P (PLP)

KHURSHID ZAMAN, J.

‑Nawab Sir Allah Bakhsh Khan Tiwana died on the 16th June, 1948, possessed of considerable property including two cash balances, one o#_ Rs. 9,54,166‑11‑8 in the Imperial Bank of India, Lahore, and the other of Rs. 30,736‑13‑0 in the Lyallpur branch of the same bank. On the 27th March, 1948, the Nawab bad executed a will. As the testator was not aware of the fact that the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) had already come into operation; he executed the will in two parts. Part 1 was to take effect if succession to the estate was to be governed by Muslim Personal Law (Shariat) In this part of the will he made certain bequests and left the residue of his estate to be shared by his heirs under the Muslim Law. Part 11 was to operate if succession to his estate was still to be governed by custom. In this part of the will, in addition to the bequests mentioned in part one, he made a fresh bequest in favour of his sister Malkhani Bhag Bhari of all the landed and other property, houses, furniture, etc., in chak No. 62 N. B. Tehsil Sargodha known as Allahabad. In clause No. 8 of the will it is recited that whether the succession to the estate was governed by Shnriat Law or by Customary Law, the testator's house at Lahore on Queen's Road, known as "Ashshams" with all its furniture shall go to his sister Malkani Bhag Bari, while his house at Sargodha and the shops in Sargodha shall go to his reversioners. As stated above, the West Punjab Muslim Personal Law (Shariat) Application Act (1X of 1948) had come into force before the will was executed. Section 2 of the Act runs as follows "Notwithstanding any custom or usage to the contrary in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious endowments the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). Malkani Bhag Bhari, sister of the late Nawab, relying on this provision of the Act applied under section 372 of the Succession Act for the grant of a succession certificate in respect of .both the amounts mentioned above, alleging that she was entitled to it as the sole heir of the late Nawab under the Muslim Law. A similar application was jointly made by Malik Fateh Muhammad Khan, Malik Muhammad Ali Khan, and Malik Abdul Ali Khan, sons of Malik Ghulam Muhammad Khan who are fourth‑degree collaterals of the late Nawab. Their right to the certificate was based on two grounds (a) that they were collaterals of the deceased, and (b) that there was an implied bequest in their favour of the residue of the estate not expressly disposed of by the testator. Both these petitions were consolidated in the trial Court and were disposed of by one judgment by the learned Senior Subordinate Judge, Sargodha. The learned Senior Subordinate judge took the view that the, word "succession" occurring in section 2 of the Act includes testamentary and intestate successions. He accordingly held that succession to the estate of Nawab Allah Bakhsh Khar was governed by the Muslim Personal Law (Shariat) under which Malkani Bhag Bhari as iris sister was entitled to one‑halt of his estate as a sharer, whereas Malil; Fateh Muhammad Khan and his brothers were entitled to the remaining one‑half as residuaries. He accordingly granted two succession certificates, one in favour of Malkani Bhag Bhari in respect of one‑half of the amounts lying in the aforementioned banks to the credit of late Nawab and the other in favour of Malik Fateh Muhammad Khan and his two brothers jointly, in respect of the remaining half. From this decision of the learned Senior Subordinate Judge both parties preferred appeals in the Court of the District Judge, Sargodha, each claiming a certificate for the entire amount. The learned District judge, however, upheld the decision of the learned trial Court and dismissed the appeals. Malkani Bhag Bhari as well as Malik Fateh Muhammad Khan and his brothers have come up in revision to this Court Some important and intricate questions of law have been raised before me. Among other points raised by learned counsel for the parties, it was contended by Mr. Yaqub Ali, who appeared for Malik Fateh Muhammad Khan and his brothers, that sections 372 and 373 of the Succession Act contemplate the grant of only one certificate in respect of the entire debt and that the word "succession" in section 2 of the West Punjab Muslim Personal, Law (Shariat) Application Act applies only to intestate succession and does not include testamentary succession. There is no direct authority of our Court on these points. Considering the general importance of the points raised, I refer these revision petitions (C. R. 75/49, C R. 76/49, C. R. 91/'49 and C. R. 92/49) to a Division Bench for an authoritative decision. KAYANI, J.

