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Krishnammal Vs. R. Lakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Reported in(1949)2MLJ647
AppellantKrishnammal
RespondentR. Lakshmi Ammal
Cases ReferredBanwarilal v. Maksuden Lal I.L.R.
Excerpt:
- - on the 26th september, 1912, anantarama iyer executed a deed of settlement whereunder he provided that after his death his daughter-in-law, ammani ammal should enjoy the securities for her life and after her death they should be possessed and enjoyed in equal half shares by his grand-daughters, krishnammal and rajammal for life. on the death of any of the said granddaughters, it was provided by the deed that the properties possessed and enjoyed by each granddaughter should devolve upon her male issue absolutely, if any, then living, and in default of such male issue the female issue should take absolutely. in view of the unequivocal admission made on behalf of the appellant before the learned trial judge that the respondent, krishnammal, had no objection to the succession.....satyanarayana rao, j.1.this is an appeal by the respondent in o.p. no. 142 of 1948, against an order of subba rao, j., granting a succession certificate to the petitioner in the original petition in respect of the government securities, more particularly specified in the schedule attached to the petition.2. the securities originally stood registered in the name of one subramania ayyar. he died on the nth december, 1911, leaving behind him his father, anantarama iyer, his widow ammani ammal, and two daughters, krishnammal and rajammal. the respondent in. this appeal, who was the petitioner in the original petition is lakshmi ammal, the daughter of rajammal. on the 26th september, 1912, anantarama iyer executed a deed of settlement whereunder he provided that after his death his.....
Judgment:

Satyanarayana Rao, J.

1.This is an appeal by the respondent in O.P. No. 142 of 1948, against an order of Subba Rao, J., granting a succession certificate to the petitioner in the original petition in respect of the Government securities, more particularly specified in the schedule attached to the petition.

2. The securities originally stood registered in the name of one Subramania Ayyar. He died on the nth December, 1911, leaving behind him his father, Anantarama Iyer, his widow Ammani Ammal, and two daughters, Krishnammal and Rajammal. The respondent in. this appeal, who was the petitioner in the original petition is Lakshmi Ammal, the daughter of Rajammal. On the 26th September, 1912, Anantarama Iyer executed a deed of settlement whereunder he provided that after his death his daughter-in-law, Ammani Ammal should enjoy the securities for her life and after her death they should be possessed and enjoyed in equal half shares by his grand-daughters, Krishnammal and Rajammal for life. On the death of any of the said granddaughters, it was provided by the deed that the properties possessed and enjoyed by each granddaughter should devolve upon her male issue absolutely, if any, then living, and in default of such male issue the female issue should take absolutely. After the death of Subramania Aiyar, Ammani Ammal applied for a succession certificate in respect of these securities, and with the consent of Anantarama Iyer a succession certificate was issued in her favour, the power being limited to realisation of interest on the securities. There is an endorsement to this effect on the Government promissory notes: Ammani Ammal died on the 28th September, 1944. Rajammal predeceased Ammani Ammal and left behind her her only daughter, Lakshmi Ammal, the respondent in the appeal. Busing her claim on the settlement deed of Anantarama Aiyar the respondent claimed that she was entitled to one half of the total value of the Government securities mentioned in the schedule and also to receive her share of the interest payable thereon. In paragraph 3 of the petition the respondent alleged that the Government of India bonds and securities were held by the Reserve Bank of India (Public Debt Office), Madras Branch, and that she was informed by the Reserve Bank of India, Madras Branch, in their communication dated 19th February, 1948, that she should obtain from the High Court of Madras a succession certificate in support of her claim to deal with the securities and forward the same to them. In paragraph 9 of the petition she however alleged that the original bonds were in the custody of Krishnammal, daughter of Subramania Aiyar. In paragraph 4 she disclosed the relationship between the various persons and stated that Krishnammal alone was alive and that she resided at South Street, Fort, Trivandrum. She stated in the petition the substance of the settlement deed and the facts entitling her to the certificate claimed by her.

