PROBODH LAL MUKERJEE Vs. NILRATAN ADHIKARY

JUDGEMENT

(1.) The plaintiff in this suit seeks to obtain a decree for a sum of Rs. 6,866 against the estate of Krishna Kishore Adhikary, deceased, in the hands of the persons whom he has impleaded as defendants. On 25 September 1929 Krishna Kishore Adhikary executed a promissory note for the sum of Rs. 5,000 payable to the plaintiff on demand with interest at the rate of 12 per cent per annum. On 29 April 1930 Krishna Kishore died leaving two widows as his heiresses. In his suit the plaintiff states in para. 2 of his plaint that Krishna Kishore had died leaving defendant 3, his widow, surviving him. He then states in para. 3 that he is informed that Krishna Kishore had left a will and appointed defendant 2 as his executor. In para. 4 he says the plaintiff has ascertained that defendants 1 and 2, the brothers of the deceased and defendant 3, his widow, are in possession of the assets of the deceased. He then sets out particulars of his claim and asks for a decree against the assets in the hands of the defendants, and if necessary, for administration. The plaint was filed on 14 November 1932. The brothers Nilratan Adhikary and Gopesh Chunder Adhikary filed a written statement in which they deny knowledge of execution of the promissory note and state in para. 2 of their written statement that Krishna Kishore died intestate leaving him surviving two widows as his heiresses and legal representatives under the Bengal School of Hindu Law by which he was governed. They deny that they or either of them is in possession of the assets, but they admit that they are in possession of certain properties which were formerly their joint properties and which they say no longer form part of the assets of their deceased brother. In para. 5 of their written statement they take a definite plea that the second widow, Sm. Indumati Debi is a necessary party to the suit and that the suit is bad as framed.

(2.) The widow Sm. Saratbala Debi, who has been impleaded, has put in no defence. The defendant Nilratan Adhikary, one of the brothers, has died and there has been no substitution of his heirs on the record. Issue 1 which was framed was: "Is the suit bad for non-joinder or misjoinder of parties?" and this matter has been argued by way of demurrer. On behalf of the plaintiff, it is urged that the suit has been brought bona fide against those persons whom he thought were representing the estate. He admits that he has not used the word "representative," but he contends that from the way in which his plaint is framed and the allegation that defendant 3, the widow is in possession of part of the assets that widow is sued in a representative capacity. It seems to me that this is stretching the language a great deal further than is legitimate. In support of his contention he relies on Chaturbhujadoss Kushaldoss & Sons V/s. Raja Manicka Mudali 1930 Mad 930. That case however is not really an authority for the proposition which the plaintiff is trying to set up here, for in that case a creditor had brought a suit against the widow whom he considered to be the sole legal representative of the debtor and had obtained an ex parte decree for the payment of the debt out of the assets in her hands and the Court held that the widow sufficiently represented the estate to make the decree binding on a residuary legatee under the debtor's will. One of the learned Judges in that case in delivering his judgment says at p. 232: I do not think it necessary to discuss cases of the Bombay High Court or other Courts which adopt the view that the crucial question is whether the right heir or successor is on record, not whether the deceased's estate is sufficiently represented. And to my mind the question whether a representative on record is actually in possession of any of the deceased's property is not of importance, except as throwing light on the question of the plaintiff's good faith.

(3.) The learned Judge then considers the argument which has sometimes been put forward that a change has been brought about by the Civil P. C. of 1908 and that some of the older cases are therefore not in point. He says: The words of the Code of 1882 and that of 1859 may perhaps be taken to have given more freedom to a plaintiff in bringing on record the representatives he chooses and the words of the present Code to throw more responsibility in the matter on the Court. But that certainly cannot make a decree obtained after impleading a representative approved by the Court of less-effect against the deceased's estate.