JUDGMENT
Ryves and Piqqott JJ.
1. This appeal arises out of a suit for sale on a mortgage. The facts are as follows:
2. On the 21st of February, 1898, Megh Nath as manager of a joint Hindu family executed a mortgage of three biswas odd in mauza Bhojpur, in favour of Mihin Lal and Duli Ram, who advanced Rs. 600 each on the security of the said property. Both mortgagees are dead. Plaintiffs 1 to 4 are the surviving members of the joint family of which Mihin Lal was the head. Duli Ram died leaving surviving him, an adopted son, Gulab. Gulab died, leaving a widow, Musammat Bichitra Kunwar, as sole heir. She applied for and obtained a succession certificate under Act VII of 1889, enabling her to realize cue amount due to Gulab under the mortgage. This debt was the only one specified in the certificate, and it is to be noted that Musammaf Bichitra Kunwar alone was entitled to it. She, however, assigned her mortgagee rights to three persons and, at the same time gave them the certificate she had received. These three persons are plaintiffs 5 to 7. The defendants are Megh Nath, his son Rang Lal, and a minor grandson. Musammat Bichitra Kunwar was also cited as a pro forma defendant.
3. Rang Lal alone defended the suit. The only part of the defence that need now be considered relates to Musammat Bichitra Kunwar’s alleged incapacity to assign the mortgagee rights of Duli Ram. This incapacity was based solely on the allegation that Gulab was not the adopted son of Duli Ram.
4. Both the lower courts have found against the defendant on this point and have decreed the suit.
5. The only point pressed in this appeal before us is that Section 4 of the Succession Certificate Act is a bar to plaintiffs 5 to 7, obtaining a decree, because they had not obtained a certificate under that Act.
6. This line of defence was not taken in the written statement, but in disposing of the issue as to whether Musammat Bichitra Kunwar was Duli Ram’s heir, the first court held that as she had obtained a succession certificate “in respect of Duli Ram’s share in the mortgage in suit, apart from anything else, it entitled her to recover the debt from the defendants . . . I hold that in the first place it is proved that Gulab was the adopted son of Duli Ram, and secondly the succession certificate filed by the plaintiffs (5 to 7) in favour of their vendor is a sufficient authority for them to maintain the suit.” As both these findings were attacked in appeal to the court below, the appellant is entitled in second appeal to raise the question whether the Succession Certificate Act prevents plaintiffs 5 to 7 from obtaining a decree.
7. Two cases have been cited in support of the appeal. Karuppasami v. Pichu (1891) I. L. R. 15 Mad. 419. and Allahdad Khan v Sant Ram (1912) I. L. R., 35 All., 74. In the first case, the head note runs:” One Suppamal lent a sum of money to the defendant and died leaving an adopted son, who assigned the debt to the plaintiff. Neither the plaintiff nor his assignor obtained a certificate under Act VII of 1889. The plaintiff now sued to recover the amount of the assigned debt.
8. Held, that the plaintiff was not entitled to recover, no certificate having been obtained under Act VII of 1889.”
9. In the present case a certificate under the Act had been obtained by the assignor, and it was produced by the assignee plaintiff. This fact distinguishes the Madras case.
10. In the second case, one Bahadur Khan, the mortgagee, died leaving a number of heirs. Of these, one Farzand Ali obtained a succession certificate for the collection of the mortgage debt due to Bahadur Khan. Farzand Ali subsequently assigned the mortgage debt to Sant Ram, together with his right to sue for the same, and made over to the assignee the succession certificate which be had obtained. Sant Ram brought a suit on the strength of that assignment for enforcement of the mortgage. A Divisional Bench of this Court held that the suit was not maintainable. In this case also the facts are different from the present case. There one heir, out of several, obtained a certificate to collect a debt due to all the heirs. This certificate gave him a personal right to sue; and such a right is expressly declared to be incapable of transfer. [Section 6 (e) of Act IV of 1882], Besides Farzand Ali was only entitled to part of the mortgage; he could not therefore assign the whole mortgage debt. The actual decision of the case then does not help the appellant. There are, however, certain observations of the learned Judges in their judgment which do support his contention. They say: “The Act does not in so many words say that the certificate must be one in favour of the plaintiff, bat we think that that is the meaning of the provision. The declared object of the Act is to facilitate the collection of debts on successions and to afford protection to parties paying debts to the representatives of deceased persons. Section 16 of the Act protects a debtor of a deceased person who pays a debt in good faith to the person to whom the certificate was granted. An assignee of the person to whom the certificate was granted does not appear to come within the section. From this it would appear that the person to sue for the debt is the person to whom the certificate was granted.”
11. With all respect to the learned Judges concerned, we think that in these remarks they went beyond what was necessary for the decision of the particular case before them, and we are unable to concur in the line of reasoning adopted. They had before them a plaintiff with a defective title: he was suing to collect the whole of a certain mortgage debt on the strength of a transfer from the owner of a part only of the mortgagee rights. He claimed that this defect was cured by the fact that his tranaferor had received a certificate for the collection of the entire debt: the learned Judges rightly point out that Section 16 of the Succession Certificate Act (No. VII of 1889) protects a debtor who makes a payment to the holder of a succession certificate, but contains no provision extending such protection to a transferee from such holder. We have also ventured to point out that the right to sue for the entire debt conferred by a succession certificate is a personal right which is not transferable apart from the ownership of the debt itself. These considerations are quite sufficient to justify the decision in the reported case. In the case now before us, however, we must hold on the findings arrived at in the court below that Musammat Bichitra Kunwar was the owner of the entire mortgage debt, and she had a right of transfer in respect of this ownership: Vide Durga Kunwar v. Matu Mai (1918) I. L. R. 35 All 811. The facts of that case were very much on all fours with those now before us, and it is curious to note that the right of the transferee from the widow to maintain a suit was there affirmed, without any question being raised as to a succession certificate having been obtained either by the widow or by her transferee. The present case is a much stronger one The only point taken before us is that the suit is barred, as regards the plaintiffs Nos. 5 to 7, by the provisions of Section 4 of Act VII of 1889, because they are unable to produce a succession certificate for the collection of their share of the mortgage debt. The answer is that they have produced such a certificate, duly granted to Musammat Bichitra Kunwar, and made over to them by that lady when she transferred to them what she bad a perfect right to transfer, viz., her ownership in respect of a share of the debt itself. We are at least doubtful whether these plaintiffs could legally have obtained a succession certificate in their own names. They certainly could not have done so without first obtaining an order for the cancellation of the certificate already granted to Musammat Bichitra Kunwar. We do not believe that the Legislature in enacting Act No. VII of 1889 intended either to take away from the holder of a succession certificate any right of transfer he might possess in respect of the corpus of the debt itself, or to require that any such transfer should necessarily be followed by a revocation of the succession certificate already granted and the collection of fresh fees upon the grant of a second one in favour of the transferee.
12. We hold, therefore, that this suit is maintainable as It stands, and we dismiss this appeal with costs.
