SURENDRA NARAIN SINGH Vs. LAL BAHADUR SINGH

JUDGEMENT

(1.) This is an application in revision against an order of the Subordinate Judge of Jaunpur, rejecting an application filed by the applicants for the assignment of a security bond. The facts so far as they are material for the purposes of the present application are as follows: One Sarup Kunwar held a decree for a sum of Rs. 5,435-3-9. She died leaving two sons Raja Lal Bahadur Singh and Rajendra Narain Singh. Raja Lal Bahadur Singh applied for a succession certificate with a view to realize the decretal amount. Rajendra Narain Singh objected to the grant of the succession certificate to Raja Lal Bahadur Singh on the ground that he (Rajendra Narain) was also entitled to a half-share in the decretal amount. The learned Judge called upon Raja Lal Bahadur Singh to file security of immovable property with respect to the half-share of Rajendra Narain Singh in the decretal amount as a condition precedent to a succession certificate being granted to him (Raja Lal Bahadur). Raja Lal Bahadur filed a security bond in terms of the order passed by the learned Judge and a succession Certificate was granted to him. It was recited in the security bond that Raja Lal Bahadur's application for succession certificate was granted subject to the condition that he should furnish security for half of the decretal amount and that after realization of the amount he will pay half of the amount realized by him to Rajendra Narain Singh. The bond went on to provide that if Raja Lal Bahadur failed to pay half of the amount to Rajendra Narain Singh the amount may be realized by enforcement of the security bond as against the immovable property hypothecated by the bond. After the security bond was furnished, succession certificate was granted to Raja Lal Bahadur and he realized the entire decretal amount so far back as in the year 1928.

(2.) Rajendra Narain Singh died in the year 1929 leaving a widow and three sons. On 21 January, 1932, the widow applied to the Judge for assignment of the security bond in her favour with a view to realize half of the amount from Raja Lal Bahadur. She impleaded Raja Lal Bahadur and her three sons as opposite parties in the application. In her application she alleged that Rajendra Narain Singh, had before his death, orally gifted or devised his half-share in the decretal amount to her. Raja Lal Bahadur objected to the assignment of the bond in favour of the widow mainly on the allegation that the oral gift or will put forward by the widow was never made by Rajendra Narain Singh. The sons of Rajendra Narain Singh did not appear and did not contest the application. The learned Judge after going through the evidence produced by the widow in support of her allegation as regards the oral gift or will by her husband came to the conclusion that the alleged gift or will was not proved. He also observed that the widow could not be the heir of Rajendra Narain Singh under the Hindu law as Rajendra Narain Singh had left sons. In view of these findings the learned Judge rejected the application filed by the widow. He proceeded further to make the following observations in the course of his order: Let the sons take proper steps to get themselves declared heirs and then assignment can be made by an order of the Court.

(3.) The sons then filed an application for the assignment of the security bond in their favour and. the learned Judge rejected the application on the ground that his order directing the sons to get themselves declared heirs had not been complied with.