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Brojendra Sundar Banerji Vs. Niladrinath Mukerjee and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1929Cal661
AppellantBrojendra Sundar Banerji
RespondentNiladrinath Mukerjee and ors.
Cases ReferredMadras Srinivasachariar v. Gopalan
- succession certificate could operate as giving title to the money. before the land acquisition judge a succession certificate would in no way prevent the objector from contending that the compensation money was not a debt due to the deceased and from putting forward his own title thereto. indeed in any case in which there is room for serious controversy as to the nature and character of the claim to a sum of money, it is manifestly more convenient, and more in accordance with familiar notions of procedure, that the controversy as to this matter should be carried on and decided after the party desiring to do so has been put in a position to assert any claim of the deceased, rather than that it should be decided in the absence of the party who is interested in getting a good discharge.....

Rankin, C.J.

1. Rai Bankim Chandra Chatterjee Bahadur died in 1894 leaving a widow and two daughters. The first daughter had four sons and the second three sons. The widow and both daughters are now dead. In his will no mention was made of the land with which this case is concerned. The widow in due course got letters of administration to his estate with the will annexed. In 1926 land acquisition proceedings began and certain land was compulsorily acquired in the widow's lifetime. The compensation money Rs. 2,000 was kept in deposit under Section 31(2), Land Acquisition Act. In 1919 the widow died. One daughter had predeceased her and the other died in 1927. Thereupon, in 1928, three sons of the daughter who had first died made applications to the Subordinate Judge for succession certificates with reference to the share due to each in the compensation money. A son of the other daughter objected to these applications but the certificates were granted. Thereupon he appealed to the District Judge, 24-Parganas, who dismissed his appeals with costs. He then applied for and obtained from a Division Bench of this Court three several Rules each calling on the applicant for certificate to show cause why the order of the District Judge should not be set aside These rules were granted in the revisional jurisdiction and under the powers conferred by Section 115 of the Code.

2. It may be as well that it should here be explained that before making applications for succession certificates the applicants had petitioned the Land Acquisition Judge for payment to them of their share of the money. That Judge had on 18th April 1928, directed them to obtain succession certificates for withdrawal of the amount from the Court.

3. The rules granted by this Court came on for hearing before my learned brothers Suhrawardy and Jack, JJ. It was contended before them that a succession certificate could only be granted in respect of a debt due to the deceased and that the compensation money, even if it was a debt, was not a debt due to the deceased. This was the ground upon which the objector had resisted the grant of these certificates before the Subordinate Judge and before the District Judge. It has now been elaborately discussed in four Courts. In support of the decisions of the Courts below, the case of Abinash Chandra v. Probodh Chandra [1911] 15 C.W.N. 1018 was relied on. The learned Judges of the Division Bench disagreed with this decision and in their order of reference have discussed various other cases in which a similar question has come before the Courts: Bancharam v. Adya Nath [1909] 36 Cal. 936; Annapurna, v. Nalini Mohan [1915] 42 Cal. 10, Bishnu V. Mungul Doss 24 W.R. 203.; In re, Mt. Tripura Sundari 22 W.R. 45.; Ranchordas v. Bhagubhai [1894] 18 Bom. 394. and Umesh v. Mathura [1901] 28 Cal. 246. They have referred the following questions to the Full Bench:

(1) If a property is acquired under the Land Acquisition Act alter the death of the owner when it was in the hands of his widow or a person having a life-estate and the compensation money is kept in deposit in the Land Acquisition Collector's Office under Section 31, Land Acquisition Act, 1894, is such amount a debt within the meaning of Section 214, Succession Act 1925, for which a certificate under Part 10 of that Act has to be obtained?

(2) Was the case of Abinash Chandra Pal v. Prabodh Chandra Pal [1911] 15 C.W.N. 1018 rightly decided?

4. The reasoning of the learned District Judge was to the effect that if it was proper and necessary for him in this proceeding, and in the absence of the person or authority by whom the sum claimed was alleged to be payable, to determine whether or not in strictness the claim of the applicants for certificate was a claim for a debt due to the deceased, he would be disposed to answer that question in the negative; nevertheless it was not incumbent upon him before making the grant of a certificate to enquires too closely into the questions whether the sum of money claimed was due and whether it had been due to the deceased within the meaning of the provisions of the Succession Act.

