Hafiz Mahomed Ali Khan and Others vs Janaki Ballav Sen and Another

McDonell and Beverley, JJ.—Now the first point taken in appeal is that this order of the lower Court is wrong. It is contended that u/s 2 of Act XXVII of 1860, no decree should have been made without production of a certificate, especially as the plaintiffs had failed to establish that they were the sole heirs of Sadat Ali.

In making the order referred to, the Subordinate Judge has relied on the case of Luchmin v. Gunga Pershad ILR All. 485 but that decision only goes so far as to lay down that in certain exceptional cases, provided for by the Statute, a suit may be instituted and decreed without the production of a certificate. In the case of Hati Lall v. Hurdeo ILR All. 212 it was similarly held that a certificate was not imperatively necessary in every case before the execution of a decree could be taken out, but that when the judgment-debtor objects to the title of the person claiming to execute the decree, the Court should consider whether the objection is bond fide or vexatious. It is not alleged that in the present case payment is being withheld from fraudulent or vexatious motives. In the case of Tarini Pershad Ghose v. Gungadhur 6 W.R. Mis. 34 it was held that the production of a certificate was necessary before a decree in favour of a deceased person could be executed by a person claiming to be his heir. In the case of Shodone Mohaldar v. Halalkhore Mohaldar ILR Cal. 645 the guardian of a minor sued to recover upon a bond which he alleged had been devised to the minor by the deceased, and it was held that such a suit would not lie unless probate of the will were taken out, or unless the guardian had obtained a certificate under Act XXVII of 1860. In that case it was distinctly held that the Subordinate Judge was wrong in making a decree, such as has been made in this case, that is to say, a decree coupled with a condition that it shall not be executed without the production of a certificate.

In Chunder Coomar Roy v. Gocool Chunder Buttacharjee ILR Cal. 370 a similar view was held, though an expression of opinion was at the same time thrown out, that possibly a suit might be instituted before a certificate was actually obtained, if such certificate was subsequently produced at the trial.

Rulings to this effect are to be found in Ramakristna Moodelly v. Soobraya Gramany 6 Mad. Jur. 262 and Govind Appah v. Kondappah Sastrulu 6 Mad. H.C. 131.

The result of these decisions, we think, is that where payment of a debt is not being withheld for fraudulent or vexatious motives, but from a reasonable doubt as to the party entitled, the plaintiff is bound to produce a certificate under Act XXVII of 1860 before he can obtain a decree or execute a decree already obtained by the deceased, though he may institute his suit or apply for execution without such a certificate, provided it is filed before decree or before execution issues.

In the present case, then, the order of the lower Court would appear to be technically wrong; but we should not be prepared to set the decree aside, or dismiss the suit on this ground alone.

[The decree of the Subordinate Judge was eventually set aside on the merits of the case, and on this ground, and the case remanded for further enquiry.]