1922 (2) TMI 3 - HC - Indian Laws

Summary

Issues:
1. Whether the appellant could maintain the application without a Succession Certificate under Order XXXIV, Rule 6.
2. Whether the document relied upon by the appellant operated as a charge or a mortgage under Order XXXIV, Rule 6.

Detailed Analysis:

Issue 1:
The appellant applied for a decree under Order XXXIV, Rule 6, without a Succession Certificate. The appellant succeeded to the estate by survivorship, and it was contended that the estate being impartible, the appellant could only inherit it. The Judicial Committee's decision in Baijnath Prasad Singh v. Tej Bali Singh clarified that the selection of the successor in an impartible estate is governed by the general law, not by custom. The appellant acquired the estate by survivorship, making the Succession Certificate unnecessary for the application's maintainability.

Issue 2:
Regarding the nature of the document relied upon, distinguishing between a charge and a mortgage was crucial. In a charge, payment is from a specific fund without transferring the property, while a mortgage involves transferring an interest in specific immovable property. The document in question restricted the transfer of property until rent was paid, indicating a mortgage. Precedents such as Dalip Singh v. Bahadur Ram established the essentials of a mortgage, including an implied right to sell the property. The use of the term 'bandhak' in the document implied a mortgage, supporting the appellant's position.

In conclusion, the Court allowed the appeal, set aside the lower court's order, and remanded the case for determining the decree amount. The appellant was granted costs for the appeal, with costs from the lower court to be decided by the Subordinate Judge. Justice L.C. Adami concurred with the judgment.