BANCHARAM MAJUMDAR Vs. ADYA NATH BHATTACHARJA

JUDGEMENT

(1.) The question referred for our decision is whether in the case of a debt payable after the death of the creditor, his heirs can sue and obtain a decree without the production of a certificate under the Succession Certificate Act. Although the meaning of the reference is clear I would myself have preferred to have made it more precisely applicable to the circumstances of this case, and I think we should do that and treat the reference as though it ran in these terms, whether, in the case of a debt existing in the life of the creditor, but which did not become payable until after the death of the creditor, the heirs of the creditor can sue and obtain a decree without the production of a certificate under the Succession Certificate Act. The case is to be determined on the terms of Section 4 of the Succession Certificate Act which says, no Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased person or to any part thereof except on the production among other things, of a certificate granted under this Act and having the debt specified therein." Had it not been that there was a previous decision of this Court to the opposite effect, I should have thought it clear beyond argument that a debt, such as is described in the reference as amended, must necessarily come within the terms of Section 4, Sub-section (1), Clause (a). To begin with, there can be no doubt that a debt such as is described, is a debt, for I take it to be well established that a debt is a sum of money which is now payable or will become payable in future by reason of a present obligation. That is the definition given by Lord Justice Lindley in the case of Webb V/s. Stenton (1883) 11 Q.B.D. 518 at p. 527. Why should not the ordinary meaning of the word debt be ascribed to it in Section 4? I fail to see any reason. If we look at the title of the Act, the preamble and the general scope and provisions of the Act, it is clear that a present debt though payable in future and in the circumstances actually only payable after the death of the creditor is a debt within the terms and operation of the Act.

(2.) I, therefore, would answer the reference by saying that, in my opinion, in the case of a debt existing in the life of the creditor which did not become payable in the circumstances until after his death, his heirs cannot obtain a decree without the production of a certificate under the Succession Certificate Act. Having arrived at this conclusion it only remains for us to consider how we should deal with the case. Mr. Provas Chandra Mitter has asked us not to enforce the provisions of the Succession Certificate Act against him, and has drawn our attention to the fact that this is an application to the High Court under Section 25 of the Small Cause Courts Act, where interference is a matter of discretion. But this is not a matter as between the parties to the suit; it goes much further, because if the plaintiff is , not compelled to take out a certificate then to the extent of that concession made in his favour the general revenue will suffer. Perhaps it would not inflict a great loss on the country, still it would be a departure from a general principle in a wrong direction. Therefore, we send back the case with the direction that before a decree is passed in favour of the plaintiff he must produce a certificate under the Succession Certificate Act. The date within which such certificate must be produced will be left to the determination of the Court from whose decision this application is made.

(3.) We have then to deal with the costs. We think the proper order in the circumstances will be to direct that each party do bear his own costs of the High Court; and, we make this concession in favour of the applicant, because he had the decision in Nemdhari Roy v. Bissessari Kumari 2 C.W.N. 591 as a sanction for the line pursued by him. The costs before the lower Court will follow the result. The costs of the High Court will be confined to the present rule, and we do not interfere with any previous order as to costs made by the High Court. Stephen, J.