BAI SHANTA Vs. TRIKAMLAL VRIJAVALLABHDAS SHAH

JUDGEMENT

(1.) THIS is an appeal from the Extra Joint First Class Subordinate Judge of Ahmedabad The suit was for a sum of money, the principal sum claimed being Rs. 7,000, and the learned Judge dismissed the suit on the ground that the plaint disclosed no cause of action.

(2.) THE plaint alleges in paragraph 1 that the defendant did business in the name of Kumudchandra Kantilal, and that allegation is admitted in the written statement. THEn the plaint alleges certain advances to the defendant made by plaintiff No.1, and other advances made by plaintiff No.2, the plaintiffs being husband and wife, and then it is alleged that on March 17, 1936, the debt owing to the two plaintiffs by the defendant was Rs. 5,000, and a further sum of Rs. 2,000 was on that date advanced by plaintiff No.2, making altogether a debt of Rs. 7,000, and that by an agreement of that date certain security was given for the Rs. 7,000. THE learned Judge was not unnaturally puzzled as to what the plaint really meant : whether the plaintiffs were suing on the original advances, or only on the agreement of March 17, 1936. Accordingly he directed the pleader for the plaintiffs to state whether the plaintiffs sued only upon the agreement of March 17, 1936, or alternatively upon the earlier loan bonds, and that agreement also, and the plaintiffs' pleader put in a purshis saying that the plaintiffs sued only on the agreement of March 17, 1936, and that the earlier transactions were referred to merely as matters of historical interest. THE course adopted by the learned Judge may not have been strictly regular; he ought really to have told the pleader to amend the plaint. But it is not an uncommon practice in the mofussil to require a pleader to say what his pleading really means, and I think we must hold the plaintiffs bound by the statement that they are only suing on the agreement of March 17, 1936. It is in fact difficult to see how they could be suing on anything else, because there is no allegation of any debt due to the plaintiffs jointly, except under that agreement. THE learned Judge in his judgment has translated the agreement of March 17, 1936, and nobody has questioned the accuracy of the translation. It appears that Rs 2,000 were advanced on the date of the agreement by the wife, and that amount was advanced on the security of certain cotton goods lying in the shop of the defendant firm. THEn comes this statement: "Besides, a debt of Rs. 5,000 is due from the firm of Shah Kumudchandra Rajnicant to you, to you that is, to Vyas Achratlal Nathubhai and Saubhagyavanti Shanta" (that is plaintiffs Nos. 1 and 2), THEn it goes on to provide for the whole sum of Rs. 7,000, being secured by the defendant on the property of his uncle which was then in the possession of his aunt. What that interest amounted to is not shown; but it looks rather as if the defendant had an interest as reversioner in the estate of his uncle, subject to the widow's estate of his aunt, in which case the defendant's interest was in law only a spes successionis. Agreeing to give a spes successionis as security for a debt, if and when the hope matured, would not be inconsistent with the defendant having given a promise to pay the amount.

(3.) IN my opinion, the agreement of March 17, 1936, does contain an implied promise to pay to the plaintiffs jointly a sum of Rs, 5,000, and the suit will have to go back to the lower Court to deal with it on the basis of that opinion. It may, of course, be that the defendant has some defence on the merits, and it may be that an account will be necessary. Those matters are not at present for determination. All we can do is to decide that under the agreement of March 17, 1936, the plaintiffs had a good cause of action for the Rs. 5,000 at the time when the suit was filed. We remit the matter to the lower Court to be dealt with on that basis. The defendant to pay the costs of the appeal in the proportion of 5 to2.