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Sital Prosad Poddar and ors. Vs. Kaifut Sheikh and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.367
AppellantSital Prosad Poddar and ors.
RespondentKaifut Sheikh and anr.
Cases Referred and Guruvayya Gouda v. Dattatraya
Excerpt:
hindu law - mitakshara--debt due to deceased father--suit by son--succession certificate, whether necessary--co-parceners added as plaintiffs after limitation, effect of--limitation act (ix of 1908), section 22. - .....suit was on that date clearly barred.' this finding, in our opinion, is not sufficient to hold the suit barred. there may be circumstances, as existed in various cases (see the cases of thakurmani singh v. dai rani koeri 33 c. 1079; kishen parshad v. har narain singh : (1911)13bomlr359 and guruvayya gouda v. dattatraya 28 b. 11 5 bom. l.r. 618 in which addition of parties subsequently brought on the record may no be essential and may be merely for the protection of the defendant. it is, therefore, desirable that the learned munsif should come to a finding as to whether the added plaintiffs who, we are told, are minors are necessary parties to the suit and if not whether the suit can proceed without them.4. we, therefore, make the rule absolute, set aside the decree of the munsif of.....
Judgment:

1. This Rule is directed against the order of the Munsif of Lalbagh exercising Small Cause Court jurisdiction dismissing the plaintiff's suit on two grounds: first, that the debt was owing to the plaintiff's father and, therefore, the suit is not maintainable without a certificate under Act VII of 1889, and secondly, that as some of the plaintiffs have been made parties after period of limitation the suit is barred under Section 22 of the Limitation Act.

2. With regard to the first point it is now beyond controversy that in the case of a family governed by Mitakshara Law as the plaintiff's, family appears to be Succession Certificate is not necessary before bringing a suit of this nature.

3. As regards the second point the learned Munsif says: 'The co-parceners were made parties on 6th June 1921, The suit was on that date clearly barred.' This finding, in our opinion, is not sufficient to hold the suit barred. There may be circumstances, as existed in various cases (See the cases of Thakurmani Singh v. Dai Rani Koeri 33 C. 1079; Kishen Parshad v. Har Narain Singh : (1911)13BOMLR359 and Guruvayya Gouda v. Dattatraya 28 B. 11 5 Bom. L.R. 618 in which addition of parties subsequently brought on the record may no be essential and may be merely for the protection of the defendant. It is, therefore, desirable that the learned Munsif should come to a finding as to whether the added plaintiffs who, we are told, are minors are necessary parties to the suit and if not whether the suit can proceed without them.

4. We, therefore, make the Rule absolute, set aside the decree of the Munsif of Lalbagh exercising Small Cause Court jurisdiction dated the 13th June 1921, and send back the case for re-trial in accordance with the above observations, We pass no order for costs.


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