Citation Codes

Equivalent Citations

citation codes

Case Number

Judges

J.Stanley
W.Burkitt

Acts

SECTION 37 ADMINISTRATOR GENERAL S ACT
Regulation of the Bombay Code No. VIII of 1827. 4. Sub-section 2
Act VII of 1889. Section 4 of that Act

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal arises from a suit brought by the plaintiff, one of the two heirs of Musammat Qadri (also written Qadri/Kadri) Begam, the deceased wife of the defendant, seeking her share of the deferred dower which became payable on the wife's death. The Court below decreed the plaintiff's claim. On appeal, only two grounds were pressed: (1) that the suit was barred by limitation, and (2) that the lower court was not justified in passing a decree without the production of a succession certificate under the applicable statute. The suit was instituted on 18 September 1905. The date of the deceased wife's death was disputed: the defendant alleged 16 September 1902 while the plaintiff alleged 19 September 1902. The lower court found in favour of the plaintiff; the appellate court reviewed witness testimony (including a death entry in the register of deaths at the Chowk Rampur police station proved by Sirajuddin) and did not disturb the finding that the death occurred on 19 September 1902.

Legal Issues Presented

Whether the suit for the deferred dower is barred by the statute of limitation in view of the disputed date of death (16 September 1902 v. 19 September 1902) and the filing date (18 September 1905).
Whether the lower court could properly pass a decree in favour of the plaintiff without the production of a succession certificate as required by Section 4 of Act VII of 1889 (and related provisions cited in that section).

Arguments of the Parties

Appellant's Arguments (as pressed on appeal)

Limitation: The defendant/appellant contended that the deceased died on 16 September 1902; if so, the suit instituted on 18 September 1905 was barred by limitation.
Succession-certificate requirement: It was argued (by the party contesting the decree) that the decree could not rightly have been passed without a succession certificate as required by Section 4 of Act VII of 1889.

Plaintiff's Arguments (as recorded in the opinion)

On limitation: The plaintiff maintained that the deceased died on 19 September 1902; the plaintiff's witnesses and an entry in the local death register (proved by Sirajuddin) supported that date.
On succession-certificate requirement: The plaintiff contended that the deferred dower was never payable to the deceased wife during her lifetime (being payable only on her death) and therefore her husband was not a "debtor of a deceased person" within the meaning of Section 4 of Act VII of 1889; relying on two decisions of the Calcutta High Court that were said to support the contention that heirs may sue for debts falling due after death without a succession certificate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nemdhari Roy v. Mussummat Bissessari Kumari (1898) 2 C.W.N. 594	The Calcutta High Court held that the Succession Certificate Act referred only to debts which the deceased could have sued upon (i.e., debts already due), and that heirs may sue without a certificate for debts falling due after the deceased's death.	The appellate court rejected this restricted reading of the Act, stating that the language of Section 4 is general and that deferred dower is a debt (debitum in praesenti solvendum in futuro) within the meaning of the statute; thus Nemdhari Roy's narrowing of "debt" was not accepted as controlling.
Mahamed Ishaq v. Sheikh Akram-ul-Haq (1907) 12 C.W.N. 84	The case held that when a Muhammadan wife (not divorced) dies during her husband's lifetime, the heirs acquire the right to sue for her deferred dower; the cause of action is not joint and any heir may sue separately, though the presence of all heirs is necessary to adjudicate competing claims.	The court observed that Mahamed Ishaq did not consider the Succession Certificate Act; it was noted but not treated as resolving the certificate issue. The decision was recognized for its view on heirs' rights but not as addressing whether a succession certificate is required.
Webb v. Stenton (1883) L.R. 11 Q.B.D. 518	Affirms the legal recognition of two kinds of debts: those payable immediately and those payable in the future; deferred dower is a debt payable in the future.	The court relied on this authority (and Brett, M.R.'s statement) to support the proposition that deferred dower is nevertheless a debt and thus falls within the scope of provisions defining "debt" for the purpose of requiring a succession certificate.

Court's Reasoning and Analysis

The court addressed the two pressed grounds in sequence.

