1. In this reference, second appeal No. 932 of 1919 and all questions of law arising in it are before us. The finding we have obtained in favour of the adoption of Narasimha Aiyangar by Veeraraghava Aiyangar, not by his widow, leaves only two such questions for decision. Plaintiff is suing as assignee from the guardian of Narasimha Aiyangar of a promissory note in favour of Veeraraghava Aiyangar, which represented at the date of its execution the latter's self-acquisition. Veeraraghava and Narasimha Aiyangar died (?) undivided. The questions for decision are whether plaintiff is exempt from the obligation to produce succession certificate either because he sues as an assignee from Narasimha Aiyangar, the person entitled to the debt or because Narasimha Aiyangar should be regarded as having become entitled to the debt by survivorship.
2. The first question can be answered shortly. The Act is, as its preamble states, intended to ' afford protection to parties paying debts to the representatives of deceased per-sons. ' The reference in Section 4 is generally to persons ' claiming to be entitled to the effects of the deceased person or any part thereof;' and under Section 6(1)I.L.R. (1890) M. 377, the applicant for a certificate must specify in his application the debts, in respect of which he applies. All this indicates that the succession certificate procedure is obligatory on any person claiming debts or debt, the property of the deceased, not only by succession, but under any title whatsoever. If the cases of assignment from the deceased's legal representatives were excluded, evasion of the Act would be easy and the protection afforded to the debtor would be illusory. This question must be answered in the negative.
3. It is then conceded that the plaintiff must obtain a certificate to entitle him to sue, unless Narasimha Aiyangar, from whose guardian he obtained his assignment, became owner of the debt by survivorship, not inheritance. The authorities regarding the manner, in which an undivided son becomes entitled to the self-acquisition of his deceased father, are set out in the judgment of Kumaraswami Sastri, J. which I have had the advantage of reading. Their result is that, when the issue was raised directly, as it was in the line of cases beginning with Venkataramanamma v. Venkayya I.L.R. (1890) M. 377 the succession of the undivided son by inheritance was regarded as beyond loubt. And the other decisions relied on by plaintiff do not affect this. For neither those, which, like Raja Ghelikani Venkayamma Garu v. Rajah Chelikani Venkatramanamma (1902) L.R. 29 I A. 156. indicate, as joint ancestral, the nature of the estate, to which a son or sons succeed, nor those, which, like Fakirappa v. Yellappa I.L.R.(1896) 22 B. 101. Ramappa Naik v. Seethammal I.L.R(1879) . M. 182 and Nana Tawker v. Ramachandra Tawker I.L.R. (1908) M. 377 are directly concerned only with the order of succession as between sons, undivided and divided, are in point, when, as here, the question is of the manner, survivorship or inheritance, by which such succession takes place. The rule regarding the order of succession that undivided are preferred to divided sons, whatever its exact basis and the possibility of reconciling it with other parts of the Mitakshara system, must be regarded as established since the decision of a Full Bench of this Court in the second of the cases last mentioned. But adherence to it need not involve any inference that the succession of the undivided sons is of one kind rather than the other. For the estate they take may be joint, in whichever way they acquire it. It is true that in Nana Tawker v. Ramachandra Tawker I.L.R. (1908) M. 377 although only the order of succession was in dispute, it was said that 'the succession to the undivided property of the father would, where there was an undivided son, be by survivorship rather than inheritance'; but this dictum was unnecessary to the conclusion and should not in my opinion be followed. For the fact that property is taken by undivided sons as joint tenants is no reason for assuming a prior joint tenancy in respect of it between them and their father, with which its character as self-acquisition would have been inconsistent until his death; and, unless such an assumption can be made, the argument for survivorship must fail. Following Venkatramanna v. Venkayya I.L.R. (1890) M. 377 . I would answer the second question also in the negative. My opinion is that plaintiff cannot succeed without producing a certificate and that the Second Appeal should therefore be allowed.
Kumaraswami Sastri, J.
4.The finding is that the note sued upon was the self-acquired property of the deceased Narasimha Aiyangar who died leaving a minor adopted son and the question is whether a succession certificate is necessary before a decree can be passed on the note.
5. Section 4, of the Succession Certificate Act provides that ' no Court shall pass a decree against the debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased person or any part thereof except on production by the person so claiming of a certificate granted under the Succession Certificate Act and having the debt specified there in or Probate or Letters of Administration or any of the certificates specified in the section.'
6. So far as regards self-acquired property is concerned, the father or other co-parcener has absolute powers of disposition over the same. In Balwant Singh v. Rani Kishore I.L.R. (1898) A. 267 their Lordships of the Privy Council held that a father being a member of an undivided family subject to the Mitakshara has full power of disposition at his own discretion over his self-acquisition. The debt in such cases would therefore be a debt in which no other person had an interest during the creditor's life-time and it is difficult to see how the provisions of Section 4, of the Succession Certificate Act are inapplicable. The current of authority is in favour of the view that succession certificate is necessary.
