1. The parties before us are rival claimants to a certificate under Act XXVII of 1860 to collect the debts due to the estate of a Mahomedan lady Khubunnissa Begum, who died in October last. They are, first, Abdul Hcssein and Ahmed Hossein, who are brothers of Khubunnissa; and, second, Syed Asgar Eeza and Dilawar Reza, her grandsons (daughter's sons).
2. The claim of the brothers was founded upon the ground that the lady belonged to the Sunni sect of Mahomedans, and that therefore they being themselves Sunnis were her next heirs and as such entitled to the certificate; whereas the claim of the grandsons was upon the ground that she was a Shiah, and that they being Shiahs were her heirs, and therefore had the preferential title to the certificate in question.
3. It appears that the case of the brothers was opened with the examination of five witnesses, who were called to prove that the deceased lady was born in a Sunni family, and that she was herself a Sunni up to the time of her death. At the end of the examination of the said five witnesses, the District Judge, on the 7th January, stopped their (the brother's) case, and called upon the opposite party (the grandsons) to produce their evidence on the 9th idem. On that date, after one witness on the side of the grandsons was examined, who was called to prove that for the last twenty-five or thirty years before her death the lady was a Shiah and not a Sunni, and that she died a Shiah, the Court put certain questions to the Counsel on either side. Mr. Gregory for the brothers stated that on behalf of his clients he would not admit that the lady died a Shiah. Mr. Forbes for the grandsons said that he would not adduce any evidence as to whether the lady was bora a Shiah or a Sunni. And the District Judge upon these statements, and without allowing the grandsons to call any other witnesses, or adduce any other evidence, proceeded to give judgment in the case.
4. In this judgment the learned Judge observes in the first instance that the brothers 'have produced sufficient evidence to show that up to a certain time of life Khubunnissa was a Sunni. The opposite parties admit that they have no evidence to prove whether Khubunnissa was born a Sunni on a Shiah.' He then proceeds to say: 'Here there is one clear fact on which, if a certificate be granted, the Court avoids giving any opinion at all as to the merits of the rival claimants to the deceased's property; an opinion if given of course would not be final, still in many cases of this kind evidence as to title is gone into. Where, however, this procedure can by any possibility be avoided, it appears to me that it should be avoided in the interests of all the parties concerned. It is obviously inadvisable to decide in a summary case a very intricate question of fact which would, to a certainty, have to be retried in a regular suit.' Later on he says: To fully enter into the question it will be necessary to hold a lengthened trial, the only result of which would be a heavy loss to the estate and no practical gain to any one.
5. Having made these observations, the District Judge observes as follows: 'The question is whether it is not best for the parties that in a summary case the Court should take action upon a proved-it; may be said admitted-fact which in no way whatever touches the respective claims of the parties to the property of the deceased.' He then proceeds upon what he conceives to be the proved or admitted fact of the case: and being also of opinion that on the score of fitness something may be said in favour of the brothers, he determines that a certificate should be granted to the brothers upon the condition that they furnish security to the extent of ten thousand rupees with two sureties.
6. In taking the course that he did, the Judge admits that he has been inconsiderable doubt as to the proper course to be adopted; but that, regard being had to the remarks of certain learned Judges in two cases, one Prankisto Biswas v. Nobodip Chunder Biswas 8 C. 868, and the other Surfoji v. Kamakshiamba 7 M. 452 he says he is inclined to think that the course he has adopted is fairest to both claimants.
7. It was conceded by the learned Counsel on either side before us that, if the lady was governed by the Shiah law, the preferential heirs would be her grandsons; whereas, if she was governed by the Sunni law, the brothers would be her heirs.
8. Now, what is the proved or admitted fact upon which the Judge proceeds in holding that the certificate ought to be granted to the brothers? It is indeed true that in an early part of the judgment the Judge states that the brothers have produced 'sufficient evidence to show that up to a certain time of life the lady was a Sunni;' but it must be borne in mind that the Judge was not in a position to say that up to a certain time of life the lady was a Sunni without taking the evidence which the opposite party (the grandsons) were prepared to produce; and indeed the Judge in a subsequent part of the judgment observes: 'This Court could not in fairness on the petition of the grandsons stop the case at any particular point, and without taking the whole of the evidence on both sides find that Mussamut Khubunnissa was or was not a Shiah.'
