NILMONI DE Vs. SOORENDRA NATH MITRA

JUDGEMENT

(1.) This Rule relates to a suit which was instituted in the Small Cause Court at Hooghly. The petitioner is the defendant in the suit and the opposite parties are the plaintiffs. The Rule was issued on the opposite parties to show cause why the judgment and decree of the Small Cause Court Judge, dated the 30th July 1917 should not be set aside.

(2.) It appears that there was a joint Hindu family consisting of three brothers Bepin Lal Behary and Charu governed by the Law of the Dayabhaga. The three brothers are now all dead and the plaintiffs are their heirs and representatives. The suit was brought on a hand- note dated the 22nd July 1912 executed in favour of Charu. The first point taken on behalf of the petitioner is that the Small Cause Court Judge was not entitled to make a decree, as he has done, in favour of plaintiffs Nos. 1 and 2 before they had produced a succession certificate under Section 4 of the succession Certificate Act entitling them as heirs of their predecessor Bepin to collect a third share of the debt due from the defendants The Same point is taken in regard to the plaintiff No. 3, who is the son of Lal Behary.

(3.) Now it appears that the hand-note of the 22nd July 1912 was executed in renewal of a previous hand-note dated the 22nd July 1909 in favour of Bepin. It is argued that he plaintiffs Nos. 1 and 2 are claiming their share under the hand-note of 1912 as heirs of Bepin and that, therefore, they cannot maintain this suit without producing a succession certificate. In my opinion this argument is unsound. The hand-note of 22nd July 1909 is not the hand-note now sued upon The hand-note now sued upon is the hand-note of the 22nd July 1912 The contract which it embodies is a new contract taking the place of and substituted for the original contract. In other word s there has been a novation. It must be taken that when the hand- note of the 22nd July 1912 was executed in favour of Charu. Charu was acting as the karta or representative of the joint family as then constituted. Bepin and Lal Behary were dead at the time. The joint family as then constituted consisted of Charu and the heirs of Bepin (plaintiffs Nos. 1 and 2) and the heir of Lal Behary (plaintiff No. 3). No doubt at the date of this hand- note the rights of plaintiffs Nos. 1 and 2 to a share of the original hand-note was a right derived by them from their father; but the are now claiming in their own right as person in whose favour the hand-note of the (sic) July 1912 was executed, Charu having represented them in that transaction The objection, therefore, cannot be sustained and similar observations apply to the case of plaintiff No. 3.