As regards the second objection, it is based on S. 214, Sub-s. (1), which says:
"No Court shall(a) .................(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt,except on the production, by the person so claiming, of* * * *(iii) a succession certificate granted under Part X and having the debt specified therein, ................"
The section does not apply because Bhagirathi had not applied for execution of the decree for the payment of any debt due from the appellant Ruprao. She was entitled under the Hindu law to maintenance and her liability was enforceable as against the members of the family of which her husband Panduji was a coparcener. Her right to maintenance was declared in the partition suit and maintenance allowance was fixed. The plaintiff and defendants Nos. 1 and 2 were each made liable to pay her annually Rs. 150. The maintenance was declared a charge over the property which was allotted to each of them. The application for execution by Bhagirathibai was for the enforcement of the charge by sale of the property in possession of the appellant. This was an application not for the recovery of any debt but for the enforcement of the liability as against the appellant Ruprao who had not paid the maintenance I allowance to Bhagirathibai, which liability he was bound to discharge. A mortgage is not a debt within the meaning of S. 214, Indian Succession Act, 1925: vide 'KULWANTA Bewa v. Karam Chand Soni', ILR (1939) 1 Cal 21 at p. 28 and the cases cited therein; 'NANCHAND v.Yenawa', 28 Bom 630;. 630; 'PALANIYANDI Pillai v. Birammal', 29 Mad 77; and 'SAW CHONG v. Hafiz Bibi', 12 Rang 690. A contrary view was taken by the Allahabad High Court in 'FATEH CHAND v. Muhammad Baksh', 16 All 259 . The view taken by the Allahabad High Court is not sound. For criticism see Ghose's Law of Mortgage, Volume I, page 72, 5th edition, in my opinion, the better view is that, irrespective of the relief granted, a decree for the enforcement of a mortgagee's right as against the mortgaged property is not a decree for a 'debt' within the meaning of S. 214 of the Indian Succession Act, 1925. As the application for execution by Bhagirathibai was for the enforcement of the charge by sale of the property in possession of the appellant, the bar created by S. 214(2), Indian Succession Act, for execution of the decree did not apply. The second objection based on S. 214 of the Indian Succession Act therefore fails1
Citation;.AIR1952Nag88
IN THE HIGH COURT OF NAGPUR
Decided On: 04.08.1949
Appellants: Ruprao Ranoji
Vs.
Respondent: Ramrao Bhagwantrao
Vs.
Respondent: Ramrao Bhagwantrao
Hon'ble Judges/Coram:
J. Sen , J.
(1) The relationship between the parties, as given in the genealogical tree below, will help the understanding of the case.
The appellant Ruprao obtained a preliminary decree for partition on 16-8-1919 in civil suit No. 15 of 1917 against his cousins Pundiik and Dayaram (defendants nos. 1 and 2) and his aunt Bhagirathibai, defendant No. 3. Under the decree the plaintiff Ruprao and the defendants Nos. 1 and 2 were each declared to be the owners of a half share in the joint property. As regards the maintenance or Bhagirathibai, the decree declared that she was entitled to get Rs. 150 annually from the plaintiff and another Rs. 150 from defendants Nos. 1 and 2. Her maintenance was payable on the 1st of January each year in advance, and it was made a charge on the entire family property. The preliminary decree was made final on 11-11-1919 which reaffirmed the direction as regards the payment of maintenance allowance to Bhagirathibai which was made a charge on the family property.
(2) As Ruprao did not pay Bhagirathibai her maintenance from 1928 to January 1940, she made an application for execution of the decree for Rs. 2085 against him. A C form was sent to the Collector for the realization of the amount by sale of the property in Ruprao's possession over which charge had been created in her favour. During the pendency of the execution proceedings Bhagirathibai died on 12-4-1943.
(3) On 1-5-1943, the respondent Ramrao alias Rambhau, son of Bhagwantrao Chowdhary, made an application for substitution of his name in place of the deceased Bhagirathibai. His claim for substitution was based on two grounds: First, that he was Bhagirathibai's daughter's son and was entitled to execute the decree as her heir; and secondly, that he was a legatee under the will dated 25-7-1942 which, he alleged, had been executed by Bhagirathibai in his favour, bequeathing to him the arrears of maintenance due to her from Ruprao. The application for substitution was opposed by the appellant Ruprao on various grounds.