3. Krishnammal filed a counter affidavit formulating her objections to the grant of a succession certificate in favour of Lakshmi Ammal, chief among which were that the High Court had no jurisdiction to entertain the application, and that as she was not the heir of the deceased Subramania Aiyar, in whose name the securities stood she was not entitled to the grant of succession certificate under the provisions of the Succession Act. She put the petitioner to strict proof of the allegation contained in paragraph 3 of the petition that the securities in question were held by the Reserve Bank of India (Public Debt Office), Madras and also disputed the correctness of the construction that was put upon the settlement deed of 28th February, 1912, by Lakshmi Ammal, the petitioner. To meet some of the all gations in the counter affidavit filed by Krishnammal, Lakshmi Ammal in her turn filed a reply affidavit.

4. The petition was tried by Subba Rao, J. and before him the question of jurisdiction of the Court to entertain the petition was argued on the basis of certain agreed facts, and the learned Advocate-General appearing for the appellant confined his arguments before the learned Judge to the question of jurisdictior of the Court to entertain the petition. Judgment was pronounced by the learned Judge on the question of jurisdiction on 5th August, 1948. At that time it was represented to the learned Judge that the learned Advocate-General when he argued the question of jurisdiction was under the impression that he was arguing only a preliminary point, and that there were also other contentions raised in the counter affidavit which had to be argued. On this representation being made the learned Judge naturally directed the matter to be posted for fresh arguments on I2tb August, 1948. When this matter came up for further hearing before the learned Judge, the respondent in the petition, i.e., the present appellant, through her counsel stated that she had no objection for the succession certificate being issued to the petitioner, Lakshmi Ammal, without prejudice to the rights of the parties. Mr. Pattabhiraman appearing for Lakshmi Ammal also agreed to withdraw his allegation in paragraph 7 of the petition, that the petitioner would be entitled to the other half of the securities also on the death of Krishnammal, as it was not necessary for the disposal of the application. On this admission the learned Judge directed the issue of a succession certificate to the petitioner, as he had already found by his order, dated 5th August, 1948, that this Court has jurisdiction to entertain the application.

5. In this appeal by Krishnammal, two questions were raised on her behalf by her learned advocate, firstly that the High Court had no jurisdiction to enter- tain the application; secondly that on the allegations contained in the petition, the application should not have been entertained, as Lakshmi Ammal who was not the heir of the deceased Subramania Aiyar and who claimed rights only under the settlement deed of Anantharama Aiyar could not apply for a succession certificate under the provisions of the Succession Act. In view of the unequivocal admission made on behalf of the appellant before the learned trial Judge that the respondent, Krishnammal, had no objection to the succession certificate being issued to the petitioner, we are clearly of opinion that the appellant is not now entitled to agitate the second point, the decision of which depends to some extent at least on an investigation of the facts. We have, however, considered that question also on its merits in this judgment.

6. The most important question for decision is whether the view of the learned Judge that this Court had jurisdiction to entertain the application is correct. The judgment of the learned Judge proceeded on the assumption that the Government securities were in the custody of Krishnammal at Trivandrum. As it appeared to us that the question of the custody of the bonds would have a material bearing on the points in controversy, we thought it necessary to direct the Reserve Bank of India (Public Debt Office), Madras, to cause the Government securities to be produced before us. They were accordingly produced, and a photostat copy of one of those bonds was marked by consent of parties as Exhibit P-1 in the case. The other bonds are similar to Exhibit P-1. Ammani Ammal who had only a life interest in these securities, and who had no right to negotiate them received a deposit receipt to enable her to draw the interest on the securities and allowed these bonds to remain in the custody of the Public Debt Office. This appears from the endorsements on the bonds themselves. Though interest was payable according to the original terms of the bonds at the general treasury office there was an endorsement in 1908 making the interest payable at Trivandrum. which was subsequently cancelled in 1927, and interest was made payable at Madras, and those bonds were registered at the Public Debt Office, Madras and were given a number. The deposit receipt issued to Ammani Ammal enabled her to draw interest at Travancore. From the affidavit of the respondent filed in C.M.P. No. 4048 of 1949, for amendment of the succession certificate, it appears that these securities were notified even as early as 16th September, 1946, by the Government for repayment, and therefore the Reserve Bank of India (Public Debt Office), Madras Branch could not renew the bonds in the name of Lakshmi Ammal pursuant to the order of this Court granting a succession certificate; but the bank promised to pay the principal and interest upto the date of the notification, namely, 15th September, 1946, provided the succession certificate was amended in an appropriate manner. On the date of the application, therefore, the situation as it now turns out, was that these securities were not available in specie to be transferred or dealt with and had been substituted by the principal and interest due under them to the rightful owner or owners thereof and the money representing such principal and interest upto 15th September, 1946, is now in the hands of the Reserve Bank of India (Public Debt Office), Madras branch. We think that the question of jurisdiction should be decided in the light of these facts and not on the assumption that the original bonds, are still with Krishnammal at Trivandrum. To a specific question put by us to the learned Counsel for the appellant the appellant could not now assert in the light of these facts that the original bonds were still in the custody of Krishnammal. The fact therefore is that the bonds or the money represented by those bonds was in the hands of the Reserve Bank of India (Public Debt Office), Madras, on. the date of the petition and continues to be held by them till now. Section 371 of the Succession Act (XXXIX of 1925) defines the Court having jurisdiction to grant a certificate. It reads as follows:

The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time, he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part.

'District Judge ' is defined by Section 2(b) of the Act as meaning the Judge of a principal Civil Court of original jurisdiction. This definition of ' Distriet Judge ' was introduced into the Succession Act by the Succession Amendment Act (XVIII of 1929) so as to make it clear that the High Court acting in its Original Civil Jurisdiction is also clothed with the jurisdiction to issue a succession certificate. Under the section, the jurisdiction of the Court is made to depend on one of two circumstances, i.e., either the ordinary residence of the deceased at the time of his death, or in the absence of such residence, any part of the property of the deceased being found within the jurisdiction of the District Judge. In the present case, the deceased person with whom we are now concerned is Subramania Aiyar. At the time of his death, it is common ground, he was ordinarily residing at Trivandrum in the Native State of Travancore. The second part of the section which confers jurisdiction on the Court in whose jurisdiction any part of the property is situate can be invoked only if at the time of the death the deceased had no fixed place of residence. The argument of the appellant is that as Subraninia Aiyar had a fixed place of residence at the time of his death in the Native State of Travancore, the second part of the section cannot be invoked to clothe the High Court with jurisdiction to deal with the matter. The question therefore for decision is, when the section speaks of ordinary residence and fixed place of residence, does it contemplate residence anywhere even outside British India (Indian Union) or residence within British India If the proper construction of the section is that as the deceased had no fixed residence or ordinary residence within British India the situation of the property may be taken advantage of to confer jurisdiction, then the High Court would have jurisdiction, provided it is established that part of the property of the deceased is situate within the Ordinary Original Jurisdiction of the High Court. If, on the other hand, the section is construed as referring to residence in any part of the world, then, of course, the appellant's contention will be well founded, and the respondent will not be entitled to invoke the aid of the second part of the section. From the definition of the expression ' District Judge ' in the Act, it is a proper inference to make that the Court indicated is a Court situate within British India. It could not have referred to a Civil Court of original jurisdiction outside British India, for example, a Native State, or in any other part of the world. The first part of the section therefore must necessarily refer to ordinary residence within the jurisdiction of a British Indian principal Civil Court of original jurisdiction. From this it follows that when the section refers to the deceased having no fixed place of residence it must also refer to residence in British India, as the same words ' res ided ' and ' residence ' occurring in the section must receive the same interpretation in the absence of anything to indicate the contrary. To put a different construction on the section would lead to anomalous results. If the respondent in an original petition for a succession certificate should raise the objection in a case like the present that the deceased had his ordinary residence in some remote corner of the world, the Court, should embark on an enquiry into the truth or otherwise of that allegation, notwithstanding the fact that within the jurisdiction of the Court there is property of the deceased. Section 372 which lays down the particulars to be set out in an application for a succession certificate requires by Clause 1(b) that the petitioner should state the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits, thereby indicating that what is contemplated is residence within the jurisdiction of a British Indian Court and not residence outside it. The appellant relies in support of his submission upon the observations of West, J., in Mir Ibrahim Alikan v. Ziaulnissa Ladli Begum Sahib (1887) 12 Bom. 150, where the learned Judge observes that,

The necessity for a certificate under Act XXVII of 1860 is not clearly established. (It may be mentioned that the Act'XXVII of 1860 was the earliest Succession Certificate Act.) Section 3 of the Act seems to contemplate the issue of a certificate under it only for the estate of a British subject either resident within the district where a certificate is sought, or else having no fixed place of residence. Here, the deceased Mir Baker Ali was a sardar of Baroda, resident there, where also he died: The representation of such a person would properly be sought in the country he belonged to and the constituted representative would then sue, or empower some one to sue, in the British Courts. The Act does not make provision for the administration of the effects of a foreigner domiciled abroad.

