Madras High Court
V. Somasundaram vs S. Thirupurasundari And Ors. on 24 February, 1988
Equivalent citations: (1988)1MLJ248
JUDGMENT Sathiadev, J.
1. Defendant in O.S. No. 146 of 1979 on the file of this Court is the appellant, and plaintiffs 2 to 8 are the respondents herein. First plaintiff died during the pendency of the suit, and his legal representatives have come on record as plaintiffs 2 to 8.
2. This appeal is preferred against an order dated 24.4.1987 passed in Application No. 821 of 1987 confirming the order dated 18.2.1987 passed by the Master in Application No. 4389 of 1986 in E.P. No. 80 of 1985 in C.S. No. 146 of 1979. Late Somasundaram filed the suit for recovery of a sum of Rs. 15,00,000 with interest against the defendants/Appellant herein, and during the pendency of the suit, he died in October, 1981, and therefore, his widow, son and daughters have come on record as his legal representatives, and thereafter the suit was decreed on 30.4.1983, on merits. They filed E.P. Nos. 110 of 1983 and 80 of 1985, and the appellant paid Rs. 1,00,000. It is thereafter the appellant filed Application No. 4389 of 1986 to dismiss the execution petitions, on the ground that it is obligatory on the part of the decree-holders to file the Execution Petition along with Succession Certificate, and having failed to file such a certificate, the decree itself being a nullity, it cannot be any longer executed.
3. Plaintiffs claim that they having been brought on record in the suit itself, and having been passed in their favour, and as no appeal had been preferred against the decree, at this stage by filing the present applications, defendant cannot take a different stand from what had been already taken in the two E. Ps. and as Section 214 of the Indian Succession Act (hereinafter referred to as the Act) would not apply to the facts and circumstances of the present case, the application filed by defendant, is liable to be dismissed.
4. Several decisions have been placed before the Master and again before the learned Judge and aggrieved against the concurrent order passed holding that the non-furnishing of a Succession Certificate would not in any manner affect the maintainability of the execution petition, this appeal has been preferred by the defendant.
5. Mr. Rajaram, learned Counsel for the defendant/appellant, would first submit that the provisions of Section 214 of the Act are mandatory in nature, and a decree passed without complying with it, is a nullity. He relies upon Venkatalakshmi Ammal v. Central Bank of India Ltd. , wherein the learned Judge holds that it is mandatory, and that a Court cannot pass a decree even if it was otherwise satisfied that the plaintiff was really the heir or successor of the deceased. If the succession certificate is not produced along with the decree, after an opportunity has been given to the plaintiff to produce it, the only order which the Court can pass is to dismiss it. But, if an appeal is preferred, Succession Certificate can be, then produced. Unless the certificate is produced, even a consent decree cannot be passed. It was then held:
... On an analysis of all the decisions on the point, it may be seen that the section applies only if all the five conditions mentioned below are satisfied at the same time:
(1) The claim must be for the recovery of a debt and the relationship of debtor and creditor must exist between the defendant and deceased. (2) The debt must be owing at the death of the deceased.
(3) The claim must be based on succession.
(4) The claimant must be claiming to be entitled to the effects of the deceased. (5) The claim must be against the debtor of the deceased.
About the scope of Section 214, it had received different interpretations as reflected in the decision mentioned here-under.
6. Abdul Majid v. Shamsherali Fakruddin I.L.R. (1940) Bom. 514 : A.I.R. 1940 Bom. 285 : 42 Bom. L.R. 521, was a case in which the creditor died during the pendency of the suit and his legal representative was brought on record and the suit ended in a consent decree, but a Succession Certificate was admittedly not obtained. It was held as follows:
... The obligation is not merely one in favour of the debtor; it benefits also those interested in the deceased's estate by requiring that moneys forming part of the estate shall only be paid to a person who has been considered suitable for the grant of a succession certificate. The provisions of Section 214 of the Indian Succession Act are no more preemptory than the provisions of Section 35 of the Indian Stamp Act, or Section 49 of the Indian Registration Act, which forbid the Court to receive certain documents in' evidence. In the Court does, in breach of those provisions improperly receive documents in evidence, that is an error which can be corrected in appeal, but it does not render the decree a nullity. In the same way the omission to obtain a Succession Certificate is good ground of appeal, but if the decree is not appealed from, in my opinion, it remains a valid decree and cannot be regarded as a nullity.... Even if we had been prepared to make a declaration that the decree passed was a nullity, the only result would have been that the case would have had to go back to the original Court which passed the decree in order that it might pass a valid decree, because the suit being before it and the Court having jurisdiction, the Court was bound to pass a decree and not pass something which was a nullity....
