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Lakhmi Chand Vs. B. Ram Lal Kapoor Vakil - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1931All423
AppellantLakhmi Chand
RespondentB. Ram Lal Kapoor Vakil
Excerpt:
- .....was appointed curator of this estate and that he was instructed by the court of the additional district judge to realize the outstanding debts due to the deceased and that this order had been notified in the government gazette. in reply to this application the written statement, para. 1, stated that the contents of para. 1 were not known to the defendants. a distinction is to be drawn between this pleading of ' not known ' and the pleading in regard to the other paragraph of the plaintiff which was ' not admitted.' we consider that it cannot be held that the pleading ' not known ' is tantamount to the pleading 'not admitted' and therefore we consider the defendants not having made the correct pleading laid down by order 8, rule 5, cannot claim that the plaintiff was put to the proof.....
Judgment:

Bennet, J.

1. This is a second appeal by the defendants against concurring orders of the two lower Courts that the plaintiff should be granted a decree on a claim for debt due from the defendants on a promissory note and on account books to the estate of one Bika Ram deceased. The only point which was argued before us was whether the suit was correctly brought in the name of B. Ramlal Kapoor, vakil, as curator of the property of Bika Ram, deceased. The plaint set forth that the plaintiff was appointed curator of this estate and that he was instructed by the Court of the Additional District Judge to realize the outstanding debts due to the deceased and that this order had been notified in the Government Gazette. In reply to this application the written statement, para. 1, stated that the contents of para. 1 were not known to the defendants. A distinction is to be drawn between this pleading of ' not known ' and the pleading in regard to the other paragraph of the plaintiff which was ' not admitted.' We consider that it cannot be held that the pleading ' not known ' is tantamount to the pleading 'not admitted' and therefore we consider the defendants not having made the correct pleading laid down by Order 8, Rule 5, cannot claim that the plaintiff was put to the proof of the allegations in para. 1 of the. plaint. Para. 8 of the written statement pleaded:

The plaintiff has no right under the present circumstances to bring this suit, nor is the-suit legally maintainable.

2. The judgments of the two lower Courts disclose that issue 1,' which was framed on this pleading was argued on the point that according, to the defence the authority of the plaintiff had terminated because the summary proceeding contemplated by Section 193, Succession Act 1925, had terminated before the date of suit on 21st February 1927. That-therefore is the only argument which should be raised by the defendant in second appeal and we consider that it is not open to the defendant to raise further arguments as to whether the plaintiff was expressly authorized by the District Judge to institute suits, We may however note in passing that Section 200, Succession Act 1925, does not state that a curator must be specifically authorized by the District Judge to institute or defend suits. What that section states is that the curator shall be subject to all orders of the District Judge regarding the institution or the defence of suits. Reliance was placed by learned Counsel for the appellant defendant on the proviso to that section. But we consider that that proviso does not re late to the institution or defence of suits, but merely relates to what it specifically states, that is collection of debts or rents.

3. Now the curator gave evidence and he specifically stated that at the time of suit he had not handed over possession of the property although the proceedings on enquiry had terminated. Section 195, Succession Act 1925, states that the term of appointment of a curator shall be in no case beyond the determination of the summary proceedings and the confirmation or delivery of possession in. consequence thereof.

4. Accordingly there is nothing in this section which would indicate that the appointment of the curator had come to an end at the time of suit. We consider therefore that the suit was correctly instituted. No other point was argued on the appeal. Therefore we dismiss this second appeal with costs.


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