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K. Laxminarayan Vs. V. Gopalaswami and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1488 of 1960
Judge
Reported inAIR1963AP438
ActsProvincial Small Cause Courts Act, 1887 - Sections 25; Limitation Act, 1908 - Sections 14; Succession Act, 1925 - Sections 214; Code of Civil Procedure (CPC) - Order 22
AppellantK. Laxminarayan
RespondentV. Gopalaswami and anr.
Advocates:G.V.R. Mohan Rao, Adv.
DispositionRevision allowed
Excerpt:
.....note executed in favour of plaintiff-respondent - plaintiff died during pendency of suit and legal representative brought on record - revision petition filed before high court - petitioner claimed without producing succession certificate respondent cannot get decree - under section 214 obtaining of succession certificate is mandatory - section 214 applies in absence of proof regarding entitlement of debt by right of survivorship - presumption cannot be made as joint property possessed by joint family - respondent did not contest revision petition in spite of service of notice - matter remanded back to small court for giving notice regarding production of succession certificate - in case of failure to produce succession certificate suit shall stand dismissed - revision petition..........the pendency of the suit when the evidence was not yet adduced, the plaintiff died, and his legal representative, his son, was brought on record. objection was raised that the l. r. cannot get a decree without producing succession certificate. the l. r. thereafter produced a succession certificate, which he had obtained earlier but the suit was not included therein. the learned judge came to the conclusion that since the suit was filed by the original creditor himself. section 214 of the indian succession act has no application to his son who was brought on record as his l. r. in this view of the matter, he decreed the suit to the extent of rs. 600/- only with proportionate costs against the 1st defendant-executant. the 1st defendant therefore has come in revision.3. the main.....
Judgment:
ORDER

Kumarayya, J.

1. V. Gopalaswami brought big money suit on the foot of a promissory note originally in the Munsif's Court, Secunderabad on 5-12-1955, which was registered as O. S. No. 132/1 of 1955, against two defendants, the first of whom is the executant and the second the surety. Objection was taken that it being a suit of a small cause nature it should have been brought before the District Judge's Court. This plea eventually prevailed and the plaint was returned on 6-10-1956 and waspresented on the same day before the District Judge's Court, Secunderabad. On account of the integration of City Civil Court, this case thereafter was transferred to the City Small Causes Court Hyderabad, and was disposed of as S. C. No. 24/2 of 1959. The proceedings were ex parte against the 2nd defendant. Only the executant, i.e., the 1st defendant, contested the suit on the ground that the execution of the promissory note was a result of coercion and fraud. It was stated that the plaintiff had a lorry of the defendant in his possession and was saying that he had spent money on repairs of the lorry and was not prepared to return it unless a pronote was executed. He however promised to give accounts later. The defendant thereupon executed the pronote in faith of his words. His contention is that the plaintiff had used the defendant's lorry for 31 trips between Vikarabad and Sadasivpet and 16 trips between Chilkoor and Erragadda,

2. There was an agreement duly executed which contained a clause that the amount payable to the defendant will be adjusted towards 50% of the dues payable to the plaintiff. The case of the defendant is that the plaintiff did not in fact pay any thing for the repairs of the lorry and that if accounts are taken, he (Plaintiff) will be due large sums to the defendant himself. A plea with regard to limitation also was taken. The plaintiff admitted the execution of the agreement Ex. B. 3. As a result of enquiry, the learned judge of the Court of Small Causes came to the conclusion that no doubt no cash consideration at the time of execution of the promissory note did pass, but the pro-note was indeed supported by consideration. In relation to the agreement executed between the parties, he came to the conclusion that some of the entries were signed by the plaintiff himself and the payment of about Rs. 600/- may therefore be held to be proved. He did not however accept the other payments.

During the pendency of the suit when the evidence was not yet adduced, the plaintiff died, and his legal representative, his Son, was brought on record. Objection was raised that the L. R. cannot get a decree without producing succession certificate. The L. R. thereafter produced a succession certificate, which he had obtained earlier but the suit was not included therein. The learned Judge came to the conclusion that since the suit was filed by the original creditor himself. Section 214 of the Indian Succession Act has no application to his son who was brought on record as his L. R. In this view of the matter, he decreed the suit to the extent of Rs. 600/- only with proportionate costs against the 1st defendant-executant. The 1st defendant therefore has come in revision.

3. The main point urged in this revision petition is that without producing the succession certificate a decree could not have been passed. The next argument is that the suit was barred by limitation. The third contention is that the suit-could not be decreed on the merits as well.

4. I do not think the 1st defendant has any case on merits. When the Small Causes Court has taken a particular view on the evidence adduced, I do not think that that view is open to interference in exercise of revisionary jurisdiction of this Court, unless it is shown that the learned Judge has gone wrong on principle. On the evidence on record I do not think that the trial Court reasonably could not take the view which it has taken.

