SAHEB RAM Vs. MUSAMMAT GOBIND

JUDGEMENT

(1.) Second Appeals No?, 649 and 650 of 1918 are between the same parties and arise out of the same emit. On the 18 of November lc91 one Har Narain executed a mortgage-deed for a sum of Rs. 900 in favour of three persons, Saheb Ram and his brother, Ajai Ram, and their couein Har Prasad. On the 30 of July 191J Saheb Ram and Ajai Ram brought a suit for sale against the mortgagor on the basis of the deed. At that time Har Prasad was dead. He left a widow, Govindi, and there was one Brij Narain, the son of Ajai Ram, on whose behalf a claim was put forward by Saheb Ram that he was the adopted son of Har Prasad, Therefore, he and Musammat Govindi were made pro forma defendants to the suit. She applied to be made a plaintiff, claiming to be the heir of Har Prasad. Saheb Ram tock no exception to this appliaation, in fact, he agreed on the condition that she would pay "half" the costs of the suit. She agreed to do this and was made a plaintiff. An application was also made on behalf of Brij Narain to be made a plaintiff to the suit and he was made a plaintiff but without any condition as to the payment of costs. On the 23 of November 1911 the suit was dismissed on the ground that the whole of the debt had been paid to Saheb Ram, Those payments apparently were found to have been made in the years 1897 and 1903. Har Prasad had died in the year 1892, so these payments were made to Saheb Ram subsequent to the death of Har Prasad. On the 2 December, 1914, Mutammat Govindi, respondent to the present appeals, brought this Suit No. 318 of 1914 to recover from Sabeb Ram Rs. 1,950, a half-share of the money which he had recovered from the mortgagor Har Narain, plus Rs. 150 The plaintiff claimed that the cause of action had accrued to her from the date of the decision of the suit when it bad some to her knowledge that Saheb Ram had collected the money from the mortgagor. Saheb Ram raised four points in defence (1)He first of ail pleaded that he had not received the money from the mortgager (2) He next pleaded that the suit was barred by time. (3) He then pleaded that the plaintiff was not entitled to more than a one-third share in the amount recovered, and, lastly, (4) He pleaded that Musammat Govindi was not the heir as Brij Narain was the adopted son of Har Prasad and in his presence she had no title.

(2.) Daring the pendency of the suit Musammat Govindi applied to the District Judge for a succession certificate to enable her to recover this sum of Rs. 1,950 from Saheb Ram as being a debt due to the estate of her husband. The District Judge granted her a succession certificate and she produced it in Court. The Court of first instance held against Saheb Ram on all points except one, i.e" as to the share to which Musammit Gavindi was entiljjed. It held that she was entitled to one third and not one-half of the sum recovered by Saheb, Both parties appealed. Muszmyiat Gavindi urged on appeal that she was entitled to a one half share. The defendant pleaded that she was not entitled to anything at all. Whilst the appeal were pending, an appeal was preferred in the cuacassion Certificate case on behalf of Brij Narain to the High Court and, finally, the succession certificate granted to Musammat Gavindi was withdrawn. It appears that in the year 1894 Saheb Ram had, as guardian of Brij Narain, applied for a succession aartifisate in repay to other debts which were due to the estate of Har Prasad. After the decision of the High Court an application was made for extension of the certificate of 1894 in respect to a sum of Rs. 1,950 which wan said to be due to the estate of the deceased, Har Prasad, under a decree in a Suit No. 818 of 1914 by the Second Additional Subordinate Judge of Aligarh. Now, this decree was the decree which was passed by the Court of first instance in this very, suit No. 818 of 1914 in favour of Govindi against Saheb Ram. On appeal, the District Judge held that Musammal Govindi was entitled to a half share in the amount collected by Saheb Ram. He held that the suit was not time barred, and that Brij Narain was not the adopted son of Har Prasad. He, therefore, decreed the plaintiff's claim in full and dismissed the appeal of Siheb Ram. Saheb Ram now comas to this Court. He practically presses all the sama points again.

(3.) It is urged, firstly, that the succession certificate granted to Musimmit Govindi having been withdrawn, she is no longer entitled to a decree against Saheb Ram. In our opinion, Section 4 of the Sub-section certificate Act does not apply to the fact of the present case. That section say that, No Court shall pass a decree against a debtor of a deceased person for payment of his debt to a parson Jai entitled to the effects of the decree 1 parson or any part thereof or proofed upon an application of person claim into be so entitled, to exacta against such a debtor a decree or order for the payment of his debt except on the production by the parson so claiming of a scansion certificate, effaces," In the present case Muhammad Gavin is saint a debtor of the effect of had husband but a parson who has call that estate an! is chilling khan as against her. This application of the dab's way made bag after than death. of Her Prasad. That Sahib Ram's hands is dual to that hair of Har Parsed bat Sahib Ram in case can be said to have been a debtor that estate of Har Prasad. Section 4 of that Certificate Act was alary adopted to protest a debtor when ailed upon at pay a debt dues by him to a dataset parson. Har Marian, than original mortgager, if he may at paid off than debt, wale hive bang a debtor such as is contemplated under sailor 4, Sahib Rim, in than airaamitvniss of than peasant case, is an shah debtor and in oar opinion Moslem Gained had an nasality whatsoever to pariah a suasion artifacts is this litisrvtioa, Tea daisies of this Characin that miter of the suasion certificate any relating to Brij Narain's ale an adoption, in an way final or bindings barware that parties. Section 25 of the All air vary oar indeed on this plaint.