1930 (9) TMI 16

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....er mother in executing the promissory note and, in the alternative, it is argued that the respondent is liable to the extent of the assets of Mt. Rukmabai in the hands of the respondent. 3. As regards the question whether the respondent was major, it is not open to argument in second appeal. I therefore confirm this finding of fact. In reality this point does not arise for decision because I find from the body of the promissory note that the respondent's name was net inserted as a contracting party. She was only called upon to sign a document which evidenced a contract between Mt. Rukmabai, her mother and the plaintiff. She is obviously therefore not bound by the contract in her personal capacity. 4. As to the next question, viz.,....

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....sets belonging to the deceased in the hande of his son, the Judge was bound to decide it. 6. The rule laid down above does not apply in this case, inasmuch as there was no issue framed. The plaintiff's pleader desired the Court to reserve this contention to be determined in execution. 7. It does not appear that the Civil Procedure Code contemplates determination of the question as to whether the legal representative has or has not the assets in his possession in the course of the suit. Section 2, Sub-section (11), Civil P.C., defines legal representative as:     a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a part....

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....n that the question has to be determined in execution and Ashworth, J., was of opinion that it must be determined in the suit itself. It would appear however that Ashworth, J., was influenced by the rule of English law in this respect. In view of Section 52, Civil P.C., it appears to me clear, as observed by Mr. Mulla, p. 181, Edn. 9 of 1930, that the plea is confined to execution only: see also Shankarlal v. Ganesh Singh A.I.R. 1926 Nag. 170 and Rajaram v. Nathu [1929] 120 I.C. 333. 9. It is contended for the respondent that the plaintiff is not entitled to the relief asked for in second appeal. I do not see any reason why he should not be entitled to this relief. Order 7, Rule 7, Civil P.C., states:     Every plaint s....