Shearer, J.The appellant, who describes herself as Mrs. S. Misra alias S. Lazarus, was born at Jubulpur of parents who were Indian Christians. In or about 1928, when she must still have been a very young girl, the appellant was employed as a nurse at the Bhagalpur hospital and there made the acquaintance of a Sub-deputy Magistrate, Pandit Nand Kumar Misra. Towards the end of the following year she went to Chapra, where Pandit Nand Kumar Misra had been transferred, and joined him and lived with him continuously until his death which occurred on 1st February 1941 in the hospital at Dumka. Before meeting the appellant, Pandit Nand Kumar Misra had married the respondent, Srimati Mangala Kumari, and on 28th March 1941, Srimati Mangala Kumari applied to the District Judge of Gaya for a succession certificate to enable her to collect three sums of money which she asserted, were due to the estate of her husband. The learned District Judge granted the certificate and subsequently the appellant applied to have the, certificate revoked. This application was rejected and the appellant has now appealed against the order rejecting it.

2. The appellant asserts that before she went to live with Pandit Nand Kumar Misra at Chapra she was converted to Hinduism and went through a ceremony of marriage with him according to Arya Samaj rites. On 5th September 1938, Pandit Nand Kumar Misra executed a document nominating the appellant as the person to whom any money standing at his credit in the General Provident Fund should be paid in the event of his death.

3. On 8th July 1940, he executed a will in her favour, and on 9th November 1940, he executed a deed, assigning the sum due under an insurance policy, which he had taken out on his life to her. Some two years earlier, on 23rd December 1938, he had executed a similar deed of assignment, but this assignment the insurance company had declined to register on the ground that it had not been properly stamped. In each of these documents Pandit Nand Kumar Misra described the appellant as his second wife. His conduct in so describing her in a series of documents, each one of which was attested by some colleague of his in the service to which he belonged, is, I am inclined to think, a circumstance which goes to suggest, not merely that the appellant may have gone through some ceremony of marriage with him, but that, whether it was a valid ceremony or not, Pandit Nand Kumar Misra believed it to be a valid one.

4. This matter is not, however, one of any importance. Even if the recital contained in the will is incorrect, or even untrue, the will is nevertheless a valid will unless it was subsequently revoked by the testator. It appears that on 30th January 1941, when Pandit Nand Kumar Misra was in the hospital at Dumka, he executed and registered a deed purporting to revoke the will. I am myself inclined to think that the onus lay heavily on the respondent to show that when he executed this deed, Pandit Nand Kumar Misra was perfectly well aware of what he was doing and of the consequences to the appellant, and that this was perhaps not sufficiently appreciated by the Court below. It is, however, quite unnecessary for me to go into the matter and decide whether or not the will was revoked. It is enough to say that, as the right if any which the appellant had as against the respondent to the money at the credit of Pandit Nand Kumar Misra in his Provident Fund and the sale proceeds of his effects depends wholly on the validity of the will, it was incumbent on her to apply for and obtain probate of it. No steps having been taken by her to obtain probate, and it being quite impossible on the evidence which she adduced in the Court below to say that she and the respondent are the co-widows of Pandit Nand Kumar Misra, the learned District Judge was correct in declining to revoke the certificate in so far at least as two of the three debts due to the estate of Pandit Nand Kumar Misra. are concerned.

5. The position, however, with regard to the other debt, namely, the money due under the insurance policy is very different. It was not denied that Pandit Nand Kumar Misra had assigned the policy, and, in any case, this was clearly proved by the entries which had been made in the register of the company. Now, if Pandit Nand Kumar Misra assigned the policy during his lifetime, the money due under it did not form part of his estate and the respondent who asks for a succession certificate in her capacity as the heir of her deceased husband was not entitled to it. There is no evidence to show, and it was not even contended in the Court below that for some reason or other the assignment was not a valid assignment. All that was said was that the appellant had failed to prove that the policy had been assigned to her. u/s 38(1), Insurance Act, such a deed of assignment has to be attested, and Mr. Huda, the Deputy Magistrate who is said to have attested this deed, was not called by the appellant as a witness. Very possibly the reason why he was not called was that the deed of assignment was not in the possession of the appellant. The insurance company had sent it to the home address of Pandit Nand Kumar Misra and there is, I think, reason to suppose that either the respondent or her brother-in-law was thus able to get control of it and suppress or destroy it. The appellant did not, however, formally call on the respondent to produce the document and in consequence it was incumbent on her to call the attesting witness as a condition precedent to giving secondary evidence of its contents. The circumstance that the appellant omitted to prove the deed of assignment may be a reason for declining to give her the succession certificate for which she asked but is clearly not a reason for declining to revoke the certificate which had previously been granted to the respondent.

6. If the certificate is permitted to stand, certain very awkward consequences will ensue. The policy having been assigned and notice of the assignment having been given to the insurance company and acknowledged, the company is bound under Sub-section (5) of Section 38, Insurance Act, to pay the money due under the policy to the assignee. If the certificate which has been granted to the respondent is allowed to stand, and the respondent applies to the insurance company for payment, the insurance company will necessarily refuse to pay the money to her and will either await a suit by her or will itself be driven to institute an inter-pleader suit, asking that the conflicting claims of the appellant and the respondent to this money be adjudicated on.

7. The learned Government Pleader, who appeared for the respondent, said that u/s 384, Succession Act, no appeal lay against an order declining to revoke a certificate. For this Mr. Sarjoo Prasad relied on the decision in Nanuk Parsad v. Lall Nitya Lall (81) 6 Cal. 40. That, however, was a decision on Act 27 [XXVII] of 1869, and can have no application here. The Bombay High Court in Manchharam v. Kali das (95) 19 Bom. 821, was inclined to the view that when an application had been made, not merely to revoke a succession certificate but also to grant a certificate to the applicant himself, an appeal lay against an order dismissing the application. It also pointed out that in any case Section 19, Succession Certificate Act--and Section 384, Succession Act reproduces these provisions--reserved the revisional powers of the High Court as supplementing its appellate jurisdiction. When an application is made by the heir of a deceased person for a succession certificate to enable him to recover money due under a life insurance policy, and when it appears to the Court to which the application is made that the policy in question has been assigned to someone also the assignment having been acknowledged by the insurance company as a valid assignment, the Court has no jurisdiction to grant the certificate asked for. In: such circumstances it is obviously impossible, to say that the applicant for a succession certificate has made out a prima facie case that he is in person entitled to collect the debt.

8. In the application which the respondent made for a certificate it was stated that "there is no impediment u/s 370 or under any of the provisions of the Act or any other enactment to the grant of the certificate hereby prayed for, or to the validity thereof if granted by the Court." This was clearly "an untrue allegation of fact essential in point of law to justify the grant" and under Clause (c) of Section 383, Succession Act, the learned District Judge should have revoked the certificate.

9. The appeal will be allowed to this extent that the succession certificate which has been issued to the respondent will be amended by deleting, from it item No. l, namely, the sum of Rs. 1525 due by the National Insurance Company Limited, Calcutta, under policy No. 1850. As success has been divided, there will be no order for costs.

Agarwala, J.

I agree.