The Madras High Court adopted the above view of the Bombay High Court in the earlier decisions. But in the full bench case of Abdul Majeeth v. Krishnamachariar (1915) I.L.R. 40 Mad. 243 that Court followed the Allahabad High Court in holding that a sale effected, to pay off a debt due from his estate by some of the heirs of a deceased Mahomedan who may be in possession of the whole or part of the estate was binding on them to the extent of their share only and did not bind the other heirs. The reasoning of that decision proceeds on the ground that under Mahomedan law each heir inherits a separate and distinct share and that the theory of representation is unknown to the Mahomedan law, or in other words one heir does not represent the other heirs-(see Dallu Mal v. Hari Das (1901) I.L.R. 23 All. 263 and Manni Gir v. Amar Jati (1935) I.L.R. 58 All. 594. It is obvious ' that if the estate vested immediately on the death of a Mahomedan in each of his heirs in proportion to his share according to the Mahomedan law on account of several inheritance, the theory of representation can have no place.
Madras High Court
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Madras High Court
M.Alagiri vs Philomina on 22 December, 2010
These second appeals are focussed by the defendant animadverting upon the common judgment and decrees dated 29.8.2008 passed by the Subordinate Judge, Tirupur, in A.S.Nos.66, 65, 64, 67, 63 and 62 of 2007 confirming the common judgment and decrees dated 21.6.2007 passed by the District Munsif, Tirupur, in O.S.Nos.251 to 256 of 2006, which were filed for recovery of the amounts referred to in the respective suits.
2. For the sake of convenience, the parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of these second appeals would run thus: (i) There were six suits filed by the respective plaintiffs as under:
Suit No.
Plaintiff
Principal amount
Rs.
Suit amount including interest accrued as on the date of suit
51/06
Philomina
22,000/-
31,720/-
252/06
Philomina
25,000/-
38,463/-
253/06
Philomina
36,170/-
36,170/-
254/06
Philomina, Devaraj and Nirmala
25,000/-
36,170/-
255/06
Philomina, Devaraj and Nirmala
20,000/-
28,837/-
256/06
Philomina, Devaraj and Nirmala
25,000/-
38,463/-
The suits were resisted by the defendant by filing the written statements.
(ii) Whereupon issues were framed. On consent, joint trial of all the suits were conducted. On the side of the plaintiffs, Philomina examined herself as P.W.1 along with P.W.2 and P.W.3 and marked Exs.A1 to A27. On the side of the defendant, the defendant examined himself as D.W.1 and marked Ex.B1.
(iii) Ultimately, the trial Court decreed the suits.
(iv) Being aggrieved by and dis-satisfied with the common judgement and decrees of the trial Court, appeals were filed for nothing but to be dismissed by the appellate Court, confirming the common judgement and decrees of the trial Court.
4. Challenging and inveighing the common judgment and decrees of the Courts below, these second appeals have been filed on various grounds, the gist and kernal of them would run thus: (i) The Courts below failed to take into consideration the evidence adduced on the defendant's side to prove the discharge.
(ii) The Courts below fell into error in not seeing the falsity involved in the explanation given by the plaintiffs relating to the cheques issued in the name of Devaraj-who is the son of the deceased Srinivavan and Philomina(the plaintiff in O.S.Nos.251 to 253 of 2006).
(iii) Originally the plaintiffs have not come forward with the plea that Devaraj was an employee of the defendant. However, in order to explain away falsely, they dished out a theory as though the said Devdaraj, in whose name the cheques were allegedly issued by the defendant, happened to be the employee of the defendant and that those cheques were issued for being encashed by Devaraj for the purpose of discharging his official duties. Such far fetched pleas, ought to have been discarded by the Courts below.
5. The learned counsel for the defendant, reiterating the grounds of appeals, would pray for setting aside the judgments and decrees of the Courts below and for dismissing the suits or in the alternative, for passing money decrees depressed by the amounts covered by the cheques issued by the defendant in favour of Devaraj.
