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Pothera Kallur Veettil Narayanan Nambiar Vs. Pothera Kallur Veettil Kunhathayi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad730; (1940)1MLJ939
AppellantPothera Kallur Veettil Narayanan Nambiar
RespondentPothera Kallur Veettil Kunhathayi Amma and ors.
Cases ReferredMahomed Ali Mamojee v. Howeson Brothers
Excerpt:
.....because it would mean that he could' free himself from his liability without leave of the court, the leave of the court becoming a pure..........to be released and does not like to remain bound.2. it is well settled now that in the case of a bond like this a surety cannot release himself or discharge himself from the bond of his own sweet will, but must obtain leave of the court. see mahomed ali mamojee v. howeson brothers (1926) m.w.n. 493 , in which their lordships of the judicial committee saw no reason for differing from the conclusion arrived at by the high court of calcutta to this effect, namely that a surety could not free himself from his liability without the consent of the court. reference may also be made in this connection to national guarantee & suretyship association v. prayag deb banerji i.l.r.(1931) all. 293 and in the goods of nam lal das deceased i.l.r. (1939) 2 cal 1. in the allahabad case it is pointed out.....
Judgment:

Pandrang Row, J.

1. This petition raises the question whether the petitioner, who was a surety for the proper administration of tarwad affairs and properties by the karnavan, is entitled, to be discharged from the bond for the reason given by him. The petitioner is a junior member of the tarwad, who of his own accord stood surety and executed the bond for Rs. 2,000. It is not pretended that he executed this bond owing to any mistake of fact or misrepresentation or in circumstances of the like nature. The reason given by him is that he is not prepared to continue to remain bound and that he wants to dispose of some of his properties. Here in this Court the learned Counsel on his behalf adds another reason, namely, that he has lost faith in his karnavan. In effect it comes to this the petitioner wants to be released because he wants to be released and does not like to remain bound.

2. It is well settled now that in the case of a bond like this a surety cannot release himself or discharge himself from the bond of his own sweet will, but must obtain leave of the Court. See Mahomed Ali Mamojee v. Howeson Brothers (1926) M.W.N. 493 , in which their Lordships of the Judicial Committee saw no reason for differing from the conclusion arrived at by the High Court of Calcutta to this effect, namely that a surety could not free himself from his liability without the consent of the Court. Reference may also be made in this connection to National Guarantee & Suretyship Association v. Prayag Deb Banerji I.L.R.(1931) All. 293 and In the goods of Nam Lal Das deceased I.L.R. (1939) 2 Cal 1. In the Allahabad case it is pointed out that leave of the Court could be given for good cause, but no attempt is made to indicate exactly what 'good cause' would be Naturally it would depend on the circumstances of each case, and it would not be easy to define 'good cause' in a perfectly satisfactory way. In this case, as observed already, there is no cause shown except that the petitioner has changed his mind. That obviously cannot be regarded as good cause, because it would mean that he could' free himself from his liability without leave of the Court, the leave of the Court becoming a pure formality. The lower Court has gone as far' as possible to meet the wishes of the petitioner by saying that he would be released if he finds other satisfactory security. His present contention practically amounts to this, that he must be allowed to free himself of his own sweet will. This is exactly what he cannot do, as has been held in Mahomed Ali Mamojee v. Howeson Brothers (1926) M.W.N. 493 The petition therefore must be dismissed with costs of respondents 1 and 2.


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