9. Mr. Pugh on behalf of the brothers very candidly admitted that all that the Judge meant to find in his judgment was, not that Khubunnissa was a Sunni, but that she was born in a Sunni family, and that this was what the Judge meant to say was the 'proved fact' in the case. Then as to the fact which the Judge considers to be 'admitted,' I do not exactly understand what he means to refer to; for there was no fact admitted on the side of the grandsons. All that their Counsel said in answer to a question by the Court was that he would not adduce any evidence upon the question whether the lady was born a Sunni or a Shiah; and it seems to me that the Judge infers from this that the grandsons admit that the lady was born a Sunni. This is perhaps the 'admitted' fact to which the Judge alludes. It may indeed be gathered from the evidence that has been adduced on the side of the brothers that the lady was born in a Surmi family. But this was, it must be remembered, about seventy or eighty years ago; and that many years before her death she was married, as it would appear upon the evidence on behalf of the brothers, to a gentleman who was a Shiab, and with whom she lived for several years. And therefore one cannot legitimately infer from the mere fact of her birth in a Sunni family that she was, during the whole of her lifetime, a Sunni and died a Sunni. However that may be, the question that arises in this appeal is whether, supposing that the lady was born in a Sunni family, the Judge was justified in stopping the case at the point he did, and in excluding the evidence which the grandsons were prepared to adduce, and in holding that, for the purposes of a certificate under Act XXVII of 1860, the brothers must be taken to have a better title to it, and that no enquiry ought to be made upon the question as to whether she was a Shiah or a Suddi.
10. The Judge, as already noticed, in adopting the course he did, has been guided by two decisions. Upon examination of the case of Prankisto Biswas v. Nobodip Chunder Biswas 8 C. 868, it will be observed that the two claimants were related to the deceased in the same degree of affinity, and as such both of them were prima facie entitled to the certificate. One of them, however (Prankisto), contended that he was exclusively entitled to the property of the deceased on certain special grounds. The Judge of the Court below examined only one witness on behalf of Prankisto, and disposed of the case without examining the rest of the witnesses. He however entered into the title set up by that individual, and expressed an adverse view against him. A Divisional Bench of this Court (Mcdonnell and Field, JJ.) in the first place explained what the real object of Act XXVII of 1860 was, as to be gathered from the preamble itself; and then observed that the Judge was wrong in expressing any opinion upon the special title set up by Prankisto, he having not heard all the evidence which that person was prepared to adduce; and 'that, if the Judge, having pointed out that both parties were prima facie equally entitled, had stopped there and declined to enter into the question of title raised by Prankisto Biswas, referring him to a civil Court for the decision of that question, and saying that the object of the Act would be sufficiently attained by granting a general certificate to the parties, there would have been no ground of objection against the proceeding of the District Judge.' In this view of the matter they struck out, and set aside, that portion of the Judge's judgment which dealt with the question of the exclusive title set up by Prankisto. It does not clearly appear from the judgment whether a certificate was granted by the Judge to both the claimants or one of them; it would rather appear that it was granted to both, and it would seem that all that Prankisto really pressed upon this Court wa9, though his appeal no doubt was upon the ground that he was exclusively entitled to a certificate, that the adverse remarks made against his exclusive title by the District Judge were uncalled for.
11. I do not think that either the observations of the learned Judges in that case, or the course adopted by them, support the course taken by the District Judge in this case; and so far as the remarks made by them in explaining the object of the Act that 'in effect the holder of the certificate was a trustee liable to account for the money received by him to the legal heir or representative of the deceased' are concerned, they refer to the legal heir or representative who may be ultimately determined to be such by a civil Court; but they never meant to hold, as it seems to me, that the holder of the certificate might be, as it was contended for by Mr. Pugh before us, a stranger altogether. And this would seem to be plain enough by reference to the observations of Field, J., one of the Judges who decided that case, in another case-Sheetanath Mookerjee v. Promothonath Mookerjee 6 C. 303.
