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Kissenlal Malpani, Administrator to Estate of Jethmal Malpani and Firm Jethmal Kaniram Vs. Tilak Chandra Bora and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1940Cal24
AppellantKissenlal Malpani, Administrator to Estate of Jethmal Malpani and Firm Jethmal Kaniram
RespondentTilak Chandra Bora and anr.
Cases ReferredAnnapurana v. Kallyani
Excerpt:
- .....instituted this suit as (a) holder of letters of administration in respect of the estate of the deceased jethmal malpani, and (b) holder of letters of administration for jethmal's business which was continued in the name and style of 'jethmal kaniram' after jethmal's death. the trial court found that the promissory note ex. 7 was executed in exchange for the former note ex. 6 and must go for the benefit of jethmal's estate, and that the plaintiff as representative of the estate was the holder of the note, and therefore decreed the suit. the lower appellate court did, not come to any clear finding on the facts, but allowed the appeal on two grounds, first that, assuming for argument's sake that the legal heir of jethmal was the beneficial owner of the money acknowledged by ex. 7, even.....
Judgment:

Roxburgh, J.

1. The plaintiff Kissenlai Malpani sued the defendant in respect of money due on a promissory note, Ex. 7, said to have been given in lieu of an earlier promissory note Ex. 6, in favour of his brother Jethmal Malpani. Jethmal had had a separate business and had lent the money on Ex. 6 in the course of this business. He died on 4th March 1933, leaving two daughters as his heirs. After his death the; business was run by the brothers of Jethmal under the name and style of 'Jethmal Kaniram', and in the course of such business one brother, Kaniram, took the renewed hand note Ex. 7. It appears that the brothers were at one time contending that Jethmal's business was a joint family business, but when they endeavoured to sue debtors on this basis they failed, and henca Kissen Lai obtained ex parte letters of administration to the estate of Jethmal and he has now instituted this suit as (a) holder of letters of administration in respect of the estate of the deceased Jethmal Malpani, and (b) holder of letters of administration for Jethmal's business which was continued in the name and style of 'Jethmal Kaniram' after Jethmal's death. The trial Court found that the promissory note Ex. 7 was executed in exchange for the former note Ex. 6 and must go for the benefit of Jethmal's estate, and that the plaintiff as representative of the estate was the holder of the note, and therefore decreed the suit. The lower Appellate Court did, not come to any clear finding on the facts, but allowed the appeal on two grounds, first that, assuming for argument's sake that the legal heir of Jethmal was the beneficial owner of the money acknowledged by Ex. 7, even then no one can maintain a suit on that promissory note except the holder thereof. The fact that the holder has been, made a party and has admitted that he is only the plaintiff's benamidar makes no difference.

2. The second ground given by the lower Appellate Court is that as Kissenlal is not an heir of Jethinal he is not a person who within the meaning of Section 214, Succession Act, 1925, can be said to be 'claiming on succession to be entitled to the effects of the deceased person'. As to the first point apparently the learned Additional Judge means to say that the promissory note having been given in the name of the firm Jethmal Kaniram, only that firm can sue. But the plaintiff's case is that that firm so described is the business of Jethmal under a different name, and that he is its legal representative and suing as such. This is a pure question of fact which the lower Appellate Court should have decided; the facts have been found by the trial Court to be as alleged by the plaintiff. If the firm Jethmal Kaniram is not the business of Jethmal under another name, but is a separate creation of the brothers, then no question of benamidar appears to arise, and the plaintiff in the capacity in which he sues is not entitled to a decree. It will be necessary therefore to remand the case to the lower Appellate Court to come to a finding on this point. As regards the second ground, the learned Additional Judge relies on an unreported decision of this Court in appeal from a previous decision of his own in a somewhat similar case. The case is that of Asharam Poddar v. Hanumanbax Mashulal, being appeal from original Decree No. 39 of 1934. In that case the plaintiff relied on a succession certificate and the suit was dismissed on the ground that Section 214 has no application 'unless the person applying bases his claim on succession'. The learned Judges added:

The Section, in our view, contemplates a claim made by a person in the capacity of a personal representative of the deceased person. See the case in Raman Lalji v. Hari Das (1916) 3 A.I.R. All. 233. On the facts of the plaint itself, as has already been stated, it is clear that the heirship of Motilal Poddar's estate lay in other persons and not in the plaintiff, who can in no sense be regarded as a personal representative of the late Motilal Poddar.

