Prankisto Biswas vs Nobodip Chunder Biswas And Anr. on 4 May, 1882

Calcutta High Court
Prankisto Biswas vs Nobodip Chunder Biswas And Anr. on 4 May, 1882
Equivalent citations: (1882) ILR 8 Cal 868
Author: Mcdonell
Bench: Mcdonell, Field


McDonell, J.

1. This is an application for a certificate under Act XXVII of 1860. The two petitioners, and the objector Prankisto Biswas, are, as the Judge says, admittedly in the same degree of affinity to the deceased, Bunshi Dhur; and prima facie therefore they would inherit equally. But Prankisto Biswas contends that he is entitled to have the whole property,-first, on the ground of reunion; secondly, on the ground of a verbal gift; and thirdly, on the ground of adoption.

2. It is urged before us that Prankisto Biswas merely said that he was a palak-pootro and did. not set up adoption; but in the view we take of the case, it is unnecessary to enter into this matter.

3. The Judge, having examined one of the witnesses on the 17th December, adjourned the case till the 23rd December for the examination of the remaining witnesses cited by Prankisto Biswas; but on the 19th December he disposed of the case without examining these other witnesses. We think that this mode of proceeding was unfortunate, because it enables Prankisto Biswas to come up here in appeal, and say that the case has been decided without hearing his witnesses.

4. The object of Act XXVII of 1860, as has been pointed out in many cases decided by the Court, is not to enable parties to litigate questions of disputed title. The object of the Act is clearly stated in the preamble, and is two-fold,-first, to enable debtors to pay the debts due by them with safety to the representatives of deceased Hindus, &c.; and secondly, to facilitate the collection of such debts by removing all doubts as to the legal title to demand and receive the same. In other words, the objects of the Act are to enable debtors to get sufficient acquittance when they pay money due to the estate of a deceased; and to preserve that estate from loss by giving some one the right to collect the debts lest they should be lost, e.g., by the operation of the law of limitation or otherwise. This latter object is also contemplated by the provision that security is to be taken from the person who obtains the certificate. In effect, the holder of the certificate is a trustee, liable to account for the moneys received by him to the legal heir or representative of the deceased.

5. Now, in this case, we think that if the Judge, having pointed out that both parties were prima facie equally entitled had stopped there and declined to enter into the question of title raised by Prankisto Biswas, referring him to a Civil Court for the decision of that question, and saying that the object of the Act would be sufficiently attained by granting a general certificate to the parties, there would have been no ground of objection against the proceeding of the District Judge. But the District Judge did not do this: he entered into the title set up by Prankisto Biswas, and expressed his views thereupon. We think that, as he did not hear all the evidence which Prankisto Biswas was prepared to produce, this course was not fair to Prankisto Biswas: and it is now with some reason contended before us, that from the fact of the Judge having expressed his opinion upon Prankisto Biswas’s title, it may be, that when that title comes in question in a Court having jurisdiction to deal there with, the Judge’s observations may operate to influence the mind of the Judge of the Court.

6. Admitting the reasonableness of these arguments, we think, that the interests of justice will be sufficiently met by striking out and setting aside all that portion of the District Judge’s judgment in which he discusses or remarks upon, or may be supposed to have expressed any opinion as to, the exclusive title set up by Prankisto Biswas.

7. We do not think that this is a case in which we ought to give costs to either party.

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