‑These four petitions were originally heard by Khurshid Zaman, J.. sitting alone and were referred by him to a Division Bench as important and intricate questions of law were raised before him. The facts of the case are that on the 27th of March 1948, Nawab Sir Allan Bakhsh Tiwana executed a will in two parts the first to take effect if the Muslim Personal Law ((Shariat, Application Act (IX of 1948), which he thought was still in the form of a Bill, became law before his death, the second to take effect if his estate were to be governed by custom. In the first part, he made certain bequests and left the residue of his estate to be divided according to Muslim Law. In the second part, he provided that, in addition to the bequests already made in part one, his sister, Malkani Bhag Bhari, was to succeed to all the landed and other property in the village Allahabad in Sargodha District. There was a further provision that, whether the succession was governed by Shariat or by custom, the testator's house in Lahore known as "Ashshams", with all its furniture, was to go to Malkani Bhag Bhari, while his house and shops in Sargodha were to go to his revisioners. Unknown to the testator, the Shariat Bill had become law on the 16th of March 1948, i.e., eleven nays before the execution of the will. Sir Allah Bakhsh himself died on the 16th of June following and, upon his death, his sister Malkani Bhag Bhari applied for a succession certificate in respect of two cash amounts lying in deposit to his credit in two branches of the Imperial Bank of India, one at Lahore, the other at Lyallpur. The amount in the first branch is Rs. 9,54,166‑11‑8, while that in the second is IRS. 30,736‑13‑

0. A similar application in respect of the same amounts was made by Malik Fateh Muhammad Khan and his two brothers, who are cousins of Sir Allah Bakhsh in the second degree; in other words, great grandsons of his great grandfather. It is understood that they would be heirs of the deceased if the rule of decision were custom, but that they would be residuaries to the extent of one‑half of the property if the rule of decision were Muslim Law, the heir being the sister to the extent of one‑half. The two applications were filed in the Court of the Senior Sub‑Judge at Sargodha and were, at the request of the parties, consolidated. It was contended for Malkani Bhag Bhari that as the Shariat Law had come into force before the death of the testator, succession was to be governed by Muslim Law, according to which a full sister was heir in respect of one‑half of the property, the deceased having left no nearer heirs. In respect of the other half also a claim was set up on behalf of the sister on the ground that she being a nearer residuary than the second cousins, was entitled preferentially. On the other hand, reliance was placed for the second cousins on the wording of section 2 of the Shariat Act, according to which, "notwithstanding any custom or usage to the contrary, in all questions regarding succession the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law", and it was argued that since no provision was made in the Act in respect of wills, it followed that where a Muslim had left a will, the Shariat Act would not apply to him. The reply to this argument or, behalf of Malkani Bhag Bhari was that the word "succession" in section 2 included both testamentary and intestate succession. The learned Senior Sub‑Judge, accepting this latter inter pretation, came to the conclusion that the estate was governed by Muslim Law and, holding that Malkani Bhag Bhari was entitled to one‑half as heir and that the second cousins were entitled to the other half as residuaries, he granted two succession certificates, each in respect of one‑half of the deposits. From this order two appeals were taken by each party to the District Court, one in respect of its own application for the certificate, the other in respect of the application of the opposite party. The learned District judge, agreeing with the lower Court, dismissed all the four appeals. I .may add here that one of the points raised in both Courts was that under section 373 (4) of the Succession Act only one certificate could be granted and that certificate should be to the person or persons best entitled, regard being also had to the extent of interest and the fitness in other respects of the applicants. It is apparent that this argument did not appeal to the two Courts below. From the order in the four appeals, four separate petitions have been filed on the revision side, two by each party, and, as before, they will be disposed of in one judgment. Before the Division Bench, Mr. Kaikaus, learned counsel for Malkani Bhag Bhari, also contended that no revision was competent from the order of the District judge and he had no objection to his own petitions being dismissed if that view were accepted by the Court. The points to be determined by the Bench are, therefore, three in number (1) whether from an order confirmed in appeal, granting two succession certificates each relating to a part of the same estate, a revision petition is competent; (2) whether the Succession Act is opposed to the granting of more certificates that one in respect of the same debt or the same portion of a debt; and (3) if the answer to the first two questions is in the affirmative, which of the two sets of the applicants is best entitled to a certificate ? Section 115 of the Code of Civil Procedure, which gives jurisdiction to the High Court on the revision side, is in the following terms :‑ The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears‑

