Abdulhussain vs Akbarali and Others

Chaturvedi, J.—One Daudbhai, a Bora, died on 29-11-1944 leaving his brother Akbarali and his sister Fatma Bai as his heirs. His widow Safia Bai had remarried and so is not in the picture. It is said that on 11-7-1944 Daudbhai had executed a will. Whether it is a will or not that is disputed. But it is in the form of a letter addressed by the deceased to Rai Bahadur Rangilal, Chief Justice of Indore State High Court.

On the basis of this will, Suleman and Abdul Hasan, members of Bohra community averred that Daudbhai bequeathed his properly to the Bohra community. Akbarali and Fatma Bai applied to the District Judge, Indore, for grant of succession certificate in respect of the debts said to be due to the deceased Daudbhai. This right to get the succession certificate was contested by Sleman and Abdul Hasan, members of the Bohra community. They also filed an application for grant of Letters of Administation with the will annexed, in respect of the estate of the deceased Daudbhai in the District Judge''s Court, Indore.

The learned District Judge dismissed the application for grant of Letters of Administration with the will annexed on the ground that the Indore Probate and Letters of Administration Act (No. 2 of 1929), under which the application was made, has been repealed as a result of coming into force of the Indian Succession Act in Madhya Bharat.

The application by Akbarali and Fatma Bai has now been granted for succession certificate in respect of Daudbhai''s debts on the condition that they would furnish security.

Abdul Hasan has come in appeal against this order.

Mr. Rege, learned Counsel for the Respondents however raises a preliminary objection that the order passed by the District Judge is not appealable u/s 384, Indian Succession Act (No. 29 of 1925). The first Sub-section of Section 384, which is material for the purposes of this appeal, runs as follows:

Subject to the other provisions of this part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct die District Judge. On application being made therefore, to grant it accordingly, in supersession of the certificate if any, already granted.

This section corresponds to Section 19 of Act No. 7 of 1889, and it was held in ''Bhagwani v. Mannilal'' 13 All 214 (A) that an order allowing grant of a succession certificate on condition of security being furnished is an interlocutory order and is not appealable for, it cannot be held to be an order "granting, refusing or revoking a certificate" within the meaning of Section 19, Succession Certificate Act (No. 7 of 1889) as the final order remains yet to be made by the District Judge, Mr. Rege places reliance on this ruling, and there is no doubt that it has been followed in several cases. See ''Nannhu Mal v. Gulabo'' 26 All 173 (B); ''Bai Devkore v. Lalchand'' 19 Bom. 790 (C).

Allahabad and Bombay view was however, dissented from by die Madras High Court in ''Venkatasami v. Chinna Narayana'' 5 Mad LJ 28 (D) and ''Ariya Pillai v. Thangammal'' 20 Mad 442 (E). It was also not followed in ''Radha Rani Dassi v. Brindabun Chundra Basack'' 25 Cal 320 (F) where the Judges held that the granting of a certificate with a condition that the applicant must give security is undoubtedly an order granting a certificate within the meaning of Section 19.

This view was also taken in ''Bai Nandkore v. Maganlal'' 36 Bom 272 (G) where it was held that an order granting the certificate upon the aplicant furnishing security is appealable in those cases where the question that has been decided is the right of the respective parties to the grant of a certificate. It was explained in this case that in the previous case of 19 Bom 790 (C) what was agitated was the question about the propriety of the order requiring security and not the right to get a succession certificate.

It will be obvious that the authorities bearing on the question are conflicting but to me it appears that the view taken by the Madras and Calcutta High Courts is more reasonable and sound. This view has also been adopted in 1908 in a ''Punjab Case ''Biri v. Barkhurdar'' 139 Pun Re. 1908 (H) where a Division Bench consisting of Rattigan and Lalchand JJ. discussed the matter thoroughly and delivered a learned and elaborate judgment which I am disposed to follow.

In the present Indian Succession Act (No. 29 of 1925), Part X deals with the Succession Certificate. Section 372 deals with the applications for certificates and in Section 373 is detailed the procedure to be adopted by the Court on receiving the application. Sub-section (1) of this Section says that if the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing to be served on any person to whom special notice of the application should be given and shall proceed to decide in a summary manner the right to the certificate. Sub-section (2) says:

When the Judge decides the rights thereto belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

Section 375 then, renders it obligatory in certain specified cases, and optional in Ors. , to take security as a condition precedent to the granting of certificate from the person to whom the Court proposes to make the grant. Section 376, then deals with the extension of certificate; Section 377 with die forms of certificate and extended certificate; Section 378 with amendment of certificate in respect of powers as to securities; Section 379 with the mode of collecting court-fees on certificate; Section 381 with the effect of the certificate; and Section 383 with revocation of certificate. It is after these sections that the right to appeal comes u/s 384.

It will be clear from these provisions that the order granting the certificate is to follow as a necessary and indispensable result of the favourable decision as to the right to the certificate and the real subject-matter of the appeal undoubtedly remains the decision of the lower Court as to the right to get the certificate. If the decision grants a certificate to a party, the aggrieved party is certainly entitled to file an appeal.

When the security is ordered to be taken, the order passed is an order granting the certificate conditional on security being filed. But the order does not by that reason cease to be an order "granting" a certificate. The order is an order granting the certificate as a necessary result of the decision as to right to die certificate, and I am clear in my mind that such an order must be held to be appealable u/s 384, whether it be an order granting the certificate subject to a condition or an absolute order un-incumbered with any condition.

We have only to see whether there is an order for grant of certificate and the circumstance that such, an order is absolute or conditional, in my opinion, appears to be immaterial for entertaining an appeal u/s 384. I am, therefore of opinion that the appeal is competent and that the preliminary objection should be overruled.

I order accordingly.