1946 (8) TMI 26

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

...., Panch and Wahiwatdar of Gujrathi Mod Community, Burhanpur. The defendants denied the right of the plaintiff to bring the suit and the trial Court dismissed the suit. The first appellate Court re-versed the decree of the trial Court. Hence the defendants filed this appeal. 2. The only question upon merits is whether the plaintiff has a right of suit as the defendants do not deny execution or consideration. Before this part of the case is taken up, there is one other point in connection with the death of the plaintiff and the substitution of Seth Shrikishandas, son of Tikamdas of Burhanpur as the respondent which needs decision. It is argued that. Seth Shrikishandas who is nominated by the legal representatives of the late Seth Thakur....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... representatives of the sole surviving and continuing trustee. The words "legal representative of the trustee in Section 73, Trusts Act, mean his legal representative in his personal capacity, and not qua trustee. On the other hand for the purposes of a suit the words 'legal representative' mean the successor in office on whom the trust property devolves. Sir Dinshaw Mulla's comment under Section 2(11), Civil P.C., at p. 12 of his Edn. 11 is quite clear: Thus on the death of a trustee or of a shebait of a mutt, his successor in office and not his executor or heir is the legal representative, and the suit would be continued by or against the successor under Order XXII, Rule 3 or 4. 5. In Section 2(11), Civil P.C. the ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ded the case for a rehearing after the trial Court had dismissed the suit. In upholding the order of the District Judge Stone C.J., and Bose, J. held: The learned District Judge came to the conclusion, we think rightly, that a community cannot have an agent and that the truth was that this community in respect of this transaction was represented by Seth Thakurdas as trustee. He also expressed the view that Ex. P-1 was a promissory note the payee in which was the community. As to this latter question, we leave the matter open, the matter not having been argued before us, though we observe that prima facie it would seem obvious that Seth Thakurdas is the payee, though when paid he would hold the proceeds as trustee. The proposed amen....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....dors by the same deed stipulated that out of the consideration of Rs. 10,000 the vendees would pay off the debts mentioned in the sale-deed and meet the marriage expenses of the one Mt. Sunder Rai and the expenses of, maintaining some infants. The balance was to be disposed of as follows: The caste people will be invited and fed, each year on, Miti Baisakh Vadi 8, in the names of Javerohand and Mohanohand (and) Naraindas (unintelligible) Bbagwatwallas, with the amount of interest, whatsoever accrues on the balance which will be left after paving off the debts of the creditors and kept in deposit as principal. Every member of Gujrathi Mod community is authorised to make efforts himself for the arrangement of feeding the people of th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... on the true construction of the instrument the money would be payable in the first instance to the members of the firm, and their representatives would be merely their agents to receive payment on their behalf. This clearly would be the case under the English Common Law, as appears from inter alia Holmes v. Jaques (1865) 1 Q.B. 376 and Watson v. Evans (1863) 32 L.J. Ex. 137 and it seems to me that the paragraph quoted above from Section 5, Negotiable Instruments Act merely reproduces English Common Law with respect to the certainty of person required in the case of the payee of a note or bill. I have the less hesitation in so regarding this paragraph, as the same view of its effect is taken by the learned draftsman of the English Bills of ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... appeal below, decreed the claim of the plaintiff for Rs. 8300 with interest from 11th May 1931 at 9 per cent, per annum till 20th July 1938 and thereafter at 4 per cent per annum. The learned Judge of the Court below lost sight of the fact" that credit for Rs. 594 towards interest was given in the plaint. The decree of the lower appellate Court will be modified by making this allowance. 15. The defendants (appellants) claim credit for Rs. 297 which were paid to the Sakal Panch Gujrathi Mod on or about 18th May 1934 through Chhotelal Gulabchand, Manakchand Bhookandas, and Moti Munshi for holding the annual feast. The plaintiff denied the payment as it was not paid to the promisees named in the promissory note or another person at their i....