CHUNA Vs. CHHOGALAL

JUDGEMENT

(1.) PLAINTIFFS Chhogalal and Laxminarain, the present respondents, instituted a suit against defendants appellants Chuna and Bhura in the court of the learned Munsiff of Nawa on July 3, 1962, for the recovery of Rs. 1047/- on the basis of a promissory note (Ex. 1) said to have been executed on June 24, 1960 in favour of Bhuramal and Chhogalal. Bhuramal died and the plaintiffs claimed that the promissory note having been executed in favour of the joint Hindu family, Bhuramal's interest devolved by survivorship on them. They admitted that Mst. Mangi, being Bhuramal's daughter, was his legal representative, and arrayed her as a proforma defendant on the ground that she was not present at the time of the institution of the suit. The plaintiffs, however, clearly prayed for the grant of a decree exclusively in their favour. The defendants denied the execution of the promissory note but pleaded, at the same time, that it had been written in favour of Chhogalal and Bhuramal in their individual capacity and not as members of a joint Hindu family and that the suit was not maintainable until the plaintiffs obtained a succession certificate in respect of Bhuramal's share. It was specifically pleaded by the defendants that, in these circumstances, Smt. Mangi was not a mere proforma defendant. In their replication, however, the plaintiffs stuck to their plea that they were the surviving members of the joint Hindu family and that no succession certificate was necessary. The learned Munsiff of Nawa reached the conclusion that the promissory note in question had been written individually in favour of Bhuramal and Chhogalal and that Bhuramal's share devolved by succession and not by survivorship. He was therefore of the opinion that the suit was not maintainable without a succession certificate in respect of Bhuramal's share. The learned Munsiff also held that the execution of the promissory note in question had not been proved and. , for all these reasons, he dismissed the suit on April 13, 1963. The learned District Judge, on an appeal by the plaintiffs, also reached the conclusion that the promissory note had been executed individually in favour of Bhuramal and Chhoga Lal, but he held that the plaintiffs had succeeded in proving its execution. The learned Judge was however under the impression that Bhuramal's daughter Smt. Mangi was also a plaintiff in the suit and he therefore ordered that a decree may be drawn up in favour of the plaintiffs on production of a succession certificate in respect of Bhuramal's share. Against that judgment and decree of the learned District Judge dated September 14, 1963, the defendants have come up in this second appeal.

(2.) IT has been argued on behalf of the appellants that the plaintiffs appeal before the District Judge was not properly constituted in as much as they left out Smt. Mangi altogether in their anxiety to show that she was not even a necessary party and that Bhuramal's share had really devolved on them by survivorship. IT has therefore been urged that the appeal was not maintainable because the trial Court had clearly reached the conclusion that the promissory note had been executed in favour of Bhuramal and Chhogalal in their individual capacity and Smt. Mangi being Bhuramal's only heir was a necessary party as a co-promisee.

(3.) FOR these reasons, the first appeal was not properly constituted in the absence of a necessary party and the defect could not be said to be cured by Order 41, rule 4 C. P. C. Manghibai vs. Cooverji Umersey (2) and Narsingh Das vs. Bharion Dan (3) cited by Mr. Maheshwari can be of no avail for purposes of that appeal as all the necessary parties were not before the court and it was not possible to make an appropriate order. So also, it would not matter if the plaintiffs now claim to have purchased Smt. Mangi's share from her because that development admittedly took place after the first appeal had been decided.