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Ganeshmal Vs. Smt. Anand Kanwar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 9 of 1962
Judge
Reported inAIR1968Raj273
ActsSuccession Act, 1925 - Sections 214 and 214(1)
AppellantGaneshmal
RespondentSmt. Anand Kanwar and ors.
Appellant Advocate D.D. Bhargava, Adv.
Respondent Advocate P.C. Mathur, Adv.
DispositionAppeal allowed
Cases Referred and Lal Kumari Devi v. Fulmati Kuer
Excerpt:
.....of an application for execution filed by him so far the question of giving protection to a judgment-debtor making payment is..........this clause applies to the case, where during the pendency of an application for execution, the decree-holder dies, and his legal representative presents an application to be substituted in his place to continue the execution of a decree or when a fresh application for execution is made by the legal representative of the deceased decree-holder, because the decree or order for payment of debt remains unsatisfied. it enjoins upon the court that if an application for execution is made by the legal representatives of the deceased decree-holder, then the executing court shall not proceed upon an application of a person claiming on succession to be entitled to the effects of the deceased decree-holder, to execute a decree or order for payment ot debt, except on the production by that person.....
Judgment:

D.S. Dave, C.J.

1. This is a special appeal fay the judgment-debtor Ganeshmal against the order of a learned single Judge of this Court dated 26th July, 1961 dismissing his execution first appeal in limine.

2. The facts giving rise to this appeal are as follows:

One Raj Narain Mathur obtained a money decree for Rs. 37,086/15/- from the Court of Senior Civil Judge, Ajmer, on 29-4-60 against the present appellant Ganesh-mal. He took out execution of the said decree, but before it could be satisfied, he expired on 16-12-60. Thereafter an application under Section 146 read with Order 21, Rule 16 of the Code of Civil Procedure was filed on 7-1-61 by his widow Smt. Anand Kanwar, his seven sons and two daughters and another similar application was filed by his remaining three daughters on 18/2/ 61 and therein it was prayed that they be substituted as the legal representatives of the deceased and they also be allowed to proceed with the execution petition filed by Rajnarain. These applications were opposed by the judgment-debtor on three grounds, but those objections were repelled by the executing court and it was ordered that the names of the twelve applicants be substituted in place of the deceased and that the execution proceedings would continue. Aggrieved by this order dated 8-4-61, the judgment-debtor filed an appeal, but it was summarily dismissed by the learned single Judge of this Court, as pointed out above, and hence this special appeal.

3. Learned counsel for the appellant has urged only one ground before us. It is contended by him that what was being executed by Raj Narain was admittedly a money decree and that his legal representatives could not proceed with the execution application filed by him after his demise, without obtaining a succession certificate because Section 214(1)(b) of the Indian Succession Act, 1925 laid down a specific bar to that effect. In support of his argument, he has referred to Tejraj Rajmal Marwadi v. Rampyari, AIR 1938 Nag 528; Shah Ramji tadha v. Hoti Harisanii Versalji, AIR 1955 Kutch 6; Thoma Chacko v. Koshi Varghese, AIR 1956 Tra-Co. 183 and P. L. Vasappa v. Siddama, AIR 1966 Mys 198.

4. In reply, it is urged by learned counsel for the respondents that if his clients were to file a fresh application for execution, the bar provided by Section 214(1)(b) of the Indian Succession Act, 1925, might have come in their way, but since they had presented an application merely for substitution of the names in place of the deceased and had prayed for proceeding with the execution application filed by the deceased, it was not necessary for them to obtain a succession certificate and that the order of the Senior Civil Judge as also that of the learned single Judge of this Court are quite correct and the appeal should be dismissed. He relies upon Mahomed Yusuf v. Abdur Rahim Bepari, (1899) ILR 26 Cal 839; Bal-mukand v. Gobind Ram, AIR 1936 Pesh 17; Kaviraj Basudevanand v. Raghubir Saran Rastogi, AIR 1955 Pat 284; Raghubir Singh v. Raj Rajeshwari Parsadsingh, AIR 1957 Pat 435 and Lal Kumari Devi v. Fulmati Kuer, AIR 1965 Pat 296 to support his argument.