In that case Mir Baker Ali, the deceased, was a sardar of Baroda and resided within the Gaekwar State and,died there. After his death one Mr. Lely, the Assistant Collector of Surat, was appointed administrator of Mir Baker Ali's estate under a Regulation then in force in Bombay Presidency. When the administrator went to England on furlough the heirs of Mir Baker Ali instituted a suit to recover a debt due to the estate of the deceased. The decision in the case was that when there was a duly appointed administrator the heirs at law were incompetent to sue. The observations therefore of the learned Judge are obiter, and not necessary for the decision of the case; nor does the lea rned Judge consider the language of the section. The learned Judge's attention was not drawn to the earlier decision of the Allahabad High Court to the contrary in Sri Goswami Gopal Lalji v. Sri Goswami Jaidas Lalji (1885) 5 A.W.N. 39. This decision of the Allahabad Court and a later decision of a single Judge of the Lahore Court in Amar Singh v. Sham Singh A.I.R. 1935 Lah. 646, support the contention of the respondent. The Bombay and the Allahabad decisions were considered by the Lahore High Court in this last mentioned case, and the view taken by the Lahore Court accords with the interpretation which we think is the correct one. We are not prepared to follow the obiter dictum of West, J., in Mir Ibrahim Ali Khan v. Ziaulnissa Ladli Begum Sahib (1887) 12 Bom. 150, though the opinion of that learned Judge is entitled to great weight.

7. It therefore follows that Subramania Aiyar had no fixed place of residence in British India at the time of his death. This leads us to a consideration of the question whether any part of the property of the deceased is to be found within the original jurisdiction of this Court. We may here advert to a contention faintly urged on behalf of the appellant that the deceased must have left the property which confers jurisdiction, within the jurisdiction of this Court at the time of his death, and that it is not enough that such property is now found within the jurisdiction of this Court. On the clear language of Sections 331 and 372(1)(b) the material point of time at which property once owned by the deceased should be found is the date of the application and not the date of his death.

8. The respondent contends that the situs of the debt evidenced by the securities was at Madras, and that therefore this Court had jurisdiction. Subba Rao, J., was of opinion that even if the bonds were actually in the hands of Krishnammal at Trivandrum it would not make any difference having regard to the other factors mentioned in his judgment to determine the situs of the debt. We have already found that in fact the bonds and the money representing the bonds were on the date of the application in the hands of the Reserve Bank of India (Public Debt Office), Madras branch. It is on that footing that we proceed to determine the question regarding the situs of the debt. The locality of debt is important for several differing purposes particularly under English law. The decision of the question of jurisdiction, the liability to pay death duties, and the grant of probate or letters of administration, depends mostly upon the situation or the locality of the debt. The test by which the locality of a debt is usually determined is stated by Atkin, L.J., in New York Insurance Co. v. Public Trustee(1924) 2 Gh. D. 101 in the following words:

The question as to the locality, the situation of a debt, or a chose in action is obviously difficult, because it involves consideration of what must be considered to be legal fictions. A debt, or a chose in action, as a matter of fact, is not a matter of which you can predicate position; nevertheless, for a great many purposes it has to be ascertained where a debt or chose in action is situated, and certain rules have been laid down in this country which have been derived from the practice of the ecclesiastical authorities in granting administration, because the jurisdiction of the ecclesiastical authorities was limited territorially. The ordinary had only a jurisdiction within a particular territory, and -the question whether he should issue letters of administration depended upon whether or not assets were to be found within his jurisdiction, and the test in respect of simple contracts was : Where was the debtor residing Now, one knows that, ordinarily speaking according to our law, a debtor has to seek out his creditor and pay him; but it seems plain that the reason why the residence of the debtor was adopted as that which determined where the debt was situate was because it was in that place where the debtor was that the creditor could, in fact, enforce payment of the debt. I think that is a very material consideration. The result is that in the case of an ordinary individual by that rule for a long time, the situation of a simple contract debt under ordinary circumstances has been held to be where the debtor resides; that being the place where under ordinary circumstances the debt is enforceable, because it is only by bringing suit against the debtor that the amount can be recovered.

