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Devanai Ammal Vs. Mahadeva Chetti - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1931Mad313
AppellantDevanai Ammal
RespondentMahadeva Chetti
Cases Referred and Sawmy Rao v. Official Assignee of Madras A.I.R.
Excerpt:
- - under section 4, succession certificate act which is now enacted as section 214, succession act, no court can pass a decree against a 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 to any part thereof except on the production of a succession certificate or like authority. 291, as well as where the first suit is withdrawn:.....out against all the defendants except defendant 2 but that the suit was barred by reason of the previous suit, o.s. no. 406 of 1918, under order 2, rule 2, civil p.c. he therefore dismissed the suit not only against defendant,2 but against all the defendants.8. on appeal by the plaintiff the learned district judge agreed with the subordinate judge that the suit was barred by order 2, rule 2, civil p.c. he accordingly dismissed the appeal. he did not go into the other issues. the plaintiff has filed this second appeal and the only question is whether the finding of the lower courts that this suit is barred under order 2, rule 2, civil p. c, by reason of the previous suit is correct.9. now, mr. s. varadachariar the learned advocate for the appellant, has raised a threefold contention......
Judgment:

Bhashyam Ayyangar, J.

1. In this case one Palani alias Dharmalinga Chetty was entitled to a certain sum of money under a deed of settlement executed by his father and that sum of money was with one Lakshmana Chetty. Lakshmana Chetty, who died in 1908, left a will dated 24th April 1906, whereby he appointed five executors for his estate and directed them inter alia to pay a sum of Rs. 4,000 to the said Palani alias Dharinalinga Chetty (Ex. A). Defendant 2 was the residuary legatea under the said will. As he was then a minor defendant 1 was thereby appointed his ' executor', that is, apparently his guardian.

2. Two of the five executors did not accept office, but the other three did and administered the estate. These three were : (1) Venkatachala Mudali, defendant 3 who was alive on the date of this suit but is now dead and represented by respondents 12 to 15 in the second appeal; (2) Kumaraswami Ayyar who died before the suit and whose sons and legal representatives were added as defendants 4 to 6; and (3) Ellappa Chetty who died still earlier and whose sons and legal representatives were added as defendants 7 to 10. Palani alias Dharmalinga Chetty died a minor and unmarried soon after the death of Lakshmana Chetty, leaving the plaintiff, his mother and only heir. The will of Lakshmana Chetty does not provide for the payment of any interest on the sum of Rs. 4,000 directed to be paid to Palani alias Dharmalinga Chetty.

3. It appears from Ex. C, proceedings recorded by the three executors of Lakshmana Chetty who entered on their office and defendant 1, the guardian of the residuary legatee on 14th October 1915, that after the death of Palani alias Dharmalinga Chetty there was an arrangement between the plaintiff and them whereby she allowed them to retain and invest the money due to her and pay her interest 'either per month. or at any time as suited her.' These proceedings and the subsequent proceedings, Ex. D, show that the rate of interest was varying from time to time. The executors paid interest accordingly to the plaintiff on several occasions. They however declined to pay up the principal amount unless she produced a succession certificate.

4. Defendant 2, the residuary legatee, attained majority in the year 1915 and the executors then delivered over ' all the assets' of the estate to him, retaining a sum of Rs. 5,143-0-2 only with them, being the amount which remained payable to the plaintiff and two others : see defendant 2's deposition and Ex. 8. They kept the said sum in a bank and continued to pay the interest which accrued due on it to the plaintiff.

5. In 1918 the plaintiff filed. O.S. No. 406. of that year on the file of the District Munsif's Court of Vellore against defendant 1 and two of the executors, namely Kumaraswami Ayyar and Venkatachala. Mudali. Ellappa Chetty died prior to that suit and he was not therefore' impleaded. That suit was to recover the interest due from 19th July 1916 till its date. The plaintiff alleged therein that she

without asking for the entire principal sum, was receiving only the whole of the income thereof from the executors, the defendants and others, and enjoying the same till 19th July 1916

and that the subsequent interest was not paid in spite of demands (Ex. E).

