BAI SARDA Vs. PATEL KESHAVLAL JOITARAM

JUDGEMENT

(1.) This revision petition is directed against the order passed by the learned Civil Judge Junior Division Vijapur in Civil Suit No. 74 of 1964 ordering that the petitioner who is the plaintiff in the suit should apply for obtaining a succession certificate and produce the same in the suit within 2 months from the date of the order.

(2.) Short facts leading to this petition are that the opponent bad borrowed on November 26 1957 an amount of Rs. 1100.00from one Bhurabhai alias Mohanlal Nihalchand who was the husband of the plaintiff. The opponent had executed a pro-note in favour of Bhurabhai Nihalchand which was produced in the suit at Ex. 31. Thereafter the opponent executed another pro-note on November 4 1960 for the amount of Rs. 1374.00in favour of the petitioner as guardian of her sons Ramesh Mukesh and Mahesh. The consideration of this pro-note was the amount of previous loan of Rs. 1100.00advanced by Bhurabhai Nihalchand plus interest thereon. Thereafter the opponent executed another pro-note in favour of the petitioner on May 17 1961 The consideration of this pro-note consisted of the loan advanced by Bhurabhai plus the interest till the date of the execution of the pro-note. It is on the basis of this pro-note Ex. 26 that the petitioner had filed the Civil Suit No. 74 of 1964 in the Court of Civil Judge Junior Division at Vijapur against the opponent to recover the amount of Rs. 1716-67 P.

(3.) The opponent resisted the suit on various grounds. The opponent denied that he executed the pro-note or that he received any consideration. He also contended that the suit was barred by limitation and that the plaintiff could not institute the suit without obtaining a succession certificate as required by sec. 214 of the Indian Succession Act. The learned trial Judge tried the issue as to whether the plaintiff could file the suit without obtaining a succession certificate as a preliminary issue and held that the plaintiff should apply for succession certificate and ordered her to produce the same in the Court within two months failing which the suit was to stand dismissed.