5. The order of reference in my judgment does not at all points succeed in keeping separate two questions which are different. One question which can be raised is the question whether under Section 214, Succession Act, the Land Acquisition Judge was entitled to refuse an order for payment of any portion of the money unless a succession certificate was produced by the applicant. This question does not arise in the present case. Nor could it be decided between the present parties. The only question which in this proceeding is open for discussion is the question whether the Subordinate Judge, finding that the applicants desire, for the purpose of prosecuting their claim to be formally clothed with the character of representatives of the deceased, was entitled in all the circumstances of the case, and upon the usual safeguards, to give them a certificate which would have this effect for what it was worth; or whether, on the other hand, he was obliged to decide in the presence of these parties and in the absence of the person or authority , from whom the money was claimed, the question as to the character and reality of the claim; and whether, if he reached the conclusion as a result of the evidence adduced, that the compensation money was not a debt due to the deceased, he was obliged thereupon to act upon this view and to refuse a certificate which would enable the applicants to put themselves forward to the Land Acquisition Judge in a representative character.

6. If the compensation money was not a debt due to the deceased no succession certificate could operate as giving title to the money. Before the Land Acquisition Judge a succession certificate would in no way prevent the objector from contending that the compensation money was not a debt due to the deceased and from putting forward his own title thereto. Indeed in any case in which there is room for serious controversy as to the nature and character of the claim to a sum of money, it is manifestly more convenient, and more in accordance with familiar notions of procedure, that the controversy as to this matter should be carried on and decided after the party desiring to do so has been put in a position to assert any claim of the deceased, rather than that it should be decided in the absence of the party who is interested in getting a good discharge and upon an issue whether or not a right to stand, in the shoes of the deceased should be accorded to the person who asks leave to prosecute the claim in that character.

7. Section 372, Succession Act, provides that an application for a succession certificate must be verified like a plaint and shall set forth inter alia the right under which the petitioner claims and the debts and securities in respect of which the certificate is applied for. Section 373 provides that if the Judge is satisfied that there is ground for for entertaining the application, he shall fix a date for hearing and issue certain notices and upon the date fixed or as soon thereafter as may be practicable 'shall proceed to decide in a summary manner the right to the certificate.' Clauses2 and 3 are as follows:

(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to him to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facia the best title thereto.

8. An examination of this section leads me to the conclusion that the legislature contemplated first that the District Judge should be satisfied not that a succession certificate will be necessary oreligible under Section 214 or otherwise, but that there is 'ground for entertaining the application.' That is to say, that it is a serious and sensible application by a person who desires to make a claim in the representative character which he seeks. Clauses 2 and 3 contemplate that the Judge shall endeavour to determine whether applicant is the proper person or a proper person to be clothed with the representative character and it is made abundantly clear that any intricate questions of fact or law bearing upon this question may be solved in a summary manner. The legislature by exacting fees and by making provision for the requirement of a bond would seem to have taken away all temptation to apply for a succession certificate save in cases where a succession certificate will enable the grantee to prosecute a claim as a representative of the deceased with greater advantage than he would have been able to do in the absence of this representative right. Section 387 provides that no decision under this part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties. In my opinion nothing could be more misguided, unnecessary and objectionable than that questions of the exact character of an applicant's claim should be litigated upon an application for a succession certificate and in the absence of the party or authority against whom the claim is made. The objector in the present case, for example, is in no way damnified by the grant of the certificate. He is entitled to object before the Land Acquisition Judge to any order for payment out of the compensation money upon any ground which he can establish showing that the money was not due to the deceased but is money which, in the events that have happened, is payable to him. If he has any grievance against the order of 18th April 1928, he has his remedy. To insist upon litigating the questions at issue between the parties under the provisions of Section 373, Succession Act, is merely the tactics of obstruction.

