9911796707
TMI Blog1938 (8) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... for payment and his widows claiming to represent his estate, being according to the plaint his only heirs, instituted this action to recover the debt on June 1, 1933. It was alleged that the hundi was dishonoured in May, 1933, when it was presented for payment to the drawee one Mallaya Ramayya of Bombay, and that it being a collateral security for the debt, the suit was instituted on the original transactions represented by the loan found due when the account was stated. The plaintiffs alleged that there were acknowledgments by the defendants in 1930 and 1931 which saved limitation. The contentions of the defendants were that the plaintiffs did not represent the estate of the deceased Sayed Harun, there being other heirs alive, namely, his daughter and nephews; that as this was an action on a debt, no decree should be passed without a succession certificate or letters of administration to the estate; that the non-presentation of the hundi, for which the only consideration was the debt, within a reasonable time amounted to a discharge of the entire liability; and that the claim was time-barred. 2. It may be noted that during the progress of the suit in February, 1934, the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir having done so in the usual course of business. That omission was certainly not due to inadvertence and was obviously due to the circumstance that they were indebted to Mallayya on the date in question. The suggestion that the hundi was passed with the intention of satisfying a part of the debt is incompatible with the defendants' conduct in subsequently acknowledging the debt and paying interest thereon. In two letters of June 17, 1930, and June 29, 1931, which we hold were written under the defendants' directions, the latter undertook to pay the amount as soon as it was received by them from their other customers and after their business became more steady. Those letters bear no reference to the balance of ₹ 295 after the hundi was passed. The letter of June, 1931, was written after that balance was fully paid. It is unreasonable to assume that Sayed Harun, a businessman, would for no assignable reason keep the hundi in his office unpresented. The irresistible inference is that that conduct was the result of some arrangement, particularly when till 1932, as admitted by the defendants, the balance of ₹ 12,000 was shown as outstanding against them to the cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completely and fully represented by his widows in the absence of other heirs of Sayed Harun ; and, secondly, that this being a suit for the recovery of a debt through Court due to the estate of the said Sayed Harun, no decree against the debtor could be passed except on the production, by the person claiming to be entitled to the debt, of a probate or letters of administration or a succession certificate, showing his title to represent the estate. 6. On the first part of the defence, the decisions of our Courts are somewhat inconsistent and not uniform. We were referred to several authorities showing conflict of view in regard to the right to represent the estate of a deceased Mahomedan by some of his heirs. Those authorities dealt with suits instituted by creditors themselves against only some of the heirs of a deceased Mahomedan debtor. The view of the Calcutta High Court as expressed in Muttyjan v. Ahmed Ally I.L.R. (1882) Cal. 370 was that any creditor of a deceased Mahomedan could sue any one of the heirs in possession of the whole or any part of the estate, without joining the other heirs, and that in that suit he could claim not only the defendant's share of the debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Mahomedan law each heir inherits a separate and distinct share and that the theory of representation is unknown to the Mahomedan law, or in other words one heir does not represent the other heirs-(see Dallu Mal v. Hari Das I.L.R. (1901) All. 263 and Manni Gir v. Amar Jati I.L.R. (1935) All. 594. It is obvious ' that if the estate vested immediately on the death of a Mahomedan in each of his heirs in proportion to his share according to the Mahomedan law on account of several inheritance, the theory of representation can have no place. A third ground in support of that view might be found in some of the cases where the question of representation has come up for decision. In Ahinsa Bibi v. Abdul Kader Saheb I.L.R. (1901) Mad. 26 the question did not directly arise for the Court was dealing with the question of discharge of the promisor by payment or offer to some of the promisees. The following observations however in regard to the indivisible character of the right or interest acquired upon legal devolution of the estate of the deceased on his heirs are interesting (p. 35): When a right accruing to a single person from a covenant in his favour devolves, on his death, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable to Mahomedans as was done in Khurshetbibi v. Keso Vinayek where the theory of substantial representation derived from Hindu law was applied to Mahomedans. Such an application the Court thought was opposed to the principle underlying the decision of the full bench in Isap Ahmed v. Abhramji Ahmadji I.L.R. (1917) 41 Bom. 588 : S.C. 19 Bom. L.R. 579. It may be noted that the case of Davalava v. Bhimaji Dhondo was expressly referred to and discussed. The theory put forward that creditors' suits against the heirs in possession should be regarded as administration suits binding on all the heirs was expressly discarded on the authority of Jafri Begam v. Amir Muhammad Khan I.L.R. (1885) All. 882. The case of Khiarajmal v. Daim I.L.R. (1904) Cal. 296 : L.R. 32 IndAp 23 7 Bom was also referred to as showing that the special rule as to representation by managers of joint families of Hindus could not be applied to a case where a creditor of a deceased Mahomedan sought to recover his debt from some of the heirs of the deceased. It is therefore clear upon the recent decisions of this Court, the abstract ratio decidendi of which binds us, that a creditor of a deceased Mahomedan cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims to be interested in a suit and wants to be added as a party, the Court would not ordinarily without the concurrence of the plaintiff make him a party. We do not find fault with the rejection of the application to add parties in view of the attitude of the plaintiffs. It appears however that after the appeal was filed by the defendants, one of the plaintiffs died and as her legal representatives the remaining heirs of the deceased Sayed Harun have been made co-respondents to this appeal. But even the fact that all the heirs are represented in the appeal does not solve the initial difficulty due to the want of certificate of representation obtained in proper form as required by Section 214 of the Indian Succession Act. That section deals with the recovery of a debt through Court due to a deceased Mahomedan, and according to its provisions such a suit is barred unless the claimant produces a certificate granted under Section 31 or Section 32 of the Administrator-General's Act, 1913, or a succession certificate granted under Part X of the Indian Succession Act, 1925, or a certificate granted under the Succession Certificate Act of 1889, and having the debt specified therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. In Gulshan Ali v. Zakir Ali I.L.R. (1920) All. 549 the Court observed that there was no provision of law which required that a certificate must be filed along with the plaint, and that an opportunity should be given to the plaintiffs for obtaining and producing one. With respect we agree with that view. In the circumstances of this case, and having regard to the fact that an earlier attempt was made by the other heirs in February, 1934, to be brought on the record when the claim was not barred by time, the plaintiffs we think should be given an opportunity to remove the defect resulting from the omission to produce a certificate. It is manifest that the lower Court in passing a decree upon this action for debt due to the estate of a deceased Mahomedan without a certificate acted without jurisdiction. We therefore set aside that decree and remand this case to the lower Court for passing a fresh decree for the plaintiffs if they produce a certificate of representation to the estate of the deceased Sayed Harun, within six months from the date of the receipt of the papers by the lower Court. On failure to furnish such a certificate within the time allowed, the suit shall be dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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