JUDGMENT

Leach, J - This suit has been filed to recover the amount due on a mortgage executed in favour of one Saw Chin Htin, deceased. Saw Chin Htin, who was a Chinese Buddhist, died intestate. The plaintiffs are his sons, who are minors suing by their next friend. Letters of administration have not been obtained, but it is contended that this is not necessary as succession to the estate is governed by Chinese Customary law and the plaintiffs are the only heirs. Succession to the estate is governed by Chinese Customary law, and the plaintiffs, as the only sons are entitled to succeed: Tan Ma Shwe Zin v. Tan Ma Ngwe Zin 1932 Rang. 59, Ma Sein v. Ma Pan Nyun 1924 Rang. 219 and Ma Sein Byu v. Khoo Soon Thye 1933 Rang 313. Subject to the provisions of Section 214, Succession Act, 1925, the estate of ?a Chinese Buddhist may be administered without the grant of probate or letters of administration. Section 29 provides that part 5 of the Act, which deals with intestate succession, shall not apply to the property of any Hindu, Mahomedan, Buddhist, Sikh or Jain. Although Section 212(1) stipulates that no right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction, Sub-section (2) renders the provisions of Sub-section (1) inapplicable in the case of the intestacy of a Hindu, Mahomedan, Buddhist, Sikh, Jain or Indian Christian. Section 58 similarly renders inoperative the provisions of part 6 of the Act, (which deals with testamentary sue cession) so far as Hindus, Buddhists, Sikhs or Jains are oonoerned. Section 213(1) provides that no right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction in British India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. But Sub-section (2) again makes an exception in the case of a will made by a Hindu, Buddhist, Sikh or Jain. While a Burmese Buddhist is, by his personal law, prohibited from making a will, a Chinese Buddhist is not.

2. Notwithstanding the exceptions referred to in favour of Buddhists and the other communities mentioned, Section 214(1) of the Act, provides that no Court shall pass a decree against a debtor of a de ceased 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, except on the production, by the person so claiming, of probate, letters of administration, or a succession certificate. Sub-section (2) of this section declares that the word "debt" includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. The plaintiffs in this case claim; (1) payment of the sum of Rs. 3,198 (the amount due on the mortgage) with interest from the date of suit to date of payment; (2) the sale of the mortgaged properties in default of payment, and (3) liberty to apply for a personal decree for the balance, in the event of the sale proceeds being insufficient to pay off the amount due on the mortgage. The question which falls for decision is whether the plaintiffs are seeking payment of a "debt" within the meaning of Section 214, Succession Ace. If they are, the suit cannot be maintained unless letters of administration to the estate of the deceased are obtained or a succession certificate is granted.

3. The question has been raised on numerous occasions in the High Courts of India. The High Courts of Calcutta, Madras and Bombay take the view that a suit to enforce a mortgage is not a suit to recover payment of a debt within the meaning of Section 214, Succession Act, and that therefore it is not necessary to obtain probate, letters of administration or a succession certificate before proceeding to institute a suit on a mortgage. I am