9. On the other hand it would clearly be inconvenient if in a case such as this the Land Acquisition Court should take the view that the nature and character of the claim was such as to entitle it to require the production of a succession certificate, while at the same time the Judge to whom application for such certificate must be made purported to decide between these parties that the debt in question could not be regarded as having been due to the deceased and that accordingly no right to represent the deceased for the purpose could be given to any one. In my opinion it is not the law that the Court upon an application for a certificate has to decide for itself, as a condition of granting the certificate, that the case is one in which the debt was due to the deceased person within the meaning of Section 214. A reasonable and sensible claim to be enabled to proceed against a third party as being a debtor of a deceased person is sufficient for the purpose of clothing the Court with jurisdiction under Section 373 and may be regarded as ground for entertaining the application.

10. As regards the case of Abinash v. Probodh [1911] 15 C.W.N. 1018. I desire to observe that I do not think that questions of this character can be decided merely upon the principle that it is not necessary or advisable

to place a narrow and restricted construction upon the provisions of the Succession Certificate Act.

11. If this case were a case in which it was proper or necessary to decide the question whether the Land Acquisition Court was entitled to refuse payment to the applicants under Section 214 of the Act, it would I think be very necessary to point out that this section is a restrictive section and must be carefully and accurately construed. I demur very strongly, for example, to a contention that arrears of rent accruing due in respect of premises comprised in the deceased's estate in respect of a period subsequent to his death cannot be recovered without a succession certificate, There can be no question under Section 214 of treating something as due to the deceased or to his estate by any kind of legal fiction or analogy. The question before us is to be settled in my judgment by a careful consideration of the summary procedure laid down by the legislature in Section 373. This shows with great clearness that the issue of a succession certificate may be justified without the Court arriving at a conclusion to the effect that such a certificate is a necessary condition without which the claim could not succeed, or that the debts were due to the deceased.

12. Under Act 27 of 1860 the effect of a certificate was not limited to the particular debts mentioned in the application. It was conclusive of the representative title against all debtors to the deceased. In Bhugobutty v. Bholanath [1867] 8 W.R.317, it was contended that there could be no debts due to the deceased and it was laid down that this was not a matter for the Judge's consideration. 'I am inclined to think' said Jackson, J.:

it would be convenient if the law provided that all applications for certificate should state that there are debts due to the estate and that the Judge should satisfy himself that there are grounds for making the application.

In a later case Loch, J., observed;

It might so happen that the applicant is not aware of the existence of debts, but applies for a certificate as a precaution. Shurutv. Thakoor Monee [1868] 9 W.R. 240.

13. In 1875 we find Glover, J., repeating the same rule and in the same way as Jackson, J., had done:

The current of decisions in this Court...... seems to lay it down that the petitioner for a certificate need do nothing more than prove his title to collect the debts if there are any. I should certainly have thought that it was first necessary to show that there was a need for the certificate by giving at least prima facie evidence of the existence of debts; but as I have not been shown any decisions going to that length I am willing to follow the rulings mentioned above, and to hold that the petitioners' title was the thing to be looked to. Beemul v. Shibur [1875]24 W.R. 211.

14. The basis of these decisions was that the language of Section 3 of the Act of 1860, on which it appeared that the one thing which the Court had to do was to 'determine the right to the certificate.' 'It may be' as Jackson, J., observed in the case already cited:

that the person who obtains such certificate obtains an entirely barren title, and that he would derive no baneful; from it whatever, but that is his affair.

15. Now Bishnu v. Mandal 24 W.R. 203 which has . been greatly relied upon by the objector in this case was decided under the Act 01 860 and the observations of Mitter, J., were made with reference to the construction put upon the Act by the cases ,to which I have referred and by other cases decided in the same sense. He says of them:

It is sufficient to observe that they merely lay down is not the business of the Judge to enquire into the question whether there were debts due to the deceased person or not. Granting that to be the case, it does not follow that when without any inquiry it is admitted by the parties that there were no debts due to the deceased the Court would still be bound to grant a certificate under Act 27 of 1860.