7. A division bench in Radha Mohan v. Mrs. Jane Hilt A.I.R. 1945 All. 400, held that a decree passed without the requirements of Section 214 cannot be a nullity, but "no doubt the decree might have been set aside in appeal and it is just possible that a suit might have been instituted to set it aside, but that is quite a different thing from saying that the decree in such a suit is a nullity. The decree is analogous to one which is based on a wrong view of the law". The division bench relied upon the decision in Abdul Majid v. Shamsherali Fakruddin I.L.R. (1940) Bom. 514 : A.I.R. 1940 Bom. 285 : 42 Bom. L.R. 521 (referred to above).
8. A division bench in Ganeshmal v. Anand kanwar , held that the main purpose of Section 214 is to protect the debtor from vexatious proceedings and from being harassed at different times by different persons claiming to be the successors of the plaintiff or the decree-holder and that just as Clause (a) of Section 214(l), so also Clause (b) means to provide protection to the judgment-debtor against rival claimants, if any, to the effects of the deceased decree-holder and that the word 'application' in Clause (b) therefore was not meant to convey the sense of only a fresh application for execution of the decree, but it also includes an application for execution of the decree presented by the deceased decree-holder.
9. In Ramanatha v. K.V. Kuppuswami 84 L.W. 200 : , a learned single Judge of this Court held that it is only when the legal representative files a fresh application for execution, Section 214 stands attracted and not when he seeks to continue the execution proceeding initiated by the deceased decree-holder. Section 214 imposes a restraint on the Court from passing a decree for payment of a debt or to proceed upon an execution application for payment of debt except on production of a Succession Certificate or any other as mentioned therein. It is an interdict on the exercise of power by the Court under the stated circumstances. No doubt, in Venkatalakshmi Ammal v. Central Bank of India Ltd. , a learned Judge of this Court considered it as a mandatory provision, but at the same time held that the purpose of the Act is not to enable litigant parties to have an opportunity of litigating contested questions of title to property and that the Bank should have held that the widow had established her claim to the amount on production of the registered mofussil will without asking her to produce the succession certificate. The decision in Ganeshmal v. Anand Kanwar , rightly points out that there could be no different standards adopted in demanding Succession Certificates between a case wherein fresh applications are filed after the death of the decree-holder and a case in which pending the execution petition he died. Sections 201 and 214(l)(b) deal with pending execution petitions, whereas Section 214(l)(a) deals with a case where plaintiff dies during the pendency of the suit. Hence in this context, this Court considers that the decision rendered in Abdul Majid v. Shamsherali Fakruddin 42 Bom. L.R. 521 : I.L.R. (1940) Bom. 514 : A.I.R. 1940 Bom. 285, brings out the correct interpretation of the section, and has rightly held that in the absence of compliance with the said section, the decree would not be a nullity. It is no different from the consequences faced when a party does not comply with the requirements of Section 35 of the Indian Stamp Act or Section 49 of the Indian Registration Act, which also forbid the Court to receive certain documents in evidence, and yet if they are received, that would not make the decree a nullity. If in spite of the prohibition imposed upon Court, a decree is passed without a Succession Certificate being filed, it could be cured by filing an appeal. Though the word 'shall' is used, the intendment of the section is one directory in nature and in such of those cases where the defendant knows that the legal representative who had come on record is the proper party to represent the estate of the deceased plaintiff, then he submitted to a decree. When he has no objection, to a decree being passed in the name of the legal representative, and when he does not prefer an appeal, it will be a valid decree which could be executed as against him. Likewise, pending an execution petition, when a legal representative of the decree-holder is brought on record, and the judgment-debtor could have no conceivable objection, there could be no need for a Succession Certificate being filed, because as repeatedly held, the object of taking out a Succession Certificate is to give security to the