Lekshmi, for grant for a succession certificate enabling her to collect the debts and securities belonging to her husband T.N. Viswanathan, who had died issueless on 30-1-1950. These debts and securities were, for the most part, obtained by him in partition, between himself and his brothers, of the earnings of their deceased father T.S. Narayana Iyer, who was for some time the Chief Judge of the Cochin Chief Court. The respondents 2 to 5 who are the brothers were impleaded as counter-petitioners to the application. Subsequently, on motion made by one of them, their mother, the appellant was impleaded as additional counter-petitioner. Respondents 2 and 4, two of the brothers by separate objection petitions, though to similar effect, conceded the heir-ship of the petitioner to her husband and her right to be in possession of his estate as scheduled but contended that because she was a young widow incapable of managing the estate, injury to the immediate reversion in favour of themselves and other brothers was quite possible and in fact was seriously apprehended. So they prayed that restrictions should be imposed, upon the petitioner while granting her, the succession certificate, say by joining their names along with hers therein or by taking security from her against waste or spoliation of the corpus. The appellant mother, raised her own objection, that the debts and securities scheduled except to slight extent, did not belong exclusively to Viswanathan, but was owned by her also to the extent of 1/6. According to her, she was entitled under law to such share in parity with her sons in the assets of her husband which comprehended most of the debts and securities herein and she had not waived or relinquished that right to any extent so far. She had, in any event, the right to look to these assets for her maintenance. She claimed accordingly that no succession certificate should issue to the petitioner in respect of the assets concerned, at any rate without adequate security obtained. The Court below repelled the objections raised by the brothers as well as the mother and directed the issue of a succession certificate, without any condition attached, in favour of the petitioner. The brother's have acquiesced in the grant but the mother has come up by the appeal herein,

2. Learned Counsel for the appellant urged before us that the Court below had misled itself by failing to decide the substantive right of the appellant as set up by her. According to learned Counsel it was wrong to say that the practice of allotting a share in partition to the mother had become obsolete in South India, in any event, in this jurisdiction; and the appellant ought to have been held entitled to a share equal to that of a son, in the assets of the late T.S. Narayana Iyer and, therefore, in the debts and securities herein. '

Learned Counsel complained further that the Court below had not properly appreciated the reasons for or the consequences of the non-junction of the appellant in Ext. I partition deed of 23-5-1123 between the sons and urged that On the whole this was not a case where the succession certificate should have been granted unconditionally. The Court below, it is true, felt itself not called upon to decide the question under Hindu Law as to whether the widow has really a right to a share .in South India or in Cochin and Travancore-but it clearly was not impressed that the partition deed Ext. I had been brought about without the consent or knowledge of the appellant or to her prejudice.

There was, on the other hand, according to the Court, every reason to believe that the appellant must have been a willing party to the arrangements therein by way of division among her sons and also the provision for her residence and maintenance. But apart altogether from these considerations, the Court below thought that the question raised by the appellant was one of paramount title which it was not the province of a succession certificate Court to consider and the only proper order was to direct the issue of the succession certificate to the applicant claiming as the sole heir of the deceased. The question is, whether this approach of the Court below was right.

3. Now Section 372 of the Indian Succession Act provides that an application for a succession certificate must be verified like a plaint and shall set forth inter alia the right under which the petitioner claims and the debts and securities in respect of which the certificate is applied for. Section 373 by Clause (1) provides that if the Judge is satisfied that there is ground for entertaining the application, he shall fix a date for hearing and issue certain notices and upon the dale fixed or as soon thereafter as may be practicable 'shall proceed to decide in a summary manner the right to the certificate'. Clause (2) of the section says

'When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.'

Clause (3) then says 'If the Judge cannot decide the right to the certificate without determining the questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.'' These provisions make it clear that the Legislature contemplated only that the District Judge be satisfied, not that the succession certificate will be necessary under Section 214 or otherwise, but that there is ground for entertaining the application. The exact character of the applicant's claim was not intended to be litigated and what was sought to be determined was only whether the applicant was the proper person or a proper person to be clothed with the representative character. As observed by Chandavarkar J., in Bai Kashi v. Parbhu Keval, ILR 28 Bom 119 (A):

'There is nothing in the Act which either expressly or by necessary implication requires the Court granting a certificate to hold an enquiry into the existence of any debt alleged by the person applying to be due as a preliminary condition of the grant. Such an enquiry might 'make a proceeding under the Act something in the nature of a roving commission, whereas all enquiry under the Act is intended by the Legislature to be summary..... All that a Court has to do under the Act is to ascertain the right of a person to a certificate apart from the question of the existence or non-existence of. the debts in respect of which he applies.'

