Zahur Main and Another vs Puran Singh and Others

Das, J.—This appeal arises out ox a suit instituted by the appellants to enforce a simple unregistered bound as against the respondents. The only defence taken in the written statement is that run consideration passed. This issue was decided against the defendants in the Court of first instance and that Court gave the plaintiffs a decree substantially as claimed : by them. The learned Judge in the Court below agreed with the finding of fact at which the Court of first instance had arrived, but that Court dismissed the plaintiff''s suit on the ground that the plaintiff did not obtain a succession certificate in respect of the debt due to his deceased brother who it appears was the co-partner of the appellant No. 1, Section 4 of the Succession Certificate Act undoubtedly lays down that no Court shall pass a decree against a debtor of a deceased person for payment of his debt except on the production of a succession certificate. But it will be noticed that the point was not taken in the Court of first instance. If the point had in fact been taken it would be a matter of no difficulty or the appellants to obtain a; succession certificate before the decree was I passed. It is well-established that the production of a succession certificate is not a condition precedent to the institution of a suit and that it is sufficient if it is produced at any time before the decree is made. That point not having been taken in the written statement, the plaintiffs did not apply for and obtain a succession certificate in respect of the debt due by the defendants.

In my opinion the learned District Judge should not have dismissed the plaintiffs'' suit on the ground which was for the first time taken in his Court, The procedure which should be adopted when a point is for the first time taken in the appellate Court is laid down in the case of Amman Kutti Gounden v. Appalu 29 Ind.Cas. 234. The learned Judge pointed out in that case that where an objection is taken for the first time in appeal that the suit should not have been decreed inasmuch as the plaintiff had not produced the succession certificate the suit should not be dismissed but opportunity should be given to the plaintiff to produce the certificate. This is the procedure which in my opinion should have been adopted by the learned Judge in the Court below, Mr. A.K. Roy on behalf of the appellants has now produced the succession certificate before us. We direct that that certificate be marked an exhibit in the case. That being clone all that I need say is that this appeal must be allowed and the decree passed by the Court of first instance restored. In the circumstances of the case there will be no order as to costs.

Boss, J.

I agree.