Regular Second Appeal No. 2805 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2805 of 2009 Date of Decision: August 24, 2009 Gokal Chand ......... Appellant versus Smt. Shanti Devi and others .......... Respondents 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present:- Shri Rajesh Narang, Advocate for the appellant HEMANT GUPTA, J. Defendant No.1 is in appeal aggrieved against the judgment and decree passed by the learned Courts below arising out of suit for possession by way of specific performance of contract of mortgatge dated 13.03.2000 whereby decree for recovery of earnest money of Rs.1,06,500/- along proportionate costs and interest @ 12% per annum from the date of execution of agreement Exhibit P-3 till the date of passing of the decree and @ 6% per annum from the date of passing of the decree till the recovery of the decretal amount, was granted. The defendant-appellant as owner of land measuring 24 Kanals Regular Second Appeal No. 2805 of 2009 [2] purportedly entered into an agreement to mortgage with Girdhari Lal, predecessor-in-interest of the plaintiff, for a total consideration of Rs.1,10,000/-. A sum of Rs.1,06,500/- was received as earnest money by defendant No.1 from Girdhari Lal in the presence of the marginal witnesses and the balance was to be received at the time of registration of mortgage deed before the Sub Registrar on 16.01.2001. Defendant No.1 signed the said documents in Hindi after the contents thereof were read over and explained to him in presence of the scribe and the marginal witnesses. The possession of land measuring 24 Kanals though mentioned in the agreement as delivered was actually not delivered. The plaintiffs claimed that Girdhari Lal till his death and thereafter the plaintiffs as his legal heirs were ready and willing to perform their part of the contract but defendant No.1 has failed to perform his part of the contract. Girdhari Lal died on 21.05.2001 and the present suit to seek specific performance of the agreement to mortgage was filed on 4.12.2001 after serving notice upon the defendants. Thus, decree aforesaid was granted. Defendant No.1 denied to have executed any agreement. It was pleaded that until and unless the plaintiffs produce succession certificate as per provisions of Section 214 of the Indian Succession Act, 1925 (for short “the Act”), no decree can be passed. It is also alleged that defendant No.1 was not exclusive owner of the land as he had a joint Khata in the entire khewat and no amount was ever received by the defendant nor any agreement was executed by the defendant. Both the learned Courts below have returned a concurrent finding of fact that agreement of mortgage Exhibit P-3 stands proved to be executed and that a sum of Rs.1,06,500/- was paid to defendant No.1 as earnest money. Regular Second Appeal No. 2805 of 2009 [3] The only argument raised by learned counsel for the appellant in the appeal is that in terms of Section 214 of the Act, the suit is not maintainable as it prohibits grant of decree against a debtor of a deceased person for payment of his debt except on production of succession certificate in terms of Section 214(1)(iii) of the Act. Reliance was placed upon a Single Bench judgment of Orissa High Court reported as Basanta Kumar Das vs. Smt. Lakshmi Priya Dasi and another, AIR 1988 Orissa 269. Learned counsel for the appellant has argued that since Girdhari Lal with whom the defendant-appellant purportedly entered into agreement died before the filing of the suit, therefore, in terms of Section 214 of the Act, succession certificate is required. Learned counsel for the appellant has further argued that it is not a case where the plaintiff has died after the filing of the suit as such situation is taken care of by the provisions of Order 22 Rule 3 of the Code of Civil Procedure but in case of a creditor having died prior to institution of lis, the suit is not maintainable without obtaining succession certificate. The said argument has been negated by the both the learned Courts below for the reason that there is no relationship of creditor and debtor between Gokal Chand and Girdhari Lal as the said amount was mortgage money and not the loan amount. At this stage, certain provisions of law need to be reproduced:- “214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons.- (1) No Court shall-- (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or Regular Second Appeal No. 2805 of 2009 [4] (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of-- (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii) a certificate granted under section 31 or section 32 of the Administrator General's Act, 1913, (3 of 1913) and having the debt mentioned therein, or (iii) a succession certificate granted under Part X and having the debt specified therein, or (iv) a certificate granted under the Succession Certificate Act, 1889 (7 of 1889) or (v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein. (2) The word "debt" in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes”. “373. Procedure on application.- (1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing-- (a) and (b) xx xx xx xx (2) xx xx xx xx xx (3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. (4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge Regular Second Appeal No. 2805 of 2009 [5] 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.” “387. Effect of decisions under this Act, and liability of holder of certificate thereunder.