7. In Venkatramana v. Venkayya I.L.R. (1890) M. 377 it was held that a succession certificate was necessary when the suit is on a bond executed in favour of a deceased person unless it appeared on the face of the bond that the debt was due to the joint family consisting of the deceased and the person suing. Muthuswami Aiyar and Handley, JJ. observed 'A son is prima facie taken to succeed to a debt due to his father by right of inheritance unless his succession by survivorship is indicated on the face of the creating a debt.' In Vaidyanatha Iyer v. Chinnaswami Naik I.L.R. (1893) M. 108 it was held that succession certificate was necessary where a suit was filed on a promissory note executed in favour of two Hindus carrying on business in partnership, by the surviving partner and the heirs of the deceased partner. 3. In The Raja of Kalahasti v. Achugadu I.L.R. (1905) M. 454 it was held that a succession certificate was necessary when the successor to an impartible estate sued on a bond executed in favour of the deceased Zamindar as he derived his title to such debt only on the death of his predecessor as part of his effects. It is however now settled that it is not necessary that the fact that the debt was a debt due to the joint family should appear on the face of the bond but could be proved aliunde, Subramania Chetty v. Rakku Servai 7 M.L.J. 100. Ramanatha Chetty v. Subramania Chetty (1915) 28 M. L. 3. 372 and Jagmohan Das v. Allu Maria Duskal I.L.R(1894) . 19 B. 339. In Raghuvendra Madhav v. Bhima I.L.R.(1891) Bom. 849 it was held that a succession certificate was necessary if a decree obtained by one of two undivided brothers was the separate property of the deceased decree-holder as the surviving brother can only execute as his heir. It is clear from the authorities that the fact that the plaintiff was a member of a joint and undivided family with deceased and owned joint properties which passed to him by survivorship would not prevent the necessity for the production of a succession certificate in regard to the separate property of the deceased inasmuch as the debt would still be the effects of the deceased person.
8. The main contention of the respondent is that even though the deceased father may have had absolute powers of disposal over the debt due to him there is yet a co-parcenery between himself and his undivided sons which operates to alter the character of the properties into co-parcenery proper-ties as soon as he dies and that in such cases a son gets it by right of survivorship. It is contended that under the Mitakshara so far as a person and his undivided sons and grandsons are concerned the heritage is unobstructed and that whatever may be the nature of the properties whether it is ancestral or self-acquired in the hands of the deceased it must always be taken by survivorship. Reliance has been placed on the passages in the Mitakshara and on Nana Tawker v. Ramachandra Tawker I.L.R. (1908) M. 377 .which follows Fakirappa v. Yellappa I.L.R. (1898) B. 101 .
9. So far as the text of the Mitakshara dealing with the rights of the sons in their father's self-acquisitions it has been decided by their Lordships of the Privy Council in Balwant Singh v. Rani Kishore I.L.R. (1898) All. 267.that the text ' though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet un-begotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made', is only a moral precept and not a rule of law capableof being enforced. As pointed out in Madan Gopal v. Ram Buksh (1863) 6 W. B. 71 and Jugmohandas Mangaldas v. Sir Mangaldoss Nathubhoy I.L.R.(1886) 10 B. 528 . the son acquires no legal rights over his father's self-acquisitions by reason of the text of the Mitakshara (Ch. 1, Sections 1, 27) but that his right is imperfect one incapable of being enforced at law.
10. It is difficult to see how there can be any co-parcenery between the father and the sons as regards self-acquired property over which the sons have no legal claim or enforceable rights. Co-parcenery and survivorship imply the existence of co-ownership and of rights of partition enforceable at law and a mere moral injunction can hardly be the foundation of a legal right. As observed by the Privy Council in Rani Sartaj Kuari v. Deoraj Kuari I.L.R. (1888) All. 272 the property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is so connected with a right to partition that it does not exist where there is no right to it. A contention was raised during the course of the argument before the Privy Council in Raja Chelikani Venkayamma v. Raja Chelikani Venkataramanayamma (1902) 12 M.L.J. 299 that sons acquire a right by birth in the father's self-acquired property. Lord Macnaghten observed that he did not quite understand what that right was and observed ' He is his father's son, and if his father does not dispose of it will come to him; but is it anything more than a Spes? ' So far as a father's self-acquisitions are concerned, the son, though undivided, has only spes successionis and he stands in relation to that property in the same position as heir under Hindu Law. The very essence of the distinction between Apratibandha and Sapratibandha daya is the existence of an interest in the son in respect of properties got by his father. As observed by West and Buhler in a passage (Book 2, Introduction page 19) which was approved in Nand Kumar Lala v. Moulvi Reazuddeen Hussain 10 Beng. L.R. 183 . ancestral property may be said to be co-extensive with the objects of apratibandha daya or unobstructed inheritance.
11.Nana Tawker v. Ramachandra Tawker I.L.R. (1908) Mad. 377 decided that under the Law of Mitakshara the self-acquired property of a father is taken by his undivided sons to the exclusion of a divided son. The imperfect right of sons in self-acquisitions of their father which is incapable of being enforced in law during the father's life-time was thought to be sufficient on his death to create a co-parcenery so as to attract the rule of survivorship. With all respect it seems to me that the observation that ' the succession to the self-acquired property of the father would, where there was an undivided son, be by survivorship rather than by inheritance' requires re-consideration.
12. Assuming that the imperfect right of the son in his father's self-acquisition may have sufficient efficacy to entitle him to succeed to it to the exclusion of a divided son, it does not follow that the self-acquired property does not form part of his father's ' effects ' within the meaning of Section 4 of the Succession Certificate Act.
13. I am of opinion that property over which a person has absolute powers of disposal and over which co-parceners have no power of control forms part of his 'effects' so as to attract the provisons of Section 4 of the Succession Certificate Act.
14. The second Appeal must be allowed.
15. I agree. The Second Appeal is allowed with costs throughout and the suit is remanded to the District Munsif for disposal according to law with a direction that the respondent be at liberty to produce a succession certificate, within two months from this date or such further time as the District Munsif may allow and that in default the suit do stand dismissed. Court fee on Appeal Memo, will be returned to appellant.