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Bankimchandra Shivashanker and ors. Vs. Vishnuprasad Meganlal Vaidya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 787 of 1968
Judge
Reported inAIR1973Guj78; (1972)GLR905
ActsTransfer of Property Act, 1882 - Sections 67; Indian Succession Act, 1925 - Sections 214; Code of Civil Procedure (CPC), 1908 - Order 34, Rules 4 and 5
AppellantBankimchandra Shivashanker and ors.
RespondentVishnuprasad Meganlal Vaidya and ors.
Advocates: S.R. Divetia, Adv. for; K.J. Vaidya, Adv.
Cases ReferredLachhman Singh v. Natha Singh.
Excerpt:
.....case defendant fails to pass amount due under mortgage plaintiff has to apply for final decree for sale of mortgaged property under rule 5 - decree for recovery to be passed only if net proceeds of sale under rule 5 found to be insufficient to pay amount due - accordingly decree under rules 4 or 5 cannot be treated as decree against debtor for payment of his debt - under section 214 want of production of probate would not be bar for passing decree under rules 4 and 5. - - according to rule 4 of order 34 of the code, in a suit for sale like the present one, in the first instance, a preliminary decree would be passed. it will thus appear that the court had to first a pass a preliminary decree as contemplated by rule 4 and that in the event of failure on the part of the mortgagor to..........judge has taken the view that the provisions of section 214 of the act are not applicable to a suit on mortgage but, according to him, as the plaintiffs have claimed also a personal decree against the defendant, the suit was not maintainable unless the plaintiffs obtained a probate of the will.3. now, section 241(1)(a)(b)(i) of the act which is relevant for our purpose provides -- (1) no court shall -- (a) pass a decree against a debtor of a deceased 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 claming to be so entitled, to execute against such a debtor a decree or order for a the payment of his debt. -- except on the production. by the person so claming of -- (i) a probate.....
Judgment:
ORDER

1. The plaintiffs had filed a suit being Civil Suit No. 194 of 1966 in the court of the Civil Judge, Senior Division, Bhuj, for the recovery of the amount due on the mortgage by sale of the mortgaged property. According to the plaintiffs. the mortgage deed had been executed by one Mehta Maganlal Himatram in favour of their grand-father. The defendant having died during the pendency of the suit his legal representatives were brought on record in due course. The defendants raised two preliminary objections in the trial Court and they were that, the court had no jurisdiction to try the suit and that the suit was not maintainable in view of the provisions of Section 214 of the India Succession Act. 1925 (hereinafter referred to as the Act), as the plaintiffs who were claiming under the will of the section. As regards the first objection, the learned trial Judge has held that, he has jurisdiction to try the suit. However, he upheld the second objection and gave time to the plaintiffs to obtain probate as contemplated by Section 214 of the Act. Being aggrieved by the above order, the plaintiffs have come in revision.

2. Relying on the decision in the case of Nanchand Khemchand Gujar v. Yenawa, ( (1904) Ilr 28 Bom 630). the learned Civil Judge has taken the view that the provisions of Section 214 of the Act are not applicable to a suit on mortgage but, according to him, as the plaintiffs have claimed also a personal decree against the defendant, the suit was not maintainable unless the plaintiffs obtained a probate of the will.

3. Now, Section 241(1)(a)(b)(i) of the Act which is relevant for our purpose provides -- (1) No court shall -- (a) pass a decree against a debtor of a deceased 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 claming to be so entitled, to execute against such a debtor a decree or order for a the payment of his debt. -- except on the production. by the person so claming of -- (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased. Thus according to Section 214 of the Act. on decree can be passed against a debtor of a deceased person for payment of his debt nor can any such decree be executed against such debtor except on production by the person concerned of a probate etc. In the suit under consideration, however, the question of passing a personal decree against the mortgagor would arise at a later stage as would be evident from the provisions of Order 34 of the Civil Procedure Code. According to Rule 4 of Order 34 of the Code, in a suit for sale like the present one, in the first instance, a preliminary decree would be passed. If the defendant fails to pay the amount due under the mortgage within the time fixed for the purpose by the Court in the preliminary decree the plaintiff will have to apply for a final decree for the sale of the mortgaged property as contemplated by Rule 5 of Order 34. The question of passing a decree for the recovery of the dues from the other properties of the mortgagor would arise only in case. the net proceeds of the sale held under Rule 5 are found insufficient to pay the mount due under the mortgage and the plaintiff makes an application for recovery of the balance. under Rule 6 of the above order. It will thus appear that the court had to first a pass a preliminary decree as contemplated by rule 4 and that in the event of failure on the part of the mortgagor to pay the amount due under the preliminary decree. a final decree for sale of the mortgaged property will be passed. Thus, looking to the scheme of Order 34 of the Civil Procedure Code, a decree under Rule 4 or 5 thereof cannot be treated as 'a decree against a debtor for payment of his debt'. within the meaning of Section 214 of the Act and in that view of the matter the want of production of a probate etc. would not be a bar for passing decrees under Rules 4 and 5 of Order 34.