To this rule that the residence of the debtor is the determining factor in deciding the locality of the debt must be added the qualification that if under the contract the debt is payable at a particular place notwithstanding that the debtor resided elsewhere, the situs of the debt is also at the place where the debt is recoverable. See Swiss Bank Corporation v. Bochimsche Industrial Bank (1923) 1 K.B. 673 and Russo-Asiatic Bank In re : Russian Bank of Foreign Trade In re (1934) 1 Ch. D. 720. If a bank has several branches and a customer has an account at a particular branch, the locality of the debt is at the place where the branch is situate at which the customer has an account. See Joachimson v. Swiss Bank Corporation (1921) 3 K.B. 110 . In England, however, there is a further distinction between simple debts and specialty debts. The locality of a specialty debt is at the place where the specialty is found. It has been held therefore that such a debt was bona notabilia where it was conspicuous, i.e., within the jurisdiction within which the specialty was found at the time of death. (Commissioner of Stamps v. Hope (1891) A.C. 476). For the purpose of this rule relating to specialty, debts due from the Grown and debts arising under a statute are treated as specialties, even though the bonds are I ot under seal (Royal Trust Co. v. Attorney-General for Alberta (1930) A.C. 144). In India there is no difference between simple debts and specialty debts. A suit for recovery of a debt may be instituted at the place where the debtor resides or where the cause of action in whole or in part arises. Vide Section 20, Civil Procedure Code.

9. It is here necessary, in order to determine the situs of the debt now in dispute, to bear in mind some of the provisions of the Public Debt Act (XVIII of 1944) and the rules framed thereunder, and the machinery provided by the Central Government for effectively dealing with these securities and for payment of interest.. The Indian Securities Act of 1920 has practically been replaced by the Public Debt (Central Government) Act, 1944 (XVIII of 1944). 'Bank' in the Act means the Reserve Bank of India, and under the rules framed under Section 28' of the Act, ' Public Debt Office ' means the office of the Reserve Bank of India on the books of which a Government security is registered or may be registered.. There are four Public Debt Offices for dealing with decentralised loans (loan covered by the securities in question is a decentralised loan) at Bombay, Cal Delhi and Madras, and the securities in question were registered at the Madras Public Debt Office. Section 9 of the Act empowers the Bank to determine the person, or persons entitled to security on the death of a person if the aggregate value of the securities does not exceed Rs. 5,000. Section 11 provides for issue of duplicates, Section 12 provides for a summary determination by the Bank of title to Government securities in case of dispute. Section 13 states,

Notwithstanding that as a matter of convenience the Central Government may have arranged for payments on a Govermment security to be made elsewhere than in British India, the rights of all persons in relation to Government securities shall be determined in connection with all such questions as are dealt with by this Act by the law and in the Courts of British India.

Section 22 deals with the discharge of interest on Government securities and section, 18 relates to vesting of title. Under Section 13 therefore the rights of all persons to the securities should be determined only by the Courts in British India and by the law of British India. This would exclude the determination of the title to the securities even in a summary fashion by the courts outside British India. The further question that has to be solved is which of the courts in British India could have jurisdiction. This aspect was not considered by Subba Rao, J., in the judgment apparently because having regard to the course of the argument before him it was assumed by counsel that if the jurisdiction of the Courts in Travancore is excluded by Section 13 of the Public Debt Act, it did not matter which of the British Indian Courts tried the petition. In the arguments, however, before us it was strenuously argued on behalf of the appellant that the Madras High Court has no jurisdiction whether other British Indian Courts might or might not have had jurisdiction to entertain the application. It has therefore become necessary to examine not only the terms of the bonds but also the sections and the rules framed under the Public Debt Act to decide the question whether the debt is one which can be recovered at Madras.

10. According to the terms of the bonds the interest is payable at Madras. The Reserve Bank of India (Public Debt Office), Madras Branch, is the office to which all matters connected with these bonds have been assigned to be dealt with. Apart from the endorsements on the bonds, under Rule 9 of the rules framed under the Act, where interest on a Government promissory note is payable at a place where a Public Debt Office is located, the note shall be presented at the Public Debt Office which shall issue an interest warrant in favour of the holder payable at the local office of the bank. To discharge the security under Rule 25 the security including a Government promissory note has to be presented at the office at which the interest on the security is payable or at the Public Debt Office of domicile. An application for grant of information has to be made under Rule 28 to the Public Debt Office, Madras. In other words, the discharge of the Principal, the payment of interest and all the other matters connected with the securities have to be dealt with by the Public Debt Office, Madras, even though the Reserve Bank has several branches at different places, and under the Act and the rules, the Public Debt Office, Madras, which is the Reserve Bank, is clothed with the authority to deal with the securities. The debt is certainly recoverable at Madras, and added to this, the securitieshave already been notified for payment, and it is now really the money in the hands of the Public Debt Office that is recoverable by the person entitled to it. In those circumstances it is not difficult to hold that the situs of the debt is at Madras within the meaning of the principles referred to in the earlier portion of this judgment; and the debt is recoverable at Madras (vide Section 20 of the Civil Procedure Code). The property therefore of the deceased is within the jurisdiction of this Court and the application therefore has been properly entertained. The objection of the appellant that this Court has no jurisdiction to entertain the application must be overruled.

11. On the second question even if it is open to the appellant to raise the contention notwithstanding the admission made by her learned Counsel before Subba Rao, J., we think that on the allegations contained in the application a succession certificate could be granted to the applicant under the Act. No doubt, ordinarily speaking it is the heir of the deceased that is bound and is entitled to apply for a succession certificate under the Act. In Karuppasami v. Pichu : (1892)2MLJ116 , Muthuswami Iyer and Parker, JJ., held that even an assignee of a debt from the heir of the deceased creditor was bound to apply for a succession certificate under Section 4 of the Act VII of 1889, Succession Certificate Act. It was contended before the learned Judges that there was no obligation on the part of an assignee to apply for a succession certificate and produce it as a condition precedent for realising the debt. It was pointed out that the title derived from the heir was as much within the purview of the Act as the right to succeed set up by the heir himself and an assignee of a creditor's, heir was also a person who claimed part of the effects of the deceased creditor. The learned Judges observed, '

It is not inconsistent with the language of Section 4 of Act VII of 1889, for a person claiming a debt under an assignment made by the creditor's heir certainly claims part of the effects of such creditor. There is nothing in the section to show that the title derived from the heir is not as much within its purview as the right to succeed set up by the heir himself. It would further be unreasonable to hold that the assignee is in a better position than the assignor. If it were so held, the heir might assign the debts due to the deceased person to others and thereby evade the statutory duty imposed upon him by Section 4. The intention was to afford protection to parties paying debts owing to deceased persons, and the construction suggested for the petitioner would frustrate that intention. The heir of a deceased person cannot by his own act deprive the debtors of the protection guaranteed to them by the Act.

This was also the view taken in later decisions of this Court. In Vairavan Chettiar v. Srinivasachariar : AIR1921Mad168 , the plaintiff was the assignee of a promissory note in favour of one Veeraraghava Aiyangar. Veeraraghava Aiyangar died, and his adopted son Narasimha Aiyangar succeeded to his properties. The widow of Veeraraghava Aiyangar as the adoptive mother and guardian of the minor, Narasimha Aiyangar, endorsed the note to the plaintiff for collection. One of the questions in the suit was whether the promissory note was or was not the self-acquired property of the deceased and whether a succession certificate was necessary to maintain the suit. It was found that the promissory note was self-acquired property of Veeraraghava Aiyangar and that the plaintiff could not maintain the suit without a succession certificate. Construing Section 4 of the Act, Oldfield, J., observed at page 503 as follows:

The Act is, as its preamble states, intended to ' afford protection to parties paying debts to the representatives of deceased persons '. The reference is 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) 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 a 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.

The other learned Judges concurred in this view. To the same effect is the decision in Gulshan Ali v. Zakir Ali(1920) IX.R. 42 All. 549. Banwarilal v. Maksuden Lal I.L.R.(1929)All. 252 lays down that

there is no legal bar to the granting of a succession certificate to a member of a joint Hindu family who gets the property by right of survivorship and not as an heir.