4. In the Full Bench of. five Judges of the Calcutta High Court in Brojandra Sundar v. Niladrinath, AIR 1929 Cal 601 (B), Rankin, C.J., who wrote the leading judgment which was concurred by the other judges, observed :

''In my opinion it is not the law that the Court upon an application for a certificate has to decide for itself, as a condition of granting the certificate that the case is one in which the debt was due to the deceased person within the meaning of Section 214. A reasonable and sensible claim to be enabled to proceed against a third party as being a debtor of a deceased person is sufficient for the purpose of ' clothing the Court with jurisdiction under Section 373 and may be regarded as ground for entertaining the application.'

In another portion of the judgment, the learned Chief Justice observed:

'Prima facie a person disputing the title of the deceased to the debts in question is only putting himself out of Court, showing good reason why some willing person other than himself should be authorised to assert the claim ' in the right of the deceased. No doubt there may be baseless claims for a certificate and it is right that the Court should not be helpless to resist them. But I demur altogether to any doctrine which involves the Judge in finding upon contest at the enquiry that there is good prima facie evidence that the debts were due to the deceased.'

To similar effect is the decision in Ekbal Aliamed v. Mahammed Maqsood, AIR 1945 Cal 384 (C). The Act is thus not intended to afford litigant parties an opportunity of litigating contested questions of title to property. The Court has no doubt to satisfy, itself that the person to whom it grants the certificate has the prima facie right and for this purpose some enquiry may be necessary in many cases. But if on facts admitted by both parties the prima facie title to the certificate is clear, the Court can dispense with any enquiry.

And after all no party is prejudiced because Section 387 provides that the decision of a Court as to any question of right between the parties is in no way final and does not bar the trial of the same question in any other proceedings between the same! parties. We hold accordingly that the Court below was perfectly right in refusing to decide the question of co-ownership set up by the appellant as regards the debts and securities scheduled.

5. On the facts also we cannot omit to notice that the appellant has not cared to go into the box to swear to her case as to want of knowledge of the execution of Ext. I partition deed or that she had not consented to its provisions, particularly when her sons the respondents 2 and 4 were willing to concede that the debts and securities herein, appertained to the estate of Viswanathan deceased. Ext. I provided for the payment of a sum of Rs. 50 per mouth towards her maintenance by her eldest son the 2nd respondent, alternatively for her residence in the family house allotted to him and for protection by him. And continuously after Ext. I she has been so residing and also looked after.

It was the 2nd respondent while examined as C.P.W.I., that had to say that the appellant was not consulted about Ext. I, partition arrangement, and indeed did not endorse Exts. II to IV Government bonds which stood in her name in token of their Allotment under Ext. I in favour of Viswanathan. The finding of the Court below in the matter cannot, therefore, be said to be in any way unjustified. It is unnecessary) however, to say more, since the appellant's rights whatever they are in her husband's estate do not, as we have already said, properly arise for adjudication in these proceedings. It is enough to say that she is admittedly no rival claimant to the estate of her son Viswanathan deceased and the succession certificate in respect of his alleged assets as scheduled must rightfully issue to the 1st respondent alone.

6. Learned Counsel finally said that security may at least be imposed upon the first respondent in safeguard of the appellant's rights till separate action by her. But it has to be remembered that even while the Hindu widow could claim only a limited estate under law in property of her husband, the succession certificate Court had been held not entitled, at any rate, in the absence of special circumstances, to call for any security from her. See Yamuna Bai v. Padmanabhan Acharier, ILR (1955) Trav-Co 1019 (D). The Hindu Succession Act 1936 has now revolutionised the position in favour of the widow and other limited estate holders, by the abolition of such estate and their conversion into absolute estates.

Immovable properties so inherited by the first respondent as heir to her deceased husband even to the extent of her admitted 5/6 share is not inconsiderable. It is not the case either, of the appellant that her other sons have denuded themselves of the properties obtained by them under the partition. There is no reason, therefore, why any special safeguard by way of security, should be imposed upon the 1st respondent as now contended for.

7. The appeal is without substance and is therefore dismissed with costs.


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