(4) The executing Court by the order dated 12-11-1943 held that as Ramrao had a sister, she was a preferential heir and that he could not execute the decree as an heir. As regards the will dated 25-7-1942, the Court held that it was duly executed by Bhagirathibai, bequeathing the arrears of maintenance to the respondent. The Court accordingly allowed the application for substitution and directed that the name of the respondent Ramrao be substituted in place of the decree-holder Bhagirathibai, the deceased. It is against this order that the present appeal has been filed.
(5) The decision of the executing Court that Ramrao was not entitled to execute the decree as an heir of Bhagirathibai is correct. Ramrao admitted that he had a sister who is alive. Under the Hindu law, his sister was an heir to Bhagirathibai and Ramrao is not entitled to claim the arrears of maintenance as the heir of Bhagirathibai.
(6) The learned Counsel for the Appellant challenged the decision on the following grounds: Firstly: that the respondent was not entitled to be substituted as he had not obtained probate of the will; secondly, that in the absence of a succession certificate, the respondent was not entitled to execute the decree; and thirdly, that the execution of the will dated 25-7-1942 was not duly proved as no attesting witness was examined to prove the will.
(7) As regards the first objection, it is not sound. The will dated 25-7-1942 is a will which falls under CI. (c) of S. 57 of the Indian Succession Act, 1925. Section 213 of the Act enacts that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in British India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. The contention of the learned Counsel is obviously based on this provision of the law. The learned Counsel, however, overlooks Sub-s. (2) of the section which states that the section shall not apply in the case of wills made by any Hindu where such wills are of the classes specified in Cls. (a) and (b) of S. 57. As already stated, the will was of the class specified in CI. (c). Consequently, the provisions of S. 213do not apply to such a will and probate of the will was not necessary: vide 'AHMED v. Ghisia', ILR (1945) Nag 562 . The first objection therefore fails.
(7a) As regards the second objection, it is based on S. 214, Sub-s. (1), which says:
"No Court shall(a) .................(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt,except on the production, by the person so claiming, of* * * *(iii) a succession certificate granted under Part X and having the debt specified therein, ................"
The section does not apply because Bhagirathi had not applied for execution of the decree for the payment of any debt due from the appellant Ruprao. She was entitled under the Hindu law to maintenance and her liability was enforceable as against the members of the family of which her husband Panduji was a coparcener. Her right to maintenance was declared in the partition suit and maintenance allowance was fixed. The plaintiff and defendants Nos. 1 and 2 were each made liable to pay her annually Rs. 150. The maintenance was declared a charge over the property which was allotted to each of them. The application for execution by Bhagirathibai was for the enforcement of the charge by sale of the property in possession of the appellant. This was an application not for the recovery of any debt but for the enforcement of the liability as against the appellant Ruprao who had not paid the maintenance I allowance to Bhagirathibai, which liability he was bound to discharge. A mortgage is not a debt within the meaning of S. 214, Indian Succession Act, 1925: vide 'KULWANTA Bewa v. Karam Chand Soni', ILR (1939) 1 Cal 21 at p. 28 and the cases cited therein; 'NANCHAND v.Yenawa', 28 Bom 630;. 630; 'PALANIYANDI Pillai v. Birammal', 29 Mad 77; and 'SAW CHONG v. Hafiz Bibi', 12 Rang 690. A contrary view was taken by the Allahabad High Court in 'FATEH CHAND v. Muhammad Baksh', 16 All 259 . The view taken by the Allahabad High Court is not sound. For criticism see Ghose's Law of Mortgage, Volume I, page 72, 5th edition, in my opinion, the better view is that, irrespective of the relief granted, a decree for the enforcement of a mortgagee's right as against the mortgaged property is not a decree for a 'debt' within the meaning of S. 214 of the Indian Succession Act, 1925. As the application for execution by Bhagirathibai was for the enforcement of the charge by sale of the property in possession of the appellant, the bar created by S. 214(2), Indian Succession Act, for execution of the decree did not apply. The second objection based on S. 214 of the Indian Succession Act therefore fails.
