NEPUSI BEWA Vs. NASIRUDDIN

JUDGEMENT

(1.) This is a reference under Rule 1 of Order XLVI of the Code of Civil Procedure, 1908. The question referred has been framed by the Court below in these terms: "Whether Section 4 of the Succession Certificate Act would apply at all to the case of a person who has been substituted as plaintiff for one who has died pending the suit." The reference, however, must be limited to the true scope of Clause (a) of Sub-section (1) of Section 4, as we are concerned with a suit and not with an execution proceeding which is governed by Section 4(1)(6).

(2.) One Dalimullah Mandal instituted this suit on the 28th August 1916 for recovery of money due on a bond. The plaint was registered, and the case was fixed for disposal on the 21st September 1916. On that date it was reported that the plaintiff was dead, and the case was adjourred. On the 15th December 1916, the widow of the deceased plaintiff applied, for herself and on behalf of her infant sons and daughters, for leave to prosecute the suit and an order for substitution was accordingly made. The trial Court has now made this reference for the determination of the question, whether the substituted plaintiffs can obtain a decree against the defendant without the production of one of the certificates mentioned in Section 4 of the Succession Certificate Act. We are of opinion that a decree cannot be passed in favour of the substituted plaintiffs without the production of such a certificate.

(3.) The question raised is really concluded by authority. In the case of Sahadev Sukul v. Sakhawat Hossain 7 C.L.J. 658 : 12 C.W.N. 145. a suit had been instituted on a mortgage for recovery of the dues of the mortgagee, first by sale of the mortgaged properties, and then by the sale of other properties of the mortgagor. The Court made the usual decree for sale; the mortgaged premises were sold and the sale-proceeds proved insufficient to satisfy the judgment debt. Meanwhile, the mortgagee had died, and his legal representative applied to the Court to pass a personal decree against the mortgagor under Section 90 of the Transfer of Property Act Objection was taken on behalf of the mortgagor that a decree could not be made in favour of the applicant except on production of one of the certificates mentioned in Section 4 of the Succession Certificate Act. The Court of first instance overruled this objection and passed a decree under Section 90. Upon appeal this decision was reversed. On second appeal to this Court, it was argued that as the succession had opened out during the pendency of proceedings in Court, a succession certificate was not neoessaiy. This contention was overruled, and the view taken by the Distiot Judge was affirmed, notwith-standing the doubt expressed in the case of Baid Nath Das v. Shamanand Das 22 C. 143 : 11 Ind. Dec. (N.S.) 97. where this particular point did not arise for decision. Precisely the same view was independently adopted by Maclean, C.J., and Coxe, J., in Abdul Sattar v. Satya Bhushan Das 35 C. 767, which was decided before the case last mentioned had been reported.