3. With great respect to the learned Judges who decided that case it must be said that they appear to have misinterpreted the meaning of the word 'succession' as used in Section 214. It is evidently inserted to except the case where the claim to be entitled to the effects of a deceased is based on survivorship; it can have nothing to do with the question whether the person claiming and holding one of the catalogue of documents set forth in Section 214 is an heir of the deceased or not. The status and qualifications of the persons so entitled are not to be found in an interpretation of the word 'succession' but in the other provisions of the Succession Act itself, or the other Acts referred to in Section 214 under which the, grants are made. The purpose of Section 214 is merely to make clear that no debt to a deceased person can be recovered through Court except by a holder of one of the documents specified, the only exceptions-being either where the claim is made on survivorship, or where it relates to rent, revenue or profits payable in respect of land used for agricultural purposes.

4. However it is not necessary to refer this matter to a Full Bench as the present case-is distinguishable as between one relating to letters of administration whereas the former case related to a succession certificate. In the reasoning given in the above case, it is conceded that if the holder of one of the documents enumerated in Section 214 is a personal representative then he is a person claiming on succession to be entitled to the assets of the deceased. By virtue of Section 211 of the Act, every administrator is legal representative of the deceased person for all purposes, except in relation to property of the deceased which has passed by survivorship. The circumstances in which a grant of letters of administration may be made in the case of a deceased Hindu may be briefly discussed, in view of the objection that Kissenlal is not an heir of Jethmal. Under Section 212(2) it is not essential that letters of administration should be taken out in respect of the estate of a deceased Hindu. Under Section 214, however, no debt can be recovered unless the claimant holds one of the documents specified therein of which letters of administration is one. Under Section 218, letters of administration may be given in respect of the estate of a deceased Hindu to anyone who is entitled to the whole or any part of the estate according to the rules for the distribution of the estate applicable in the case of such, deceased or under Sub-section (3) to a creditor. Admittedly, Kissenlal is not such a person, but there are the further provisions of Sections 253 and 254 which allow for a grant to be made to some person other than one to whom it would be made in ordinary circumstances. A discussion of the conditions under which such a grant can be made will be found in Annapurana v. Kallyani (1894) 21 Cal. 164 which is a casa under the corresponding provisions of Sections 23 and 41, Probate and Administration Act, 1881. Apart from any other considerations, it cannot be said that the mere fact that the holder of letters of administration is not an heir to the estate of the deceased makes the grant invalid, even assuming that the Court before which the claim for the debt is made can investigate the question of the validity of the grant. An order granting letters of administration is subject to appeal, and is further at any time subject to revocation under Section 261 of the Act, and it is at least doubtful whether a Court trying a claim based on a grant is entitled to go behind the grant, but the question need not be pursued here. If then the debt in suit is one due to the estate of the deceased, the plaintiff is entitled to a decree. It may be added that if the Court has any doubts and wishes to protect the interests of Jethmal's daughters, there is nothing to prevent in directing a copy of the decree being sent to the Court controlling the administrator under Chap. 7 of the Act.

5. For the above reasons the appeal is allowed, the decree of the lower Appellate Court is set aside and the case is remanded to the lower Appellate Court for coming to a finding as to whether the promissory note in suit was given to the estate of Jethmal in the name of the firm Jethmal Kaniram; if the Court finds this to be so it will dismiss the appeal and confirm the decree of the trial Court, otherwise the appeal will be allowed. The plaintiff will get the costs of this appeal; further costs will abide the result.

B.K. Mukherjea, J.

6. I agree.


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