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Lala Ram Vs. Ram Swarup and anr. - Court Judgment

LegalCrystal Citation
SubjectBanking;Family
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3442 of 1958
Judge
Reported inAIR1964All495
ActsNegotiable Instruments Act, 1881 - Sections 8 and 78; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 1
AppellantLala Ram
RespondentRam Swarup and anr.
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateD. Sanyal, Adv.
DispositionAppeal dismissed
Excerpt:
.....holder or the holder in due course. ' the position in the present case stands on a better footing inasmuch as the plaintiff (ram swarup) was a holder of the hundi, and the only other holder of the hundi, viz. we are of the view that the suit which has given rise to this appeal was not barred by limitation, and the decree passed by the courts below was perfectly correct......within limitation, by ram swamp, on the basis of a hundi in favour of ram swarup, the father, and jagdish prasad, his minor son. jagdish prasad, who was a minor at the time the suit was instituted, did not join the suit, nor was hearrayed as a defendant. after the expiry of theperiod, allowed by the law of limitation in thenormal course, for the institution of a suit by afolder of a negotiable instrument, jagdish prasad,the minor son, who was still a minor, also joinedas a plaintiff. the only plea with which we areconcerned was that, inasmuch as jagdish prasad was a holder of the hundi but had not joined the suit as a plaintiff within limitation, the suit wasbarred, and was liable to be dismissed on thisground alone. the trial court took the view thatthe suit was not barred with the.....
Judgment:

B. D. Gupta, J.

1. This is a defendant's second appeal on a reference made to us by a learned Single Judge of this Court. The suit giving rise to this appeal had been filed, within limitation, by Ram Swamp, on the basis of a Hundi in favour of Ram Swarup, the father, and Jagdish Prasad, his minor son. Jagdish Prasad, who was a minor at the time the suit was instituted, did not join the suit, nor was hearrayed as a defendant. After the expiry of theperiod, allowed by the law of limitation in thenormal course, for the institution of a suit by afolder of a negotiable instrument, Jagdish Prasad,the minor son, who was still a minor, also joinedas a plaintiff. The only plea with which we areconcerned was that, inasmuch as Jagdish Prasad was a holder of the Hundi but had not joined the suit as a plaintiff within limitation, the suit wasbarred, and was liable to be dismissed on thisground alone. The trial Court took the view thatthe suit was not barred with the result that adecree was granted in plaintiff's favour. That decree was affirmed by the Court below, whereafter the defendant filed the present second appeal.

2. We have perused the pleadings of theplaintiffs and we find that it is a representative suitfiled initially by Ram Swarup alone in his capacityof Karta of a joint Hindu Family in respect ofmoney advanced from the joint Hindu family funds.It is settled law that the manager of a joint Hindufamily has the power to give discharge for a debtdue to the joint Hindu family. Reference may bemade to the pronouncement of the Supreme Courtin the case of Sarda Prasad v. Lala Jumna Prasad : [1961]3SCR875 where the aforesaid principlehas been recognised and it has been laid downthat the managing member of the family can give adischarge of liability on behalf of the whole familyincluding the minor sons. In view of this state ofthe law, learned counsel for the appellant fairlyconceded that he could not challenge the proposition that Ram Swarup, who initially filed the suit, was entitled to give a valid discharge of the liability under the Hundi which was the basis of thesuit.

His contention, however, was that, even though he could give a valid discharge of the liability under the Hundi, his son Jagdish Prasad should have joined him in instituting the suit, and that unless this was done the suit was not maintainable at the instance of Ram Swarup alone. In our opinion, this contention has no force. Any person who can give a valid discharge of the liability under a negotiable instrument must be held entitled to sue, and there appears no reason why a suit at the instance of such a person should not be held to be maintainable. The defendant would, thereafter, be completely protected from any claim on the basis of that negotiable instrument. The decisionof a Full Bench of this Court in the case of Rai Ram Kishore v. Ram Prasad AIR 1952 All 345 (FB), contains an exhaustive discussion of this principle and the decided, cases bearing thereon. After a discussion of those cases the conclusion is recorded at page 248, col. 2, in the following words:-

'It is perfectly clear that the ratio decidendi in all these cases was that the right of suit on ft promissory note vested in the person who could give a valid discharge to its maker or acceptor, and that it was not essential that, in order to maintain a suit on the basis of a promissory note, the plaintiff must, on the face of the instrument, be the payee or the holder or the holder in due course.'

The position in the present case stands on a better footing inasmuch as the plaintiff (Ram Swarup) was a holder of the Hundi, and the only other holder of the Hundi, viz., his minor son Jagdish Prasad, was a member of the joint Hindu family of which plaintiff Ram Swarup was the Karta. There can, therefore, be no doubt that the right of suit on the Hundi vested in Ram Swarup inasmuch as he could give a valid discharge of the liability under that Hundi. We are, therefore, unable to see any reason to hold that Ram Swarup was not entitled to maintain the present suit. In this view of the matter, the impleading of Jagdish Prasad was, in our opinion, wholly unnecessary, and the mere fact that he was impleaded after the expiry of the normal period of three years from the date on which the Hundi in suit was drawn would make no difference to the right of the original plaintiff Ram Swarup to obtain a decree on the basis of that Hundi.

3. Learned counsel for the appellant placed reliance on the decision of a learned Single Judge of this Court in the case of Ram Singh v. Radha Krishna, AIR 1938 Oudh 61. In the first instance, that case is distinguishable from the present case, inasmuch as the other promisees who had not joined the plaintiff at the time the suit was instituted, were not minors, and secondly, if the proper construction to be placed on that decision is that no suit on a negotiable instrument is maintainable under any circumstances unless all the holders thereof join the suit within limitation, we respectfully disagree with that decision.

4. During the course of arguments reference was made to the provision contained in Sections 6 and 7, of the Limitation Act. We are referring to those provisions merely for the purpose of showing that, on a close analysis of the defendants own pleadings, no question of limitation really arises. In any view of the matter, the question seems to be free from any difficulty, particularly in view of the principle enunciated by the Full Bench of our Court in the case of : AIR1952All245 , and we do not consider it necessary to refer to certain authorities which were cited at the bar but have merely an indirect bearing on the question before us. We are of the view that the suit which has given rise to this appeal was not barred by limitation, and the decree passed by the Courts below was perfectly correct.

5. This appeal is accordingly dismissed withcosts.


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