HIRA SINGH Vs. MUSAMMAT AMARTI

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage-bond alleged to have been executed on the 25th January, 1881, by Nathu Singh and Kallu, who are now represented by Musammat Amarti, defendant No. 1. The suit was filed on the 8th August, 1910, the 7th August being a Sunday. The original bond was not produced. The plaintiffs alleged that it was in the possession of defendants 2 to 4 and filed a copy. Musammat Amarti, defendant No. 1, pleaded that the plaintiffs were not entitled to sue without first obtaining a succession certificate, and that the original bond had been paid off. In the court of first instance a succession certificate to collect a debt of Rs. 500 in respect of the bond now in suit was filed by the plaintiffs. No evidence was adduced by either party. The court held that, as the execution of the bond was not specifically denied in the written statement, it must be held to have been admitted and decreed the plaintiffs suit. Musammat Amarti, defendant No. 1, appealed to the lower appellate court. One ground taken in appeal was that the plaintiffs had not shown that they were entitled to produce secondary evidence of the bond in suit. Another was that the suit was barred by limitation. The lower appellate court held that as the debt due on the bond in suit was over Rs. 2,000, whereas the plaintiff had obtained a succession certificate in respect of a debt of Rs. 500 only, the suit could not be maintained by the plaintiffs and must be dismissed. On the question of limitation the lower appellate court held that as the courts were closed on the 7th August, 1910, the last day of limitation, the suit having been filed on the 8th August, 1910, the day on which the courts reopened, was within time. The court further held that the execution of the bond was admitted by implication. The question whether the plaintiffs were entitled to produce secondary evidence of the bond in suit does not appear to have been argued before the court below. The appeal to that court having been allowed, the plaintiffs come here in second appeal.

(2.) I think the suit should not have been dismissed on the ground that the succession certificate held by the plaintiffs was not sufficient to cover the amount due on the bond in suit. The proper procedure for the court to have adopted was to allow the plaintiffs sufficient time within which to obtain an extension of the certificate,

(3.) I also think that some evidence should have been required of the plaintiffs before admitting secondary evidence of the bond in suit. The learned vakil on behalf of the respondent supports the decision of the court below on the ground that on the date on which the suit was filed--the 8th August, 1910--the suit was barred by limitation.