ABDUL MAJID Vs. SHAMSHERALI FAKRUDDIN

JUDGEMENT

(1.) THIS is a second appeal against a decision of the District Judge of West Khandesh.

(2.) THE plaintiffs sued to have it declared that the decree obtained by the defendants in suit No.579 of 1932 was obtained by fraud and was not binding on the plaintiffs. THE issue of fraud was decided against the plaintiffs. But a second point was taken in the plaint that the decree should be declared null and void on the ground that no succession certificate was produced. THE learned Subordinate Judge dismissed the suit. He was of opinion that although no succession certificate was produced, that was a mere irregularity which did not vitiate the decree, and he also expressed the opinion that the necessity for a succession certificate, being for the benefit of the debtor, could be waived. THE decree, which is sought to be set aside, was a decree for money, and was a consent decree. In appeal the learned District Judge reversed the judgment of the trial Court on the ground that the omission to obtain a succession certificate was an illegality which vitiated the judgment, and he made a declaration that the decree was a nullity and was not binding on the defend-ants.

(3.) THE next point taken is that, assuming that there should have been a succession certificate, the omission to obtain one did not affect the jurisdiction of the Court and did not render the decree a nullity. I am not prepared to go as far as the learned trial Judge in saying that the necessity for obtaining a succession certificate can be waived by the parties. THE obligation is not merely one in favour of the debtor ; it benefits also those interested in the deceased's estate by requiring that monies forming part of the estate shall only be paid to a person who has been considered suitable for the grant of a succession certificate. But I am not prepared to agree with the learned District Judge's view that the omission to obtain a certificate renders the decree a nullity. In effect Section 214 of the Indian Succession Act requires the Judge to insist upon certain evidence in support of the plaintiff's claim before passing a decree, but the omission to obtain such evidence cannot, in my opinion, affect the jurisdiction of the Court to try the suit. THE provisions of Section 214 of the Indian Succession Act are no more peremptory than the provisions of Section 35 of the Indian Stamp Act, or Section 49 of the Indian Registration Act, which forbid the Court to receive certain documents in evidence. If the Court does, in breach of those provisions, improperly receive documents in evidence, that is an error which can be corrected in appeal, but it does not render the decree a nullity. In the same way the omission to obtain a succession certificate is good ground of appeal, but if the decree is not appealed from, in my opinion it remains a valid decree and cannot be regarded as a nullity.