As pointed out by the learned Judges in that case the expressions ' legal representatives ' and 'successors ' may not strictly be applicable to the case of persons taking by survivorship in a joint Hindu family. They may not be under an obligation to take out a succession certificate in order to obtain a decree in a suit for recovery of a debt. It does not necessarily follow from this that persons who take property by survirorship are not entitled to take advantage of the provisions of the Act and obtain a succession certificate by calling themselves legal representatives. We think that the interpretation placed by the Allahabad High Court is correct.

12. The petitioner in her petition set out fully all the facts entitling her to a succession certificate. No doubt it is not stated in the petition that Anantharama Aiyar who took the property of his son by survivorship and who executed the settlement deed really assigned the. debts by virtue of the settlement deed. But all the facts arc there, and it will be hypertechnical to rule out a contention based on the facts found in the petition, and say that as the petitioner did not put forward that she really stood in the position of an assignee of the debt due to the deceased, therefore she should be non-suited. Even if the father, Anantharama Aiyar, h taken the property by suvivorship after the death of his son, the assignees of Anantharama Aiyar would be entitled to take advantage of the provisions of the Act and styling themselves as the legal representatives of the deceased claim the right to a succession certificate. It is said that according to the allegations in the petition Subramania Aiyar was merely a benamidar for Anantharama Aiyar and therfore the petitioner is not now entitled to say that Subramania Aiyar was the real owner and claim the right to a succession certificate. Even if the allegations are true, the legal title to the debt is in Subramania Aiyar whoever may be the beneficial owner of it, and the question of benami cannot be gone into in these proceedings. The legal title which vested in Subramania Aiyar devolved upon A.nantharama Aiyar after the death of the former, and under the settlement deed the petitioner would be an assignee of the debt entitled to apply under the Act. We therefore hold that the application is maintainable and that the contention of the appellant that the petitioner was not entitled to apply under the Act is without any force.

13 . There is an application for amendment of the succession certificate granted by the trial Court, The certificate granted by the trial Court is in these terms,

The certificate is accordingly granted to the said R. Lakshmi Ammal, the abovenamed petitioner herein, in pursuance of an order of this Court made herein and dated the a6th day of August, 1948 and empowers the said petitioner to collect one half of the debt mentioned in the schedule.

It now turns out that as a matter of fact even in 1946 the Government notified the securities for repayment, and that the securities do not now exist as securities and they have taken the shape of money payable towards the principal and interest up to 15th September, 1946, under the bonds. According to the allegations in the affidavit filed in support of the application this fact was not known to the petitioner at the time she made the application for the issue of a succession certificate. When on behalf of the petitioner a letter was addressed to the Reserve Bank of India (Public Debt Office), Madras Branch, to transfer the bonds in her name and pay the interest in accordance with the succession certificate issued by the Court, the Reserve Bank of India by their letter, dated 2nd March, 1949, intimated to the petitioner that the bonds were already notified for repayment, that they ceased to bear interest from 16th September, 1946 and that the bonds could not be renewed, the only right of the heirs being to receive the payment of principal and interest up to 15th September, 1946. The petitioner therefore asks for amendment of the succession certificate by substituting the word 'debts ' for the word ' securities ' in the preamble to the certificate and by substituting in the operative portion the following words

empowers the said petitioner to collect one half of the debts mentioned in the schedule and receive the interest and dividends payable thereon.

for the words already quoted above. The contention urged on behalf of the appellant is that this petition really proceeds entirely on a new basis, namely of a debt recoverable from the bank by the petitioner and that therefore the amendment ought not to be ordered. We see no force in this contention. Unknown to the petitioner the securities became practically converted into or substituted by the money in the hands of the Public Debt Office, Madras. The order of the learned Judge will operate upon the money into which the securities were converted instead of the securities themselves. No question of any variation of the basis of the application arises, and the contention urged on behalf of the appellant seems to us baseless. The application therefore for amendment should be granted, and we accordingly grant it in terms of the petition that has been filed. The amendment application is allowed.

14. The result is that the appeal fails and is dismissed with costs.


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