Ramu Singh and Others vs Aghori Singh and Others

Wort, J.—In my judgment this is a very clear case on the two questions which arose. One was determined by the learned Judge in the Court below against the plaintiff-appellants and the other was also decided against them but not quite in the form in which it has been argued in this Court. The learned Judge in the Court below rightly came to the conclusion that the production by the plaintiff-appellants of a succession certificate was not a sufficient title upon which to sue on a mortgage executed by the defendant in favour of the plaintiff''s brother. Any right to sue based on a right of survivorship was also negatived by the learned Judge who came to the conclusion that the plaintiff and his deceased brother were separate. I have already said and I repeat that the Judge was right in coming to the conclusion that the succession certificate was not sufficient. I refer to Sections 381, 370 and 214, Succession Act.

It is quite clear, although the learned Judges of the Allahabad High Court held a different opinion, that a mortgage is not a debt within the meaning of Section 381, and it is dear that it is not a security within the provisions of Section 370. Now the only question that arises in those circumstances is whether the plaintiff should be allowed to prove that he is the heir of his deceased, brother. The learned Judge of the appellate Court before whom this plea was taken for the first time came to the conclusion that he should not be allowed, to prove that fact as there was no allegation in the pleadings.

The question is whether the learned Judge was in error in not exercising his discretion in the plaintiff''s favour. It is true there was no application for leave to amend the pleadings which would have been necessary had the Judge allowed the plaintiff to raise this plea, but in the circumstances I am of opinion that the learned Judge should have exercised his discretion in favour of the plaintiff on terms. The plaintiff came into Court assuming apparently that the sue cession certificate was a sufficient proof of his right to sue. I think it can be said that the succession certificate was at least prima facie proof of the fact that he was the heir of his brother. I wish to guard myself against being misunderstood on this question. I do not mean that it was prima facie proof in the cause, but that it was a reason at any rate, having regard also to the plea taken by defendants 2 and 3 in the written statement, for coming to the conclusion that at least there was the possibility of the plaintiff establishing the fact of his heirship to his brother.

It is contended by Mr. Khurshed Husnain that by having to establish this fact, if the plaintiff can, he would change his cause of action. The cause of action is entirely the same. It was an action on a mortgage. In a sense he was changing the title under which he sued, but as indicated by what I have already stated, there were sufficient facts before the learned Judge to entitle him to come to the conclusion that the plaintiff was not entirely changing the character of his case.

I repeat myself by saying that the plaintiff came into Court with the succession certificate being of the opinion, it would appear, that that was sufficient proof of his heirship to his brother. He was met with the provisions of the sections to which I have referred and therefore quite properly failed in an action based on the succession certificate itself.

In all the circumstances of the case, I am of the opinion that the learned Judge should have allowed the plaintiff to raise this plea; he should have given formal leave to amend the pleadings and allowed the parties, if necessary, to have an adjournment for the purpose of giving an opportunity to the defendant to meet the facts as alleged by the plaintiff.

The case must therefore be remanded to the Judge of the trial Court. Formal leave to amend will be given to raise this issue and this issue alone, whether the plaintiff is heir to his brother.

The finding s of fact and law already arrived at will stand; the order for costs, both of the trial Court and of the appellate Court will stand, but the coats of this appeal and the costs of the hearing on the new issue will depend upon the result of the hearing in the Court below. Leave is given to withdraw the guardian''s costs deposited in the High Court.

Manohar Lall, J.

I entirely agree.