GYARSILAL Vs. MURLI

JUDGEMENT

(1.) ORDER :- One Shri Jhabar Mal instituted a suit for recovery of money against the respondent. Jhabar Mal, died during the pendency of the suit. The petitioners who are the widow, sons and daughter of late Shri Jhabar Mal, moved an application before the trial Court namely Munsiff and Judicial Magistrate, Neema-ka-Thana, Distt. Sikar, for substitution of their names in place of the decease plaintiff. Jhabar Mal. The learned Munsiff, disposed of this application by his order dated 2-8-1985, he held that the application for brining the legal representative on record had been filed within 90 days of the death of Jhabar Mal but he proceeded to hold that the debt alleged to have been advanced by Jhabar Mal, was not in the capacity of karta of a joint Hindu family but was his personal loan and as such it was necessary that the petitioners should obtain a succession certificate without which they were not entitled to claim the money. The learned Munsiff also held that without succession certificate the petitioners could not be substituted in place of Jhabar Mal and he directed them to produce a succession certificate within a period of two months failing which the suit shall abate. 2-3. This order has been challenged by the petitioners in this revision petition. At the very out-set it may be mentioned that the learned Munsiff has no idea whatsoever about the procedure involved in the obtaining of a succession certificate as he has allowed a period of only two months to do so. Giving only a time of two months is absurd looking to the formalities which have to be completed before a succession certificate can be granted. If one were to pursue this project even at a jet speed it cannot be achieved within this short time. However, I shall proceed to see the legality of the order passed by the learned Munsiff Magistrate. 4. When an application under O.22, R.3 C.P.C. is moved then what the Court has to do is to cause the legal representatives of the deceased plaintiff to be made a party if the application is made within time and the right to sue survives and proceed with the suit. Where there is a question whether any of the person claiming to be the legal representatives is or is not a legal representative of the deceased plaintiff, then it has to determine this question. O.22, R.3 C.P.C. no where provides the production of a succession certificate before any person claiming to be a legal representative is allowed to be substituted in place of a deceased party. 5. The learned Munsiff, has referred to S.214 of the Indian Succession Act, and in order to appreciate its implication the same may be reproduced here. S.214 - Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons :- (1) No Court shall - (a) Pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or (b) Proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of - (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii) a certificate granted under S.31 or S.32 of the Administrator General's Act, 1913 (III of 1913) and having the debt mentioned therein, or (iii) a succession certificate granted under Part X and having the debt specified therein, or (iv) a certificate granted under the Succession Certificate Act, 1889 (VII of 1889) or (v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein. (2) The word "debt" in Sub-S. (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. 6. A plain reading of this Section goes to show that a Court cannot pass a decree against a debtor of a deceased person for payment of his debt, to a person, claiming on succession, to be entitled to the amount without obtaining a succession certificate etc. in respect of that debt. This provision does not say that the legal representatives of the deceased plaintiff would not be substituted in place of the plaintiff without obtaining a succession certificate. The restriction placed is on passing of a decree and not on substituting a deceased party in the suit. 7. Learned counsel for the petitioners in support of the above contention placed reliance on the case of Rani Pravabati Roy v. Saileshnath Roy, AIR 1978 Cal 147 wherein it has been held that production of a succession certificate is not a condition precedent to the institution of the suit by the successor of the deceased creditor. In Tynala Mussalayya v. J. Mohanraj, AIR 1982 Andh Pra 410 it has been held that the legal representative of the deceased plaintiffs claiming under a will can be added as legal representatives of the deceased plaintiff and it is not necessary that a probate should be produced before the litigation is continued. 8. Sub-clauses (a) and (b) of S.214(1) of the Indian Succession Act, as cited above would clear the distinction between the passing of a decree and proceeding with the suit. Whereas sub-cl. (a) prohibits the passing of a decree against the debtor of a deceased person sub-cl. (b) prohibits from taking proceedings on an application of a person claiming to be entitled to execute a decree passed in favour of the deceased person. If it was intended to place a restriction on 'proceeding with the suit' without a succession certificate then the words to this effect would have been included in Cl. (a). In Aparti Pande v. Govinda Sah, AIR 1984 Orissa 1 this question arose and it was held that on the death of the original decree holder, the legal representatives cannot continue the proceedings without being required to produce a succession certificate. The same situation does not apply to "proceeding with a suit". To the same effect is Ganesh Mal v. Smt. Anand Kanwar, AIR 1968 Raj 273. 9. On the other hand learned counsel for the non-petitioner placed reliance on Abdul Majid v. Shamsherali Fakruddin, AIR 1940 Bom 285 wherein it was held that S.214, of the Indian Succession Act, applies where the suit was originally instituted by the creditor himself and he subsequently dies and also to a case where it is instituted by his legal representatives. This case does not say anything about the substitution of the legal representatives and proceeding with the suit without a succession certificate. In K. Laxminarayan v. V. Gopalaswami, AIR 1963 Andh Pra 438 also the Bombay case cited above was followed but it can be said to be not applicable as it does not deal with substitution. 10. Another decision relied upon by the learned counsel for the non-petitioner is in Kasumaridas v. Makku, AIR 1927 All 227 where the plaintiffs failed to produce a succession certificate within time allowed by the Court and his suit was dismissed. It was held that he cannot claim a decree at the appellate stage by subsequently obtaining a succession certificate. In this case also the question whether the legal representatives a could be substituted before obtaining a succession certificate was not in question. S.214(1)(a) of the Indian Succession Act, is e only a restriction on the passing of a decree in favour of the representatives of a deceased creditor without obtaining a succession certificate but there is nothing in this provision to the effect that the legal representatives shall not be substituted without obtaining a succession certificate or the trial of the suit shall not be proceeded without obtaining a succession certificate. The learned lower court has failed to exercise its jurisdiction vested in it by law by not substituting the legal representatives of the deceased plaintiffs in proceeding with the suit. The order passed can also be said to be illegal exercise of jurisdiction vested in the Court. 11. Learned counsel for the non-petitioner has contended that the petitioner did not move any application for extension of time allowed to them to produce the succession certificate or for the stay of the operation of the order of the learned Munsiff or to prefer a revision within the period of two months allowed by the Court below. According to him failure to do so, amounts to abatement of the suit and as such no relief should be given to the petitioners in this revision. 12. It has been seen above that the order passed by the learned Munsiff is illegal exercise of jurisdiction and also failure to exercise of jurisdiction vested in it. It deserves to be set aside. It may also be mentioned that at the stage of substituting the legal representatives of the deceased plaintiffs it is not necessary to go into the question whether the loan or debt which was being recovered in the suit was a debt due to a joint family or to individual. Such question can only be decided after taking evidence of the parties. The findings in this respect also deserve to be set aside but it will be open to the Court below to decide the same at the appropriate time. 13. This revision petition is accepted and the application of the petitioners for being substituted in place of deceased Jhabar Mal is allowed. A copy of this order be sent to the court below. The parties are directed to appear before the learned Munsiff Magistrate, Neem-ka-Thana, Distt. Sikar, on 20th October, 1986. Revision allowed.