1974 (4) TMI 112 - HC - Indian Laws

Appeal dismissed, cross-objection allowed, decretal amount enhanced with interest. Costs to follow success ratio.

The appeal filed by the defendants was dismissed with costs. The cross-objection filed by the plaintiffs was allowed, and the decretal amount was enhanced ... - Issues Involved:1. Validity of the will dated 17-11-58.2. Splitting of cause of action under Order 2, Rule 2, C.P.C.3. Proof of assets and stock-in-trade worth Rs. 12,500 handed over to defendant Harinarain.4. Appropriation of payments towards interest or principal.Issue-wise Detailed Analysis:1. Validity of the Will Dated 17-11-58:The defendants argued that the plaintiffs failed to prove the will dated 17-11-58 in accordance with the law. During the appeal, the plaintiff-respondents produced a copy of the probate dated 15-11-61 granted in their favor by the Court of District Judge, Jaipur District, Jaipur, which was admitted in evidence by the order of this Court dated 9-1-74. According to Williams on Executors, the probate is conclusive evidence of the validity and contents of a will. Thus, the grant of probate conclusively establishes the legal character of the person to whom the grant is made, and it is conclusive evidence against the whole world of the validity and due execution of the will and the testamentary capacity of the testator. Consequently, the genuineness of the will cannot be challenged by the defendants, and the first contention raised by the appellants was overruled.2. Splitting of Cause of Action Under Order 2, Rule 2, C.P.C.:The defendants contended that the suit was barred under Order 2, Rule 2, C.P.C. due to splitting of cause of action, as three suits were filed simultaneously based on the deed of dissolution. However, the Court noted that Order 2, Rule 2 applies only where the cause of action is one and does not apply where one transaction gives rise to several causes of action. The Court emphasized that the deed of dissolution gave rise to three separate and distinct causes of action. Furthermore, the defendants failed to produce the plaints of the other two suits, which is necessary to establish the identity of the cause of action. The Court also noted that the three suits were filed simultaneously on the same date in the same Court, and the bar under Order 2, Rule 2 does not apply when suits are filed simultaneously. The Court concluded that the present suit is not barred under Order 2, Rule 2, C.P.C., and the plaintiffs were not required to include all causes of action in one suit.3. Proof of Assets and Stock-in-Trade Worth Rs. 12,500 Handed Over to Defendant Harinarain:The defendants argued that there was no reliable proof that assets and stock-in-trade worth Rs. 12,500 were handed over to Harinarain. The deed of dissolution and the deed of guarantee indicated that Harinarain took the liability for payment of Rs. 12,500 in lieu of stock-in-trade worth that amount, and Harishchandra stood surety for the repayment. The defendants had regularly paid monthly installments of Rs. 400 each for one year against interest on the amount. The Court found that a heavy burden lay on the defendants to prove that assets worth Rs. 12,500 were not handed over to Harinarain, and the solitary oral statement of Harinarain was insufficient to discharge this burden. Thus, the last contention was found to be without merit.4. Appropriation of Payments Towards Interest or Principal:The plaintiffs argued that the Court below erred in appropriating the amount of Rs. 4788 received from the defendants towards the principal amount of Rs. 12,500. The Court noted that the plaintiffs received Rs. 4800 by way of monthly installments of Rs. 400 each from 1-11-52 to 1-10-53, which should first be applied in payment of interest and then towards the principal amount. The general rule is that in the absence of any appropriation by the debtor at the time of payment, the payments should be attributed first to interest. The Court recalculated the amount due to the plaintiffs, concluding that the plaintiffs were entitled to a decree for Rs. 15,018.31.Conclusion:The appeal filed by the defendants was dismissed with costs. The cross-objection filed by the plaintiffs was allowed, and the decretal amount was enhanced from Rs. 10,993.25 to Rs. 15,018.31. The plaintiffs were entitled to interest at the rate of six percent per annum from the date of the suit to the date of the decree and from the date of the decree to the date of realization of the principal sum of Rs. 10,301.68. The parties were to give and take costs of the cross-objection according to their success and failure.