debtors paying the debts due to the deceased, and thus it will be collection of debts on succession. It is also intended to protect the debtors from vexatious proceedings, and from being harassed at different times by different persons claiming to be the successors of the plaintiff or the decree-holder. Once the defendant or judgment-debtor does not dispute the representative nature of the impleaded parties, this requirement if not complied with, would not make the decree a nullity. By preferring an appeal, if circumstances warrant, it could be remedied by the production of the Succession Certificate in the appellate Court, and by filing it in an execution petition, as and when any valid objection could exist, irrespective of earlier acquiescence in the proceedings. The omission to file a certificate had not affected the jurisdiction of the Court and by setting aside such a decree, it can be called upon to receive the said certificate and thereafter proceed with the matter. Hence the view as expressed in Abdul Majid v. Shamsherali Fakruddin 42 Bom. L.R. 521 : I.L.R. (1940) Bom. 514 : A.I.R. 1940 Bom. 285, brings about the correct interpretation of Section 214(l)(a) and (b) of the Act, and hence, the decree passed in the instant case was not a nullity. Inspite of being fully aware that the proper heirs of the deceased first plaintiff had come on record, and therefore, the suit had been contested, and even now there being no dispute raised to the effect that they are not his legal representatives, there is no need to go through the fruitless exercise of setting aside the decree by declaring it as a nullity.
10. As for the execution proceedings, in the earlier two E.P. Nos. 110 of 1983 and 80 of 1985, defendant had paid approximately Rs. 1,00,000. This is not a case wherein the decree-holder died after the decree. In both the said E. Ps., this objection was never taken. In Subbarama v. Chinnaswami 1935 M.W.N. 200 : 56 I.C. 492 : 41 L.W. 192 : A.I.R. 1935 Mad. 295, it was held that, where a person allows an irregular order to be passed and obtains benefit thereunder, he cannot later on seek for setting it aside. Hence, at this stage, defendant can neither claim that the decree is a nullity nor claim that the further execution taken cannot be proceeded with, unless a Succession Certificate is obtained.
11. Learned Counsel for the defendant had relied upon certain decisions which will be relevant only if the plea of nullity is found accepted. To show that the word 'shall' used in Section 214 is mandatory in character and if there is any non-compliance with the mandatory provisions which would make the entire order ineffective, invalid and illegal, he had relied upon the undermentioned decisions.
12. In Bhikraj v. Union of India , while construing Section 175(3) of Government of India Act, it was held that, where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non-compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute. If the statute is mandatory, the thing done not in the manner or form prescribed can have no effect or validity; if it is directory, penalty may be incurred for non-compliance, but the act or thing done, is regarded as good.
13. In Baru Ram v. Smt. Prasanni , it was held that, when a statute requires proof in a particular manner and spells out the consequence of non-compliance, then it cannot be termed as a technical approach, but it would result in an illegality being committed for non-compliance of a mandatory provision.
14. Kiran Singh v. Chaman Paswan , holds that, a decree passed without jurisdiction is a nullity, and defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.
15. At already pointed out, the object and intendment of Section 214 having been spelt out in the manner stated in Abdul Maj1d v. Shamsherali Fakruddin 42 Bom. L.R. 521 : I.L.R. (1940) Bom. 514 : A.I.R. 1940 Bom. 285, in the instant case, it had not resulted in nullyfying the decree. Furthermore, when two E. Ps., have been allowed to be proceeded with knowledge quite well that they have been filed by the decree-holder, and since no appeal was ever filed as against the decree, and added to all these, when defendant had not pointed out that any other legal representative had been left out or that wrong person has been brought on record as legal representative, this appeal deserves to be dismissed.
16. Arguments were advanced regarding Res Jud1cata, estoppel by conduct and applicability of Section 214 to survivors according to Hindu Law, etc, but they are irrelevant in the light of the view above taken.
17. Hence, this appeal is dismissed. No costs.