MULCHAND DEVIDIN Vs. SUGNAMAL RADHAMAL

JUDGEMENT

(1.) THIS is an appeal by the original defendants against a decree passed in favour of the plaintiff for Rs. 6030/- with future interest at 4 per cent, per annum from the date of the decree till realization. The suit was filed on a promissory note for Rs. 6,000/- executed by defendant no. 5 Babulal in favour of the plaintiff on 21st February 1952. Defendants nos. 1 to 4 are brothers, while Babulal is the son of defendant no. 2 Ramprasad. According to the plaintiff, the defendants carried on business at Sagar in the name of "mulchand and Brothers" and this joint family firm had taken a contract of supplying meat, vegetables etc. , to the Central Ammunition Depot at Pulgaon, and defendant no. 2's son Babulal, defendant no. 5, was managing that work. It was the plaintiff's case that an amount of Rs. 6000/- was borrowed on 21-2-1952 by defendant no. 5 from the plaintiff for the purpose of the said joint family business and consequently all defendants were liable. The plaintiff claimed to recover Rs. 6030/-inclusive of interest at 6 per cent. per annum. Defendant no. 3 Nandkumar did not file any written statement and remained ex parte. Defendants nos. 1, 2 and 4 denied that the amount was borrowed by defendant no. 5 as a representative or a nominee of Mulchand and Brothers and they also contended that the money was not taken to pay the debts of their creditors. It was their contention that defendant No. 3 had separated long before and was living separately since 1950 and he had no interest an the family business of the other defendants. The defendants therefore stated that defendant no. 5 alone was personally liable under the suit promissory note. Defendant no. 5 filed a written statement and contended that defendants nos. 1 to 4 were not liable and his further defence was that only Rs. 4200/- were due before the promissory note in suit was executed, and Ex. P-l, the promissory note or the receipt came to be executed as Rs. 1100/- were charged by the plaintiff by way of interest at 4 per cent, per month up to 1st June 1951, and future interest was charged amounting to Rs. 700/- from 1st June 1951 to 21st February 1952 and that is why a promissory note for Rs. 6000/- came to be executed. He prayed also that in case a decree was passed against him, he might be given instalments of Rs. 500/- per year. All the contentions of the defendants were negatived by the trial court which held that defendants Nos. 1 to 4 were liable as defendant 5 had the necessary authority to incur loan for the joint family business, and defendant no. 5 did in fact incur the loan in suit from the plaintiff on behalf of the joint family firm, and the loan was also borrowed for the purpose of the joint family business, and was utilized by defendant no. 5 for that purpose. The trial Court refused to accede to defendant no. 5's request for instalments. On the issue as to separation of defendant no. 3 the learned Judge held that it was not proved that defendant no. 3 had separated from the other defendants in the year 1950. On these findings, the learned trial Judge passed a decree in favour of the plaintiffs against all the defendants for an amount of Rs. 6030/- with costs and interest as already stated above.

(2.) IN this appeal Mr. Chatterjee, the learned advocate appearing on behalf of the defendants, has raised three contentions. In the first instance, he says that the learned trial Judge was wrong in passing a decree against defendant no. 3 Nandkumar as on the evidence he must be held to have separated from the rest of the joint family. It was not denied in the trial Court, nor was it disputed before me, that Mulchand and Brothers was a joint family firm at the relevant date, but the contention of the defendants was that with that firm Nand-Icumar, defendant no. 3, had no concern, because he had already separated since 1950. Undoubtedly the evidence of Babulal, the executant of the promissory note as well as that of Ramprasad, his father, is to the effect that Nandkumar, defendant no. 3 had separated from the joint family, and it is the contention of Mr. Chatterjee that this evidence stands uncontroverted. Unfortunately for his clients, Nandkumar, defendant no. 3, who has now joined in the appeal, filed no written statement and did not step into the witness-box to give evidence on his own behalf. Babulal did not say anything in his examination-in-chief about the separation of Nandkumar, but in bis cross-examination, he stated that his uncle, Nandkumar, had separated from the family since three years. His father Ramprasad, however, went a step further and alleged that Nandkumar had separated from the family eight years before, which would place the date of his separation in 1945. In the written statement the year of his separation is stated to be 1950. In view of this conflict of testimony and the fact that Nandkumar did not file any written statement nor did he give any evidence on his own behalf, in my judgment, the finding of the trial Court that it was not proved that Nandkumar had separated from the family in 1950 is correct.

(3.) THE principal contention of Mr. Chatterjee is that on the promissory note all the defendants could not be made liable, but that defendant no. 5 alone was liable because it was executed by Babulal, defendant No, 5, in his individual capacity, and further, contends Mr. Chatterjee, Babulal had no authority to borrow monies from the plaintiff for the joint family business. Now, it is to be noted that the suit itself is not strictly based on the promissory note only. The amount of Rs. 6000/- was borrowed by defendant no. 5, according to the plaintiff, on 21-2-1952 and the plaintiff has stated in paragraph 8 of the plaint that he does not base his claim on any document but relied on the receipt Ex. P-l executed by defendant no. 5 on 21-12-2-1952. It would, therefore, appear that the suit is not based on the promissory note alone but also on the original cause of action, namely, the debt borrowed by the joint family, according to the plaintiff, on the same date. But in any case, the first question that will have to be considered is whether Babulal had the necessary authority to incur a debt on behalf of the joint family firm of Mulchand and Brothers. Even if this suit were to be treated as a suit based on the promissory note, as the authority of Babulal to execute the document is questioned, that authority must be established before the instrument executed by him is looked at: see Sivagurunatha v. Padmavathi, ILR 1941 Mad 513 at p. 528: (AIR 1941 Mad 417 at p. 424 (FB)) (A ). (His Lordship examined the evidence on the question of the authority of Babulal to incur the loan and concluded:)