12. As regards the other case referred to by the District Judge, viz., Surfoji v. Kamakshiamba 7 M. 452, it would appear that of the two claimants for the certificate one was the natural heir, and the other a person who set up a title as a son adopted by one of the widows of the last full owner. The lower Court granted a certificate to the natural heir. It does not appear that the Judge excluded any evidence; and in fact it does appear that some evidence was gone into as to the title of the adopted son. Turner, C.J., in the first place, observes 'that the title of the appellant has sometimes been asserted and sometimes been ignored by the senior Ranee (the alleged adoptive mother), according as it suited the efforts she made to recover the restoration of the dignity and possession of the Tanjore Eaj.' And then he observes as follows: 'In administering the provisions of Act-XXVII of 1860 it has not been the practice of the Court to enter upon the determination of intricate questions of law or of fact. It has been the practice to issue a certificate to the person who has prima facie the clearest title to the succession, such as the natural heir, and to leave a person whose claim to a superior title is on reasonable grounds disputed to establish that title by regular suit.' He then refers to the questions which were raised in the case, and which he says are of such intricacy that they cannot be satisfactorily determined in the proceeding; and he alludes to various circumstances which indicated that the title of adoption set up was of a questionable character, and he concludes by saying that in this-view the District Judge was right in refusing to enter into an exhaustive enquiry into the said title.
13. So far as this decision is concerned, it seems to me that it does not support the course adopted by the Judge; it rather shows that the question of the title to the succession to the estate of the deceased should, to some extent at least, be gone into in a proceeding under Act XXVII of 1860.
14. Now, on turning to the facts of the present case, the question as to the title to obtain a certificate is one that is raised, not between one who is undoubtedly the natural heir, and another who sets up a special title of his own; nor is it between two persons who are equally entitled to the succession, but one of whom claims exclusive title upon some special grounds. It is a question between two parties, one of whom, according to certain given facts, would be the heir, and the other a total stranger; and therefore it follows that, unless and until those1 facts are proved and found, the Court cannot possibly determine who has the better title to the certificate.
15. It has, however, been contended before us by the learned Counsel for the brothers that, regard being had to the object of Act XXVII of 1860, as explained in the preamble and in the Act itself, no enquiry as to whether the lady was a Sunni or a Shiah, and as to who according to the law of succession is the preferential heir, ought to be gone into in this proceeding. This contention brings us to the consideration of the object and and scope of Act XXVII of 1860.
16. The preamble of the Act says: 'Whereas it is expedient to consolidate and amend certain Acts now in force which provide greater security for persons paying to the representatives of deceased Hindus, Mahomedans and others not usually designated as British subjects, debts which are payable in respect of the estates of such deceased persons, and which facilitate the collection of such debts by removing ail doubts as to the legal title to demand and receive the same, it is enacted as follows.'
17. The first observation that arises upon this preamble is that it indicates that the person, to whom the debts payable in respect to the estate of a deceased person should be paid, is the representative of the deceased having a legal title to demand and receive the same. Now, who is this representative having a legal title to demand and receive the debts? This is answered by Section 2 and 3 of the Act.
18. Section 2 provides: 'No debtor of any deceased person shall be compelled in any Court to pay his debt to any person claiming to be entitled to the effects of any deceased parson or any part thereof, except on the production of a certificate to be obtained in manner hereinafter mentioned, or of a probate or letters of administration, unless the Court shall foe of opinion that payment of toe debt is withheld from fraudulent or vexatious motives, and not from any reasonable doubt as to the party entitled.'
19. It would appear from this section that the person entitled to demand the payment of the debts should be a person, who claims to be entitled to the effects of the deceased person, with this proviso, that nobody can be compelled to pay him such debts unless a certificate under the Act be produced.
