KISSENLAL MALPANI, ADMINISTRATOR TO ESTATE OF JETHMAL MALPANI AND FIRM JETHMAL KANIRAM Vs. TILAK CHANDRA BORA

JUDGEMENT

(1.) The plaintiff Kissenlai Malpani sued the defendant in respect of money due on a promissory note, Ex. 7, said to have been given in lieu of an earlier promissory note Ex. 6, in favour of his brother Jethmal Malpani. Jethmal had had a separate business and had lent the money on Ex. 6 in the course of this business. He died on 4 March 1933, leaving two daughters as his heirs. After his death the; business was run by the brothers of Jethmal under the name and style of "Jethmal Kaniram", and in the course of such business one brother, Kaniram, took the renewed hand note Ex. 7. It appears that the brothers were at one time contending that Jethmal's business was a joint family business, but when they endeavoured to sue debtors on this basis they failed, and henca Kissen Lai obtained ex parte letters of administration to the estate of Jethmal and he has now instituted this suit as (a) holder of letters of administration in respect of the estate of the deceased Jethmal Malpani, and (b) holder of letters of administration for Jethmal's business which was continued in the name and style of "Jethmal Kaniram" after Jethmal's death. The trial Court found that the promissory note Ex. 7 was executed in exchange for the former note Ex. 6 and must go for the benefit of Jethmal's estate, and that the plaintiff as representative of the estate was the holder of the note, and therefore decreed the suit. The lower Appellate Court did, not come to any clear finding on the facts, but allowed the appeal on two grounds, first that, assuming for argument's sake that the legal heir of Jethmal was the beneficial owner of the money acknowledged by Ex. 7, even then no one can maintain a suit on that promissory note except the holder thereof. The fact that the holder has been, made a party and has admitted that he is only the plaintiff's benamidar makes no difference.

(2.) The second ground given by the lower Appellate Court is that as Kissenlal is not an heir of Jethinal he is not a person who within the meaning of Section 214, Succession Act, 1925, can be said to be claiming on succession to be entitled to the effects of the deceased person . As to the first point apparently the learned Additional Judge means to say that the promissory note having been given in the name of the firm Jethmal Kaniram, only that firm can sue. But the plaintiff's case is that that firm so described is the business of Jethmal under a different name, and that he is its legal representative and suing as such. This is a pure question of fact which the lower Appellate Court should have decided; the facts have been found by the trial Court to be as alleged by the plaintiff. If the firm Jethmal Kaniram is not the business of Jethmal under another name, but is a separate creation of the brothers, then no question of benamidar appears to arise, and the plaintiff in the capacity in which he sues is not entitled to a decree. It will be necessary therefore to remand the case to the lower Appellate Court to come to a finding on this point. As regards the second ground, the learned Additional Judge relies on an unreported decision of this Court in appeal from a previous decision of his own in a somewhat similar case. The case is that of Asharam Poddar V/s. Hanumanbax Mashulal, being appeal from original Decree No. 39 of 1934. In that case the plaintiff relied on a succession certificate and the suit was dismissed on the ground that Section 214 has no application unless the person applying bases his claim on succession . The learned Judges added: The Section, in our view, contemplates a claim made by a person in the capacity of a personal representative of the deceased person. See the case in Raman Lalji V/s. Hari Das (1916) 3 A.I.R. All. 233. On the facts of the plaint itself, as has already been stated, it is clear that the heirship of Motilal Poddar's estate lay in other persons and not in the plaintiff, who can in no sense be regarded as a personal representative of the late Motilal Poddar.

(3.) With great respect to the learned Judges who decided that case it must be said that they appear to have misinterpreted the meaning of the word succession as used in Section 214. It is evidently inserted to except the case where the claim to be entitled to the effects of a deceased is based on survivorship; it can have nothing to do with the question whether the person claiming and holding one of the catalogue of documents set forth in Section 214 is an heir of the deceased or not. The status and qualifications of the persons so entitled are not to be found in an interpretation of the word succession but in the other provisions of the Succession Act itself, or the other Acts referred to in Section 214 under which the, grants are made. The purpose of Section 214 is merely to make clear that no debt to a deceased person can be recovered through Court except by a holder of one of the documents specified, the only exceptions-being either where the claim is made on survivorship, or where it relates to rent, revenue or profits payable in respect of land used for agricultural purposes.