6. Kumaraswami Ayyar, one of the executors and defendant 2 in that suit, at once paid up the amount sued (Ex. X) and the suit was reported fettled out of Court on 17th September 1918. The executors are said to have continued to pay the interest even subsequently and to have again defaulted from and after December 1922. The plaintiff then obtained a succession certificate in her favour in O.P. 18 of 1923 on the file of the District Court of North Arcot and instituted the present suit to recover the principal said to be Rs. 3,575 and the interest on it from December 1922.

7. Several issues were raised before the Court of first instance and the learned Subordinate Judge recorded his finding on all of them. He hold that the claim was made out against all the defendants except defendant 2 but that the suit was barred by reason of the previous suit, O.S. No. 406 of 1918, under Order 2, Rule 2, Civil P.C. He therefore dismissed the suit not only against defendant,2 but against all the defendants.

8. On appeal by the plaintiff the learned District Judge agreed with the Subordinate Judge that the suit was barred by Order 2, Rule 2, Civil P.C. He accordingly dismissed the appeal. He did not go into the other issues. The plaintiff has filed this second appeal and the only question is whether the finding of the lower Courts that this suit is barred under Order 2, Rule 2, Civil P. C, by reason of the previous suit is correct.

9. Now, Mr. S. Varadachariar the learned advocate for the appellant, has raised a threefold contention. His first contention was based on the fact that the plaintiff had not obtained a succession certificate at the time of the previous suit. He urged that in the absence of succession certificate the plaintiff was not entitled to claim the principal amount from the executors (who had refused to pay it without such certificate) and her omission to sue for it in the previous suit cannot therefore bar the present suit under Order 2, Rule 2. His second contention was that the interest sued for in the previous suit was not due on the original cause of action but on the agreement entered into by the executors after the death of Lakshmana Chetty, and the previous suit brought for the interest cannot therefore bar the present suit for the principal. His last contention was that in any case the plaintiff's claim was not barred as against defendants 7 to 10 who or whose father was not impleaded as parties in the previous suit. 1 am of opinion that the appellant is entitled to succeed on the first two points and it is therefore unnecessary to consider the third point.

10. Taking the first point : it is necessary to note that what Clause 1, Order 2,, Rule 2, requires is that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. It is only when the plaintiff contravenes this requirement that the bar laid down in. Clause 2 can come into operation. Now, was the plaintiff entitled to claim the principal from the executors on the date of the previous suit? It must, I think, be held that she was not, for the simple reason that she had not obtained a succession certificate in respect of it. Under Section 4, Succession Certificate Act which is now enacted as Section 214, Succession Act, no Court can pass a decree against a 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 to any part thereof except on the production of a succession certificate or like authority.

11. It was pointed out and it is no doubt true that the production of a succession certificate is not a condition precedent to the filing of a suit for the recovery of a. debt due to a deceased person and the certificate could be produced at any stage of the suit, but the fact remains that no decree could be passed without its production. As the plaintiff who had not obtained a succession certificate could not have insisted on a decree being passed in her favour on the date of the previous suit, it must, 1 think, be held that she was then not entitled, to make the claim. It seams to me irrelevant that the Court could and might have given time after the suit was filed for producing the succession certificate and could have passed a decree on such certificate being produced within the time granted.

12. There is the authority on this point of the decision of the Privy Council in Jaggo Bai v. Utsava Lal A.I.R. 1929 P.C. 166. In that case a malikana which was not made the subject matter of a previous suit was claimed in the second suit along with other properties. A certificate under the Pensions Act, 1871, was necessary to maintain the claim as regards the malikana and such certificate had not been obtained at the time of the previous suit. In dealing with the plea of the bar under Order 2, Rule 2. raised in the subsequent suit brought after obtaining that certificate as regards the claim for malikana, their Lordships observe at p. 449 of the report as follows:

By reason of the absence of a certificate under the Pensions Act of 1871, the Court in the previous suit (No. 481 of 1890), was not competent to deal with the question of the malikana and the plaintiff had no right of action in respect of it. In their Lordships' opinion the plaintiff's claim to malikana was not therefore part of the claim which she was entitled to make in the previous suit.

13. That reasoning fully applies to this case and the plaintiff must therefore be held not to have had a right of action in respect of the principal on the date of the previous suit.