On limitation: the evidence as to the date of death was conflicting, but the appellate court declined to overturn the subordinate judge's finding that the death occurred on 19 September 1902. The subordinate judge had the witnesses before him and was in a superior position to assess their credit. The plaintiff's evidence was corroborated by an entry in the death register at the Chowk Rampur police station, proved by Sirajuddin, which recorded the death as 19 September 1902. Given that finding, the suit filed on 18 September 1905 was not barred by limitation.

On the requirement of a succession certificate: the court examined Section 4 of Act VII of 1889, which prohibits a court from passing a decree against a debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased except upon production of specified documents (probate, letters of administration, certificates under various acts, etc.). Sub-section 2 of that Act defines "debt" broadly (excluding only rent, revenue or profits payable in respect of agricultural land). The plaintiff had produced no probate, letters of administration, or any of the specified certificates.

The plaintiff's contention was that deferred dower was not payable to the deceased during her lifetime and therefore the husband was not a "debtor of a deceased person" within the meaning of Section 4; the plaintiff relied on the Calcutta High Court authorities described above. The appellate court reviewed those authorities and found the restrictive interpretation in Nemdhari Roy (that the Succession Certificate Act referred only to debts which the deceased could have sued upon) unsupported by the language of the Act. The court reasoned that dower—whether prompt or deferred—is a debt of the husband to the wife; in the deferred case it is a present obligation payable in the future ("debitum in praesenti solvendum in futuro"). The court cited Ameer Ali's exposition that dower is a debt that representatives may recover and relied on Webb v. Stenton to emphasize that the law recognizes debts payable now and debts payable in the future as both being debts.

On that basis the court concluded that it could not properly pass a decree in favour of the plaintiff without the production of a succession certificate as required by Section 4 of Act VII of 1889. However, the court also considered fairness to the plaintiff and allowed an opportunity to obtain the required certificate.

Holding and Implications

Holding: The court held that a decree in favour of the plaintiff could not be passed without the production of a succession certificate as required by Section 4 of Act VII of 1889, because deferred dower is a debt within the meaning of that provision. The court did not finally dismiss the plaintiff's claim on this ground but instead deferred the passing of the decree to permit compliance.

Immediate effect on the parties: The court adjourned the hearing of the appeal and deferred passing any decree for a period of two months in order to give the plaintiff an opportunity to obtain and produce the necessary succession certificate. If the plaintiff obtains and produces the certificate within that period, the court may proceed to pass a decree; absent production, the plaintiff's right to a decree will be affected by that non-production.

The opinion does not purport to set out any broader, explicit precedent beyond applying the statute to the facts and expressing disagreement with a prior narrow reading of "debt" in Nemdhari Roy; it confines relief to deferring the decree and allowing an opportunity to obtain the required certificate.

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Maqbul-Un-Nissa Begam v. Abdul Karim Khan And Muhammad Raza Khan And Anr.

and William Burkitt, J.

1. This appeal arises out of a suit brought by the plaintiff, one of the two heirs of Musammat Kadri Begam, the deceased wife of the defendant, for her share of the deferred dower of Musammat Qadri Begam, which became due on her death. The Court below decreed the plaintiff's claim. Of the grounds of appeal only two were pressed before us, one being that the suit was barred by limitation and the other that without the production of a succession certificate the Court below was not justified in passing a decree.

2. As regards the question of limitation the allegation of the defendant is that Qadri Begam died on the 16th of September 1902, whereas the plaintiff says that she died on the 19th of that month. If she died on the earlier date, the suit, which was not instituted until the 18th of September 1905, is barred. We have carefully considered the evidence of the witnesses who were examined for the respective parties. This evidence is very conflicting. But upon full consideration of it we are quite unable to hold that the learned Subordinate Judge was wrong in the decision at which he arrived. He had the witnesses before him and was in a better position than we are to judge of the credit to be given to their testimony. The evidence of the plaintiff's witnesses is corroborated by an entry of the death in the register of deaths kept at the police station at Chowk at Rampur where Qadri Begam died. Sirajuddin proved this entry, and according to it Musammat Qadri Begam, in the register described as Qazmi Begam, a name by which she was also known, is stated to have died on the 19th September 1902.

3. The next question is as to the necessity for a certificate under Act VII of 1889. Section 4 of that Act prescribes that "no Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased parson or to any part thereof * * * except on the production of (i) probate or letters of administration * * *

(ii) A certificate granted under Section 36 or Section 37 of the Administrator-General's Act, 1874 * * * or

(iii) A certificate granted under this Act and having the debt specified therein, or *

(iv) A certificate granted under Act XXVII of 1800 * * * or

(v) A certificate granted under the Regulation of the Bombay Code No. VIII of 1827.

4. Sub-section 2 defines "debt" as including any debt, except rent, revenue or profits payable in respect of land used for agricultural purposes. Debt is therefore used in a very wide sense. The plaintiff has not produced probate, or letters of administration or a certificate as required by the Act. It is contended on her behalf that, inasmuch as the dower in respect of which she sues was deferred dower, it never was payable to Kadri Begam, and therefore her husband was not her debtor within the meaning of Section 4. Reliance is placed upon two decisions of the Calcutta High Court as supporting this contention. The first is the case of Nemdhari Roy v. Mussummat Bissessari Kumari (1898) 2 C.W.N. 594 in which it was held that the succession certificate act referred only to debts for the recovery of which the deceased could sue, and that for debts falling due after death an heir may sue without a certificate. O'Kinealy, J., and Rampini, J., in their judgment observed: "In law we know two kinds of debts; debts which have accrued due and debts not accruing (sic) due, but which will be due. Now the Succession Certificate Act refers only to such debts as the deceased could sue upon. The debt in this case has fallen due since the death of the deceased." The learned Judges do not give any reasons for so restricting the meaning of the word debt. We do not find any language in the Succession Certificate Act to bear out the statement that the Act refers only to debts for the recovery of which the deceased could have sued. The language of the Act is quite general and defines a debt within the meaning of Section 4 as including "any debt except rent, revenue or profits * *." Dower, whether prompt or deferred, is a debt due by the husband to the wife, but in the case of deferred dower is debitum in praesenti solvendum in futuro.

5. The next case is that of Mahamed Ishaq v. Sheikh Akram-ul-Haq (1907) 12 C.W.N. 84. In that case it was held that when a Muhamnaadan wife, who has not been divorced by her husband, dies daring her husband's lifetime, the right to sue for her deferred dower accrues for the first time to her heirs and that the cause of action is not a joint one, but that any of the heirs may sue the husband separately for her share, but that in such a suit the presence of all the heirs is necessary in order effectually and completely to adjudicate upon the claims of the several heirs. We do not find in this case that any reference was made to the Succession Certificate Act. The necessity for the production of a certificate under that Act was apparently not considered.

6. Now the wife's right to dower, whether prompt or deferred, accrues as soon as her marriage is validly contracted. She can alienate it, pledge it, or make a free gift of it, either to her husband, or to her relations or to third parties, Mr. Ameer Ali in his "Personal Law of the Muhammadans" (2nd Edition, page 392)says: "Dower is a debt, like all other liabilities of the husband, and has preference over legacies bequeathed by the testator and the rights of heirs. A partition of the estate cannot take place until the dower debt has been satisfied. When the wife is alive she can recover the debt herself from the estate of her deceased husband. If she be dead her representatives stand in her place and are entitled to recover the same." Dower in fact, whether it be prompt or deferred, is a debt due from the husband to the wife. If the dower be prompt, it is presently payable. If it be deferred it is payable in the case of death or divorce--a debt payable in future, but none the less a debt of the husband. It is a debt which accrued due on the completion of the marriage contract, but a debt payment of which is deferred." "The law," said Brett, M. R., "has always recognized as a debt two kinds of debt, a debt payable at the time, and a debt payable in the future." Webb v. Stenton (1883) L.R. 11 Q.B.D., 518; at p. 524, Deferred dower is a debt payable in the future. We think therefore that the Court Cannot pass any decree in favour of the plaintiff without the production of a succession certificate. But we also think that the plaintiff should have an opportunity, if so advised, of producing such certificate. Accordingly we shall defer passing a decree in this appeal for a period of two months so as to give an opportunity to the plaintiff of obtaining the necessary certificate. We accordingly adjourn the bearing of this appeal for two months.

Maqbul-Un-Nissa Begam v. Abdul Karim Khan And Muhammad Raza Khan And Anr.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as pressed on appeal)

Plaintiff's Arguments (as recorded in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Maqbul-Un-Nissa Begam v. Abdul Karim Khan And Muhammad Raza Khan And Anr.

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