KAMALAKANT GOPALJI Vs. MADHAVJI VAGHJI

JUDGEMENT

(1.) The plaintiff has filed this suit to recover from the defendant two sums of Rs. 52,747-8-0 and Rs. 8,158-9-0 under two promissory notes dated 29 July 1929, which were passed by the defendant in favour of the plaintiff's father Gopalji Ramji. Gopalji Ramji died intestate at Bombay on or about 3 June 1931. Plaintiff is his only son, and claims the two sums as the sole surviving coparcener of a joint and undivided Hindu family of which he and his father were members, or, in the alternative, as the sole heir and legal representative of his father. Plaintiff has not obtained representation to the estate of his father, and at the commencement of the hearing his counsel said that he claimed only as a coparcener. It is clear that the two claims cannot be joined together under the terms of Order 2, Rule 5, Civil P.C. It makes no difference that the second claim is in the alternative to the first: see Whitworth Darbishir (1893) 68 L.T. 216. Plaintiff's father and the defendant did business in partnership as colour merchants. The partnership was dissolved some time between 1922 and 1924, and on making up the accounts-moneys were found due for which the. defendant passed the two promissory notes in suit in favour of the plaintiff s-father. The promissory notes were renewed from time to time, the last, renewal being on 29 July 1929.

(2.) The suit was filed on 9 September 1932, and on the face of it the claim is time-barred. Plaintiff however relies on the absence of the defendant from British India in 1932 to save the bar of limitation. Defendant also contends that the plaintiff cannot maintain this suit on the promissory notes as a surviving coparcener, assuming that he was one, as the promissory notes are payable to Gopalji Ramji or order. The plaintiff, it was contended, is not a holder who can give a valid and proper discharge to the defendant. In his written statement the defendant alleges that he is not aware that plaintiff is the only son and heir or legal representative of his-father, and that even if he is, he cannot file this suit without obtaining representation to his father's estate. There was however nothing to prevent the plaintiff from filing the suit as the sole heir of his father if he was so minded, and all that has been held in Raichand V/s. Jivraj 33 Bom. L.R. 1372 is that the Court cannot pass a decree-until he had obtained such representation. That question however does not now arise, as the plaintiff claims the two amounts of the promissory notes as the solo surviving coparcener.

(3.) I will deal with the latter contention first. Defendant denies that the plaintiff and his father Gopalji were members of a joint and undivided Hindu family. Plaintiff is the only son of Gopalji by a predeceased wife. Gopalji also left a widow, his second wife, and a daughter by her. They all lived together until Gopalji.'s death. Presumably the father and the son were joint in food and worship, but there is no presumption that they held joint family property. It is for the plaintiff to show that the family possessed some joint or ancestral property from which the presumption could be drawn that all the property possessed by the family was joint family property. There were three brothers, Purshottam, Bamji and Narainji, who were the sons of Rbji. Ramji had three sons, Gopalji, "Vallabhdas and Shivji. Plaintiff was six or seven years old when his grandfather Ramji died. He could not state whether Eamji left any particular ancestral property except that according to his information and belief there was some ancestral property at Kamatipura and Madanpura. He however frankly admitted that he had no documents to prove his statement, but he was supported by his uncle Shivji Ramji, who would certainly be in a better position by reason of his age to know the real state of affairs. Shivji also frankly stated that the condition of the family was poor, but Gopalji got some ancestral property from Ramji when he separated, and whatever was left came to him. According to him Gopalji also speculated, earned money, and did business in partnership with the defendant. Both ho and the plaintiff stated that there never was any partition or separation between father and son. This is all the evidence, and I must say that it might have been a little fuller in detail. But 1 think the Court can still draw the inference from these statements which have not been disproved that the plaintiff and his father were members of a joint and undivided Hindu family, i.e., joint in food, worship and estate.