AMMINI AMMAL Vs. LEKSHMI

JUDGEMENT

(1.) This appeal arises out of an application made in the court below by the 1st respondent Lekshmi, for grant of a succession certificate enabling her to collect the debts and securities belonging to her husband T. N. Viswanathan, who had died issueless on 30.1.1950. These debts and securities were, for the most part, obtained by him in partition, between himself and his brothers, of the earnings of their deceased father T. S. Narayana Iyer, who was for some time the Chief Judge of the Cochin Chief Court. The respondents 2 to 5 who are the brothers were impleaded as counter petitioners to the application. Subsequently, on motion made by one of them, their mother, the appellant was impleaded as additional counter petitioner. Respondents 2 and 4, two of the brothers by separate objection petitions, though to similar effect, conceded the heirship** of the petitioner to her husband and her right to be in possession of his estate as scheduled but contended that because she was a young widow incapable of managing the estate, injury to the immediate reversion in favour of themselves and other brothers was quite possible and in fact was seriously apprehended. So they prayed that restrictions should be imposed upon the petitioner while granting her, the succession certificate, say by joining their names along with hers therein or by taking security from her against waste or spoliation of the corpus. The appellant mother, raised her own objection that the debts and securities scheduled except to slight extent, did not belong exclusively to Viswanathan, but was owned by her also to the extent of 1/6. According to her, she was entitled under law to such share in parity with her sons in the assets of her husband which comprehended most of the debts and securities herein and she had not waived or relinquished that right to any extent so far. She had, in any event, the right too look to these assets for her maintenance. She claimed accordingly that no succession certificate should issue to the petitioner in respect of the assets concerned, at any rate without adequate security obtained. The court below repelled the objections raised by the brothers as well as the mother and directed the issue of a succession certificate, without any condition attached, in favour of the petitioner. The brothers have acquiesced in the grant but the mother has come up by the appeal herein.

(2.) Learned Counsel for the appellant urged before us that the court below had misled itself by failing to decide the substantive right of the appellant as set up by her. According to learned Counsel it was wrong to say that the practice of allotting a share in partition to the mother had become obsolete in South India, in any event, in this jurisdiction; and the appellant ought to have been held entitled to a share equal to that of a son, in the assets of the late T. S. Narayana Iyer and, therefore, in the debts and securities herein. Learned Counsel complained further that the court below had not properly appreciated the reasons for or the consequences of the non junction of the appellant in Ext. I partition deed of 23.5.1123 between the sons and urged that on the whole this was not a case where the succession certificate should have been granted unconditionally. The court below, it is true, felt itself not called upon to decide the question under Hindu Law as to whether the widow has really a right to a share in South India or in Cochin and Travancore - but it clearly was not impressed that the partition deed Ext. I had been brought about without the consent or knowledge of the appellant or to her prejudice. There was, on the other hand, according to the court, every reason to believe that the appellant must have been a wiling party to the arrangements therein by way of division among her sons and also the provision for her residence and maintenance. But apart altogether from these considerations, the court below thought that the question raised by the appellant was one of paramount title which it was not the province of a succession certificate court to consider and the only proper order was to direct the issue of the succession certificate to the applicant claiming as the sole heir of the deceased. The question is, whether this approach of the court below was right.

(3.) Now S.372 of the Indian 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. S.373 by Cl. (1) provides that if the Judge is satisfied that there is ground 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. Cl.(2) of the section says 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. Cl. (3) then says If the Judge cannot decide the right to the certificate without determining the questions of law or fact which seem 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 facie the best title thereto. These provisions make it clear that the Legislature contemplated only that the District Judge be satisfied, not that the succession certificate will be necessary under S.214 or otherwise, but that there is ground for entertaining the application. The exact character of the applicants claim was not intended to be litigated and what was sought to be determined was only whether the applicant was the proper person or a proper person to be clothed with the representative character. As observed by Chandavarkar, J., in Bai Kashi v. Parbhu Keval, ILR 28 Bombay 120: