RAMU SINGH Vs. AGHORI SINGH

JUDGEMENT

(1.) In my judgment this is a very clear case on the two questions which arose. One was determined by the learned Judge in the Court below against the plaintiff- appellants and the other was also decided against them but not quite in the form in which it has been argued in this Court. The learned Judge in the Court below rightly came to the conclusion that the production by the plaintiff-appellants of a succession certificate was not a sufficient title upon which to sue on a mortgage executed by the defendant in favour of the plaintiff's brother. Any right to sue based on a right of survivorship was also negatived by the learned Judge who came to the conclusion that the plaintiff and his deceased brother were separate. I have already said and I repeat that the Judge was right in coming to the conclusion that the succession certificate was not sufficient. I refer to Sections 381, 370 and 214, Succession Act.

(2.) It is quite clear, although the learned Judges of the Allahabad High Court held a different opinion, that a mortgage is not a debt within the meaning of Section 381, and it is dear that it is not a security within the provisions of Section 370. Now the only question that arises in those circumstances is whether the plaintiff should be allowed to prove that he is the heir of his deceased, brother. The learned Judge of the appellate Court before whom this plea was taken for the first time came to the conclusion that he should not be allowed, to prove that fact as there was no allegation in the pleadings.

(3.) The question is whether the learned Judge was in error in not exercising his discretion in the plaintiff's favour. It is true there was no application for leave to amend the pleadings which would have been necessary had the Judge allowed the plaintiff to raise this plea, but in the circumstances I am of opinion that the learned Judge should have exercised his discretion in favour of the plaintiff on terms. The plaintiff came into Court assuming apparently that the sue cession certificate was a sufficient proof of his right to sue. I think it can be said that the succession certificate was at least prima facie proof of the fact that he was the heir of his brother. I wish to guard myself against being misunderstood on this question. I do not mean that it was prima facie proof in the cause, but that it was a reason at any rate, having regard also to the plea taken by defendants 2 and 3 in the written statement, for coming to the conclusion that at least there was the possibility of the plaintiff establishing the fact of his heirship to his brother.