RADHAKISHAN S/O R S NATHULAL Vs. NARAINIBAI

JUDGEMENT

(1.) THIS is a first appeal by one of the defendants (defendant No. 2) against whom a decree for Rs. 11,500/- and interest has been passed, presumably, in accordance with Section 35 second part and 29 of the Negotiable Instruments Act, as the endorser of a dishonoured cheque in the ostensible capacity of the executor of the original holder, without any express limitation of the liability. No decree has been passed against defendant No. 1 (res. No. 2) the drawer of the cheque, as the court accepted his contention that the suit as framed by the plaintiff-respondent no. 1 was bad for nonjoinder of all the heirs of the holder of the cheque. There is no appeal by the plaintiff praying for a decree against the drawer (defendant No. 1 ).

(2.) THE facts are practically common ground but are an unusual combination of circumstances raising interesting questions:

(3.) THE facts for our purposes are the following. In 1945, there lived one Rai Sahib nathulal Mahajan at Mhow, Appellant Radhakishan is Nathulal's son. Defendant no. 1 Seth Madanlal is his cousin or brother, (which relationship is immaterial to the controversy) and the plaintiff Narainibai is the widow of another brother ramkishan Mahajan. Seth Madanlal owed a sum of Rs. 11,500/- to the Rai Sahab nathulal, for the payment of which he drew a cheque on 5th October, 1945 in favour of the latter. Already on the 7th September 1945, the Rai Sahib Nathulal had executed a will nominating his son Radhakishan as the sole executor. One of the directions in the will was that the sum of Rs. 11,500/- payable by Madanlal should, when recovered, be given to his sister-in-law Narainibai as provision to her. The testator lived on till 17th of December, but for reasons which are not clear, he did not, either endorse the cheque in favour of the sister-in-law or collect the money himself by presenting the cheque to the drawee, the Indore Bank limited. Apparently he intended that the amount should be collected by his executor after his death and then given to the beneficiary. When his son radhakishan applied for probate, the other heirs contested; after a few years, the probate was refused, the will being declared invalid, Radhakishan did not go in appeal and that order stood. Meanwhile, giving himself out as the sole executor, he tried without success to cash the cheque. Madanlal was creating difficulties, and by the time the cheque was presented sometime in May 1947, it was already beyond the six months period, and the Bank returned it dishonoured. It is obvious even if the cheque had been presented in time, the bank would still have refused to pay; Radhakishan till had not obtained the probate. All the time, the plaintiff was constantly worrying Radhakishan for the money, and charging him with negligence and bad faith and threatening him with a suit. Radhakishan for his part was pointing out his difficulties; thereupon the plaintiff wanted that the cheque should be made over to her so that she could collect it. For reasons which are not clear, neither Narainibai nor Radhakishan sued Madanlal for the loan as the heirs of the late Rai Sahib Nathulal after impleading all the heirs, Narainibai in her turn, demanded payment from Madanlal, which he refused; ultimately, upon her insistence, Radhakishan endorsed the cheque in her favour, signing as "the sole executor. " This was some time towards the end of 1947 an3 on the strength of this endorsed cheque, she filed the present suit on 15-7-1948, within three years of the drawing of the cheque by Seth Madanlal. Apparently, the probate proceedings were still pending and the plaintiff was hopeful that Radhakishan would obtain probate; that is probably why she sued only the drawer and "the executor", the former as defendant No. 1 and the latter as defendant No. 2; the latter was sued not as the endorser of the cheque but as "sole executor of the last will and testament of late Rai Sahib Nathulal", which capacity he never legally acquired.