D. Chatterjee and Richardson, JJ.
1. The plaintiff's father, Raja Ram Narain Singh, of Khaira, had to receive certain arrears of rent from the defendant: the defendant was unable to pay cash, and gave instead a bond for the amount of the arrear. The Raja then died, and the plaintiff succeeded to the raj, which is an impartible estate. The plaintiff brought this suit on the bond, and the defendant did not contest the suit. But the learned Munsif objected that the suit could not be maintained, as the plaintiff had not taken a certificate of succession. The plaintiff was given some time for filing a certificate, but he did not file one, and the suit was dismissed. On appeal by the plaintiff the learned District Judge has, at his request, made this Reference to us as to whether a certificate of succession was necessary in this case, his own opinion being in favour of the affirmative. It is contended by the plaintiff before us that as his family is governed by the Mitakshara law, he sueceeded by right of survivorship to the estate of which the bond in dispute is a part, and he was therefore not bound to produce a certificate before he could get decree. The learned senior Government pleader has appeared for the Crown to support the opinion of the lower Court.
2. Section 4 of the Succession Certificate Act, VII of 1889, provides that 'no Court shall 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 debased person, etc.' The question, therefore, that requires decision is whether the money in suit can be called 'the effects of the deceased person.' The necessity for the certificate upon the plain language of the Act depends upon the question whether the debt was part of 'the effects of the deceased or was in its nature a family debt and therefore family property.' 'It is confined to the case in which the claim is to the effects of the deceased, and not to family property, where the-claim is by right of survivorship,....' Per Sargent, C.J. Jagmohandas Kilabhai v. Allu Maria Duskal (1894) I.L.R. 19 Bom. 338. The same view has been followed in our Court, Beejraj v. Bhoyropersaud (1896) I.L.R. 23 Calc. 912, Bissen Chand Dudhuria Bahadur v. Chatrapat Sing (1895) 1 C.W.N. 32. It is not denied that, if the case were one of an ordinary joint family governed by the Mitakshara law, no certificate would be required. The whole difference here is said to consist in the fact that the estate is an impartible raj governed by the rule of primogeniture. As regards the nature of property in an impartible raj, the Privy Council in the Shivagunga case (1963) 9 Moo. I.A 539 observed: 'If the zemindar at the time of his death and his nephews were members of an undivided Hindu family, and the zemindari, though impartible, was part Of the common family property, one of the nephews was entitled to succeeded to it on the death of his uncle. Again, in the case of Stree Rajah Yanumula Venlcayamah v. Stree Rajah Yauumuka Boochia Vankondora (1870) 13 Moo. I.A. 333, 339, the same august Tribunal said: 'Their Lordships are of opinion that the estate was in its inception part of the common family property, though impartible, and therefore with certain qualifications enjoyable by only one member of the family as the time.' Succession to such estates has always been determined by the rule of survivorship: see Naragunty Lutchmeedavamah v. Vengama Naidoo (1961) 9 Moo. I.A. 66, the Ramgarh case Heeranath Kooer v. Burnt Narain Singh (1872) 17 W.R. 316, Chuntamun Singh v. Nowlukho Konwari (1875) I.L.R. 1 Calc. 153, Sivagnana Tevar v. Periasami (1878) I.L.R. 1 Mad. 312 : L.R. 5 I.A. 61, Raja Rup Singh v. Rani Baisni (1884) I.L.R. 7 All. 1 : L.R. 11 I.A. 149, Doorga Persad Singh v. Doorga Konwari (1878) I.L.R. 4 Calc. 190 : L.R. 5 I.A. 149. An ancestral estate, even though impartible, is not the separate property of the single member upon whom it devolves so 'long' as the family is joint. Per Sir Barnes Peacock in 'Raja Ruj Singh's case (1884) I.L.R. 7 All. 1 : L.R. 11 I.A. 149. 'The impartibility of the property does not destroy its nature as joint family property, or render it the separate estate of the last holder, so as to destroy the right of another member of the joint family to succeed to it upon his death in preference to those who would be his heir if the property were separate.' Per Sir Barnes Peacock in Doorga Persad Singh v. Doorga Konwari (1878) I.L.R. 4 Calc. 190 : L.R. 5 I.A. 149. In this state of the law their Lordships had to decide, in the case of Sartaj Kuari v. Deoraj Kuari (1888) I.L.R. 10 All. 272 : L.R. 15 I.A. 51, the question whether the son and successor in an impartible estate has any right to impeach an alienation made by his father, the last incumbent of the raj. Their Lordships held that this particular question-did not arise in the above cases, and the remarks as to the property being joint property of the family must be understood with reference to the question which was before their Lordships in those cases. On the particular question in that case they held that the alienation was quite valid, unless any custom to the contrary could be proved. Their Lordships said: 'The property in the paternal or ancestral estate acquired by birth under the Mitakshara law is so connected with the right to a partition that it does not exist where there is no right to it,' again, 'though an impartible estate may be for some purposes I spoken of as joint family property, the co-parcenary in it which unnder the Mitakshara law is created by birth does not exist.' Notwithstanding this view of their Lordships, however, as to the right of any particular incumbent of an impartible estate, it has always been held in conformity with the previous rulings of their Lordships that the rule of succession is by survivorship. Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Sing (1890) I.L.R. 18 Calc. 151 : L.R. 17 I.A. 128, Kali Krishna Sarkar v. Raghunath Deb (1903) I.L.R. 31 Calc. 224. It is true that in the, Full. Bench case of Amar Chandra Kundu v. Sebak Chand Chowdhury (1907) I.L.R. 34 Calc. 642 a Mitakshara son was held to be a legal representative of his father within the meaning of Section 234 of the old Civil Procedure Code for the purpose of working out an execution against him of a decree obtained against his father, but that is a question of procedure, and does not take away from the substantive law that the son succeeds by the rule of survivorship. In any case he does not succeed as an heir to the effects of the deceased. He succeeds by right of survivorship, although his other rights under the law were in abeyance during the lifetime of the last incumbent on account of the peculiar nature and incident of the property in question. He is not therefore bound to produce a succession certificate before he can obtain a decree. The suit must therefore be decreed with costs of the first Court only against the defendant; as in an ex parte case. We may add that our judgment proceeds on the assumption that the family is governed by the Mitakshara law as applicable to impartible estates.