Alice Thorp vs Shamat Lal

Ali Imam, J.—Civil Revisions Nos. 60, 61, and 65--71 of 1917 arise from a decision of the Small Cause Court Judge of Motihari. The facts of these cases shortly are that the appellant, Mrs. Alice Thorp, instituted a certain number of rent suits against Shamat Lal and others who are defendants in these cases. The Court below, exercising powers under the Small Causes Courts Act, dealt with these oases together, and has dismissed them on the ground that the status of the plaintiff to prosecute her suits is not established. The Court below at the end of the judgment deals with this aspect of the plaintiff''s suits in these words: (1) "The suits are not maintainable u/s 4 of the Succession Certificate Act." The reason why he has so worded his judgment is given a few sentences above the passage quoted. In that he refers to the fact that although the plaintiff Mrs. Thorp was said to have succeeded to the estate of her husband and Probate had been taken, yet neither a certificate of succession nor the original Probate or copies thereof had been filed. Reading this part of the judgment of the learned Small Cause Court Judge we cannot but hold that he is under the impression that the suits under notice could not be maintained by the plaintiff unless and until she produced either the certificate or the Probate papers. We think the learned Judge has fallen into an error, which is an error of law. The learned Judge has relied for his view of the case on Section 4 of the Succession Certificate Act. A reference to that section shows that there is no bar to the maintenance of a suit under the circumstances referred to above, but what is barred is the passing of a decree in such circumstances. It appears to us, therefore, that the Small Cause Court Judge misdirected himself on the question of the maintenance of these suits. The suits are perfectly maintainable and Section 4 of the Succession Certificate Act was by no means a bar to their maintenance. The question of the decree on the other hand is a question which is altogether separate from the question of the maintenance of suits, and it appears to us that if this view of the law had been presented to the mind of the learned Judge he might well have, in a case like this, allowed time to the plaintiff to produce these papers before he gave her a decree. Evidently he did not consider the question as to whether time should or should not have been given to the plaintiff to produce these papers. In the circumstances we set aside the order passed by the learned Judge and now that we are satisfied that the plaintiff Mrs. Thorp had as a matter of fact obtained Probate of the Will of her husband and that as such had the status to proceed with those cases and ask for decrees being passed in her favour, we think in this case we should not only reverse the order passed by the learned Judge but decree the suits in question. We pass no orders as regards costs.

Roe, J.

I concur. I entirely agree that a marked distinction should be made between an error of law and an exercise of discretion. In the case before us it seems to me that there was not merely a refusal to grant a postponement of the case to '' admit of the production of the Probate but rather a refusal to allow it to be produced after the case had been commenced.