16. Mitter, J., was dealing with the case upon appeal; he gives no support to the theory that there has to be a finding as to the existence of debts due to the deceased as a condition of the Judge's jurisdiction to grant a certificate. He is only saying that the Court is not help' less and is not bound to grant an application which can be seen without further enquiry to be baseless.

17. When the legislature came to amend the Act of 1860 it took occasion in the new Act (7 of 1889) to effect several changes. The most important change was that it permitted an applicant to confine his application to those debts which he chose to include and gave the certificate effect only as regards the particular debts specified therein. It made more clear that the Judge's enquiry was to be summary but it retained as the description of the subject-matter the phrase ' the right to the certificate.' There is every reason to think that the line of decisions from which I have cited had not escaped its attention. It seems indeed to have adapted, if not adopted, the language of Jackson, J., in Bhugbutty v. Bholanath[1867] 8 W.R. 317 (above cited). It required the Judge not to decide upon contest whether the particular debts included in the application were really due at all or were really due to the deceased but to satisfy himself before he fixed a day for hearing or issued notices ' that there is ground for entertaining the application.' To my mind there is both logic and policy in this. I do not say that the Judge may not change his mind and in the end dismiss the application as baseless altogether but the contest after notices have issued is still to be confined to ' the right to the certificate.' Prima facie a person disputing the title of the deceased to the debts in question is only putting himself out of Court, showing good reason why some willing person other than himself shouldbe authorized to assert the claim in the right of the deceased. No doubt there may be baseless claims for a certificate and it is right that the Court should not be helpless to resist them. But I demur altogether to any doctrine which involves the Judge in finding upon contest at the enquiry that there is good prima facie evidence that the debts were due to the deceased. IfRadu Rani v. Brindaban [1897] 25Cal. 320 involves this then I think it should be overruled. There the certificate had been granted without any evidence at all although it was opposed. The Judge would seem to have refused to consider at any stage whether there was any ground for entertaining the application.Maclean, C. J., said:

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 ' belonged to the deceased person.

18. This does not seem to mean that he must hear the objectors' evidence and argument upon the point and decide whether in the end a good prima facie case has been made out upon the evidence as a whole. In the present case for example the Judge if he thought the order of the Land Acquisition Court was ' ground for entertaining the application,' would have been entirely within his rights. Hurri Krishna v. Balabhadra [1896] 23Cal. 431 was a very different case; It was an appeal by an applicant who claimed as adopted son and whose application for certificate had been dismissed without any enquiry at all as to his right to the certificate. I do not find in the judgments in Bai Kashi v. Parbhu Keval [1903] 28 Bom. 119 any reference to the legislature's provision for the Judge being satisfied that there are grounds for entertaining the application, but the reasoning of Chandavarkar, J., in that case is unanswerable in so far as it shows that an enquiry into the existence of the debt is a useless proceeding. The question there was precisely as here whether the debt belonged to the deceased or to the objector in an independent right. The same view has been taken in Madras Srinivasachariar v. Gopalan [1914] 26M.L.J. 365.

19. Of the two questions which have been put to the Pull Bench I would observe that the first question together with a considerable portion of the order of reference deals with a matter which in this case does not arise. We are not here concerned with the question whether a certificate ' has to be obtained.' We are only concerned with the question whether the learned Judge had jurisdiction to issue the certificate. As regards the question whether Abinash's case [1911] 15C.W.N. 1018 was rightly decided, I am of opinion that it was open to the Court in that case to make the order which it made, namely, to send the case back to the District Judge for retrial in accordance with law. But I am not prepared to say that I approve of the reasoning by which this order was supported.

20. In my opinion the Subordinate Judge had jurisdiction to make the order in this case and the opposition on the part of the objector has been misguided throughout. In my judgment the case is not one, on any view of it, which calls for our interference under Section 115 of the Code and the correct order to make is that we should discharge the Rules with costs before the Division Bench and before us. Consolidated hearing fee before both Benches five gold mohurs.

C.C. Ghose, J.

21. I agree.

B.B. Ghose, J.

22. I agree.

Mukerji, J.

23. I agree.

Mitter, J.

24. I entirely agree in the judgment delivered by my Lord, the Chief Justice.

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