Banerjee and Gordon, JJ.
1. This appeal arises out of an application by the petitioner for a certificate under the Succession Certificate Act (VII of 1889). The application was made on behalf of one Hurri Krishna Panda through his next friend Gouri Debi, the allegation being that Hurri Krishna is the adopted son of the late Kalicharan Panda in respect of whose estate the certificate is applied for. The application was opposed by one Balabhadra Panda, who denied the existence of any authority to adopt, and also the fact of the adoption itself, and who claimed to be a reversionary heir to the estate of Kalicharan Panda after the death of Gouri Debi. The objector had, however, no objection to the certificate being granted to Gouri Debi. Upon these allegations the learned Judge on the 13th of March 1895 made the following order: 'Objection filed, but it is only against the petitioner's adoption alleged by the deceased's widow who applies as guardian. I cannot go into disputes of that kind. The petitioner is a minor, and therefore incapable of doing anything himself; and since the widow must manage this business, it is much better she should do it as widow rather than as guardian of a boy whose status is likely to be disputed. The application should therefore be amended within two weeks. Adjourned to 27th instant.' Before the expiry of the two weeks this appeal was filed on behalf of the petitioner; but before the record was sent up three intermediate orders were passed-two adjourning the hearing of the case to subsequent dates, and the third and last one dismissing the application, as no steps had been taken pursuant to the order made by the Court on the 13th March 1895.
2. The contention on behalf of the appellant is that the learned Judge was not authorized by law to make the order that he has made, and that he was bound to make some inquiry into the title of the petitioner before dismissing his application. On the other hand, it was contended for the respondent, in the first place, that there was no appeal against the order of the 13th March 1895, which was only an interlocutory order, but this contention was not subsequently persevered in when it was found from the record that the order eventually made was one dismissing the application; and in the second place it was contended that the course taken by the Judge was one which he was not authorized to take having regard to Sub-sections (3) and (4) of Section 7 of the Succession Certificate Act.
3. No doubt the Act, as its preamble shows, is intended to facilitate the collection of debts on successions, and afford protection to parties paying debts to the representatives of deceased persons, and it is clearly not intended to afford to litigant parties an opportunity of litigating contested questions of title to property. But though that is so, the Act requires the Judge upon an application for a certificate to be satisfied that there is ground for entertaining the application, and if he is so satisfied, then to issue certain notices to the parties who may be interested, and to decide m a summary manner the right to the certificate. These are the provisions of Section 7, Sub-section (1) of the Act. Sub-section (2) provides: 'When the Court decides the right thereto to belong to the applicant, it shall make an order for the grant of the certificate to him.' Then follow Sub-sections (3) and (4) which run thus : (3) 'if the Court cannot decide the right to the certificate without determining questions of law or fact which seem to it to be too intricate and difficult for determination in a summary proceeding, it may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.' And (4) 'When there are more applicants than one for a certificate, and it appears to the Court that more than one of such applicants are interested in the estate of the deceased, the Court may, in deciding to whom the certificate is to be granted, have regard to the extent of interest, and the fitness, in other respects, of the applicants. '
4. These provisions in our opinion indicate the necessity of some inquiry into the right to the certificate. The inquiry is expressly directed to be summary, but it is to be an inquiry in to the right to the certificate. Now, though the right to the certificate may not be the same thing as the right to the estate of the deceased proprietor, yet, on the other hand, we must take it that it is not to be altogether unconnected with that right. It would be unreasonable to hold that the right to the certificate may belong to a stranger who has no connection with the estate, and the provisions of Sub-sections (3) and (4) of Section 7 go to indicate that the right to the certificate must have some connection with the right to the estate, though it may not be identically the same thing as the right to the estate of the deceased. Thus Sub-section (3) merely authorizes the Court, where the determination of the right to the certificate involves an inquiry into questions of law or fact which seem to the Court to be too intricate and difficult in a summary proceeding, to grant a certificate to the applicant if he appears to be the person having prima facie the best title to the certificate, but it does not authorize the Court to grant a certificate to any other person who may be best entitled to it. Then, again, Sub-section (4) by providing for the grant of a certificate to one or more of several rival applicants, regard being had to the extent of their interest and their fitness in other respects, indicates that the grant is to be limited to some one or more of the contending applicants who make out their title to the estate. There must, therefore, in our opinion, be some inquiry into the title set up by the applicant before his application is disposed of.
5. We are referred to certain reported cases as showing that it was not necessary for the Court under the old law (Act XXVII of 1860) to enter into any inquiry as to the rights of the parties before disposing of an application for a certificate. No doubt there is some conflict of opinion in this Court and in the other High Courts upon the question now before us; but with the exception of one case, namely, that of Kali Koomar Chatterjee v. Tara Prosunno Mokerjee 5 C.L.R. 517, there is no case that has gone the length of holding that there need not be any inquiry into a question of adoption where the applicant for a certificate claims upon a title by adoption; and as for the case of Kali, Koomar Chatterjee v. Tara Prosunno Mookerjee, the correctness of the rule therein laid down was doubted by White, J., in the case of Sheetanath Mookerjee v. Promothanath Mookerjee I.L.R. 6 Cal. 303. The case of Surfoji v. Kamakshiamba I.L.R. 7 Mad. 453 relied upon by the learned Vakil for the respondent, from which the language of Sub-section (3) of Section 7 was in all probability borrowed, does not support the respondent's contention to the extent to which it must be carried in order to support the order of the Judge. All that Sir Chaeles Turner lays down in that case is stated in these words: 'In administering the provisions of Act XXVII of 1860 it has not been the practice of the Courts to enter on the determination of intricate questions of law or 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.' These propositions are enunciated in very guarded language. An inquiry into the title of a person whose superior claim against others who are styled the natural heirs is disputed on reasonable grounds is considered not to come within the scope of a proceeding under the old Act, but there must be at least some inquiry to see whether the superior claim of such a person is disputed on reasonable grounds. And then what the learned Chief Justice approves of was the course pursued by the District Judge in refusing to enter into an exhaustive inquiry into the appellants' title in the proceedings before him.
6. In the present case there has been no inquiry, summary or otherwise. We are unable therefore to affirm the order of the Judge in this case.
7. The learned Vakil for the respondent has very properly called our attention to the decision of the Madras High Court in the case of Sivamma v. Subbamma I.L.R. 17 Mad. 477 which supports the view we take.
8. The judgment of Ghose, J., in Asgar Reza v. Abdul Hossein I.L.R. 15 Cal. 574 also fully supports the contention of the appellant; but it is not necessary in this case to go so far as that judgment goes. And considering that Section 7 of the Succession Certificate Act expressly provides that the inquiry is to be a summary one, we think the contention of the learned Vakil for the respondent is so far correct, that much of what is said in that judgment would be inapplicable to cases coming under the present Succession Certificate Act; but as we have said above there must be some inquiry into the title of the applicant.
9. We quite appreciate the reason that induced the Judge to take the course he has taken; and if the law had furnished any warrant for it, we should have felt no hesitation in affirming the order he has made. But following the law as it stands we must set aside the order of the Judge and send the case back for such inquiry as is authorized and directed by Section 7 of the Succession Certificate Act.