When time should be granted for securing succession certificate?

Equivalent Citation: AIR1931Nag181

IN THE HIGH COURT OF NAGPUR

Decided On: 31.07.1930

Appellants: Kalyansa
Vs.
Respondent: Tulsabai

Civil - Suit for recovery of debt - Suit dismissed - Order under challenge in revision application - Held, it was held in numerous cases that suit should not be dismissed but an opportunity should be given to party to produce succession certificate - Principle which was deducible from consideration of decisions was that suit is not to be dismissed for non-production of probate or succession certificate, as case may be but that Court should grant reasonable time to enable party to produce it - Under Order 17, Rule 1 of Code of Civil Prcedurer, 1908 Court could grant an adjournment and on failure to produce certificate it can proceed to judgment under Order 17, Rule 3 of Code of Civil Prcedurer, 1908 - In present case, no time was granted expressly for production of succession certificate and consequently suit ought not to have been dismissed - Case remanded for further trial.

Niyogi, A.J.C.

1. This is an application in revision against the judgment passed By the Small Cause Court Judge, Daryapur, dismissing the Small Cause Court Suit No. 415 of 1929. It appears that in the course of the proceedings an admission was made by the plaintiff that the probate or the will was necessary and as the probate was not produced, until the date of the judgment the suit was dismissed.

2. Section 214 lays down that no Court shall pass a decree against a debtor of a deceased person for payment of his debt except by production of the Succession Certificate or probate as the case may be. The 'Court may refuse to pass a decree but it cannot dismiss the suit unless time was granted expressly for the purpose of producing the certificate and it was not produced. The case reported in Kasumari Das v. Makkhu MANU/UP/0339/1926 : AIR1927All227 , relied on by the learned Judge of the lower Court itself shows that an adjournment was granted expressly for the purpose of enabling the party to produce succession certificate although it lays down that it is to be produced before the date of the judgment. In that case an objection was taken up in appeal. Even as to this it was held in Ghullan Singh v. Madho Singh [1915] 28 I.C. 383, that even in appeal succession certificate can be admitted on payment of costs.

3. It has been held in numerous cases that the suit should not be dismissed but an opportunity should be given to the party to produce succession certificate. Manasing v. Ahmad Kunhi [1892] 17 Mad. 14, Behari Lal v. Majid Ali [1897] 24 All. 138, Gulshan Ali v. Zahir Ali [1920] 42 All. 549. In Rajaram v. Malan [1920] 57 I.C. 650, this Court held that although judgment may be pronounced the decree may be deferred till the certificate is produced.

4. The principle which is deducible from the consideration of the aforesaid decisions is that the suit is not to be dismissed for non-production of probate or succession certificate, as the case may be but that the Court should grant reasonable time to enable the party to produce it. Under Order 17, Rule 1, the Court could grant an adjournment and on failure to produce the certificate it can proceed to judgment under Order 17, Rule 3.

5. In this case no time was granted expressly for the production of the succession certificate and consequently this suit ought not to have been dismissed. The case is remanded for further trial. Under the circumstances of the case I make no order as to costs. The costs of the lower Court will abide the result.

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