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Kerala High Court
Madhavan Mony vs C. Sarasamma Amma And Ors. on 13 October, 2000
Equivalent citations: AIR 2001 Ker 35
Author: K M Shafi
Bench: K M Shafi


ORDER

K.A. Mohamed Shafi, J.

1. The defendant in O. S. No. 750/1984 on the file of the Munsiffs Court, Quilon is the appellant. The decree and judgment passed by the District Court, Quilon dated 27-9-1989 in A.S. No. 134/ 1987 reversing the decree and judgment passed by the trial Court is under challenge.

2. The respondents filed the suit against the appellant for realisation of Rs. 7000/-with interest as per a pro-note executed by him in favour of late Achuthan Pillai, the husband of the 1st respondent and father of the other respondents. The trial Court though found that the appellant is liable to pay the amount claimed in the suit, dismissed the same on the ground that as the respondents who are the legal heirs of deceased Achuthan Pillai failed to produce succession certificate in the suit, the above suit is not maintainable.

3. The respondents produced succession certificate before the appellate Court in the appeal preferred by them against the decree and judgment passed by the trial Court. In view of the production of the succession certificate in the appeal, the lower appellate Court found that there is no reason to dismiss the suit and the respondents are entitled to a decree as prayed for. Hence the lower appellate Court decreed the suit in favour of the respondents.

4. The only substantial question of law that arises for consideration is whether the lower appellate Court has committed grave illegality in holding that the plaintiffs are entitled to get a decree as prayed for since they have produced the succession certificate in appeal and whether the production of succession certificate at the appellate stage for the first time can be given retrospective effect.

5. The fact that the respondents are the legal representatives of deceased Achuthan Pillai in whose favour the appellant has executed the suit pro-note is not in dispute. Both the Courts below have repelled all the contentions raised by the appellant alleging material alteration in the pro-note, barred by time etc. and concurrently found that the appellant is liable to pay the amount due under the suit pro-note with interest. The appellant has contended that under Section 214(1)(iii) of the Indian Succession Act the respondents are bound to produce the succession certificate granted under Part X of the Act specifying the debt due from the appellant in the succession certificate before the trial Court and since admittedly the respondents have not produced the succession certificate before the trial Court, the suit for realisation of money due to the deceased Achuthan Pillai on suit pro-note is not maintainable and the trial Court is perfectly justified in dismissing the suit as not maintainable. According to him, the lower appellate Court without considering the settled position of law on the point reversed the judgment passed by the trial Court on the sole ground that the respondents have produced the requisite succession certificate during the pendency of the appeal. According to him, the production of succession certificate in appeal has no retrospective effect and the dismissal of the suit for non-production of the succession certificate by the trial Court stands and therefore, the finding of the trial Court has to be upheld reversing the judgment of the appellate Court. In support of the contention that the production of the succession certificate at the appellate stage will not entitle the respondents to a decree for realisation of the amount due under the suit pro-note in this case, the counsel for the appellant relied upon various rulings.

6. In the decision in Kasumari Das v. Makku, AIR 1927 All 227 a Division Bench of the Allahabad High Court relying upon the decision in Fetch Chand v. Muhammad Bakhsh (1894) ILR 16 All 259 by a Full Bench of that Court held that when the plaintiff fails to produce the succession certificate issued under the Succession Act within the time allowed by the Court and the suit is therefore, dismissed by the trial Court, he cannot by obtaining a succession certificate at the appellate stage claim to have retrospective effect to the succession certificate.

7. In the decision in Madhab Prosad v. Dutta Thapa, AIR 1951 Assam 142 the Assam High Court held that by producing succession certificate in the High Court for the first time in revision the plaintiff cannot claim retrospective effect for the succession certificate after the suit was dismissed by the trial Court as well as the appellate Court for non-production of the succession certificate.

8. In the decision in Raman Namboodiri v. Chaldean Syrian Bank Ltd., 1959 Ker LT 702 : (AIR 1960 Kerala 84) a Division Bench of this Court has observed as follows ;

“5. Now Section 214 of the Indian Succession Act (39 of 1925} forbids among others, the passing by a Court of a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, except on production by the person so claiming of a succession certificate granted under Part X and having the debt specified therein. This section has been held to be mandatory. So much so, a Court cannot pass a decree against its terms even if it is otherwise satisfied that the plaintiff is the real heir or the successor of the deceased. A conditional decree directing the production of a certificate before the execution of the decree has even been held to be illegal. And if the succession certificate is not produced before the decree and after an opportunity is given to the plaintiff, the only order the Court can pass upon the suit is to dismiss it.”

9. It is clear from all the above decisions that in all those cases the plaintiff who failed to produce the succession certificate during the pendency of the suit was given an opportunity to produce the succession certificate by the trial Court after passing the decree and the plaintiff having failed to produce the same before the trial Court within the time granted for production of the succession certificate, produced the succession certificate either before the appellate Court or the revisional Court. Under such circumstances in the above rulings it was held that the production of the succession certificate after the expiry of the time granted by the trial Court to produce the same, before the appellate Court or the revisional Court will not have retrospective effect.

10. In the decision in Muralidhar Roy Chowdhury v. Mohini Mohan Kor, AIR 1915 Cal 837 a Division Bench of the Calcutta High Court held that a party who fails to produce the necessary succession certificate in the Court of first instance, should be permitted to do so by an appellate Court on payment of costs for non-production of the certificate in the Court of first instance.

11. In the decision in Kalyansa v. Tulsabai, AIR 1931 Nagpur 181 the Nagpur High Court held that the Court may refuse to pass a decree against a debtor of a deceased person for payment of his debt except by production of probate or succession certificate as the case may be but it cannot dismiss the suit unless time was granted expressly for the purpose of producing the certificate and it was not produced.

12. In this case there is no contention for the appellant that the respondents did not produce the succession certificate even though time was granted by the trial Court, within the stipulated time and they produced the succession certificate only before the appellate Court and therefore, the succession certificate cannot have retrospective effect. It is not disputed that at the time when the suit was disposed of by the trial Court the proceedings initiated by the respondents for the issuance of succession certificate was pending before the same Court, though the succession certificate was not issued at that time in favour of the respondents. It is clear from the judgment passed by the trial Court that the trial Court did not consider it necessary to give time to the respondents to produce the requisite succession certificate to establish that they are entitled to recover the debt due to the deceased either before or after the disposal of the suit. Therefore, in view of the above decisions of the various High Courts and this Court the trial Court should have given an opportunity to the respondents to produce the succession certificate within a stipulated time and in case they failed to produce the succession certificate within the time allowed by the trial Court and produced the same only before the appellate Court, the respondents could have been non-suited for non-production of the succession certificate as contemplated under Section 214 of the Succession Act. Therefore, considering the facts and circumstances of the case, the succession certificate produced by the respondents before the appellate Court in this case cannot be discarded having no retrospective operation, even on the basis of the rulings relied upon by the counsel for the appellant.

13. In view of the fact that the trial Court dismissed the suit without giving an opportunity to the respondents to produce the succession certificate before that Court, the acceptance of the succession certificate in this case by the appellate Court when it was produced in appeal, is perfectly justified and the judgment passed by the lower appellate Court reversing the judgment passed by the trial Court in this case is perfectly in accordance with law and no interference with regard to that finding of the appellate Court is called for in this appeal.

Hence the judgment and decree passed by the lower appellate Court in reversal of the judgment and decree passed by the trial Court are confirmed and this Second Appeal is dismissed. Considering the peculiar circumstances of the case I direct the parties to bear their respective costs.


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