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Arumugam Pillai Vs. Valura Koundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1901)ILR24Mad22
AppellantArumugam Pillai
RespondentValura Koundan and ors.
Excerpt:
succession certificate act - act vii of 1889, section 4--'debt'--suit by son of deceased mortgagee for amount due on usufruciuary mortgage--failure to produce certificate of heirship--right to recover. - - the failure of the plaintiff to produce a certificate was, therefore, no bar to the decree he got......decree is not for money due under a contract, but is in reality the assessment in money by the district munsif of the value of the plaintiff's mortgage interest. in strictness the plaintiff was entitled to a decree for the land itself, and it was only by his consent that money was awarded in lieu of the land. the amount cannot, therefore, rightly be treated as a debt within the meaning of the succession certificate act. the failure of the plaintiff to produce a certificate was, therefore, no bar to the decree he got. we accordingly reverse the decree of the subordinate judge, and we restore that of the district munsif with the modification that the fifth defendant is not personally liable, nor any of his property except the mortgaged property, to the decree. the fifth defendant will.....
Judgment:

1. We agree with the District Judge that the payment relied on by the fifth defendant to the fourth defendant is not binding on the plaintiff, inasmuch as the assignment to the fourth defendant by defendants Nos. 2 and 3 was also not binding on plaintiff. The contention now for the first time made that the defendants Nos. 2 and 3 acted as guardians on behalf of the minor plaintiff is opposed to the whole facts of the case.

2. The only other question is whether the plaintiff is not entitled to the decree he obtained in the Court of First Instance by reason of his not having produced a certificate of heirship. That decree is not for money due under a contract, but is in reality the assessment in money by the District Munsif of the value of the plaintiff's mortgage interest. In strictness the plaintiff was entitled to a decree for the land itself, and it was only by his consent that money was awarded in lieu of the land. The amount cannot, therefore, rightly be treated as a debt within the meaning of the Succession Certificate Act. The failure of the plaintiff to produce a certificate was, therefore, no bar to the decree he got. We accordingly reverse the decree of the Subordinate Judge, and we restore that of the District Munsif with the modification that the fifth defendant is not personally liable, nor any of his property except the mortgaged property, to the decree. The fifth defendant will pay the costs of the plaintiff in this and in the lower Appellate Court.

3. The memorandum of objections is dismissed.


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