5. Since the question involved in the present appeal is based on the interpretation of Section 214(1)(b) of the Indian Succession Act, it would be proper to reproduce it here in order to appreciate the arguments advanced from both the sides It reads as under:

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

(a) pass a decree against a debtor of a deceased person for pavment 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, 1931, 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 or

(v) a certificate granted under Bombay Regulation No. VIII of 1927 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 payable in respect of land used for agricultural purposes.'

It would appear from the bare perusal of the said Section that Sub-section (1) (a) enjoins upon the court concerned that it would not 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 except on the production by the person so claiming of one of the documents enumerated in Sub-clauses (i) to (v), as the case may be. In other words, if a plaintiff who has filed a suit for money decree dies during the pendency of the case and if his legal representative claims to realise that debt on the basis of succession to the plaintiff, he must obtain a succession certificate before a decree is passed in his favour. The court in which the suit has been filed may continue the proceedings even after the demise of the deceased-plaintiff by bringing the name of his successor on record in his place, but the section puts a complete bar against its jurisdiction to pass a decree unless the successor of the plaintiff is able to obtain a succession certificate from a competent court and produce it before the court in which the suit is pending.

Thus, it is clear that Section 214(1)(a) comes into play at the stage where a suit is pending in a civil court and where a decree still remains to be passed. It would be proper to read Clause (b) of Section 214(1) in this context. This clause applies to the case, where during the pendency of an application for execution, the decree-holder dies, and his legal representative presents an application to be substituted in his place to continue the execution of a decree or when a fresh application for execution is made by the legal representative of the deceased decree-holder, because the decree or order for payment of debt remains unsatisfied. It enjoins upon the court that if an application for execution is made by the legal representatives of the deceased decree-holder, then the executing court shall not proceed upon an application of a person claiming on succession to be entitled to the effects of the deceased decree-holder, to execute a decree or order for payment ot debt, except on the production by that person of one of the documents enumerated in the subsequent clauses The use of the words 'claiming to be so entitled' appearing in Clause (b) shows that the Legislature meant this clause to be read in the context of Clause (a). These words xvere used to avoid repetition of the words 'claiming on succession to be entitled to the effects of the deceased person' appearing in Clause (a). If Clause (b) is read without the context of Clause (a), the word 'so' would become redundant and meaningless. The words 'so entitled' mean 'claiming on succession to be entitled to the effects of the deceased person and nothing else. Similarly, the words 'such a debtor' appearing in Clause (b) mean 'a debtor of a deceased person' used in Clause (a). Thus, Clause (b) has got to be read in the context of Clause (a) to understand it in its real sense.

6. Now, in our opinion, the main purpose of Section 214, reproduced above, is to protect the debtor from vexatious proceedings and from being harassed at different times by different persons claiming to be the successors of the plaintiff or the decree-holder. Just as Clause (a) of Section 214(1) provides protection to a debtor and enjoins upon a court not to pass a decree against him, unless the person claiming to be entitled to the effects of the deceased plaintiff is able to obtain a succession certificate and produce it in the court. So also, Clause (b) means to provide protection to the judgment-debtor against rival claimants, if any, to the effects of the deceased decree-holder. If this basic principle underlying the provisions of Section 214 is kept in view, then the natural interpretation of Clause (b) would be, that no court shall proceed to execute a decree or order for payment of debt against a debtor in case the decree-holder expires, unless the person claiming to be entitled to execute the decree in place of the deceased decree-holder obtains a succession certificate and produces it in the court, We see no reason why a mere substitution of a legal representative in place of the decree-holder should be enough in the case of the pending application for execution of the decree, and why the legal representative of a plaintiff should be called upon to obtain a succession certificate before a decree is passed in his favour. Similarly we see no reason why a person who claims to be the successor of the deceased decree-holder should be permitted to proceed with the execution application filed by the deceased decree-holder, but in case no application of the decree-holder himself is pending and the successor has to file a fresh application he must obtain a succession certificate

7. We have carefully looked into the cases cited by the learned counsel for the respondents. The earliest case, which has been followed in other cases cited by him, is that of (1899) ILR 26 Cal 839 referred to above. It may be pointed out that in that case, the decree whose execution was taken out was a mortgage-decree II is true that a personal decree was also granted in that case against one of the defendants, but he was not an appellant before the High Court. In that case, it was observed by the learned Judge that Section 4 of the Succession Certificate Act No 7 of 1889, which then corresponded to the present Section 214 of the Indian Succession Act, 1925, did not come into play, because, to quote the very words of the learned Judges.