(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case at it thinks fit . Mr. Sleem argued on behalf of the collaterals that the decision of the lower Courts that the Succession Act permits the grant of two certificates was illegal, and that since the result of that decision was that two certificates had actually been granted, the first Court had in doing so exercised a jurisdiction not vested in it by law thus attracting to the decision the provisions of part (a) of section

115. For this argument he relied on Joy Chand Lal Babu v. Kamalaksha Chaudhury (A. I. R. 1949 Privy Council 239). In that case there was a decree against certain parties who sought relief from it under the provisions of the Bengal Money‑lenders Act of 1940, which is analogous to the Punjab Acts on the same subject. That Act excluded from its operation commercial loans" which were defined separately therein. The Court to which the application for relief was made held that the loan represented by the decree was a commercial loan and was not, therefore, covered by the terms of the Act. The application for relief having thus been dismissed, the applicants went to the High Court at Calcutta on the revision side.. The learned Judges in the High Court held that it was not a commercial loan, set aside the order of the subordinate Court and remanded the case in order that the decree might be reopened. From this order the opposite party went to the Privy Council, and one of the points raised was that the High Court could not entertain a petition on the revision side From this stage onwards it would be convenient and instructive to reproduce a passage from the Privy Council judgment. "Mr. Pringle for the appellant admitted that no appeal lay from the order passed by the Subordinate judge, and he did not challenge the revisional jurisdiction on that ground. Their Lordships accept this admission and express no opinion upon its correctness. Mr. Pringle based his objection on the principle laid down by this Board in Rajah Amir Hassan Khan v. Sheo Baksh Singh. 11 I. A. 237 (11 Cal. 6 P. C.) and Kalakrishna Undayar v. Vasudeva Aiyar, 44

1. A. 261: (A. I. R.) (4) 1917 P. C. 71) and now firmly established, that a subordinate Court does not act illegally or with material irregularity because it decides wrongly a matter within its competence. A Court has jurisdiction to decide a case wrongly as well as rightly. Mr. Pringle maintained that the learned Subordinate Judge had jurisdiction to decide that the loan was a commercial loan, and in so doing .he did not act illegally or with material irregularity, and the High Court had no power to interfere in revision merely because it disagreed with his decision. So far Mr. Pringle is on safe ground, but the learned Subordinate judge, having held that this was a commercial loan, was bound to go on to consider what effect that decision had upon the respondents' application, and, since the .Act in terms does not apply to commercial loans, the learned judge was bound, upon his finding, to dismiss the application without determining whether or no the respondents brought themselves within sections 30 and 36 of the Act as they claimed to do. In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under subsection (b) of section