4. The above view does not in any way conflict with the decision in the case of Nanchand Khemchand Gujjar (supra) which does not seem to have been properly interpreted by the learned Civil Judge. According to the above decision, the provisions of Section 4 of the Succession Certificate Act (VII of 1889) which are more or less similar to those of Section 214 of the Act, so far as clauses (a) and (b) of sub-section (1) are concerned. do not apply to a suit for a sale on a mortgage. It appears from the aforesaid decision that, the High Court of Bombay has preferred the view of the Calcutta High Court in the case of Baidnath Das v. Shamanand Das, (1895) ILR 22 Cal 143 and two other cases to that of the Full Bench of the Allahabad High Court in the case of Fatehchand v. Muhammad Bakhsh. ( (1894) ILR 16 All 259 (FB). Giving reasons for preferring the view of the Calcutta High Court, according to which the necessity of succession certificate under S. 4 of the Act is limited to those suits where the Court is called upon to pass a personal decree against a debtor of a deceased person for payment of his debt and no such certificate is necessary for the purpose of a suit for a sale on a mortgage. their Lordships have observed in the above case:

'If the Allahabad Full Bench intended to hold that Section 4 of the Succession Certificate Act applied only to such a suit for a sale on a mortgage and not to every suit for a sale, their ruling should not conflict with the view of the Calcutta High Court as to the application of that Section. Having regard then to the fiscal character of the Succession Certificate Act and the language of Section 4, we have arrived at the conclusion that the interpretation put upon the section by the Calcutta High Court is correct. It may be that as the Allahabad Full Bench point out, 'a mortgagor needs as much protection as any other debtor when sued for a debt by a person claming to be entitled to the effect of his deceased creditor; but, on the other hand. as to this question of protection. there is a difference between a mortgagor who has made himself personally liable to pay and also mortgaged his property as security for the debt and one who has made the property alone security therefor. In the former case he may be sued by one who may not be the legal representative of the creditor and in that case he may have to pay twice over, if the rightful heir sues without being able to recover from the wrong person if the person be insolvent. In the latter. if a wrong person sues and obtains a decree and sells the property the rightful heir cannot enforce payment from the mortgagor, but must hold the property alone liable and the property remains liable all the same. The mortgagor is no loser and needs no protection.'

It has also held that Section 4 of the Succession Certificate Act would apply to a personal decree if the net proceeds of the sale of the mortgaged property are found insufficient to pay the amount due under the mortgage. There is nothing in the above decision to show that a preliminary decree under Rule 4 and a final decree for the sale of the mortgaged property as contemplated by Rule 5 of Order 34 of the Civil Procedure code cannot be passed without the production of a succession certificate. It is thus found that, the view of the leaned trial Judge that. as the plaintiff have also asked for a personal decree against the mortgagor the suit cannot be proceeded with without the production of the probate of the will. is erroneous. Even according to the decision of the Full Bench of the Lahore High Court in the case of the Lachhman Singh v. Natha Singh. (AIR 1940 Lah 401 (FB) in which the decision in the case of Nanchand Khemchand (supra) has been followed a succession certificate under Section 214 of the Act is not necessary for maintaining a suit by a mortgagee for recovery of the amount due by sale of the mortgaged property.

5. The Division Bench of the Calcutta High Court has also taken a similar view in the case of (1895) ILR 22 Cal 143 (supra) to which a reference has been made in the above decision of the Bombay High Court. In the above case to enforce a mortgage bond, the plaintiff prayed that, the amount might be decreed to be paid within a fixed time together with costs of the suit and that in case of non-payment the mortgaged property should be sold, and the amount realised from the sale proceeds and if they should be insufficient, the balance should be recovered from the defendant personally and from his other properties. On of the contentions that was raised in the above case was that the plaintiff was not entitled to a get a decree without a certificate of succession as provided by Section 4 of the Succession Certificate Act. While negativing the above contention it has been observed by the Calcutta High Court:

'In the present case. on decree was passed by the Court below against the debtor personally and the only relief that has been granted by the court to the plaintiff is a relief against the property mortgaged; and though on doubt the property is liable to be sold only in the even of the defendant failing to pay the money due under the mortgage by the time fixed by the court . it could hardly be said that that is decree against the debtor for payment of his debt. properly so-called'.

In view of what is stated above it becomes evident that. Section 214 of the Act is not applicable to suits on a mortgage like the present one and that the question of obtaining a probate of the will would arise only at the time of passing a personal decree against the mortgagor. In that view of the matter. the order passed by the learned Civil Judge on 13-2-1968 cannot be sustained. I therefore set aside the above order and direct that the learned Civil Judge should proceed further with the suit and dispose it of according to law in the light of what is stated above. Rule is accordingly made absolute. The respondents to pay the costs of the petitioners.

6. Revision allowed.


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