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Shantaram Vithal Wakde Vs. Shantaram Bhagwan Sinkar - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Case NumberSecond Appeal No. 39 of 1937
Judge
Reported inAIR1938Bom451; (1938)40BOMLR964
AppellantShantaram Vithal Wakde
RespondentShantaram Bhagwan Sinkar
DispositionAppeal dismissed
Excerpt:
.....family-suit by coparceners qua coparceners after holder's death-maintainability of suit-whether succession certificate necessary-legal representatives-civil procedure code (act v of 1908), section 2(11) -indian succession act (xxxix of 1925), section 214.; a promissory note was executed in favour of the manager of a joint hindu family. after his death, without obtaining a succession certificate, the surviving coparceners sued as such on the promissory note ; but during the pendency of the suit they applied for such a certificate. on the question of the maintainability of the suit :-;(1) that the coparceners, not being 'holders' of the promissory note within the meaning of the word in section 8 of the negotiable instruments act, 1881, were not entitled to sue qua coparceners on the..........his brother. they sued the defendants, appellant no. 1 and his son, to recover the amount of the promissory note in their capacity of surviving coparceners. the trial court dismissed the suit on the authority of kamalakant v. madhavji (1934) 37 bom. l.r. 405 where b.j. wadia j. held that a coparcener who becomes entitled by survivorship to the joint family property of the family to which the deceased holder of a promissory note belongs, cannot sue on the instrument, inasmuch as he cannot give a valid and proper discharge to the maker. in appeal the district judge allowed the plaintiffs to file a succession certificate which they had in the meantime obtained, and holding that this removed the objection as to the maintainability of the suit, remanded it for disposal on the merits. this.....
Judgment:

Broomfield, J.

1. A promissory note was executed by appellant No. 1 in favour of Bhagwan, the father of plaintiffs Nos. 1 to 3, who according to the plaint was the manager of the joint family of the plaintiffs. Bhagwan having died, the family now consists of plaintiffs Nos. 1 to 3, his sons, and plaintiff No. 4, his brother. They sued the defendants, appellant No. 1 and his son, to recover the amount of the promissory note in their capacity of surviving coparceners. The trial Court dismissed the suit on the authority of Kamalakant v. Madhavji (1934) 37 Bom. L.R. 405 where B.J. Wadia J. held that a coparcener who becomes entitled by survivorship to the joint family property of the family to which the deceased holder of a promissory note belongs, cannot sue on the instrument, inasmuch as he cannot give a valid and proper discharge to the maker. In appeal the District Judge allowed the plaintiffs to file a succession certificate which they had in the meantime obtained, and holding that this removed the objection as to the maintainability of the suit, remanded it for disposal on the merits. This is an appeal from that order.

2. It is conceded that the plaintiffs might have sued to recover the debt, apart from the promissory note, but they did not do so, and their application to amend the plaint so as to enable them to do so was properly rejected because at the time of the application that claim was time-barred. The question is whether they have a cause of action on the promissory note itself, and whether the production of the succession certificate makes any difference in that respect.

3. It has been held in Harikishore Barna v. Gura Mia Chaudhuri I.L.R. (1930) Cal. 752 that the ' holder ' of a promissory note, which is defined in Section 8 of the Negotiable Instruments Act as ' any person entitled in his own name to the possession thereof and to receive or recover the amount thereon from the parties thereto', is the only person entitled to maintain a suit for the recovery of the money due on the note. That case has been followed in Virappa v. Mahadevappa : AIR1934Bom356 and Krishnaji v. Hanmaraddi : AIR1934Bom385 as well as in Kamalakant v. Madhavji (1934) 37 Bom. L.R. 405. The plaintiffs here are not ' holders ' within the definition, and it seems clear that they cannot sue qua coparceners. But if the holder is dead his legal representatives must I think be entitled to sue. Mr. Parulekar who appears for the appellants after some hesitation finally admitted this proposition. In my opinion there can be no doubt about it. There is nothing in the cases cited, nor in the Act itself, as far as I can see, which is inconsistent with it. The Act regulates the issue and negotiation of bills, notes, and cheques, but does not provide for the transmission of rights in such instruments by operation of law or by transfer.

4. A more difficult question is whether the plaintiffs can be regarded as legal representatives of Bhagwan. According to the definition in Section 2(11) of the Civil Procedure Code, ' legal representative ' means a person who in law represents the estate of a deceased person, and where parties sue or are sued in a representative character, it includes the person on whom the estate devolves on the death of the parties so suing or sued. In Chunilal Harilal v. Bai Mani I.L.R. (1918) Bom. 504 : 20 Bom. L.R. 661 it was held that the surviving coparceners of a Hindu joint family are not ' legal representatives' within the definition, the reason being that they cannot be said to represent the estate of a deceased coparcener in respect of coparcenery property. This case was discussed and criticised in Ganesh Sakharam v. Naraym Shivram I.L.R. (1931) 55 Bom. 709 : 33 Bom. L.R. 1144 and with all respect to the learned Judges who decided it, I think that there is reason to doubt whether it is good law.

5. But however that may be, the ratio decidendi has no application in my opinion where the property in question is a promissory note. If the holder of a promissory note is the only person who can sue upon it, the right must be personal to him. No other person can be said to have an interest in it merely by birth or by being a member of the coparcenery. Although the debt itself may be coparcenery property (as apparently it is in the present case), the promissory note is not. It does not devolve by survivorship but by succession. If the holder dies, therefore, a succession certificate may be granted to his heirs, and they may then recover upon the promissory note as his legal representatives.

6. The plaintiffs had not obtained the certificate when they filed the suit. It is said that prior to the decision in Kamalakmt v. Madhavji (1934) 37 Bom. L.R. 405 the settled practice was that suits by the surviving coparceners on the basis of promissory notes in favour of the manager of the family were not considered untenable, and succession certificates were not required. The plaintiffs made an application for a certificate pending the trial, and the trial Court was requested to postpone the decision of the suit until it was obtained. This was refused, but the District Judge thinks, and in my opinion rightly, that under the circumstances the request should have been granted. All that Section 214 of the Indian Succession Act requires is that a certificate should be produced before the decree is drawn up.

7. We think, therefore, that the order made by the District Judge is a proper order in the circumstances of the case, and we dismiss this appeal with costs.


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