20. Section 3, after laying down which would be the Court that should have authority to grant the certificate, says as follows:
The applicant in his petition shall set forth his title. The Court shall issue notice of application, inviting claimants and fixing a day for hearing the petition, and upon the appointed day, or as soon after as may be convenient, shall determine the right to the certificate, and grant the same accordingly.
21. Now what is the title that is to be set forth in the application? This title, I apprehend, must be that of a representative claiming to be entitled to the effects of the deceased person ; and in order to indicate that he is entitled to the effects of the deceased person, he must, I think, state that he is so entitled, either under the law of inheritance, under a will, or such other title. Such a title which entitles him to the effects of the deceased person being set forth in his application, the Court shall determine after notice, inviting other claimants, the right to the certificate.
22. We then find that Section 4 provides that the certificate shall be conclusive of the representative title against all debtors to the deceased, and shall afford full indemnity to all debtors paying their debts to the certificate-holder. And Section 5 lays down that the Court make take such security as it shall think necessary from the certificate-bolder for rendering an account of the debts received by him, and for indemnity of persons who may be declared in a regular suit to be entitled to the whole or any part of the money received by virtue of such certificate.
23. Then Section 6 of the Act provides as follows: 'The granting of such certificate may be suspended by an appeal to the Sudder Court, which Court may declare the party to whom the certificate should be granted, or may direct such further proceedings for the investigation of the title as it shall think fit,' &c;, &c.;
24. Now what is the title to be investigated as contemplated in this section? The title, I take it, is that set forth in the application of the applicant, viz., that he is entitled to the effects of the deceased person; and this title must be gone into before a certificate can be granted. No doubt the title which the Court under Act XXVII of 1860 really determines is not the title to the estate of the deceased person, but the title to the certificate; but I do not understand how, in a case where there are rival claimants, each claiming the effects of the deceased person, such a title can be determined unloss the question of title to the estate itself is to some extent at least gone into. And when this title depends upon a question of fact, that question must be gone into before it can be held who has the preferential claim to be the representative of the deceased, and entitled as such to a certificate to collect the debts due to the deceased. This, I think, has been the view which has almost uniformly been taken by this Court-see Nunkoo Singh v. Purm Dhun Singh 12 W.R. 356 Juggut Chunder Roy v. Chunder Monee Shaha 17 W.R. 277 Taylor v. Nundee Jan W.R. (1864) Mis. 25; Anundee Kooer v. Bachoo Singh 20 W.R. 476; Sheetanath Mookeriee v. Promothonath Mookerjee 6 C. 303; Koonj Behary Chowdry v. Gocool Chunder Chowdhry 3 C. 616; and a recent decision by Mitter and Beverey, JJ., dated 8th November 1887.
25. There are, however, one or two cases which, it would seem, have taken a somewhat different view, e.g., the case of Kali Goomar Chatterji v. Tara Prosunno Mookerjee 5 C.L.R. 517. But I think it is opposed to the whole current of rulings of this Court, and the correctness of this ruling seems to have been doubted in the case of Sheetanath Mookerji v. Promothonath Mookerjee 6 C. 303. A recent decision passed by Macphersonand and Ghose, JJ., was also cited before us; but I do not think that that decision lays down the proposition of law which the learned Counsel for the brothers contends for. It will be found on a reference to the decision of the District Judge in that case that he was of opinion that the deed of wakf which was relied upon by one of the claimants was of a very suspicious character and a sham transaction. The learned vakeel who appeared for the appellant did not, if I remember right, ask us to come to a different conclusion than what was arrived at by the Judge. All that he really asked for was that we should strike out that portion of the judgment which dealt with the question of the genuineness and validity of the deed of wakf; and we thought we might well do so in the circumstances of the case. But, however that may be, it will be observed, with regard to both of these cases, that the question raised was between a natural heir, a person who was prima, facie entitled to the certificate, and another who would have no title whatever if he did not prove the special title set up by him; and there may be some reason in such a case for declining to enter, as in one or two cases this Court did decline to enter, into an enquiry into such a special title in a proceeding under Act XXVII of 1860. But the case is very different, indeed, where neither of the parties is an admitted hair, but whose title to the certificate depends entirely upon the proof of a question of fact. In the present case the brothers cannot be entitled unless the lady be proved to be a Sunni, and the grandsons cannot succeed unless the lady were a Shiah. And it seems to me that it stands to reason that the question of fact thus raised between them must be determined before the certificate could be granted to either of them.
