Nemdhari Roy vs Mussummat Bissessari Kumari, through her Manager Mr. T. W. Tweedie

This is an appeal against a decision of the District Judge of Bhagulpure, dated the 23rd June 1896. The suit was brought Against the Defendant on a bond, in which the Defendant had admitted at the time of its execution that 10 owed certain amount of money, are in which he promised payment. Subsequently, lie hypothecated certain property as security. That document was not registered. The defence was first, that the document had never been executed; secondly, that as it was not registered, the Plaintiff could not sue on it; and, thirdly, that he could not get a decree without a certificate under the provisions of the Succession Certificate Act. There is no doubt, as the lower Appellate Court finds that the document was executed; but not being registered it cannot operate as a mortgage-bond. But in this case it goes a great deal further: further he admitted in the bond that he owed the money, and, secondly, he promised its repayment; and subsequently on his failure to pay on a certain date, he stipulated that the money might be recovered by the sale of the hypothecated property. The two stipulations arc quite separate and distinct. We cannot see why the Plaintiff cannot sue on the ground of his promise to pay.

Then, it is said that under the Succession Certificate Act production of a certificate is a condition precedent on the Plaintiff''s getting a decree; and it has been argued that under that Act the word '' debt'' has the ordinary meaning, namely, that which a man borrows from another. We think that it is not so. In law we know two kinds of debts : debts which have accrued due, and debts not accruing due, but which will be due. Now the Succession Certificate Act refers only to such debts as the deceased could sue upon. The debt in this case has fallen due since the death of the deceased. We, therefore, think that the learned Judge was quite right in holding that no certificate was necessary for bringing a suit by the Plaintiff for the realization of this debt. We dismiss the appeal with costs.