'the Court was not proceeding upon the application of a person claimina to be entitled to the effect? of a deceased person but was proceeding originally upon the application of the creditor himself and it was only during the oendencv of the execution proceedings that the original mortgagee decree-holder died and his legal representatives, the present respondents were brought on record.'

It is clear from the said observation that, in the opinion of the learned judges, if the successors of the decree-holder were to file a fresh application for execution of the decree a succession certificate would have been necessary but since they wanted to proceed with the execution application filed by the deceased decree-holder and which was still pending it was not necessary for them to obtain a succession certificate It appears from the observations of the learned Judges that they placed literal interpretation on the words 'upon an application of a person claiming to be so entitled' appearing in Clause (b). but. with utmost respect to the learned Judges, no reason was given as to why a succession certificate would be necessary on a fresh application by the successor of the decree-holder and no succession certificate would be needed if he only requests the court to proceed with the application already pending. While giving the above interpretation, the word 'fresh' appears to have been imported in Clause (b) although it. was not used there by the trainers of the law. The Legislature did not even use the word 'written' before the word 'application.'

Even in a case where an execution application is pending and his legal representative presents an application to be substituted in his place, it is, in substance, his application to the court to execute the decree or order. In our view, the word 'application' in Clause (b) was not meant to convey the sense of only a fresh application for execution of the decree, but it also included an application for continuing the pendinc application for execution of the decree oresented by the deceased decrpe-holder.

8. In AIR 1936 Pesh 17, AIR 1955 Pal 284. AIR 1957 Pat 435, AIR 1965 Pat 296 referred to above, the view taken in (1899) ILR 26 Cal 839. cited above, was simply followed and the rationale of Section 214(1)(b) of the Indian Succession Act was not considered. It may be pointed out that the view expressed in Mahomed Yusuf's case was considered by a Division Bench of the Nagpur High Court in AIR 1938 Nag 528 referred to above and it was observed that

''under Section 214(1)(b), the proper application is for leave to carry on (or proceed with) the pending execution proceedings. Such an application would fall within the words ''upon an application of a per-son claiming to be so entitled.' 'To be so entitled' means, as is plain from the words of Section 214(1)(a) 'to be entitled to any part of the deceased's estate.' This widow claims to be so entitled and she makes an application, which is necessary before the court can proceed with a pending execution. The court cannot, on that application, proceed with the execution unless a succession certificate is produced.'

This view was followed in AIR 1955 Kutch 6 cited above. In that case, it was further observed as follows:

''It will be seen that the object of making provision for production of a certificate of succession in Section 214 was to protect interest of debtors making payment to persons claiming to be entitled to the effects of decree-holders, since deceased. It was therefore provided in Clause (a) that a decree should not be passed in favour of a legal representative till he produced a representation certificate. It was further provided that a legal representative of a deceased decree-holder should not be allowed to execute the decree till he produced a certificate of succession. When these provisions were made in the interests of debtors and judgment-debtors, it cannot be accepted that the Legislature did not make any provision in the interest of judgment-debtors when a decree-holder died after he had filed an application for execution.

Till a decree is executed and satisfied, there is no difference in the two positions of a decree-holder dying before an application for execution was filed and of a decree-holder dying during the pendency of an application for execution filed by him so far the question of giving protection to a judgment-debtor making payment is concerned. It is quite apparent that the Legislature did not intend to make any such fundamental distinction between the two positions stated above.'

It is obvious that this observation supports the view which we have expressed above. The same view was expressed in AIR 1956 TC 183 and AIR 1966 Mys 198. referred to above.

9. Before we conclude, we think it proper to make it clear that we express no opinion as to whether a succession certificate would be necessary in case a person wants to proceed with the execution application of a deceased decree-holder as a surviving coparcener under the Hindu Law.

10. The special appeal is, therefore, allowed, the judgment and order of the learned single Judge of this Court dated 25-7-61 and that of the Senior Civil Judge, Ajmer, dated 8-4-61 are set aside and the case is sent back to the Court of Senior Civil Judge, Ajmer, with direction that a reasonable opportunity should be given to the legal representatives of the deceased decree-holder to obtain and produce succession certificate before that court in order to enable them to proceed with the execution of the decree.

11. In the circumstances of the case,the parties are left to bear their own costs.


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