6. While admitting the seconds appeals, my learned predecessor framed the following substantial questions of law: "a. Is not the judgment and decree of the Courts below vitiated by its failure to consider the evidence on record in its proper perspective? b. Whether the plaintiffs are entitled to let in evidence with regard to discharge especially when the same have not been pleaded c. Whether the judgment and decree of the courts below are vitiated by its failure to consider the principles stated in Section 118 of the Negotiable Instruments Act in its proper perspective." (extracted as such)
7. I have now suo motu formulated the following substantial question of law:
"Whether the judgment and decree of the Courts below were bad for want of production of Succession Certificate by the plaintiffs in O.S.Nos.254 to 256 of 2006, even before passing the decree, in view of Section 214 of the Indian Succession Act.?"
and asked the learned advocates on both sides to put forth their arguements on it.
8. The learned counsel for the appellant/defendant would, inviting the attention of this Court to Section 214 of the Indian Succession Act and the judgment of the Kerala High Court reported in AIR 1960 Kerala 84 : 1959 Ker LT 702 - Raman Namboodiri vs. Chaldean Syrian Bank Ltd, develop his arguement that the trial Court was not justified in passing a decree without having before it the succession certificate in favour of the LRs of Srinivasan, as it was they who filed the aforesaid three suits, viz., O.S.Nos.254 to 256 of 2006.
9. Whereas, the learned counsel for the respondents/plaintiffs would cite the following decisions:
(i) AIR 1930 Rangoon 218 - Ma San and others vs. Ma Chit Su and others.
(ii) A.I.R.1931 Nagpur 181 Kalyansa v. Tulsabai
(iii)A.I.R.1937 Rangoon 470 Maung Po Htwa and another v. Ma Ngwe Zin.
(iv)A.I.R.1938 Peshawar 1 Baldev and others v. Peoples Bank of Northern India Ltd.D.I.Khan.
(v)A.I.R. 1939 Bombay 188 Virbhadrappa Shilvant and another vs. Shekabai Harun Sayed Ahmed Arai and others.
(vi)AIR 1978 Allahabd 268 Bhaiya Ji v. Jageshwar Dayal Bajpai.
(vii)AIR 1978 Calcutta 147 Rani Pravabati Roy and others v. Saileshnath Roy and others.
(viii)AIR 1940 Bombay 285-Abdul Majid and others v. Shamsherali Fakruddin.
(ix)AIR 1961 Allahabad 86 Smt.Sarju v. Ishwari
(x)AIR 1963 Andhra Pradesh 438 K.Laxminarayan v. V.Gopalaswami and another.
(xi)AIR 2001 Kerala 35 Madhavan Mony v. C.Sarasamma Amma and others.
(xii) AIR 1969 Patna 24 Asari Mandal and others v. V.Mt.Parvati Devi and others.
10. In fact, the judgment of the Kerala High Court reported in AIR 1960 Kerala 84 : 1959 Ker LT 702 - Raman Namboodiri vs. Chaldean Syrian Bank Ltd, is found referred to in the recent decisions of the Kerala High Court reported in AIR 2001 KERALA 35 MADHAVAN MONY V. C.SARASAMMA AMMA AND OTHERS, certain excerpts from it would run thus: "8. In the decision in Raman Namboodiri v. Chaldean Syrian Bank Ltd., 1959 Ker LT 702: (AIR 1960 Kerala 84) a Division Bench of this Court has observed as follows: "5. Now S.214 of the Indian Successiion Act (39 of 1925) forbids among others, the passing by a Court of a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, except on production by the person so claiming of a succession certificate granted under Part X abd having the debt specified therein. This section has been held to be mandatory. So much so, a Court cannot pass a decree against its terms even if it is otherwise satisfied that the plaintiff is the real heir or the successor of the deceased. A conditional decree directing the production of a certificate before the execution of the decree has even been held to be illegal. And if the succession certificate is not produced before the decree and after an opportunity is given to the plaintiff, the only order the Court can pass upon the suit is to dismiss it."
