A widow who acquires her interest in the property of her deceased husband as an heir, not by survivorship, cannot maintain a suit for recovery of her share of the money due on a handnote without obtaining a succession certificate.

Narayan, J.

1. This is an application under Sec.25, Small Cause Courts Act and the plaintiff is the petitioner.

2. The plaintiff had sued to recover Rs. 400 as, principal and Rs. 100 as interest on the basis of a handnote dated 1st Chait 1354 Fasli said to have been executed by defendant 1 in favour of her deceased husband.

3. The defendants resisted the claim on various grounds and one of the contentions urged by them was that the plaintiff could not maintain the suit. This contention found favour with the learned Small Cause Court Judge who accordingly dismissed the claim. The view taken by the Small Cause Court Judge is that the plaintiff being the widow of the person in whose favour the handnote had been executed could not maintain the suit for the recovery of her share of the money because of Sec.214, Succession Act. Admittedly, the lady has not obtained a succession certificate and according to the view taken by the learned Small Cause Court Judge she could not sue to recover the amount due on the handnote without obtaining a succession certificate. Sec.214 lays down, amongst other things, that no Court shall 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. In my opinion, the view taken by the learned Small Cause Court Judge is correct.

4. The Counsel for the applicant, relying on the provisions of the Hindu Womens Rights to Property Act, 1937 (India Act 18 of 1937 as amended by Act 11 of 1938), contended that the widow having contained within herself the persona of her husband was in the position of a karta or manager of the family and was, therefore, entitled to recover the. entire amount due on the handnote. Sub-section (2) of Sec.3 of the Act lays down that when a Hindu governed by any school of Hindu Law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had. Because of this provision the learned Counsel was of the opinion that inasmuch as the deceased husband of the lady was the karta of the family the lady who has stepped into his shoes would also be entitled to act as karta after his death and in the capacity as a karta she was entitled to recover the entire amount due on the handnote. But both Sub-sections (1) and (2) are subject to the provisions of Sub-section (3) which lays down that any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu womans estate, provided however that she shall have the same right of claiming partition as a male owner. The Act thus gives the lady the right to have her interest partitioned. The question which is important for our purpose is whether the lady can be regarded as a survivor or as an heir and whether the property has descended to her in the capacity of a survivor or in the capacity of an heir. This question directly came up for consideration by a Bench of this Court in the case of -- Siveshwar Prasad V/s. Har Narain, AIR 1945 Pat 116 (A) and their Lordships held that as the widow acquires the interest under a statute she will acquire the interest of her husband as the heir and their Lordships observed as follows :

"It is quite clear that Musammat (one Kalawati) did not acquire her interest as a survivor. She had acquired it under a statute and although the statute does not say expressly that she will acquire the interest of her husband as his heir, yet it seems to me that if she does not get the interest by survivorship then she must be held to have acquired it as an heir."

Their Lordships also quoted with approval the decision of the Madras High Court in the case of -- Saradambal V/s. Subbarama Ayyar, AIR 1942 Mad 212 (B) in which Venkataramana Rao J. had observed th