- No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.” Section 214 of the Act stipulates that no Court shall pass a decree against a debtor of a decreased person claiming on succession to be entitled to the effects of the deceased person except (i) on production of probate or letters of administration; (ii) a certificate granted under section 31 or section 32 of the Administrator General's Act, 1913; (iii) a succession certificate granted under Part X; (iv) a certificate granted under the Succession Certificate Act, 1889; and (v) a certificate granted under Bombay Regulation No. VIII of 1827. Clause (v) is not applicable in the Punjab and Haryana State as the Bombay Regulation No. VIII of 1827 is not applicable within the territorial jurisdiction of this Court; certificate under the Succession Certificate Act, 1889 can no longer be granted as the said Act itself has been repealed; and the Administrator General's Act, 1913 now repealed by Administrator General's Act, 1963 does not apply to the facts of the present case as it deals with right to grant certificate otherwise than as creditor in case any person has died leaving assets in specified categories not exceeding Rs.2 lacs. Regular Second Appeal No. 2805 of 2009 [6] Still further, the probate or letters of administration in terms of Section 214(1)(b)(i) is not a condition precedent for claiming the estate of a deceased within the jurisdiction of this Court as held by a Division Bench of this Court in M/s Behari Lal Ram Charan vs. Karam Chand Sahni and others, AIR 1968 Punjab 108 as in terms of clause (a) of Section 57 read with sub-section (2) of Section 213 of the Act, where both the person and the property of any Hindu, Buddhist, Sikh or Jaina are outside the territories specified in Section 57(a) of the Act, the rigour of Section 213 (1) of the Act is not attracted. The relevant extract from the judgment reads as under:- “..... Clause (a) of Section 57 read with sub-section (2) of Section 213, it would appear, applies to those cases where the property and parties are situate in the territories of Bengal, Madras and Bombay, while clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories. Clause (c) of Section 57, however, is not relevant for the present purposes. Therefore, where both the person and property of any Hindu, Buddhist, Sikh or Jaina are outside the territories mentioned above, the rigour of Section 213, sub-section (1), is not attracted”. Therefore, the only question which is required to be considered is as to whether the bar to pass a decree in terms of sub-section (1) of Section 214 of the Act is in respect of a debt for which the succession certificate to be granted under Part X. The grant of succession certificate is in summary proceedings in which adjudication is made prima facie as to whom such payment is to be tendered by a debtor. In other words, it leaves the battle, if any, inter se between the claimants to be adjudicated in regular proceedings. The certificate granted under section 381 of the Act affords Regular Second Appeal No. 2805 of 2009 [7] full indemnity to the debtor for the payment he makes to the person holding such certificate. On such payment, the debtor is absolved from his obligation to pay to any one else as it is part of his obligation and such payment is construed to be in good faith. This safeguards such debtor or person liable to pay that he may not be later dragged into any litigation which may arise subsequently inter se between the claimants. Reference may be made to Madhvi Amma Bhawani Amma and others vs. Kunjikutty Pillai Meenakshi Pillai, (2000) 6 SCC 301 wherein it was held to the following effect:- “..... Thus we find accumulatively because of grant of succession certificate being for a limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, leads to only one conclusion that any decision made therein cannot be treated to be final adjudication of the rights of the parties, except such declaration being final for the purpose of these proceedings. If that be so, the amount received by the holder of such certificate can yet be questioned, and in subsequent proceedings it may be held to belong to other claimant, including the contesting party”. In Banarsi Dass vs. Teeku Dutta (Mrs) and another, (2005) 4 SCC 449 it was held to the following effect:- “ The main object of a succession certificate is to facilitate collection of debts on succession and afford protection to the parties paying debts to the representatives of deceased persons. All that the succession certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title Regular Second Appeal No. 2805 of 2009 [8] of the grantee as the heir of the deceased. A succession certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a certificate under the Act, or is compelled by the decree of a court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtor to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application....” In Joginder Pal vs. Indian Red Cross Society and others, (2000) 8 SCC 143, Hon'ble Supreme Court has held that the proceedings for the grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. It was held as under:- “...... These sections make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. Section 387 puts the matter beyond any doubt. It categorically provides that no decision under Part X upon any question of right between the parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same parties. Thus, Section 387 permits the filing of a suit or other proceedings even though a succession certificate might have been granted”. Now the