A widow's right to recover a debt due to her deceased husband arises by survivorship and not by succession, and therefore, she is not required to obtain a succession certificate under Section 214 of the Indian Succession Act to maintain a suit for recovery of the debt.

DAS, J.

( 1 ) THIS is an application in revision by the defendant against the decision of the small Cause Court Judge, Cuttack, holding on a preliminary issue that the widow-plaintiff is entitled to bring the suit along with other plaintiffs, and accordingly the suit is maintainable. The plaintiff's suit is based upon a pro-note executed in favour of one deceased Saratha Sahu who is the husband of plaintiff 2 and father of plaintiff 1 and uncle of plaintiff 3. The dclence of the defendant-petitioner was that the suit by the widow-plaintiff is not maintainable in the absence of a succession certificate as provided under section 214 of the Indian Succession Act. The learned Small Cause Court Judge held relying upon a decision of this Court reported in Ganga-dhar Raut v. Subhashiiri Bewa, (S) AIR 1955 Orissa 135 (A), to the effect that the devolution ol an estate on the Hindu widow under Section 3 (2) of the Hindu Women's Rights to property Act is neither by survivorship, nor by inheritance, but is a special right created in favour of the widow by the special Statute. In that decision of this court, their Lordships did not follow the view of the Patna High Court reported in kedar Nath v. Radha Shyam, AIR 1953 Pat 81 (B), as also the case reported in sive-shwar Prusad Narain Singh v. Har Narainmal, AIR 1945 Pat 116 (C ).

( 2 ) THE point raised by Mr. R. Mohanty, learned counsel for the petitioner undoubtedly is a very interesting one. He contended that the widow-plaintiff having succeeded to the interest of her husband, cannot maintain the present suit without obtaining a succession certificate. Section 214 of the Indian Succession act runs as follows:

"no Court shah (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,. . . . . "

Mr. Mohanty for his contention relied upon the view taken by the Patna High Court and particularly on a decision of the said Court reported in Mt. Rajendra-bati v. Mungalal, AIR 1953 Pat 129 (D), Narayan, J. in that case held that a suit by a widow of a deceased coparcener in a joint Hindu family for recovery of money due upon a handnote executed in favour of her deceased husband is not maintainable unless she obtains a succession certificate as laid down in Section 214 of the succession Act. The reason being that under Section 3 of the Hindu Women's rights to Property Act, she acquires the interest of her deceased husband in the family property not by survivorship but as his heir, in coming to this decision Narayan, J. relied upon certain previous decisions of the court. I have already referred to two such decisions of the Patna High Court reported in AIR 1945 Pat 116 (C) and AIR 1953 Pat 81 (B) which have not been followed by this Court, This decision of the Patna High Court in AIR 1953 Pat 129 (D) does not seem to have been followed by their Lordships of the Andhra High court in a very recent decision ol that Court reported in Indian Leal Tobacco development Ltd v. K. Kotayya, (S) AIR 1955 Andhra 135 (E ). Mr. Misra, learned counsel appearing on behalf of the opposite parties relied very strongly upon this decision in support ol his contentions. Abhina Sahu vs. Daitari Sahu and Ors. (23. 10. 1956 -ORIHC) Page 3 of 5 (23. 10. 1956 -ORIHC) Page 3 of 5 in that case Umamaheswaram, J. referred to a decision of the Federal Court reported in Hindu Women's Rights to Property, Act 1937, In the matter of, AIR 1941 FC 72 (F) wherein Sir Maurice Gwyer C. J. dealt with the meaning of the expressions 'devolution', 'succession' and 'inheritance' in relation to Hindu Women's rights to Property Act, 1937 which came up for decision by a special reference by his Excellency the Governor-General of India under Section 213 of the Constitution act. The learned Chief Justice held that succession also includes survivorship. Thus while dealing with the question of 'devolution', 'succession'