26. It was however contended before us that the lady having been born in a Sunni family, it ought to be prima facie presumed that she was a Sunni all her life, and that the bro! hers were therefore prima facie entitled to the certificate, and that the opposite party should be left to establish their title in a regular suit. But it seems to me that in the first. place such a presumption cannot be drawn, it being admitted that the cady was married into a Shiah family; and, in the second plate, a Court cannot act upon a bare presumption like this, even in a proceeding under At t XXVII of 1860, when, as it is alleged, there is evidence forthcoming on the other side rebutting that presumption and tending to show that she was not a Sunni, at any rate for many years previous to her death. It seems to me that the question of fact raised between the parties must be determined upon evidence and not upon mere presumption.
27. Some discussion was raised before us upon the question whether any change in the religious faith of the lady would alter the Jaw of succession that is to say, she being born a Sunni, whether the succession to her estate would be governed by the Sunni law or by the Shiah law; or, in other word?, whether the matter is to be determined by the rule of law governing the family in which she has born, or by that governing the sect whose religion the lady embraced subsequent to her birth and before death. But it seems to me unnecessary at the present stage to express any opinion upon this point.
28. Then as to what the Judge says of the fitness of the brothers, it seems to me in the first place that what the Judge relies upon does not show that they are more fit than one of the two grandsons; but on the contrary it would seem that the fact of the brothers holding a lease on the estate is rather a disqualification than a recommendation in their favour; and, in the second place, such a question of fitness may properly arise between claimants who are equally entitled, but it hardly arises between parties who set up antagonistic titles.
29. With these observations T would remand the case to the lower Court, with the direction that the District Judge should receive such further evidence as the parties might desire to adduce, and determine upon the whole evidence which of the two parties has the preferential right to obtain the certificate.
30. Having determined which is the party to whom the certificate should be granted, the Judge will determine the amount of security that ought to be taken from the party to whom the certificate is to be granted. I think it right to call the attention of the Judge to the matter of the security, for it seems that, it being conceded on both sides that the amount of debts to be recovered is at least one and a half lakh of rupees, if not more, the security which the District Judge has ordered to be given, viz., Rs. 10,000, is very small indeed.
31. In this case I should have been content to dismiss-the appeal (subject to a modification of the order regarding the amount of the security to be taken) were it not for the strong view the other way expressed by my learned colleague. Looking at the facts of the case, the litigious character of the parties and the many nice legal points involved, I think the Judge was justified in stopping where he did, and, on finding' it proved or admitted that the deceased lady was born a Sunni in a Sunni family, and that the fact of her subsequent conversion to the Shiah sect was disputed, in granting a certificate to her heirs according to the Sunni law, leaving it to the other side to establish in a regular suit the fact of the lady's conversion and the legal effect thereof as regards the succession to her property.
32. I agree with the District Judge that such a course would probably have avoided much inconvenience hereafter and saved the parties unecessary expense. But as my learned colleague is of opinion that the whole case should be gone into in the present proceedings, and as it is a matter in respect of which there has undoubtedly been a diversity of practice in this Court, I think it better to defer to that opinion than to put the parties to the expense of a further appeal. The case will therefore go back to the District Judge as suggested by my learned colleague, and the costs of this appeal will abide the result.
33. I will only add one word as regards the case cited by my learned colleague to which I was a party. In that case the District Judge bad granted a certificate in preference to the next-of-kin to a person who, it was alleged, was the adopted son of the deceased, But the alleged adoption was disputed, and the Judge had refused to go into evidence on the point; and what we said was that the Judge was not justified in putting aside the claim of the next-of-kin without going into evidence and finding in favour of the adoption. But that case would not be an authority for the proposition that the Judge could not have granted the certificate to the next-of-kin without going into the question of the alleged adoption. And there appear to be several cases the other way.