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TMI Blog1999 (4) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... counter-affidavit and it may be decided finally on the basis of the material available on record. Accordingly, I proceed to decide the writ petition on merits at this stage. 3. One Swaminath son of Gokul was an employee in the Railway Department and at the relevant time, was posted at Gonda. He died on 25.12.1978. After his death, respondent No. 3 Smt. TIrtha filed an application for issue of succession certificate in order to get payment of various dues on account of Provident Fund, Compulsory Deposit, Life Insurance, arrears of pay, Death-cum-retirement Gratuity etc., totalling to Rs. 22.932.90 p. The petitioner admittedly is the grandson of the real brother of the father of Swaminath and thus is real cousin nephew of the deceased. He filed an objection challenging the status of respondent No. 3 on the ground that she was not the widow of the deceased Swaminath as she was married to one Shankar son of Kalpanath and after his death, she contracted a Sagai marriage with Chetu, brother of her earlier husband Shankar. After the death of Chetu, she is living with her parents. According to the petitioner, real wife of the deceased was Smt. Ramrani who left him during his life time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was moved, do not fall within the ambit of the expression 'security'. The moot point for consideration is whether the items, mentioned above, fall within the purview of the expression 'debt'. Learned counsel for the petitioner placed reliance on the decision of the Calcutta High Court in Assam Bengal Railway Co., Ltd., Chittagong v. Atul Chandra Sen. AIR1937Cal314 . In which it was held that the Provident Fund of an employee in deposit with the Railway company is not debt or security, as mentioned in Section 381 of the Act and, therefore, a succession certificate cannot be granted for the release of Provident Fund. A Division Bench of the Calcutta High Court in the said case observed as follows : We are however clearly of opinion that Section 381 has no application to the present case because the subject-matter of the suit with which we are here concerned was not under the law a debt. Nor can it be said that the Railway Company made any payment in respect of a debt or security. The real position of the Railway Company, or more accurately of the Railway Company's Provident Fund Institution was that it was in a sense a trustee (in one sense) of this fund on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming Provident Fund money of any subscriber after his death to receive the money, the Provident Funds Act itself envisages that a succession certificate may be issued by the Court in respect of Provident Fund money. Section 5(2) of the Provident Fund Act lays down that notwithstanding anything contained in the Indian Succession Act. 1925, any person, who becomes entitled to, as aforesaid, may be granted a succession certificate under that Act entitling him to receive payment of such sum or part and such certificate shall not be deemed to be invalidated or superseded by any grant to any other person of probate or letters of administration to the estate of the deceased. In view of this provision, it was held that under the Provident Funds Act, a succession certificate can be obtained in certain contingencies. As regards issue of succession certificate in respect of amount of insurance which became payable consequent upon the death of Swaminath, it was urged by learned counsel for the petitioner that there is a specific provision in sub-section (5) of Section 39 of the Insurance Act. 1938. It reads as follows ; (5) Where the policy matures for payment during the life time of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until it is declared. The word 'debt' as used in Section 60. C.P.C. must be confined to a debt in ordinary sense of the word, that is to say, an existing debt. It involves (a) an obligation incurred by the debtor, (b) a liability on the part of the debtor to pay for that obligation at a certain date. Until that obligation has been fully incurred, there is no debt. Moneys due from an Insurance Company under a policy of insurance are 'debts' within the meaning of Section 4 of the Succession Certificate Act and a succession certificate may be granted in respect of such moneys. 'Debt' includes any liability for a cash payment on account of net cash and compensation for equalization of shares under partition decree. 8. The meaning of the word 'debt' came to be considered by the Apex Court, though in a different context. In the case of Kesoram Industries and Cotton Mills Ltd. v. Commissioner of Wealth Tax (Central). Calcutta [1966]59ITR767(SC) , the position has been summarized as below : We have briefly noticed the judgments cited at the Bar. There is no conflict on the definition of the word 'debt'. All the decisions agree that the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of the expression 'debt'. These amounts are payable on account of the services rendered by the deceased employee, contributions and deductions made from his salary and the wages which were actually earned by him. The amounts under the aforesaid categories are obviously in the form of debts in the hands of the employer and, therefore, they are covered by the provisions for issue of succession certificate contained in Chapter X of the Act. It would not be out of context to point out that the succession certificate merely authorizes the party in whose favour grant has been made to give full discharge of liability to the employer debtor. It, however, does not confer any title to the person in whose favour the grant has been made. Such a right can always be, established in proper proceeding in a Court of law. The submission of the learned counsel for the petitioner that the various items in respect of which application for issue of succession certificate was moved, was not maintainable for the reasons stated above, is not acceptable. 12. The second submission of the learned counsel for the petitioner is equally vague and unsustainable. It was urged that the Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he territorial jurisdiction was not taken. It appears that the question of jurisdiction was raised for the first time during the course of argument before the appellate court. The appellate court has negatived the plea of Jurisdiction on the ground that it was never taken before the trial court or in the memo of appeal. Learned counsel for the petitioner urged that the plea of jurisdiction can be raised at any stage. in support of his contention, he placed reliance on the decision of the Apex Court in the cases of State of V. P. and others v. Dr. Anupam Cupta. 1992 (2) UPLBEC 1288 and Chiranji Lal Sri Lal Goenka v. Jasjit Singh 1993 12) CRC 991. There can be no quarrel about the proposition of law that a new plea on pure questions of law, even if not raised earlier, can be permitted to be raised subsequently. Both these decisions pertain to inherent lack of jurisdiction. in a case where territorial jurisdiction of the Court is challenged, a specific plea is to be taken which is required to be supported by evidence. In the instant case, if the petitioner had initially taken the plea that the Civil Judge (Junior Division). Basti had no jurisdiction to entertain the application for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for petitioner placed reliance on the decision of the Apex Court in the case of Santenu Mitra v. State of West Bengal 1998 All JIC 68, in which it was observed that once the entry was recorded by an official in the performance of his duties, it cannot be doubted on the mere argument that it was not contemporaneous with the date of suggested date of birth of the appellant, A reference was also made to a decision of this Court in Rajendra Kumar and others v. Lala Shree Chand Jain and others 1998 (89) RD 636, to support the contention that though a writ court is not competent to reverse finding of fact of the Courts below, it can do so if the finding recorded by the Courts below are perverse or based on no evidence or are unreasonable and are vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter. The above observations were made in an entirely different context and set of facts. in the instant case, there is overwhelming evidence on record that the respondent No. 3, was the widow of the deceased Swaminath. The entry made in the family register omitting the name of the respondent No. 3 as wife of the deceased Swaminath is not suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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