question which is required to be examined is if succession certificate is not binding and is granted in summary proceedings, can it oust the plenary jurisdiction of the civil Court, where all inter se questions of right, title or interest between the parties can be raised and examined. Justice G.P. Singh notes in his work Principles of Statutory Regular Second Appeal No. 2805 of 2009 [9] Interpretation (9th Edn., 2004) while dealing with mandatory and directory provisions writes: “The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ ” (p.338) “ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non- compliance with the provisions; the fact that the non- compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.” (pp.339-40)” In S. Raghbir Singh Gill vs. Gurcharan Singh Tohra and others, AIR 1980 SC 1362, the provisions of Section 94 of the Regular Second Appeal No. 2805 of 2009 [10] Representation of the People Act, 1951 came up for consideration. Section 94 of the said Act contemplate that no witness or other person shall be required to state for whom he has voted at the election. While considering the prohibition in Section 94 of the Representation of the People Act, 1951, the Court held that the secrecy of ballot provided under Section 94 of the Representation of the People Act, 1951 is subject to the basic object of free and fair elections. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can co-exist but where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. While considering the argument that Section 94 of the Representation of the People Act, 1951, is open to one construction alone as it is cast in negative language which usually is treated as absolute, the Supreme Court held to the following effect:- “It was said that S. 94 lends itself open to one construction alone. It is cast in negative language which usually is treated as absolute. Proceeding further it was said that this negative provision admits of no exception and enacts an absolute prohibition. Provision cast in negative words are generally treated as absolute admitting of no exception. But this is not a universal rule. The words `negative' and `affirmative' statutes mean nothing in particular. The question is,what was the intendment? Emphasis is more easily demonstrated when statute is negative than when it is affirmative but the question is one of intendment (see Mayor of London v. R.) (1). If language is open to two constructions one must ascertain the intendment, the mischief sought to be remedied and the remedy provided to cure the mischief (see Victoria Sporting Club Ltd. v. Hannam) (2). And in such a situation the Court must escalate in favour of that construction which Regular Second Appeal No. 2805 of 2009 [11] carries out the intendment behind enactment and accords with reason and fair play”. Subsequently, in Kailash vs. Nanhku, (2005) 4 SCC 480, Rani Kusum vs. Kanchan Devi, (2005) 6 SCC 705; and Sk. Salim Haji Abdul Khayumsab vs. Kumar, (2006) 1 SCC 46, the Court while considering the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, as amended by Act No. 22 of 2002, held that merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts,when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in negative form. In Kailash's case (supra), the Supreme Court held as under:- “30. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form”. Section 9 of the Code of Civil Procedure, 1908 ( for short “the Code”) provides that the Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or implied barred. Section 214 of the Act does not bar the jurisdiction of the Regular Second Appeal No. 2805 of 2009 [12] civil Court to entertain the suit. The prohibition contained is in respect of granting a decree. In Most. Rev. P.M.A. Metropolitan and others vs. Moran Mar Marthoma and another etc etc, AIR 1995 SC 2001, the Court held that Explanation I to Section 9 of the Code not only deals with civil disputes but disputes of civil nature which is wider in content than the word civil proceedings. It was held that every case where the dispute has characteristic of affecting one's right which are not only civil but of civil nature. It was held to the following effect:- “ 27. ........... One of the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the well-know maxim. Every civil suit is cognizable unless it is barred, “there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue” Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126. The expansive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word ‘shall’ and the expression “all suits of a civil nature” unless Regular Second Appeal No. 2805 of 2009 [13] “expressly or impliedly barred”. 28. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word ‘shall’ makes it mandatory. No court can refuse to entertain a suit if it is of description mentioned in the section. That is amplified by use of expression “all suits of civil nature”. The word ‘civil’ according to dictionary means “relating to the citizen as an individual; civil rights”. In Black’s Law Dictionary it is defined as “relating to private rights and remedies sought by civil actions as contrasted with criminal proceedings”. In law it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc. were added to it later. But they too pertain to the larger family of ‘civil’. There is thus no doubt about the width of the word ‘civil’. Its width has been stretched further by using the word ‘nature’ along with it. That is even those suits are cognizable which are not only civil but are even of