9. It is clear from all the above decisions that in all those cases the plaintiff who failed to produce the succession certificate during the pendency of the suit was given an opportunity to produce the succession certificate by the trial Court after passing the decree and the plaintiff having failed to produce the same before the trial Court within the time granted for production of the succession certificate, produced the succession certificate either before the appellate Court or the revisional Court. Under such circumstances in the above rulings it was held that the production of the succession certificate after the expiry of the time granted by the trial Court to produce the same, before the appellate Court or the revisional Court will not have retrospective effect.
10.In the decision in Muralidhar Roy Chowdhury v. Mohini Mohan Kor, AIR 1915 Cal 837 a Division Bench of the Calcutta High Court held that a party who fails to produce the necessary succession certificate in the Court of first instance, should be permitted to do so by an appellate Court on payment of costs for non-production of the certificate in the Court of first instance.
11.In the decision in Kalyansa v. Tulsabai, AIR 1931 Nagpur 181 the Nagpur High Court held that the Court may refuse to pass a decree against a debtor of a deceased person for payment of his debt except by production of probate or succession certificate as the case may be but it cannot dismiss the suit unless time was granted expressly for the purpose of producing the certificate and it was not produced.
12. In this case there is no contention for the appellant that the respondents did not produce the succession certificate even though time was granted by the trial Court, within the stipulated time and they produced the succession certificate only before the appellate Court and therefore, the succession certificate cannot have retrospective effect. It is not disputed that at the time when the suit was disposed of by the trial Court the proceedings initiated by the respondents for the issuance of succession certificate was pending before the same Court, though the succession certificate was not issued at that time in favour of the respondents. It is clear from the judgment passed by the trial Court that the trial Court did not consider it necessary to give time to the respondents to produce the requisite succession certificate to establish that they are entitled to recover the debt due to the deceased either before or after the disposal of the suit. Therefore, in view of the above decisions of the various High Courts and this Court the trial Court should have given an opportunity to the respondents to produce the succession certificate within a stipulated time and in case they failed to produce the succession certificate within the time allowed by the trial Court and produced the same only before the appellate Court, the respondents could have been non-suited for non-production of the succession certificate as contemplated under Section 214 of the Succession Act. Therefore, considering the facts and circumstances of the case, the succession certificate produced by the respondents before the appellate Court in this case cannot be discarded having no retrospective operation, even on the basis of the rulings relied upon by the counsel for the appellant.
13. In view of the fact that the trial Court dismissed the suit without giving an opportunity to the respondents to produce the succession certificate before that Court, the acceptance of the succession certificate in this case by the appellate Court when it was produced in appeal is perfectly justified and the judgment passed by the lower appellate Court reversing the judgment passed by the trial Court in this case is perfectly in accordance with law and no interference with regard to that finding of the appellate Court is called for in this appeal.
Hence the judgment and decree passed by the lower appellate Court in reversal of the judgment and decree passed by the trial Court are confirmed and this second appeal is dismissed. . . . . . "
11. The learned counsel for the plaintiffs also would invite the attention of this Court to the judgment of the Division Bench of the Bombay High Court reported in A.I.R.1939 Bombay 188 Virbhadrappa Shilvant and another v. Shekabai Harun Sayed Ahmed Arab and others and point out that passing of a money decree without having before the trial Court the Succession Certificate would not render the decree annulty. However, before executing the decree, such Succession Certificate should be produced.
12. Over and above that, the learned counsel for the plaintiffs would convincingly place before the Court the indisputable facts that before the trial Court, so to say, before the passing of the decrees by the trial Court, the certified photo copy of the petition for obtaining the Succession Certificate and the docket order there on passed by the Sub Court concerned allowing the petition, was produced.
13. I would like to extract hereunder the relevant portion of the said docket order.
"Suc.O.P.No.1/07
The petitioners prays to issue Succession Certificate in favour of petitioners share amount of Rs.1,03,470/- u/s.372 of Indian Succession Act. For deposit of cost Rs.3105/-
Call on 26.2.07
sd/-
P.S.J.
24.1.07
26.2.07
Deposit of Court fees by 12.3.07.
