VAIRAVAN CHETTIAR REPRESENTED BY RAMASAMI CHETTIAR Vs. SRINIVASACHARIAR

JUDGEMENT

(1.) In this reference, Second Appeal No. 932 of 1919 and all questions of law arising in it are before us. The finding we have obtained in favour of the adoption of Narasimha Aiyangar by Veeraraghava Aiyangar, not by his widow, leaves only two such questions for decision. Plaintiff is suing as assignee from the guardian of Narasimha Aiyangar of a promissory note in favour of Veeraraghava Aiyangar, which represented at the date of its execution the latter's self- acquisition. Veeraraghava Aiyangar and Narasimha Aiyangar died undivided. The questions for decision are whether plaintiff is exempt from the obligation to produce a succession certificate either because he sues as an assignee from Narasimha Aiyangar, the person entitled to the debt, or because Narasimha Aiyangar should be regarded as having become entitled to the debt by survivorship.

(2.) The first question can be answered shortly. The Act is, as its preamble states, intended to "afford protection to parties paying debts to the representatives of deceased persons." The reference in Section 4 is generally to persons "claiming to be entitled to the effects of the deceased person or any part thereof," and under Section 6(1) the applicant for a certificate must specify in his application the debts in respect of. which he applies. All this indicates that the succession certificate procedure is obligatory on any person claiming debts or a debt, the property of the deceased, not only by succession but under any title whatsoever. If the cases of assignment from the deceased's legal representatives were excluded, evasion of the Act would be easy and the protection afforded, to the debtor would be illusory. This question must be answered in the negative.

(3.) It is then conceded that the plaintiff must obtain a certificate to entitle him to sue, unless Narasimha Aiyangar, from whose guardian he obtained his assignment, became owner of the debt by survivorship, not inheritance. The authorities regarding the manner in which an undivided son becomes entitled to the self-acquisition of his deceased father, are set out in the judgment of Kumaraswami Sastri, J., which I have had the advantage of reading. Their result is that, when the issue was raised directly, as it was in the line of cases beginning with Venkataramanna V/s. Venkayya (1891) I.L.R., 14 Mad., 377, the succession of the undivided son by inheritance was regarded as beyond doubt. And the other decisions relied on by plaintiff do not affect this. For neither those, which, like Raja Chelikani Venkayamma V/s. Raja Chelikani Venkataramayyamma (1902) L.R., 29 I.A., 156; s.c, 12 M.L.J., 300 P.C.), indicate as joint ancestral the nature of the estate to which a son or sons succeed, nor those, which, like Fakirappa V/s. Yellappa (1898) I.L.R., 22 Bom., 101, Ramappa Naicken V/s. Sithammal (1879) I.L.R., 2 Mad., 182 (F.B.) and Nana Tawker V/s. Ramachandra Tawher (1909) IL.R., 32Mad.,377, are directly concerned only with the order of succession as between sons, undivided and divided, are in point, when, as here, the question is of the manner, survivorship or inheritance, by which such succession takes place. The rule regarding the order of succession, that undivided are preferred to divided sons, whatever its exact basis and the possibility of reconciling it with other parts of the Mitakshara system, must be regarded as established since the decision of a full Bench of this Court in the second of the cases last mentioned, But adherence to it need not involve any inference that the succession of the undivided sons is of one kind rather than the other. For the estate they take may be joint, in whichever way they acquire it. It is true that in Nana Tawker V/s. Ramachandra Tuwker (1909) I.L.R., 32 Mad., 377, although only the order of succession. was in dispute, it was said that: the succession to the undivided property of the father would, where there was an undivided son, be by survivorship rather than inheritance; but this dictum was unnecessary to the conclusion and should not in my opinion be followed. For the fact that property is taken by undivided sons as joint tenants is no reason for assuming a prior joint tenancy in respect of it between them and their father, with which its character as self-acquisition would have been inconsistent until his death; and, unless such an assumption can be made, the argument for survivorship must fail, following Venkataramanna V/s. Venkayya (1891) I.L.R., 14 Mad., 377, I would answer the second question also in the negative. My opinion is that plaintiff cannot, succeed without producing a certificate and that the Second Appeal should therefore be allowed.Kumaraswami Sastri, J.