115. There have been a very large number of decisions of Indian High Court on section 115, to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under subsection (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b), and subsection (c) can be ignored. The cases of Babu Ram v. Munna Lal, 49 All. 454: (A. I. R. (14) 1927 All. 358) and Hari Bhikaji v. Naro Vishvanath, 9 Bom. 432, may be mentioned as cases in which a subordinate Court by its own erroneous decision. (erroneous, that is, in the view of the High Court), in the one case on a point of limitation and in the other, on a question of res judicata, invested itself with a jurisdiction which in law it did not possess, and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result. In the present ctase their Lordships are of opinion that the High Court, upon the view which it took that the loan was not a commercial loan, had power to interfere in revision under subsection (b) of section 115". In view of the observations of their Lordships that "High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub‑section (e), nevertheless, if the errorneous decision results in subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b), and subsection (e) can be ignored", it will be unnecessary to refer to the decisions of the various High Courts upon which Mr. Kaikaus relied on behalf of '0ialkani Bhag Bhari. In addition to these, however, he relied on three decisions of the Privy Council itself, two of which have been mentioned in the Privy Council case aforesaid, apparently with approval. The first of these is Amir Hassan Khan v. Sheo Baksh Singh (I. L. R. 11 Calcutta 6) where it was observed: "A Court that has decided a suit over which it had jurisdiction, cannot, only on the ground that it has arrived at a wrong decision, be said to have exercised its jurisdiction illegally, or with material irregularity". The facts are not stated in the judgment itself but the introductory notes by the editor show that "the suit raised questions as to whether it was not barred under sections 13 and 43 of Act X of 1877; also whether the plaintiff was entitled to represent the mortgagors; and whether it was competent to him to claim to redeem the mortgaged property". Section 13 of the old Act corresponded to section 11 of the Code of Civil Procedure and we have satisfied ourselves from the actual judgment produced by Mr. Sleem that the question of res judicata was raised only incidentally and not reagitated. This case should, therefore, be regarded as limited to subsection (c) of section

115. The next case is Balakrishna Udevar v. Vesudeva Ayyar (I. L. R. 40 Madras 793). Here the District Judge of Tanjore, who was empowered by the Bengal and Madras Religious Endowments Act, 1863 to fill a vacancy on a Temple Committee in the event of the Committee itself failing to hold an e1ection, ordered the Committee, contrary to law, to hold an election arid an application having been made to the High Court on the revision side that the election was void, the High Court of kited the application, overruling a preliminary objection that section 115 of the Code did not contemplate such an application. This objection was taken in the Privy Council also. On this joint their Lordships of the Privy Council made the following remarks. "It will be observed that the section applies to diction alone, the irregular exercise; or non‑exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law‑or fact in which the question of jurisdiction is not involved. And if the appellant's contention be correct, then if the Civil Court should absolutely and whimsically decline to exercise its jurisdiction and refuse to make any orders as to the filling up of vacancies, no matter how many existed, there would not, in a case such as the present, be any remedy available under this section and no appeal would lie. The act of the District Court complained of in the present case was an adjudication by it that the present appellant having been elected in pursuance of an order of the Court v: as a member of the Committee . In holding that the High Court could entertain the applica tion, the Lordships thus took the view that since the District judge was empowered by the Act to appoint a member to the Temple Committee, in refusing to make the appointment and referring the case back to the Committee for an election, he had failed to exercise a jurisdiction vested in him by law. The third case on which Mr. Kaikaus relied is N. S. Ven katagiri v. The Hindu Religious Endowments Board, Madras (A. I. R. 1949 Privy Council 156). In that case the District Court found upon the interpretation of a will left by one Nara yana, by which he founded a temple and directed his male heirs to act as trustees, that it was a private temple and was not hit by the Madras Hindu Endowment Act 1926. On a revision application being taken to the High Court, it was held that the conclusion of the learned Judge upon the construction of the will was so entirely out of accord with the meaning of the document that it acquired interference by the High Court and' that the wrong construction put upon the will by the learned District judge involved such material misuse of jurisdiction as to involve interference by the High Court" under subsection (c) of section

