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Sukumar Deb Roy and anr. Vs. Parbati Bala W/O Bidhuranjan Majumdar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1941Cal663
AppellantSukumar Deb Roy and anr.
RespondentParbati Bala W/O Bidhuranjan Majumdar and ors.
Cases ReferredRam Raj v. Brij Nath
Excerpt:
- .....judge claiming succession certificate as heirs of their mother. on 26th july 1936, the court granted succession certificate to the three daughters jointly, and they were given all powers to collect debts and securities of mrinalini specified in the schedule, and also to negotiate and transfer the securities mentioned therein. on 2nd' november 1937, kamala died leaving behind-her her husband, petitioner 1, and two sons habul and tapas. tapas subsequently died and his father, petitioner 1, is his heir according to hindu law. on 22nd november 1938, parbati and malati, who are opposite parties 1 and 2 in this rule, filed an application before the subordinate judge, first . court, faridpur, for a succession certificate in respect to the one-third share of the estate belonging to.....
Judgment:
ORDER

1. This rule is directed against an appellate order dated 31st July 1940, made by the District Judge of Faridpur in a proceeding to obtain a succession certificate. The material facts are not in controversy and they may be stated as follows: One Mrinalini Mitter got certain money and securities in absolute right under the will of her husband Ramgobinda. Mrinalini died on 11th September 1926, leaving behind her her two married daughters Saraju Bala and Suniti Bala and four unmarried daughters to wit, Parbati, Malati, Kamala and Sabitri. It is not disputed that the properties which. she got under her husband's will constituted her Ajoutuka Stridhana, and they devolved' after her death upon her four unmarried daughters. Sabitri, the youngest daughter, died unmarried on 29th May 1934. The other three maiden daughters had been married in the meantime, and in February 1935, Kamala who got one-third share in her mother's estate presented an application before the Court of the Subordinate Judge at Faridpur for a succession certificate with regard to the debts and securities left by her mother Mrinalini. On 11th March 1935, the other two daughters Parbati and Malati filed a similar application before the same Subordinate Judge claiming succession certificate as heirs of their mother. On 26th July 1936, the Court granted succession certificate to the three daughters jointly, and they were given all powers to collect debts and securities of Mrinalini specified in the schedule, and also to negotiate and transfer the securities mentioned therein. On 2nd' November 1937, Kamala died leaving behind-her her husband, petitioner 1, and two sons Habul and Tapas. Tapas subsequently died and his father, petitioner 1, is his heir according to Hindu law. On 22nd November 1938, Parbati and Malati, who are opposite parties 1 and 2 in this rule, filed an application before the Subordinate Judge, First . Court, Faridpur, for a succession certificate in respect to the one-third share of the estate belonging to Mrinalini which had devolved on Kamala. In the application it. was mentioned that Kamala was the de-ceased person in respect to whose properties the certificate was prayed for and the claim was made on the basis that on the death of Kamala her one-third share in her mother's property devolved upon her two sisters Parbati and Malati as heirs under the Hindu law.

2. Objections were taken by the petitioners. before us, the husband and the son of Kamala, and they contended inter alia that the applicants were not the heirs of Kamala, and the Subordinate Judge at Faridpur had no right to grant the succession certificate' inasmuch as Kamala had her last place of residence within the jurisdiction of Goalundo sub-division. It was further contended that as a succession certificate had already been issued in respect to the properties left by Mrinalini, no fresh succession certificate could be granted. Saraju Bala and Suniti Bala, the other two daughters of Mrinalini, who are opposite parties 3 and 4 in this rule, also filed petitions claiming shares in the assets left by Kamala; but, ultimately they made a compromise with the applicants and all the four sisters agreed to have a succession certificate issued to them jointly. When the case came up for hearing, it was conceded on behalf of the applicants that the certificate that was prayed for was in respect of properties left by Mrinalini and not by Kamala, and the application so far as it mentioned the name of Kamala as the deceased person was wrong. The Subordinate Judge who heard the application was of opinion that the four sisters were entitled under the Hindu law to inherit the one-third share of the estate belonging to Mrinalini which had devolved on Kamala and which being vested in the latter in the limited interest of a Hindu female heir would now pass on not to her own heirs but to the next heirs of her mother. The Subordinate Judge held however that as there was a previous succession certificate still in force no new certificate could be granted in view of the provisions of Section 385, Succession Act. The application for certificate was therefore dismissed. On appeal the learned District Judge of Faridpur has taken a different view. The District Judge is of opinion that the previous certificate was not in force so far as the one-third share belonging to Kamala was concerned and consequently there could be no bar to granting a fresh certificate in these altered circumstances. The learned Judge reversed the decision of the trial Court and sent the case back in order that a succession certificate might be granted to all the four sisters jointly provided their applications were otherwise in order. It is against this decision that the present rule has been obtained. Mr. Pakrashi who appears in support of the rule has argued before us in the first place that the application that was presented by the applicants was substantially defective and no succession certificate should be granted on such an application. This contention is technically correct. As we have already pointed out, in the application filed by opposite parties 1 and 2, the prayer for succession certificate was made in respect of the estate left by Kamala and not by Mrinalini. They however put in another petition before the hearing took place, in which they stated definitely that it was in respect of the estate left by Mrinalini and not by Kamala that the certificate was prayed for. It is somewhat regrettable that the original petition was not amended nor a formal order was recorded by the trial Court granting the prayer for amendment. As the certificate that is to be granted must be in accordance with the petition made under Section 372, Succession Act, it is only proper that the application for certificate should conform strictly to the requirements of that section.

