INDIRANI AMMAL Vs. D SUBRAMANIA MUDALIAR

JUDGEMENT

(1.) THIS revision arises out of the order passed by the subordinate Judge, Tirupattur on the checkslip issued by the learned District judge, Vellore , in O. S. No. 31 of 1991 on the file of the Subordinate Judge, Tirupattur. It is seen from the checkslip issued during the course of the annual inspection of the said court for the year 1991 that the District Judge has observed that it is a suit for recovery of Rs. 69,171 by the plaintiff against the defendant, who is the brother of the deceased Kannammal. The said Kannammal is the mother of the plaintiff who is her only daughter and who claimed that she is her only heir. The suit claim represented the value of the movables and cash left by the deceased Kannammal. The plaintiff in para 11 of the plaint denied the plea of the defendant that the said Kannammal executed a will dated 25. 12. 1988. Hence according to the check-slip, the suit filed by the plaintiff without Succession certificate is not maintainable. The details of the claim under four heads, that is different kinds of amounts left of the deceased Kannammal were also noted in the checkslip and it is stated that each item has to be valued separately and the deficit court fee of Rs. 1. 50 has to be collected. In the checkslip it is stated that the maintainability of the suit on the question of succession Certificate and other documents has to be decided and the deficit court-fee of Rs. 1. 50 has to be collected. Thereupon, notice was given to the revision-petitioner, who is the plaintiff, calling upon him to offer his explanation, if any, to which the revision-petitioner who is the plaintiff has stated that she has no objection to pay the deficit court-fee. But, as regards the necessity of the production of the Succession Certificate for maintaining the suit, it is stated that the learned District Judge has no jurisdiction to issue the checkslip and the question of raising an objection to the payment of court-fee can be considered only when appeal or revision before the said court came up for consideration. Further it is alleged in the plaint that the defendant misappropriated the amount and only to recover the amount which was misappropriated by the defendant, the suit was filed and that by no stretch of imagination it can be termed as' 'debt' 'so as to warrant Succession Certificate for maintaining the suit and hence no succession Certificate need be obtained.

(2.) AS regards the first objection, the Subordinate judge,tirupattur, relied on the decision in Gajen-dra Nath v. Sulochana, A. I. R. 1935 Cal. 338 and found that if any deficit court-fee was found payable, that can be rectified in view of Sec. 12 of the Court Fees Act on being pointed out by the superior court. Since the plaintiff has admitted the deficit court-fee and paid the amount and since the said question has also now not been challenged before this Court, no consideration is necessary with regard to the said objection.

(3.) NOTICE was ordered to the Government Pleader. Mr. R. Swaminathan, learned Additional Government Pleader also submitted that in the circumstances of the case, no Succession Certificate is necessary, and he concurred with the submission, made by the learned counsel for the petitioner. He also drew the attention of this court to certain decisions besides the decision relied on by the learned counsel for the petitioner. The decision in Saheb Ram v. Gobindi, (1921)60 I. C. 774, was rendered under Sec. 4 of the Succession certificate Act which is in pari materia with the Sec. 214 of the Indian succession Act and it was held: "succession certificate is not necessary in a suit by a Hindu widow against a person for the recovery of debts due to the estate of her husband wrongly collected by him and withheld from her. Such a certificate is necessary only where a debtor to the estate of a deceased person is sued as such. " In Ram Avadh v. Kedar Nath, A. I. R. 1976 All. 283, it has been held: "though the widow could not be a karta of the joint hindu family the loan advanced out of the joint family funds was the asset and property of the joint family notwithstanding that the pronote was executed in favour of the widow. One of the basic principles of Hindu Law is that amounts earned with joint family property are monies belonging to the joint family. The loan was advanced out of joint family property. It was therefore impressed with the character of joint family property. Hence, on the death of the widow, it did not cease to be the property of that joint family, but continued to belong to the joint family. The son on the death of the widow acquired an interest in the property by survivorship and hence entitled to maintain a suit to recover the same without obtaining a succession certificate". In Shadi Jan v. Waris Ali, (1921)43 I. L. R. All 493, a division Bench held as follows: "no succession certificate is necessary where the suit is by one of the heirs of the wife to recover from one of the heirs of the husband the proportionate share of the wife' 's dower the liability to pay which had devolved upon the defendant according to her share by inheritance in the property of the husband. " In Venkatalakshmi Ammal v. Central Bank of India, 69 L. W. 557, five conditions which are necessary for obtaining Succession Certificate under Sec. 214 of the Succession Act, are laid and it was observed: "on an analysis of all the decisions on this point, it may be seen that the section applies only if all the five conditions mentioned below are satisfied at the same time: 1. The claim must be for the recovery of a debt and the relationship of debtor and creditor must exist between the defendant and deceased. 2. The debt must be owing at the death of the deceased. 3. The claim must be based on succession. 4. The claimant must be claiming to be entitled to the effects of the deceased. 5. The claim must be against the debtor of the deceased. " In Anehakana Sur v. Abani Bhusan, A. I. R. 1982 Cal. 378, a division Bench observed: "a person appointed as Receiver in respect of a "jalkar" in a partition suit was found to have misappropriated the profits arising out of the "jalkar". One of the parties to the partition filed a suit against the Receiver for recovery of the amount misappropriated. The suit was decreed ex parte. Both the decree-holder and the judgment -debtor died thereafter. The successors-in-interest of the decree-holder filed execution for realization of the decretal dues. The successors-in-interest of the judgment-debtor filed an objection under Sec. 47, c. P. C. contending that in view of Sec. 214 of the Succession Act, execution could not proceed except on production of the Succession certificate. Held, that the claim, in the suit was apparently nor a claim for a liquidated sum. To ail intents and purposes it was a suit for accounts. An action claiming an account is not an action for recovery of debt and is not covered by Sec. 214 of Succession Act. in order to sustain proceeding in execution by heirs of deceased decree-holder, therefore, a succession certificate is not necessary, irrespective of whether the decree has been put into execution before or after death of the decree-holder. " Applying the ratio in the above quoted decisions to the facts of this case, it is clear that no Succession Certificate is necessary and the order passed by the lower court directing the petitioner herein to produce succession Certificate is set aside.