Neazmul Haque and Others vs Mt. Mouludunnissa and Others

Rowland, J.—These three miscellaneous appeals have been heard together. They arise out of applications for succession certificate in respect of money due to Latafat Hussain Khan, a District Board employee at Gaya. The controversy before us refers to a part of his provident fund money, the total amount of which was Rs. 4,000 odd. He had made a declaration under the rules of the District Board provident fund that on his death each of his three daughters should get one-third share of the amounts at his credit. Two daughters have survived him and had drawn each one-third. There remains one-third to be disposed of. In Succession Certificate Case No. 7 of 1931 the heirs of the deceased daughter Wajibunnissa applied for a certificate. Other relatives of Latafat also put in claims. So far as the provident money was concerned, the other claimants were Wajibunnissa and Umran, sisters of Latafat and Saadat Ali Khan, brother of Latafat. The District Judge examined the question, who was entitled to the money and came to the conclusion that none of the applicants were entitled to the certificate and so rejected all the applications in respect of the provident fund.

It was apparently his opinion, that the widow was the person entitled to the money; but though she had put in an objection she had not herself made an application. So he considered that no certificate could be given to her. The appeal No. 53 is by the sons and daughters of the deceased Wajibunnissa. After the disposal of that case by the District Judge Bibi Mouluddunnissa widow of Latafat presented an application numbered as Succession Certificate Case No. 30 of 1931 praying for a certificate to entitle her to receive the whole of the sum lying with the District Board on account of the balance of the provident fund money of Latafat. Bibi Ashrafunnissa filed an objection and herself also presented an application which was numbered as Succession Certificate Case No. 2 of 1932.

She claimed that unless the heirs of Wajibunnissa were entitled to the money she herself and her sister Hafizunnissa should get it. Hafizunnissa did not herself apply for a succession certificate, but filed an objection petition in which she stated that the money ought to be paid to the heirs of Wajibunnissa and failing them to her sister and herself. On this application the District Judge examined the question, who was entitled to the money and was of opinion that the persons entitled to it were all the heirs-at-law of Latafat. He granted a succession certificate to the widow Musammat Bibi Mouludunnissa to the extent of two annas share in the money, certificate in favour of each of the two surviving daughters to the extent of 5 as. 4 p. share and gave no certificate in respect of the remainder (3 as. 4 p. share) as the persons whom he considered entitled to it had not applied before him. From this decision two appeals Nos. 119 and 120, are preferred by Bibi Mouludunnissa, the widow who claims that the entire sum should be paid to her.

It seems to me that in dealing with these applications the purpose and scope of enquiry under the Indian Succession have been somewhat lost sight of. Having regard to Sections 373 and 375 of the Indian Succession Act and particularly Sub-sections 3 and 4 of Section 378, I think the intention of the Legislature was that the Judge should select or appoint the fittest person to whom a single certificate could be granted to collect the whole of the debt on behalf of all the persons entitled to receive it and should take security from such person that he would give their dues to all the other persons entitled to share in the distribution of the money. This is the only way in which I can construe the words

The Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants.

In Section 373(4), however, as the parties went to trial before the District Judge on the question who was entitled to the money and the claims have been discussed in full before us I think that we should give our own finding for the purpose of this proceeding and subject of course to Section 387 which reserves to every party entitled to receive any part of the debt likely to establish his right in the Civil Court.

The District Board rules have been examined with care and in some detail by the District Judge and it is hardly necessary to repeat all the reasoning in the judgment.

It is certain that Bibi Wajibunnissa could not take a vested interest by the declaration of Latafat in her favour, so that such interest would pass to her heirs. The declaration was revocable and if Latafat had resigned from District Board service the money was his and would have been payable to him. He never divested himself of his right to it and so that right could not, till he died, vest in any one else. The position is therefore as both the District Judges have found that in respect of the one-third money now lying in deposit, there is absence of a declaration. Then we have to consider the effect of E. 9 of the District Board rules, the operative portion of which is that

the amount shall be paid to his legal heir or heirs.

Mr. Saunders thought that heirs mean dependents, the word "heir" being used loosely in the District Board rules. It is seldom, I think, safe to take language as being loosely used in either statutes or statutory rules; and when the rules speak in one place of dependents and elsewhere of heirs, the better view seems to be that in each instance the appropriate word is used with its proper meaning. Mr. Das in dealing with the applications before was right I think in holding that if the rulers of a particular fund make the amount payable to all the heirs, those rules should be given effect to. As pointed out by Mr. Saunders there was no real dispute as to who are the heirs of Latafat. They are:

The widow ... 1/8th share. Two daughters each ... 1/3rd share. Brother ... 5/48ths share. Two sisters, each ... 5/96ths share.

The effect of the District judge''s order is to leave part of the property unadministered. A more suitable order would to empower one of the heirs to receive the residue on behalf of the non-applicant, subject to a security bond u/s 375. I would therefore direct that the certificate granted to Bibi Ashrafunnissa be amended so as to empower her to withdraw the amount payable to those of the heirs whose claims are not dealt with by the order already passed, subject to her furnishing security u/s 375.

We have the satisfaction in noting that at the hearing an agreement was arrived and an undertaking was given on the part of Bibi Ashrafunnissa and Bibi Hafizunnissa that they would pay to the children of the deceased daughter Wajibunnissa one-third of the amounts to which they are respectively entitled under this order.

The result is that appeal No. 53 of 1932 should in my opinion be dismissed. Appeal Nos. 119 and 120 of 1932 should also be dismissed subject to the above modification in the District Judge''s orders. The parties should in the circumstances of the case bear their own costs of the appeals.

Fazl Ali, J.

I agree.