3. Mr. Pakrashi has further argued that all the properties and debts mentioned in the schedule did not belong to Kamala but as a matter of fact there was some money lying in the Faridpur Bank which was the property belonging to all the daughters under the will of Ramgobinda. As has been held in Radharani Dass v. Brindaban Chandra ('98) 25 Cal 320, the Court in granting a succession certificate has only to make a prima facie enquiry as to whether the debts mentioned in the schedule did or did not belong to the deceased. The petitioner certainly can demand an enquiry of that sort and the Court will be bound in that case to investigate the point and take such evidence as it considers proper for the purpose of satisfying itself as to whether the debts and securities prima facie belonged to Mrinalini or not. But although we hold that the petition was in some respects defective, that is not a ground for dismissing the suit altogether. The defects could be cured by amendment and as the applicants did take up the proper position before the hearing actually commenced, we think that the petitioners were not in any way taken by surprise. The case will certainly have to go back in order that the application may be put in proper form and the necessary enquiries made as to. whether or not all the items of debts mentioned in the schedule did belong to the. deceased.

4. The next point for our consideration is-whether a fresh certificate should be granted in respect to the estate left by Mrinalini when there is a previous certificate already in existence. Section 385, Succession Act, invalidates a succession certificate if a previous certificate is in force. The District: Judge was of opinion that on the death of Kamala the previous grant had ceased to be in force so far as the one-third share of Kamala was concerned, and consequently a fresh grant was justified under the altered circumstances. We are of the opinion that the District Judge has not looked at the matter from the correct standpoint, There is no question of the original certificate ceasing to be operative with regard to the one-third share of Kamala. The grant of a certificate does not confer any title upon the grantee as an heir to the deceased; it only invests him or her with the requisite authority to collect debts due to the deceased and allows the debtors to make payments with-font any risk. If a certificate is granted to two or more persons jointly, the authority vested in them can, in our opinion, be exercised by all of them together, and if one of them dies, the remaining certificate holders cannot exercise the powers which could only be exercised by them along with the ceased, and as there is no estate vested in any of the grantees no question of survivor. ship at all arises. In this view of the case, it may be said that on the death of Kamala the certificate became wholly inoperative, as the other two certificate holders could not exercise their powers under the certificate in the absence of the deceased. Though we hold, that the previous certificate hag become inoperative on account of the death of Kamala, we think that the existing certificate should be formally revoked, before any fresh certificate is granted, and the opposite party should make a formal prayer to that effect under Section 383 (d), Succession Act.

5. We may mention here in passing that the practice of granting joint certificates has been condemned in several cases: vide Madan Mohan v. Ramdial ('82) 5 All 195; Jamna Bai v. Hastubai ('87) 11 Bom 179. It is no doubt fraught' with obvious inconveniences and Section 373 (4), Succession Act, makes it clear that when there are several applicants for a succession certificate, the Judge should grant certificate to one of them on a consideration of the extent of their interests in the property of the deceased and the relative fitness of the applicants themselves. But there may be cases, we think, when the several applicants have the same degree of interest in the estate of the deceased and there are no circumstances present which would enable the Judge to say that one is better qualified than the other. Under such circumstances we think that the granting of joint certificate is not illegal, particularly if the persons to whom the certificate is granted agree to take it in that form : vide Ram Raj v. Brij Nath ('13) 35 All 470. The last question that has been raised relates to the question of security. As the present case does not come under Sub-sections (3) and (i) of Section 373, Succession Act, the matter lies entirely in the discretion of the Court. We think however that in the interests of future reversioners, it is proper that some security should be demanded from the applicants who, although they are heirs to the deceased, have only the limited interests of a Hindu widow. We think it should be enough if they are required to furnish security to the extent of Rs. 5000 (five thousand rupees) only in such manner as the Court thinks proper

6. The result therefore is that the rule is made absolute. The orders of both the Courts below are set aside and the case is sent back to the trial Court in order that it may be disposed of in accordance with the directions given above. The trial Judge will in the first place give an opportunity to the applicants to amend the petition and put it in proper form in accordance with the requirements of Section 372, Succession Act. The Judge will also make a summary enquiry if he considers necessary as to whether or not different items of debts and securities mentioned in the schedule belonged to Mrinalini. After these things are done, succession certificate will be granted to the four opposite parties in this rule on condition that they furnish security to the extent of Rs. 5000 as mentioned above. There will be no order as to costs in this rule. Further costs will be in the discretion of the Court below.


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