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Ramprasad Shivlal Vs. Shrinivas Balmukund - Court Judgment

LegalCrystal Citation
SubjectLimitation;Family
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 25 of 1925
Judge
Reported inAIR1925Bom527; (1925)27BOMLR1122; 90Ind.Cas.685
AppellantRamprasad Shivlal
RespondentShrinivas Balmukund
DispositionAppeal dismissed
Excerpt:
.....subsequently the title of the plaint is amended by substituting the names of the members of the defendants' family on its being brought out that the defendant is not a firm but an undivided hindu family, the suit is not affected by the provisions of section 22(1) of the indian limitation act, since there is no addition of parties but only a substitution in order to correct a misdescription.;it is competent to a minor, who is the bearer of a shah jog hundi, to sue to recover its amount.;the court in determining whether a document is sufficiently stamped for the purpose of deciding upon its admissibility in evidence, will look at the document itself as it stands, and not at any collateral circumstances which may be shown in evidence.;ramesn chetty v. mahomed ghouse (1889) i.l.r. 16 cal...........to that point on which d the defendants succeeded, they are entitled to their costs against the plaintiff. we leave it to the taxing master to decide what were the coats of the following issue, which i frame as no issue on the question was raised at the trial: whether two of the suit hundis are admissible in evidence owing to the non-cancellation of the stamps with regard to the rest of the costs, we think that the successful plaintiff in the court below is entitled to them. he will be entitled to the costs of the cross-objections.coyajee, j.12. i concur.
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff filed this suit to recover the sum of Rs. 15,000 claimed to be due on three hundis drawn by the defendants on one Chhotaram Javer in Bombay payable to Shah which were handed over to the plaintiff. Various objections were raised in the written statement, one of which regarding the non-cancellation of the stamps on two of the hundis was successful. The other objections were disallowed, and the Judge passed a decree against the defendant on the third hundi for Rs. 5,000.

2. The same objections have been raised before us. The first objection was that the suit was time-barred The defendants in the plaint were described as 'Shivlal Rampranad a firm doing business as merchants at Ahmedabad,' and thereafter, when it was discovered that Shivlal Ramprasad was a joint Hindu family doing business under that name, and that the provisions of Order XXX (Civil Procedure Code) would not apply when defendants were members of an undivided Hindu family, the title of the plaint was amended by substituting the names of the members of the family for the firm's name ' Shivlal Kainpraead.'

3. It was then contended that the provisions of Section 22 (1) of the Indian Limitation Act applied, and that the suit was barred, as the suit must be deemed to have been instituted against the defendants when the plaint was amended. The learned Judge considered, on a review of the authorities, that there was not an addition of parties, but only a substitution in order to correct a misdescription, We need only say that we agree with that finding.

4. It was next contended that the plaintiff could not sue as he was a minor at the date of the suit. The plaintiff was not a party to any contract on which ho is suing. He is suing as the bearer of a Shah Jog hundi. We see no reason why he should not be allowed to sue on such a document. This point does not appear to have been raised in the lower Court.

5. The next point was that the hundi is inadmissible as it is post-dated. The question of its inadmissibility would arise under the Indian Stamp Act. It is a bearer hundi payable on demand, and required, therefore, an one anna stamp. But it is said that it was proved that the document was written, not on February 12, the date it bore, but some date in January 1921, therefore it was not properly stamped and, therefore, it infringed the provisions of 9. 68 of the Indian Stamp Act. There is a series of decisions referred to by the learned Judge which show that the Court, in determining whether a document is sufficiently stamped for the purpose of deciding upon its admissibility in evidence, will look at the document itself as it standi, and not at any collateral circumstances which may be shown in evidence. That was held by the Calcutta High Court in Rumen Chatty v. Mahomed Ghouse I.L.R.(1889) Cal. 432. The various authorities on the question are also fully considered in Motilal v. Jagmohandas (1904) 6 Bom. L.R. 699. We do not think that the provisions of Section 118 of the Negotiable Instruments Act 1881 affect the question at all with regard to the admissibility in evidence of a document which depends entirely upon the document as it stands.

6. The next point was that the hundis were not drawn on behalf of the joint family firm of the defendants. We entirely agree with the remarks of the learned Judge that that is not an honest defence.

7. The last question was whether there was any consideration for the hundi. That is a question of fact. The learned Judge said:-

The assets of the old Ahmedabad firm of Raman and Natumalji were in their hands. These include a profit of Rs. 1,26,000, which was available for distribution among the coparceners. Plaintiff's case is that defendants agreed to pay him this sum of Rs. 15,000 on account of the share which would coma to him at the distribution. Similar payments were made by defendants to other coparceners. I do not for a moment believe that the payment was promised as a loan. The position was that defendants had joint family funds in their hands. They knew that plaintiff's share would amount to more than Rs. 15,000, and they gave the hundis in part payment indirectly if not directly they were bound to account to plaintiff as to the other coparceners.

8. The defendants relied upon the evidence of Ramprasad Shivlal to show that when he drew the hundis it was intended that the money should be advanced to the plaintiff as a loan. But his admissions in cross-examination entirely destroy the effect of what he had said in examination-in-chief. The fact that the plaintiff filed the suit to recover the balance of the share due to him as a co-parcener without mentioning these hundis, could not possibly affect the question, because there was no necessity to refer to these hundis, as having been dishonored nothing had been recovered on them.

9. We think the decision of the Court below was correct and the appeal must be dismissed with costs.

10. The plaintiff has filed cross-objections against the order as to costs.

11. The suit was file I on three hundis. I have dealt with the objections taken generally to all the hundis, which have been disallowed. With regard to two of the hundis an objection was taken at the hearing, although no issue was raised thereon, that they were not admissible owing to the stamp not being properly cancelled The Judge decided that point in favour of the defendants. But in passing the decree for Rs. 5,000 on the third hundi, he made no order at all with regard to the plaintiff's costs, without giving any particular reasons, except that he said that in the circumstances of the case he would not allow costs, Now the ordinary rule is that costs should follow the event, It is generally necessary that, when costs do not follow the event, the particular reasons should be given why the ordinary rule should not be followed. With regard to the general costs of the action, the plaintiff has succeeded on all the points, which were raised by the defendants against the plaintiff's claim to make them liable on the hundis, and as the costs of the suit will be taxed according to the High Court Rules and are not advalorem, the costs in this case are exactly the same whether the suit was filed on one hundi for Ks 5.0C0 or three hundis of Rs. 5,000 each. There are no circumstances in the case which show that the plaintiff was in any way guilty of misconduct which might disentitle him, even if successful, to his costs. The only fact before us is that an objection was taken in Court as to two of the hundis, and after argument that objection proved successful. To the extent to which any costs could be attributed to that point on which D the defendants succeeded, they are entitled to their costs against the plaintiff. We leave it to the Taxing Master to decide what were the coats of the following issue, which I frame as no issue on the question was raised at the trial: Whether two of the suit hundis are admissible in evidence owing to the non-cancellation of the stamps With regard to the rest of the costs, we think that the successful plaintiff in the Court below is entitled to them. He will be entitled to the costs of the cross-objections.

Coyajee, J.

12. I concur.


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