115. Their Lordships of the Privy Council referred to the two previous cases decided by the Privy Council and also reviewed a number of Indian authorities which held that sub section (a) of section 115 was "intended to authorise the High Courts to interfere and correct gross and palpable errors of subordinate Courts, so as to prevent gross injustice in non-appealable cases" and made the following observations: "Their Lordships can see no justification for any such view; it would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. Section 11.5 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters, (a) that the order of the subordinate Court is within its jurisdiction, (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. No such matters arose in this case, and the order of the High Court upon the petition was without justifica tion. It will have been noticed that these cases contain nothing which has not been accepted as a view "now firmly established" in Joy Chand Lal Babu v. Kamalaksha Chaudhry. What their Lordships made manifest was that although error in a decision may not by itself mean that the subordinate Court acted ille gally or with material irregularity so as to justify interference in revision under subsection (e) of section 115, "nevertheless, if the decision results in the subordinate Court exercising jurisdiction not vested in it by law, or failing to exercise jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b), and subsection (c) can be ignored." In the present case, on the assumption that the decision of the Senior Sub‑Judge that he can grant two succession certificates is bad in law, the decision itself was no doubt made in the exercise of a jurisdiction but the result of that decision was that he granted two certificates and thus exercised a further jurisdiction in a matter in respect of which the law had conferred upon him no jurisdiction. If, therefore, it be correct that the Succession Act contemplates the grant of only one certificate we should hold that a revision petition is competent because, in the result, the learned Senior Sub‑Judge has exercised a juris diction which is not vested in him by law. The ultimate decision of this question would, therefore, depend on whether two or snore certificates can be granted. That brings us to the second question namely, whether the Succession Act contemplates the grant of one certificate only in respect of a debt or a portion of a debt, and this is not a very simple question. The provisions of the Act which are relevant to our purpose may be produced below :‑ Section 214, subsection (1), (a), (iii): No Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on suc cession to be entitled to the effects of the deceased person or to any part thereof, except on the production, by the person so claiming,. of a succession certificate granted, under Part X and the debt specified therein. (Other clauses of this section provide for payment on the production of probate or letters of administration or certificate under certain other enactments, as the case may be). PART X SUCCESSION CERTIFICATES Section 370: (1) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate. Section 372: Application for such a certificate shall be made to the District judge and setting forth the following particulars namely for the debts and securities in respect of which the certificate is applied for. (3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditors or in respect of portions thereof. Section 373: (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 shall proceed to decide in a summary manner the right to the certificate. (2) When the judge decides the right thereto to belong to the applicant, the judge shall make an order for the grant of the certificate to him. (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 appli cant 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 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. Subsection (3) of section 372 which empowers the grant of a certificate even in respect of a portion of a debt or debts was added by Act XIV of 1928. In the Statements of Objects and Reasons it was shown that this amendment .had resulted from a conflict of judicial authority, the Allahabad view being that a certificate could not be applied for or granted in respect of a portion of a debt, thus forcing the applicant to pay Court fee on the entire debt even though he was entitled to a small fraction of it. Thus, in Muhammad Ali v. Puttan Bibi (l9 All. 129) where a dowar fixed at rupees eleven lakhs and the wife died leaving her husband, father and mother, the husband, who himself was entitled to one‑half of the debt would effectively pre vent the father and mother from realising their own share from him either because they may riot be able to pay Court‑fee on the entire amount or because the husband's assets may not exceed even one lakh of rupees. The amendment made possible for the heir of the deceased to give up a portion of the debt where he thought the debtor possessed only limited assets. It will be of some relevancy to reproduce certain other provisions of the Act, which relate to the grant of letters of administration :‑ Section 215: (1) A grant of probate or letters of administration in respect of an estate shall be deemed to supersede any certificate pre viously granted under Part X.........in respect of any debts or securities included in the estate: Section 218: (1) If the deceased has died in estate and was a Hindu, Muhammadan, Budddhist, Sikh or Jaida or an exempted person, administration of his estate may be granted to any person, who according to the rules for the distribution of the estate appli cable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate. (2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them. Section 222. (1) Probate shall be granted only to an executor appointed by the will. Mr. Saleem contended that on the plain interpretation of subsection (4) of section 373, when the number of applicants is more than one, the judge has to decide as to whom "the certificate" is to be granted and that consequently in coming to a decision he must select one person or a number of persons possessing a joint interest to whom the certificate has to be given. Mr. Kaikaus, on the other hand, argued that subsection (4) applies only when the judge decides to grant a single certificate, in which case he is required, in addition to the question of right which he has to decide in a summary manner under subsection (1), to "have regard to the extent of interest and the fitness in other respects of the applicants", and that there is nothing in this sub section to prevent the grant of more certificates than one. If section 373 stood by itself, I would find it difficult to accept the argument of Mr. Kaikaus and would hold that when the Legislature came to subsection (4), they were assuming that in the case of rival applicants a certificate would be granted only to one person or to several persons possessing a joint in terest, for, as Mr. Saleem pointed out, while subsection (2) of section 21.8 expressly provides for separate letters of administration in favour of two or more persons according to the discretion of the Court, there is no such provision in section 373 for more certificates than one. I would not, however, lay too much em phasis on the fact that the word "certificate" in subsection (4) is used in the singular, for when an application is made to the District judge under section 372, it is in respect of a single certi ficate and section 373 in its first three subsections deals application. When we reach subsection (4), we meet more applications than one "for a certificate" which may only mean that when each of such applicants wants a certificate for entire or debts and the judge, upon a review of, the extent of and the fitness of all the applicants, is of the opinion that a single one of them should get the certificate to the exclusion of others, he may exercise a selection. It will be observed that subsection (4) does not use language which should compel a Judge to grant only one certificate, and in view of the consequences that would follow from the addition of subsection (3) to se, Lion 372 it seems to me that subsection (4) of section 373 should be thus interpreted. For it cannot be denied now that application for certificate may be made in respect of a portion of one debt or portions of several debts. Now, suppose that a person makes an application for a whole debt or for two or more whole debts, it obvious that while the application is pending he can relinquish a part of the debt or debts and ask for a certificate to be granted in respect only of a part, for even in a regular suit the plaintiff could relin quish a part of the claim. In that case there would be nothing to prevent the Court from granting a certificate for only a portion of the debt, although in the first instance the application was for the whole debt. Suppose now, the applicant does himself relinquish any part of the claim but the Court, having regard to the extent of interest and the fitness in other respects of the applicant, grants him a certificate in respect only of a part, that result should, in my opinion, follow naturally from the Provision in subsection (3) of section 372 which empowers an application to be made in respect of a portion of the debt. Again, if the sister in this case had applied for a certificate only with respect to one‑half of the cash balances arid the collaterals in respect of the other half, it is unquestionable that two separate certificates could have been granted. The only difference in this case is that each party has asked for a certifi cate in respect of the entire balance. In such a case, if each party can itself relinquish the claim in respect of one‑half, there is no reason why the Court should not be able to exercise the same power, if it appears to it more convenient, other things being equal, that two separate certificates should be granted. In such a case, without doing violence to the language of subsection (4) of section 373, the Court can decide to whom "the certificate" should be granted in respect of the other half. The utmost limit to which subsection (4) can take us is that two or more separate certificates cannot be granted in respect of the same debt or the same portion of a debt, but if it is to be held that in no circum stances does it contemplate the grant of separate certificates, then it must also be held that the addition of subsection (3) to section 372, which enables the grant of a certificate in respect of one or more debts or even a portion thereof, necessitates the consequential amendment of subsection (4) of section 373, and since the addition was made later in point of tine, it should be presumed to abrogate anything that was contrary to it in subsection (4) of section