14. The learned advocate for the respondents drew attention to the difference in the language between Section 4, Succession Certificate Act, and Sections 4 and 6, Pensions Act. No doubt the former provided that no Court shall pass a decree except on the production of a certificate whereas the latter Act provides first in Section 4 ' that no Court shall entertain any suit relating to any pension' and then in Section 6 'a civil Court otherwise competent to try the same shall take cognizance of any such claim upon receiving a certificate' but this difference does not seem to be material for the present purpose, for it has been held by the Privy Council that a suit for the maintenance of which a certificate is necessary under the Pensions Act, but which is filed without such certificate may be taken cognizance of and proceeded with on the subsequent production of the necessary certificate: see Muhammad Azamat Ali Khan v. Lalli Begum [1882] 8 Cal. 422. In this connexion reference may also be made to the following observations of Subramania Ayyar, J., in Pethaperumal Chetty v. Murugandi Servaigaran [1895] 18 Mad. 466:

It cannot be said that the analogy between a case where the plaintiff omits to produce the Collector's certificate under the Pensions Act and a case where he fails to produce a succession -certificate required by Act 7 of 1889 is incomplete because in the former case the absence of the Collector's certificate prevents a Court from taking cognizance of the claim (S. C, Act 23 of 1871), whereas In the latter a Court is precluded from pissing a decree except on the production of a certificate (S. A, Act 7 of 1889). For in Muhammad Azamat Ali Khan v. Mt. Lalli Begum it was held by the Privy Council that a suit relating to a grant of property within the meaning of the Pensions Act need not be dismissed because no certificate had been obtained before the commencement thereof.

15. It was pointed out on behalf of the respondent that if the plaintiff was not entitled to sue for the principal for want of a succession certificate, she was equally not entitled to sue for the interest. Assuming this reasoning to be correct, it does not in the least affect the legal argument advanced on behalf of the appellant.

16. The point under consideration may also be tested in another way: Suppose the plaintiff had gone on with the previous suit and it was dismissed for the nonproduction of a succession certificate: it cannot be doubted that she can in that case sue again on the same cause of action, subject of course to the law of limitation after obtaining the necessary certificate: see Pethperumal Chetty v. Murugandi Servaigaran. This shows that the previous suit is in such cases ignored or treated 'as if it was never filed ', and if so it is difficult to understand how the bar of Order 2, Rule 2, can be pleaded. It has been held that the bar of Order 2, Rule 2, has no application where the plaint in the first suit is returned for presentation to the proper Court and not represented, Subba Rao v. Rama Rao [1917] 40 Mad. 291, as well as where the first suit is withdrawn: see the judgment of Phillips, J., in S.A. 1641 of 1923. Reliance was placed on the observation of Krishnaswami Ayyar, J., in Ramanjulu, Naidu v. Aravamuda Ayyangar [1910] 33 Mad. 317 that

Section 43, Civil P.C. (which corresponds to Order 2, Rule 2 of the present Code) operates to bar the second suit even where the first was dismissed and not decreed, for its applicability depends upon the frame of the suit instituted and not upon the result.

17. But this observation obviously applies to cases where the first suit is gone into and adjudicated and not to cases where it was not possible to adjudicate it and it was not adjudicated for want of a necessary legal requisite.

18. Now coming to the second contention: I have observed already that the will of Laksmana Chetty did not provide for the payment of any interest, and the interest which the plaintiff was drawing was only due under an agreement which she subsequently entered into with the executors. As the interest was thus due to her on an independent covenant, the suit filed for its recovery cannot bar her suit to recover the principal: see Yashvant v. Vithal [1897] 21 Bom. 267, Muhammad Hafiz v. Muhammad Zakariya A.I.R. 1922 P.C. 23, Kishen Narain v. Pala Mal A.I.R. 1922 P.C. 412 and Sawmy Rao v. Official Assignee of Madras A.I.R. 1925 Mad. 1120.

19. For these reasons I hold disagreeing with the view of the lower Courts, that this suit is not barred tinder Order 2, Rule 2, Civil P.C.

20. In the result I reverse the decree of the lower appellate Court and send back the case to it for disposal on the other issues in the case.

21. Costs incurred till now will be costs in the cause and be provided for in the revised decree to be passed by the lower appellate Court. The appellant will have a refund of the court-fee paid on the memorandum of second appeal.


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