CHHOTKI Vs. CHANDRA PRAKASH

JUDGEMENT

(1.) THIS second appeal has been placed before this Bench on a reference by one of us sitting singly, as it raises an important question relating to the applicability of sec. 214 of the Jaipur Seccession Act, 1943, (Act No. LI of 1943) which for all practical purposes is in the same terms as sec. 214 of the Indian Succession Act, 1923 (No. XXXIX of 1925 ).

(2.) THE meterial facts leading up to the present reference may shortly be stated as follows. On the 14th July, 1947, Udai Prakash husband of Mst. Chhotki, the appellant before this Court, filed a suit against the defendant respondent for the recovery of Rs. 675/- on the footing of a Khata dated the 14th July, 1944, for a sum of Rs. 800/- which is alleged to have been executed by the latter in favour of the said Udai Prakash. It was admitted by the plaintiff that a sum of Rs. 125/- had been repaid by the defendant to the former on account of the khata in question, with the result that the balance of Rs. 675/ - only remained outstanding against him. THE defendant resisted the suit. He denied both the execution of and the consideration for the khata. THE plaintiff Udai Prakash died on the 29th August 1949 during the pendency of the suit and his widow Mst. Chhotki was brought on the record as his legal representative on the 28th November, 1949. THE trial court decreed the suit against the defendant, as prayed, by its judgment and decree dated the 27th February, 1951. THE defendant carried an appeal from this decree to the District Judge, Jaipur City. A legal objection was for the first time raised before the learned District Judge that no decree could be passed in favour of the widow of Udai Prakash unless she produced a succession certificate with respect to the debt in question as required by Sec. 214 of the Succession Act. This objection eventually prevailed with the court below and the result was that the plaintiff's suit was dismissed. It may be mentioned at this place that that Court had allowed time to the appellant here to produce a succession certificate but she did not care to avail herself of the opportunity afforded to her. It is against this dismissal that the present appeal has been brought to this Court. It is further necessary to mention in this connection that the Hindu Women's Rights to Property Act, (No. 38) of 1947, which so far as its substantive provisions are concerned is an exact copy of the Hindu Women's Rights to Property Act (No. 18) of 1937 as amended by Act No. 11 of 1938, and which was applicable to British India as it then was, was brought into force in the territory of the then State of Jaipur on the 3rd October, 1947. THE suit out of which this appeal arises was originally filed in the court of a Munsiff of that State and the plaintiff Udai Prakash, as already stated, had died on the 29th August, 1949, after the coming into force of the Jaipur Act of 1947 to that area. It is in these circumstances that the question arises whether a widow who is governed by the Jaipur Act of 1947 which is an exact counter-part of the Act of 1937 is entitled to obtain a decree against another with respect to a debt which the latter owed to her husband without producing a succession certificate as required by sec. 214 of Succession Act.

(3.) THE same view was accepted by another Division Bench of the Madras High Court in Rathinasabapathy Vs. Saraswathi Ammal (11 ).