TMI Blog1946 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Thakurdas (plaintiff) as a trustee is not the legal representative of Seth Thakurdas for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legal representative is the successor to the trusteeship and the trust property under Section 75, Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amendment which the plaintiff has declined to make, is we think, one that cannot be required and we incline to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebts 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 the community and get (the same) done. Every member of our community is also entitled to examine the accounts thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Exchange Act. (Chalmer's Negotiable Instruments Act, page 42, 3rd Edition.) It is to be noticed that the promisso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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 ₹ 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 ₹ 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 instance. Defendants rely on receipt dated 22nd July 1934 (Ex. 1 D 8) and have examined Manakchand (D. W. 1) and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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