. . . .
. . .
5.4.07
P.Publication
P.P.Effected. Respondent called absent. Set ex-parte.
P.W.1 examined. Proof Affidavit filed. Ex.A1 to A8 marked. Claim proved. Petn.vallowed as prayed for with cost." (extracted as such)
This forms part of the lower Court record and memo also was filed before the trial Court to the effect that no sooner the said order was got engrossed on the stamp papers, the Succession Certificate would be produced.
14. The learned counsel for the plaintiffs also would further narrate that E.P. was filed after producing the Succession Certificate. As such, he would try to distinguish this case factually also.
15. On a perusal of the cited precedents and also the singularly singular nature of this case before me as highlighted supra, I am of the view that the non-production of the actual Succession Certificate engrossed on the Stamp paper, before passing of the decrees by the trial Court was not fatal to the decrees.
16. In the peculiar facts and circumstances of this case I need not further elaborate relating to the scope of Section 214 of the Indian Succession Act. Accordingly, I am of the view that the Substantial Question of law, which is suo motu formulated by me, could be answered to the effect that so far this case is concerned it is a fait accompali that before passing the decree, the plaintiffs in the aforesaid three suits, namely, O.S.Nos.254 to 256 of 2006 approached the Sub Court for obtaining the Succession Certificate and also obtained the order and filed the photo certified copy of the petition and the docket order thereon, but only they could not produce the Succession Certificate engrossed on the non-judicial stamp paper and as such, in my opinion that was only a technicality, which would not cut at the root of the passing of the validity of decrees passed by the trial Court.
17. The other substantial questions of law are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with each other.
18. The learned counsel for the defendant would point out that as evidenced by Ex.B1 it is an admitted fact that Devaraj one of the plaintiffs in O.S.Nos.254 to 256 of 2006 received various cheques on various dates and he was not the employee under the defendant and in such a case, the Courts below should have accepted the plea of the appellant/defendant.
19. Whereas, the learned counsel for the plaintiffs would implore and entreat that there is no shared or shred, jot or miniscule, iota or molecular extent of evidence to point out that the said cheques were issued only in discharge of the pro-note amounts and that too in view of the fact that the original creditor-Srinivasan-the propositus of Devaraj was very much alive till 22.12.2005. Ex.B1 would demonstrate and display that several cheques were issued in the name of Devaraj prior to 22.12.2005. If really the defendant intended to issue those cheques referred to in Ex.B1 only in partial discharge of the debt due payable in favour of Srinivasan, then the defendant could have very well issued those cheques in the name of Srinivasan and in such a case, the preponderance of probabilities are in favour of the plaintiffs and not in favour of the defendant. Over and above that, according to the learned counsel for the plaintiffs, the Courts below on this factual issue gave concurrent findings, which are not perverse, warranting interference by this Court.
20. I would like to agree with the submission made by the learned counsel for the plaintiffs in view of the fact that the Courts below dealt with the factual details in extenso and disbelieved the explanation given by the defendant. Hence, I am of the considered view that the preponderance of probabilities are not in favour of the defendant, and wherefore, I could see no merit in these second appeals.
21. In view of the ratiocination adhered to above, the substantial questions of law are answered as under: Substantial Question of law (a) is decided to the effect that the Courts below considered the evidence on record in proper perspective and passed the judgments and decrees, warranting no interference in the second appeal. Substantial Question of law (b) is decided to the effect that the plaintiffs, only by way of rebuttal evidence to the defendant's evidence, adduced evidence to show as to how the alleged evidence regarding discharge adduced by the defendant was not tenable and hence the question of pleading such rebuttal evidence by the plaintiffs in the pleadings does not arise. Substantial Question of law (c) is decided to the effect that the judgments and decrees of the courts below are not vitiated for allegedly having not taken into consideration the principle envisaged in Section 118 of the Negotiable Instruments Act, as the Courts below considered the evidence adduced by the plaintiffs proving the consideration passed under the suit pro-notes.
22. In the result, these appeals are dismissed. However, there is no order as to costs.
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