Maharaja of Jeypore vs Paturu Narayan Naidu and Another

Chatterji, J.—This is an appeal by the decree-holder from an order passed in an execution proceeding. The decree under execution was obtained by Maharaja Rama Chandra Deo on 16th March 1927 for rupees 17,041-10-8. He was the holder of an impartible estate called the Jeypore estate. On his death, Raja Sri Vikramdeo Varma Garu son of Krishna Chandra Deo Garu succeeded to the impartible estate and is now styled as the Maharaja of Jeypore. He took out execution of this decree in 1933. The decree was in respect of rent due under a contract for the lease of some Kusum trees for the production and propagation of lac.

There are two judgment-debtors and they took several objections to the execution, one of them being that the present decree-holder was not entitled to execute the decree without obtaining a succession certificate. The petition for execution was dismissed by the executing Court. On appeal to the High Court at Madras, the order was set aside and the case remanded to the trial Court for disposal according to law as against the second judgment-debtor only. The question whether a succession certificate was necessary was left open. When the case came back, the question as to whether a succession certificate was necessary was again raised. The learned Subordinate Judge held that succession certificate was necessary and by his order dated 13th December 1937, he directed the decree-holder to produce a succession certificate within two months from that date. Against this order the present appeal was preferred.

This appeal was originally heard by us at Cuttack on 11th February 1941 and we remanded the case to the lower Court for findings on two points : (1) whether what has been decreed is rent, and (2) whether that rent, if it be rent, is payable in respect of land. The Subordinate Judge has returned his findings (1) that what was decreed in favour of the decree-holder is rent in the sense of something being payable by the lessees to the lessor under or by virtue of a contract and (2) that the rent decreed is not payable in respect of land used for agricultural purposes. Section 214(1), Succession Act (Act 39 of 1925) inter alia, requires a succession certificate to be produced by "a person claiming on succession to be entitled to the effects" of a deceased decree-holder, if he wishes to execute against the judgment-debtor "a decree or order for the payment of his debt." Sub-section (2) of the Section provides:

The word ''debt'' in Sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.

No objection was filed against the findings under Order 41, Rule 26, Civil P.C. Mr. P. Misra, however, for the appellant, contends that the finding that the rent decreed is riot payable in respect of land used for agricultural purposes is not correct in law. The lease in question granted the lessees the exclusive right to propagate lac on five kinds of trees in certain areas for a period of five years. It is clean that the lease does not confer any right to the land. It is difficult to hold that the rent payable in respect of this lease is rent payable in respect of land used for agricultural purposes. I have no doubt that the finding of the Subordinate Judge on this point is correct. The next point taken is that the present decree-holder having succeeded to the estate by survivorship, no succession certificate was necessary. It is no doubt true that he succeeded to the impartible estate of Jeypore by survivorship; but here we are concerned with the decree for the arrears of rent due to the last holder of the estate. It has been held by the Privy Council that the income of an impartible estate is not an accretion to the estate and must be deemed to be the separate property of the last holder; see Jagadmba Kumari v. Narain Singh AIR 1923 P.C. 59 and AIR 1932 216 (Privy Council) . In the latter case their Lordships held that

moveable property cannot form an accretion to an ancestral impartible estate; even the income of an estate of that nature is not an accretion to it.

In Aparna Debi v. Shiva Prasad Singh AIR 1924 Pat. 451 a Division Bench of this Court held that

the right to recover arrears of rent which fall due during the lifetime of the holder of an impartible estate but which are not realized by such holder, passes to the latter''s heirs and not to the person who succeeds to the estate.

Upon these authorities it is clear that the arrears of rent in respect of which the decree was obtained did not form part of the ancestral estate, but were the separate property of the last holder. It is not disputed that if the arrears of rent were the separate property of the last holder, the decree obtained in respect thereof devolved not by survivorship but by inheritance on the present holder of the estate. Mr. P. Misra, however, argues that the arrears of rent were not in fact the separate property of the last holder and formed part of the impartible estate itself. But this position cannot possibly be maintained in view the aforesaid decisions. He relies on the decisions in Gur Pershad Singh v. Dhani Rai (11) 38 Cal. 182, Shiva Prasad Singh v. Beni Madhab Chowdhury AIR 1922 Pat. 529, Maharaja Bahadur Ram Ranbijaya Prasad Singh v. Parmatmanand Singh AIR 1938 Pat. 390 and Ram Ranbijaya Prasad v. Kesho Prasad Singh AIR 1938 Pat. 401. In the Calcutta case a bond was given to the holder of an impartible estate in lieu of arrears of rent. A suit on that bond was brought by the successor to the estate. It was held that the bond was a family debt accruing to the successor by right of survivorship and no succession certificate was necessary. Their Lordships proceeded on the footing that the debt due on the bond was a debt due to the joint family, but I have already pointed out that according to the decisions of the Privy Council the arrears of rent in the present case could not be regarded as part of the impartible estate. In the case in Shiva Prasad Singh v. Beni Madhab Chowdhury AIR 1922 Pat. 529 the question arose whether a person who succeeded to an impartible estate by survivorship was entitled to maintain an application under Order 84, Rule 6, Civil P.C., without obtaining a succession certificate. It was held that he was so entitled. The judgment proceeded on the ground that the mortgage which was the foundation of the application under Order 34, Rule 6 was part of the impartible estate. Moreover, it is well-settled that no succession certificate is necessary in respect of a debt due under a mortgage. This case therefore is of no assistance to the appellant. In Maharaja Bahadur Ram Ranbijaya Prasad Singh v. Parmatmanand Singh AIR 1938 Pat. 390 the facts were that the holder of an impartible raj obtained a decree for recovery of possession and for costs and on his death the successor to the raj applied for execution of the decree for costs without obtaining a succession certificate. It was held that the execution was maintainable without a succession certificate. The decision proceeded on the ground that

the decree for costs was itself a part of the estate being merely reimbursement for expenses incurred in conducting litigation for recovery of part of the estate.

Practically the same point arose in the later case in Ram Ranbijaya Prasad v. Kesho Prasad Singh AIR 1938 Pat. 401. Here also their Lordships proceeded on the footing that the decree for costs formed part of the impartible estate. In my opinion the decision of the learned Subordinate Judge is correct and I would dismiss this appeal with costs.

Dhavle, J.

I agree.