(8) The right of the respondent to be substituted in place of Bhagirathibai, the deceased, depends on the proof of the due execution of the will by Bhagirathibai on 25-7-1942. The Will purports to be scribed by Raoji and attested by Waman and Ramrao. The scribe Raoji has been examined as A. W. 2. The applicant paid process for summoning Waman, one of the attesting witnesses, and stated that he would produce the other attesting witness Ramrao in Court. In spite of two summonses issued to Waman he was not served. Ramrao was present in Court on 5-11-1943 but was not examined. He was given up by the applicant. The trial Court believed the evidence of the applicant and of the scribe and held that the will was duly executed by Bhagirathibai on 25-7-1942 and was attested as required by law. This finding of the lower Court is challenged and it is submitted that as no attesting witness was examined for the purpose of proving the execution of the will, it was not duly proved and was not receivable in evidence.
(9) Execution of a will has to be made in accordance with the rules stated in S. 63 of the Indian Succession Act, 1925. The rules are
(a) The testator shall sign or shall affix his mark. to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix has mark to the will or has seen some other person sign the will, in the presence & by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. A will thus required by CI. (c) of S. 63 of the Indian Succession Act to be attested.
(10) Section 68 of the Indian Evidence Act, 1872, is in these terms:
"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have (been executed is specifically denied."
The proviso is not applicable in the ease of wills. As the will is a document required by law to be attested, S. 68 is applicable. The provisions of Section 68 are mandatory.
(11) The expression "called" in the section is not used in the sense of "summoned." As pointed lout in 'Moti Chand v. Lalta Prasad', 40 All 256, the expression 'called' used in the section clearly means tendered for the purpose of giving: evidence. As observed in Mt. Bashiran v. Mohammad Hussain', 16 Luck 615 at p. 622, under Section 68 of the Indian Evidence Act what is necessary is that an attesting witness if available should be called in evidence.
(12) The words 'at least' in Section 68 of the Evidence Act presuppose that more evidence may be required, it can only be by reference to the circumstances in each case that the quantum of evidence necessary to discharge the onus of proof can be measured; Section 68, Evidence Act, lays down only the mode of proving a document but does not define what is required to be proved under Section 63(c), Succession Act, 1925: Vide 'Roda Framroze Mody v. Kanta Varjivandas', AIR (33) 1946 Bom 12 at p. 16.
(13) It was therefore necessary for the applicant Ramrao to have examined one of the attesting witnesses for the purpose of proving; the due execution of the will dated 25-7-1942. Ramrao, one of the attesting witnesses was present in Court on 5-11-1943 but was given up. The other attesting witness, Waman, had been summoned but was not served. As one of the attesting witnesses had not been called for the purpose of proving its execution, the document was not admissible as evidence under Section 68 of the Indian Evidence Act. The decision of the lower Court to the contrary is therefore not correct.
(14) The applicant did not examine the attesting witness Ramrao who was present in Court, presumably under a misapprehension of the provisions of the law and committed an error of judgment in giving him up. In the memorandum of appeal in this Court, as originally filed, the decision of the lower Court was not specifically challenged on the ground that no attesting witness had been examined to prove the will. On 7-2-1944, the date of the admission of the appeal, the Division Bench directed that the memorandum of appeal be amended so as to make it clear that the decision was challenged on the ground that no attesting witness had been examined to prove the will. In accordance with this direction, ground No. 6 of the memorandum of appeal was amended.
(15) The will was presented for registration by Bhagirathibai on the 25th July 1942. On her admission that the document was executed by her, her thumb impression was taken by the sub-registrar. The thumb impression of the identifying witnesses Waman and Ramrao were taken on the document. The Sub-Registrar signed the document after these thumb impressions had been taken. The Sub-Registrar could be examined as an attesting witness provided it is proved that he signed the document in the presence of Bhagirathibai and the identifying witnesses. There is no such proof.
(16) In the interests of justice, I consider it de sirable to remand the case for giving opportunity to the respondent to examine the attesting witnesses. I remand the case accordingly for the recording of further evidence and for disposal of the application for substitution made on 1-5-1943 according to law. The respondent shall be permitted to examine the attesting witnesses Waman and Ramrao, and adduce such other evidence as he may consider necessary to prove the due execution of the will as required by Section 63 of the Indian Succession Act, 1925. The appellant shall adduce such evidence as he will consider necessary in rebuttal. Costs in the case shall abide the result.
No comments:
Post a Comment