1. A preliminary objection is taken that no appeal lies, the ground being that, inasmuch as this order of the 11th August 1896 was an order conditional upon the applicant finding security, it was not an order that was appealable within the meaning of Section 19 of the Succession Certificate Act. In my opinion, an order is not the less an order because there is a condition attached to it that security is to be given by the person in whose favour it is made. It is still an order. The appellant not unnaturally relies upon the case, of Bhagwani v. Manni Lal, (1891) I.L.R. 13 All., 214. With great respect to the learned Judges who decided that case, I regret I am unable to concur in that decision. It seems to me to be rather a narrow view to take of the term 'order' in Section 19.
2. That disposes of the preliminary point.
3. Upon the merits, the learned Judge in the Court below has granted this certificate without a tittle of evidence to show that the promissory notes referred to in the order were the property of the deceased son-in-law of the applicant. I do not think that is a right course to adopt. I think he is bound to enquire into the matter and require at least some evidence to show that there is a prima facie case that the; property, in respect of which the certificate is granted, belonged to the deceased person. This order has been made without any evidence whatever. I think the proper course is to remand the case to the Court below with this intimation of our opinion. The appellant is entitled to his costs in this Court.
3. The principle of this judgment, upon the merits, will, it is admitted, apply to appeal No. 444 of 1896. That case, therefore, will also be remanded to the Court below. The appellant in this case (sic) so must have his costs.
4. I am of the same opinion. I do not think that the preliminary objection based upon Section 19 of the Succession Certificate Act and upon the case of Bhagwani v. Manni Lal (1891) I.L.R. 13 All. 214 is a valid one. Section 19 says that 'subject to the other provisions of this Act an appeal shall lie to this Court from an order of the District Court granting, refusing, or revoking a certificate under the Act.' The order appealed against says: 'Brindaban Chandar Basack will be granted a certificate with regard to eight Government promissory notes named in the petition, provided that he gives security to the amount of rupees six thousand five hundred.' This to my mind is undoubtedly an order granting a certificate within the meaning of Section 19, though it is coupled with a condition which the Court, by Section 9 of the Act, is authorised to impose, the condition, namely, that the applicant must give security. I must, therefore, respectfully dissent from the view taken by the Allahabad High Court in the case cited for the respondent.
5. Upon the other point, namely, that it was necessary for the Court below to make some enquiry before granting the certificate, especially when the application was opposed, I do not think it necessary for me to add anything to what has already been said in the judgment of the learned Chief Justice, and to what I have said in the case of Hurri Krishna Panda v. Balabhadra Panda (1896) I. L. R. 23 Cal. 431.