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State Bank of India Vs. Netai Ch. Porel - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberC.O. No. 591 of 1981
Judge
Reported inAIR1982Cal92
ActsSuccession Act, 1925 - Section 370
AppellantState Bank of India
RespondentNetai Ch. Porel
Appellant AdvocateH.M. Ghosh, ;P.K. Mookherjee and ;Dipankar Chakrabarty, Advs.
Respondent AdvocateHarendra Nath Halder, Adv.
DispositionRevision allowed
Cases ReferredAssam Bengal Rly. Co. v. Atul Chandra
Excerpt:
- .....the filing of the said application a question was raised by the court as to whether the prayer for grant of succession certificate in respect of the said goods was maintainable. after hearing the learned advocate for the opposite party the petitioner in that case, the learned district delegate by his order dated june 12, 1978 held, on the authority of the decision in the case of dina nath v. balkrishna, : air1963all46 , that the liability to refund the ornaments was a debt and as such the application for the grant of succession certificate in respect of the same was maintainable. the petitioner was accordingly directed to file the requisite stamp duty, subsequently on feb. 18, 1980 the succession certificate was granted. thereupon the petitioner herein, the state bank of india filed an.....
Judgment:

B.C. Chakrabarti, J.

1. This is revisional application at the instance of the petitioner, State Bank of India and is directed against an order dated Dec. 3, 1980 passed in Act 39, Case No, 414/78 of the Court of the District Delegate at Alipore.

2. Facts are simple and may be stated thus.

3. One Juthikabala Porel wife of the opposite party No. 1 kept certain ornaments and jewelleries in a Safe-Deposit Locker of the State Bank of India at its main branch, Calcutta. She having died, her husband the opposite party herein applied for succession certificate in respect of the said goods which was registered as Act 39, Case No. 414/78, After the filing of the said application a question was raised by the Court as to whether the prayer for grant of succession certificate in respect of the said goods was maintainable. After hearing the learned Advocate for the opposite party the petitioner in that case, the learned District Delegate by his order dated June 12, 1978 held, on the authority of the decision in the case of Dina Nath v. Balkrishna, : AIR1963All46 , that the liability to refund the ornaments was a debt and as such the application for the grant of succession certificate in respect of the same was maintainable. The petitioner was accordingly directed to file the requisite stamp duty, Subsequently on Feb. 18, 1980 the succession certificate was granted. Thereupon the petitioner herein, the State Bank of India filed an application for reconsideration of the order dated June 12, 1978. This application was disposed of by the order impugned, it was held that the question regarding maintainability of the application for succession certificate was thoroughly considered by the order dated June 12, 1978 and on the basis thereof the succession certificate was granted by the Court on Feb. 18, 80. The learned Judge held that the application of the State Bank of India was misconceived in so far as the order for grant was required to be revoked before the order dated June 12, 1978 could be reconsidered. The application was accordingly rejected.

4. The petitioner being aggrieved has moved the present revisional application which has been heard on notice to and upon contest by the opposite party.

5. Mr. Ghosh appearing in support of the revisional application contended that the ornaments which were kept in deposit in the Safe-Deposit-Locker of the State Bank were neither a debt nor a security within the meaning of the provisions of Section 370 of the Indian Succession Act and as such no succession certificate could be asked for or granted in respect of the said goods. The expression 'security' has been explained in Sub-section (2) of Section 370 but the expression 'debt' has neither been explained nor defined. It is however nobody's case that the ornaments in question fall within the category of security within the meaning of Section 370. The question therefore is whether it is a debt or not. In support of the contention that it is not a debt. Mr. Ghosh relied on a decision in the case of Shyam Sundari Devi v. Sarti Devi, : AIR1962Pat220 . The facts of that case however were different. There the deceased had pledged with a bank certain ornaments by way of security for the debt (loan?) which the Bank had advanced. It was held that succession certificate could not be granted and asked for in respect of the ornaments since it was not a debt due from the Bank. In that case the Bank had advanced a loan to the deceased and the ornaments were pledged with the Bank merely as a security for the repayment of the same. In the circumstances the Bank could not be said to be a debtor in respect of the articles, On the contrary the deceased was a debtor to the Bank. Therefore, this decision does not seem to be directly touching the point involved in the case before us.

6. The decision relied on by the learned Judge as also by the opposite party before us is also not to the point. There a lady died during the Kumbhamela tragedy and the ornaments found on her body were taken possession of by the District Authorities. On an application for the grant of succession certificate in respect of the same it was held that the refund of the ornaments became an obligation on the authorities to hand over the same or the value thereof to the rightful claimant and that for such a liability an application for succession certificate could be asked for and granted. We are, however, unable to agree to such a broad proposition that any liability owing from one person to another whether in cash or in kind, secured or unsecured, whether ascertained or ascertainable, arising out of any obligation, is a debt. In the particular case however the facts also were different in so far as it was not the deceased who had kept the ornaments with the District Authorities but that the District Authorities themselves collected the ornaments on their own and as such incurred the liability to refund the same to the rightful claimant. This aspect of the matter distinguishes the case from the facts of the case before us. Here the deceased Juthikabala had herself deposited the articles with this Bank for safe custody she had the option to go and collect it at any time she liked. The Bank was merely a custodian of the same. In ordinary parlance debt means a sum certain due from one person called the debtor to another called the creditor. In Stroud's Judicial Dictionary a debt is defined as a sum payable in respect of a liquidated money demand recoverable by action. One of the essentials of a debt is an ascertained amount or readily calculable amount. In that sense the State Bank of India in this case could not be said to stand in the position of a debtor nor could Juthikabala be called a creditor in respect of the ornaments. But that apart the more important distinguishing point is that unlike in cases of debt, the Bank had no right of disposition of any kind in respect of those ornaments. The Bank stood in the position of a bailee or a trustee to whom though possession was entrusted, there was no intention of transferring the ownership. It is settled law that debt is not trust and any and every liability irrespective of its true legal character does not become a debt. Since succession certificate can be granted only in respect of debts and securities and not for any other kind of property, we are of the opinion that in this case succession certificate could not be granted. In this connection reference may he made to the decision in the case of Assam Bengal Rly. Co. v. Atul Chandra (1937) 41 CWN 524: (AIR 1937 Cal 314). The application for grant of the same was not therefore maintainable.

7. Mr. Halder in opposing the revisional application contended that the State Bank had asked for reconsideration of the order dt. June 12, 1978 but since following that order succession certificate was actually granted on Feb. 18, 1980, the prayer of the State Bank was not entertainable until the grant itself was revoked. It was argued that since the State Bank had not made a prayer for revocation of the grant this application had been rightly rejected. We are unable to accept the contention. The impugned order itself indicates that the learned Judge had granted the succession certificate on the basis of the order dated June 12, 1978, The grant was merely consequential to that order. Therefore if that order is found to be bad in law the consequential order passed on the basis thereof must necessarily fail. We find that succession certificate could not be asked for in the facts of this case. The order dated June 12, 1978 was therefore erroneous and is liable to be set aside, The consequential order made on the basis of that order must also therefore fail, Consequently the order for grant of succession certificate founded upon the order dated June 12, 1978 cannot stand.

8. The revisional application accordingly succeeds. The impugned order dated Dec. 3, 1980 is set aside. The order dated June 12, 1978 holding that the application for grant of succession certificate was maintainable is found to be erroneous and the order for grant of succession certificate founded on that order is also set aside.

9. There will be no order for costs.

Anil K. Sen, J.

I agree.


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