5. So far as the question of limitation is concerned, it is no doubt true that the plaint asoriginally presented within the time has been returned under Order 7, Rule 10, C. P. C. for presentation in the proper Court in which the suit should have been instituted. But, what were the grounds on which the suit was originally field in the Munsifs Court and what were the pleas taken and on what grounds it was returned, the material on record is too barren to disclose. There is no reference' in the judgment either. If there was material, it would have been properly decided whether Section 14 of the Limitation Act has any application to the case or not. Section 14 has to be liberally construed. That is not to say that it can be construed without regard to the _actual words of the section. If the proceedings instituted were bona fide Section 14 would have its application. The term 'bona fide' further cannot be too narrowly construed. A reasonable_ construction has to be placed on it, and the question has to be decided having regard to the particular circumstances of the case. In the absence of the relevant data and having regard to the fact that immediately after the plaint was returned it was presented on the same day and the plaint as originally filed was within time, I do not think the plea of limitation is sustainable.

6. Now remains only the question under Section 214 of the Indian Succession Act, which reads thus:

'(1) No Court shall

(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, or

(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of-

(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or

(ii) a certificate granted under Section 31 or Section 32 of the Administrator General's Act, 1913, and having the debt mentioned therein, or

(iii) a succession certificate granted under Part X and having the debt specified therein, or

(iv) a Certificate granted under the Succession Certificate Act, 1889, or

(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted, after the first day of May, 1889, having the debt specified therein.

(2) The word 'debt' in Sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes'.

The Small Causes Court Judge while construing these provisions came to the conclusion that this Section applies only where the legal representative of the creditor sues for the debt recoverable by the deceased but not where the creditor himself files the suit. On that basis he found that since the suit in this case was brought by the creditor who died during the pendency of the suit, his legal representative brought on record under the terms of the Civil Procedure Code to continue the suit is not governed by the provisions of Section 214, so far as the production of certificate is concerned. In my opinion, Section 214 has no such qualification for its application. The mandatory nature of this provision makes it necessary for the party to obtain a succession certificate, and certainly it cannot be waived with impunity by him. It follows therefore it is not correct to say that Section 214 does not apply where the suit was originally instituted by the creditor himself but only applies where it is instituted by the legal representative. As held by the Bombay High Court in Abdul Majid v. Shamsherali Fakruddin, AIR 1940 Bom 285 :

'Section 214 applies even if the suit was started by a creditor who died pending the suit, and his legal representatives were brought on record under Order 22, Civil Procedure Code.'

I respectfully agree with this dictum. That is the only possible construction of Section 214, for it places no such limitation as has been understood by the learned trial Judge.

But it must be remembered that this Section would apply only if it is case of succession and not devolution of interest by survivorship. It is no doubt true that the legal representative brought on record was the only son of the creditor. He was a minor at the time when the promissory note was executed. There is always a presumption of jointness in a Hindu family. But the fact that a debt is due upon a promissory note in favour of a member of the joint Hindu family or Karta does not necessarily raise a presumption that the money for which the promissory note was executed constituted joint family money or that it was paid from out of the joint family funds. That has to be established by clear proof. On the material on record, I am unable to find that such a plea was at all taken by the legal representative. In fact when the plea was raised, he produced a succession certificate showing various debts but not the debt in question. Of course it may still be open to him to get included this debt by way of extension, under the provisions of law. But the fact remains that in the absence of any proof that the legal representative is entitled to this debt by right of survivorship. Section 214 would have its application. Of course to establish a right of survivorship it may not be necessary that the promissory note should bear reference to the fact that the debt is due to the joint family. But, though there is always the presumption as to the jointness of the Hindu family, there can be no presumption that that joint family possessed joint property. That has to be proved by clear evidence. If it were established that there was ancestral business, which was being carried on by the father, there could be no doubt that whatever the moneys spent for repairs of the lorry or advanced to the defendants should be deemed to be paid out of the joint family funds, unless the contrary was proved. For such funds devolution of interest would have been by right of survivorship and not by right of inheritance. But such is not the case here.

7. Judged thus, to my mind the trial Court was wrong in holding that Section 214 had no application to this case or that production of succession certificate was not necessary at all. As it was obligatory under Section 214 to produce succession certificate, a decree could not have been lawfully passed in favour of the legal representative. But time ought to have been given to him so that he may obtain succession certificate in relation to the debt in question. As this opportunity was not given by the Court below that may be granted even at this stage. The plaintiff-respondent in spiel of service of notice did not choose to contest this revision petition. As he is not before me, it is not possible to direct him to get a succession certificate and produce the same in this Court. The matter therefore shall have to go back to the Small Causes Court, where the learned Judge will give due notice to the plaintiff-respondent to enable him to produce the succession certificate, failing which of course the suit shall stand dismissed. In case the legal representative produces the succession certificate, the same decree that has been awarded shall have to be passed again.

8. In the result, the revision petition is allowed, the decree of the Court below is set aside and the suit is remanded to the trial Court for fresh disposal in the light of the observations stated above. Costs will abide and follow the result of the suit.


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