373. The argument that there eras no distinct provision in section 373 for separate succession certificates as there was in subsection (2) of section 218 for letters of administration is not necessarily final. It may be an omissions or it may be due to a belief in the mind of the draftsman that subsection (4) was to be applied only where the Court decided to grant one certificate. I have already shown by reproducing section 215 that a grant of probate or letters of administration in respect of an estate shall be deemed to supersede any certificate previously granted under Part X, and since letters of administration can be granted separately under subsection (2) of section 218 to several persons, it is clear that a person, who fails to get a succession certificate because a certificate has already been granted to another person, may yet avail of section 218 and obtain letters of administration which will have the effect of superseding the certificate. If these letters are granted to several persons, cash will administer a separate part of the estate including each balances, if any, so that if the object of the Act was to grant only one certificate in respect of a debt, it could be very easily defeated by its own provisions on the administration side. Judicial authority on this point is not uniform. In Madan Mohan versus Ramdial‑

(I. L. R.5 All. 195), which was decided in 1882, a certificate was granted to three persons jointly and as apparently their interests were conflicting, the High Court remanded the case in order that judge should decide which of the rival claimants was in all respects better entitled to have a certificate. The learned judges in that case were influenced by the fact that the whole spirit and policy of the succession Certificate Act of 1860 was to provide greater security for persons paying to the representative of deceased persons debts due to their estates and to facilitate the collection of such debts by moving all doubts as to the legal title to demand and recover the same. These objects, it was pointed out, would be defeated by the issue of joint certificates in favour of persons having confirming interests. In Shitab Dei versus Debi Parasad.‑

(I. L. R. 16 All. 21), application for a certificate was made on behalf of an adopted son of the deceased and the judge, granted it only in respect of certain property which had been devised in favour of the adoptee. An objection was then filed by a nephew of the deceased and the judge, granted him another certificate in respect of the remaining property. The High Court disapproved of these orders and held, with reference to subsection (4) of section 373, that it merely justified the judge in selecting one out of many applicants for a certificate on consideration, amongst others, of the extent of their interest in the estate, but that it did not imply that the Judge was competent to give a certificate for collection of debts to each of them. Such a procedure, it was observed, would hardly tend to the accomplishment of the purposes of the Act, which was passed for facilitating the collection of debts on succession and to afford protection to persons paying debts to representatives of deceased persons. In Hurri Krishan Panda versus Balabhadra Panda‑(I. L. R: 23 Calcutta 431), the application was made on behalf of an adopted son by the widow of the deceased and one of the heirs objected, questioning the adoption. The Court, holding that it could not go into difficult questions relating to the fact and 'validity of adoption, directed the widow to amend the application by substituting herself for the adopted son and this having been done, it granted the certificate to her. The High Court held that section 373 indicated that there should be an enquiry into the right applicant, howsoever summary, and that consequently the Court, instead of substituting the widow for the adopted son, should have held a summary enquiry into the right of the adopted son to the certificate. It was observed with reference to the same subject that "sub‑section (4) by providing for the grant of the grant of a certificate to one or more of several rival applicants, regard being had to the extent of their interest and their fitness in other respects, indicates that the grant is to be limited to some one or more of the contending applicants who make out their title to the estate. Although the question before their Lordships was not whether one or more certificates should be granted, it is clear that the assumed that the grant was not to be limited to one person. In Kishore Chand versus Mussammat Nihal Devi

‑(70, Punjab Record 1904), it was only held that a certificate could be granted for the collection of a portion of a debt and as this is not denied now, it is unnecessary to waste time on the facts of that case. To the same effect is Muhammad Abdul Hossain, v. Sharfian (15 Calcutta Law Jounal 384). On the other side, reliance was placed on Sreenivasa Iyengar v. Sundar Madras Law Journal 37). This is a brief judgment to the effect that although it may not be quite proper to grant two certificates in respect of different moieties of the same debt, if granted they cannot be regarded as a nullity by the Court which orders payment of the debts. Mr. Saleem, argued that this merely makes the succession certificate binding on the Court in which it is produced, but, if it is true, as he has contended before that the Court has no jurisdiction to grant more certificates than one, the grant would be void a b initio and even the Court in which they are produced may regard them as nullity. In Abdul Gafur Mahmad saheb Maniyar v. Jayarabi Ibrahim‑

