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Bai Sarda Vs. Patel Keshavlal Joitaram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 548 of 1965
Judge
Reported inAIR1969Guj150; (1968)GLR1040
ActsIndian Succession Act, 1925 - Sections 214 and 214(1); Administration General's Act, 1913 - Sections 31 and 32; Succession Certificate Act, 1889; Indian Contract Act
AppellantBai Sarda
RespondentPatel Keshavlal Joitaram
Appellant Advocate Mangaldas M. Shah, Adv.
Respondent Advocate S.N. Patel, Adv.
Excerpt:
- - the learned trial judge has failed to notice that the consideration of the contract may flow from a third party. the pro-note ex 26 clearly indicates that it is a promissory note and not an acknow-ledgment it is also not correct to say that the suit is filed to recover the amount due to the husband of the plaintiff but the suit is filed to recover the amount due on the basis of the specific contract between the plaintiff and the defendant......:-- no court shall (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a. decree or order for the payment of his debt, except on the production, by the person so claiming, of (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or, (ii) a certificate granted under section 31 or section 32 of the administrator general's act, 1913 (iii of 1913), and having the debt mentioned therein, or (iii) a succession certificate granted under part x and having the debt specified.....
Judgment:

A.D. Desai, J.

1. This revision petition is directed against the order passed by the learned Civil Judge, Junior Division. Vijapur, in Civil Suit No. 74 of 1964, ordering that the petitioner who is the plaintiff in the suit should apply for obtaining a succession certificate and produce the same in the suit within 2 months from the date of the order.

2. Short facts leading to this petition are that the opponent had borrowed on November 26, 1957 an amount of Rs. 1100 from one Bhurabhai alias Mohanlal Nihalchand who was the husband of the plaintiff. The opponent had executed a pro-note in favour of Bhurabhai Nihalchand which was produced in the suit at Ex. 31. Thereafter the opponent executed another pro-note on November, 4, 1960 for the amount of Rs. 1374/- in favour of the petitioner as guardian of her sons Ramesh, Mukesh and Mahesh. The consideration of this pro-note was the amount of previous loan of Rs. 1100/- advanced by Bhurabhai Nihalchand plus interest thereon. Thereafter the opponent executed another pronote in favour of the petitioner on May 17, 1961. The consideration of this pro-note consisted of the loan advanced by Bhurabhai plus the interest till the date of the execution of the pro-note. It is on the basis of this pro-note, Ex. 26. that the petitioner had filed the Civil Suit No. 74 of 1964 in the Court of Civil Judge, Junior Division at Vijapur against the opponent to recover the amount of Rs. 1716-67 P.

3. The opponent resisted the suit on various grounds. The opponent denied that he executed the pro-note or that he received any consideration. He also contended that the suit was barred by limitation and that the plaintiff could not institute the suit without obtaining a succession certificate as required by Section 214 of the Indian Succession Act. The learned trial Judge tried the issue as to whether the plaintiff could file the suit without obtaining a succession certificate as a preliminary issue and held that the plaintiff should apply for succession certificate and ordered her to produce the same in the Court within two months, failing which the suit was to stand dismissed.

4. Mr. Shah appearing for the petitioner challenged this order passed by the learned trial Judge and contended, that in this case, it was not necessary for the petitioner to obtain a succession certificate. The argument was that the petitioner had filed the suit on the basis of the promissory note executed in her favour and that the petitioner did not claim any amount as an heir of her husband and, therefore, no succession certificate was necessary. Now it is stated In the plaint that the opponent had executed a promissory note in favour of the plaintiff on May 17, 1961 and that the opponent did not pay the amount thereof. The plaintiff had, therefore. Instituted the suit to recover the amount and the interest on the basis of the contract between the plaintiff and defendant as evidenced by the pro-note. It is evident, therefore, that the petitioner was not claiming any amount In her capacity as an heir to her husband, The plaintiff was claiming the amount due in her own independent right and on the basis of the contract, between the parties thereto. Section 214 of the Succession Act. 1925, reads as under:--

'Section 214(1) :-- No Court shall

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or

(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a. decree or order for the payment of his debt, except on the production, by the person so claiming, of

(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or,

(ii) a certificate granted under section 31 or Section 32 of the Administrator General's Act, 1913 (III of 1913), and having the debt mentioned therein, or

(iii) a succession certificate granted under Part X and having the debt specified therein, or

(iv) a certificate granted under the Succession Certificate Act, 1889 (VII of 1889), or

(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the' first day of May 1889, having the debt specified therein.

(2) The word 'debt' In Sub-section (1) Includes any debt except rent, revenue or profits pavable in respect of land used for agricultural purposes.'

The provisions of this Section prohibit the Court from passing a decree against a debtor of a deceased for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person. It is clear that the claim contemplated by the section is a claim made by a person in the capacity of and as a legal representative of the deceased creditor. In the present case the suit was based on the specific contract between the parties. It is no doubt true that the initial amount was loaned by the husband of the plaintiff and that was the consideration for executing the pro-note Ex. 26 by the opponent Under the Indian Contract Act the consideration may flow from a third party. The execution of pro-note Ex. 26 created a novatio between the plaintiff and the defendant and the original contract was substituted by a new one. The petitioner was claiming on the basis of the contract which was executed in her favour, and In her own Independent capacity and not as an heir of the deceased creditor. It Is evident that In these circumstances no succession certificate is required 'to be produced before the Court in order to enable it to pass a decree hi favour of the plaintiff. According to the trial Court a succession certificate was necessary because the consideration of the pro-note on which the suit was based- was the initial amount loaned by the husband of the plaintiff, and that the suit of the plaintiff was-to recover the said amount loaned by her husband. The trial Court also held that the pro-note Ex. 26 was only an acknowledgment of the debt by the defendant. The learned trial Judge has failed to notice that the consideration of the contract may flow from a third party. The pro-note Ex 26 clearly indicates that it is a promissory note and not an acknow-ledgment It is also not correct to say that the suit is filed to recover the amount due to the husband of the plaintiff but the suit is filed to recover the amount due on the basis of the specific contract between the plaintiff and the defendant. The provisions of Section 214 of the Indian Succession Act cannot apply to such a case.

5. Next it should also be noted that Section 214 of the Succession Act prohibits the Court from passing a decree unless a succession certificate is produced in the case. In this case, the learned Judge has raised an issue as to whether the plaintiff can institute a suit without obtaining a succession certificate and ordered that the plaintiff should file the certificate within two months and failing to do so ordered the suit to be dismissed. This order is obviously erroneous and contrary to the express provisions of Section 214 of the Indian Succession Act which only requires the production of succession certificate at any time before the decree is passed.

6. The result is that in view of the fact that the plaintiff has filed the suit In her own capacity as the person in whose favour a pronote was 'executed, the order passed by the trial Judge requiring the plaintiff to produce the succession certificate is erroneous. I, therefore, set aside the order requiring the plaintiff to obtain succession certificate and direct that the learned trial Judge should dispose of the suit according to law.

7. Rule made absolute with no order as to costs.


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