1938 (8) TMI 19 - HC - Indian Laws

Court sets aside decree, remands case for certificate of representation within six months. Plaintiffs to bear costs for negligence.

Virbhadrappa Shilvant Versus Shekabai Harun Sayed Ahmed Arab

Virbhadrappa Shilvant Versus Shekabai Harun Sayed Ahmed Arab - AIR 1939 Bom 188 Issues Involved:1. Representation of the estate of the deceased Sayed Harun.2. Requirement of a succession certificate or letters of administration.3. Non-presentation of the hundi within a reasonable time.4. Claim being time-barred.5. Non-joinder of necessary parties.6. Acknowledgment of debt by the defendants.Issue-wise Detailed Analysis:1. Representation of the Estate of the Deceased Sayed Harun:The defendants contended that the plaintiffs did not represent the estate of the deceased Sayed Harun, as there were other heirs alive, namely, his daughter and nephews. The court noted that the plaintiffs were only entitled to one-fourth share in their husband's property. The lower court attempted to remedy the defect by directing the plaintiffs to furnish satisfactory security for the shares of the absent heirs. The court upheld this view, emphasizing the necessity for all heirs to be represented in a suit to recover a debt due to the estate of a deceased Mahomedan.2. Requirement of a Succession Certificate or Letters of Administration:The defendants argued that no decree should be passed without a succession certificate or letters of administration to the estate. The court acknowledged that under Section 214 of the Indian Succession Act, a decree for the recovery of a debt due to a deceased Mahomedan cannot be passed without such a certificate. The court allowed the plaintiffs an opportunity to produce the certificate within six months, failing which the suit would be dismissed.3. Non-presentation of the Hundi within a Reasonable Time:The non-presentation of the hundi was argued by the defendants to amount to a discharge of the entire liability. However, the court found that the hundi was intended to serve as collateral security merely and not as a complete discharge of the debt. The court noted that the defendants had acknowledged the debt and paid interest thereon, which indicated that the hundi was not meant to satisfy the debt entirely.4. Claim Being Time-barred:The plaintiffs alleged that acknowledgments by the defendants in 1930 and 1931 saved the limitation. The court agreed, noting that the letters of acknowledgment written under the defendants' directions contained express acknowledgments of the debt and liability to pay. Therefore, the action to recover the debt was within time.5. Non-joinder of Necessary Parties:During the progress of the suit, other heirs applied to be brought on the record, but the lower court refused to add them as parties. The court upheld this decision, noting that the plaintiffs' attitude did not warrant adding the other heirs without their concurrence. However, the court recognized that all heirs were represented in the appeal, which partially remedied the initial defect.6. Acknowledgment of Debt by the Defendants:The court found that the defendants had acknowledged the debt in two letters dated June 17, 1930, and June 29, 1931. These letters were written under the defendants' directions and contained express acknowledgments of the debt and liability to pay. The court held that these acknowledgments saved the limitation and supported the plaintiffs' claim.Conclusion:The court set aside the decree of the lower court and remanded the case for passing a fresh decree if the plaintiffs produced a certificate of representation to the estate of the deceased Sayed Harun within six months. The suit would be dismissed if the certificate was not furnished within the allowed time. The plaintiffs were ordered to bear the costs of the defendants throughout due to their negligence in following the legal procedure.