(A. I. R. 1929 Bombay 456), there had been a compromise between the families of two brothers X and Y in respect of properties A and B, the former falling to the share of the family of X, the latter to the family of Y. The trial Judge, granted one certificate to the son and widow of X in respect of property, A leaving out two daughters of X, and granted another certificate to the son and widow of Y respecting property B, leaving out a daughter. These daughters had objected that the compromise included merely the shares of the deceased in certain mills, not the dividends arising from those shares. The trial judge upon an examination of the schedule attached to the compromise, did not accept this contention. Upon appeal the District judge held that the shares in question did not include dividends, which therefore, went to the ordinary heire of the two deceased persons and directed that succession certificates in respect of the dividends accumulated up to a certain date be granted in specified shares to seven persons, who were the ordinary heirs of the deceased. It was held by Marten, C. J., that the Succession Act did not empower the Court to say that a particular debt when received should be paid as to a certain fraction to A and as to a certain other fraction to B. He further held that the District judge should not have upset the discretion used by the trial judge in these circumstances by introducing names of the beneficiaries. After examining the various subsections of sections 373, the learned Judge, having decided to restore the order of the trial judge, made the following observations :‑ Now what would be the proper order for us to make if this matter was res integra. I should view with disfavour the granting of separate certificates to one man as regards property B. Speaking generally, the main idea of probate or administration is that the grant should be of all the property to one individual or to two or more jointly. But here there are curious circumstances. In fact, the order of the trial Judge has been acted on the shares in question have been transferred to the holders of the certificates, and the disputed evidence have been paid over to them. That being so, we think that we should not set aside the order of the trial Judge and direct that one certificate should be grantad instead of two. Murphy, J., adding a concurrent judgment, observed : "The provision as to a case where there are more applicants than one for a certificate, and where more than one of such applicants is interested, is (sub‑section 4)" and then reproducing subsection (4) he goes on to say, "I think it was this subsection which led the learned Subordinate judge to grant the certificates to two of the parties before him". It is clear that according to Murphy, J., subsection (4) empowered the grant of more certificates than one. In Neazm-ul-Haque v. Mst. Mouludutaissa.‑(A. I. R. 1934 Patna 304, the District Judge granted three certificates in respect of a part of the provident fund of the deceased, one to his widow and one to each of his two surviving daughters, leaving out a part of the fund as certain other heirs had not applied. The High Court on appeal, while observing that the intention of subsecting that the intention of subsection (4) that the judge should select or appoint the fittest person to whom a single certificate could be granted, nevertheless, did not disturb the certificates, except that the one granted in favour of the widow was modified by the inclusion of the remainder upon her furnishing security to, make payment of this part to the heirs entitled by law. In Daw v. Daw‑

(A. I. R 1937 Rangon 336), the matter related to the grant of joint certificates and it was held that although such a grant might be inconvenient, it was lot illegal. Mst. Charjo v. Dina Nath‑--(A. I. R. 1937 Lahore 196) (2) is relevant only to the extent that it enunciates the objects of the Succession Act to be (1) to facilitate collection of debts and prevent them from being time‑barred owing, for instance, to disputes between heirs, and (2) affording protection to debtors by appointing a representative of the deceased who can give a valid discharge. These are almost all the cases which were brought to our notice. I think there is general agreement on the two main objects of the Act, which are to facilitate the collection of debts by the, heirs of the deceased and to enable the debtors to obtain a valid discharge, and it seems to me that the grant of separate certificates does not defeat either of these two objects Whether one certificate is granted or more, the debtor can obtain a valid discharge in respect of a debt or a portion thereof specified in the certificate. It may be inconvenient for him if each certificate holder files a separate suit against him for the recovery of his share of the debt but that inconvenience has now obtained statutory recognition by the enactment of subsection (3) of section 372, and to that extent the decisions which disapprove of the grant of separate certificates should now be regarded as obsolete. My answer, therefore, to the second part of the reference, namely, whether the Succession Act disallows the grant of separate certificates, in circumstances like the present, is in the negative, and in view of this answer, since the trial judge, has not assumed a jurisdiction which was not vested in him by law, I hold that a revision petition under section 115 of the Code of Civil Procedure is incompetent. In view of these findings it is unnecessary to give an answer to the third part of the reference, but if I were called upon to decide who was the fittest person to obtain a single certificate, I would say that the person in question was Malkani Bhag Bhari. The Courts below have held that the word 'Succession ' in section 2 of the Shariat Act includes both testamentary and intestate succession, and for the purposes of a summary enquiry contemplated by the Succession Act, I think their decision should be maintained. Further, it is to be observed that Sir Allah Bakhsh, in his will has not provided, separately for the cash balances in the two banks, and it may be argued, not without good reason, that even if the words "succession" does not include testamentary succession, then, since the will does not take stock of the cash balances, succession in respect of them should be determined according to Muslim Law. In view of my findings, however, on the first two points, these four petitions should be dismissed, each party bearing its own costs. M. KHURSHID ZAMAN, J.

‑I agree. K. M. A./A. H. Petition dismissed.