GOUR CHANDRA SAHU Vs. GARIB KAR

JUDGEMENT

(1.) THIS a plaintiff's appeal against the reversing judgment of the learned District Judge, Cuttack, modifying the decree passed by the trial Judge to the extent that defendant 2 is not liable for the debt.

(2.) THE facts leading up to this appeal are rather simple. The plaintiff filed a suit for recovery of money on a handnote dated 5 -3 -49 (Ext. I) for a sum of Rs. 600/ -. The defendant 1 alone executed the document in favour of the plaintiff, but the plaintiff filed the suit against both the defendants 1 and 2. Defendant 1 is the nephew of defendant 2, and they are members of a Joint family. The plaintiff in paragraph 1 of his plaint stated that defendant 1 as Karta of the joint family, for their common benefit, that is, to pay up the decretal dues of one Sri Kasinath Mukherjee of Howrah as well as for maintenance borrowed the aforesaid sum of Rs. 500/ -. The defendants in spite of demand by the plaintiff, did not Pay anything towards the loan, and accordingly forced the plaintiff to file the present suit for realisation of his dues, that is, both principal and the interest.

(3.) THE learned Additional Munisif of Jajpur,on a consideration of the evidence on record decreed the suit both against defendants I and 2, hold -ing that they were members of the joint familyand the document executed by defendant 1 is equally binding on defendant 2. On appeal, however,the learned District Judge modified the judgmentof the learned Munsif, as Indicated above, anddecreed the suit only against defendant I, absolving defendant 2 from all liability. But the learned District Judge on his part considered the entirecase afresh and came to the finding that the hand -note was genuine and for consideration, and thatdefendant 2 did not pay his share of the decretaldues, due to the decree -holder Kashinath Mookherjee of Howrah. The learned District Judge further came to the finding that defendants 1 and were members of a joint family and there was legal necessity for the payment of the previous loan due to the decree -holder, and defendant paid the said decretal dues by borrowing the money from the plaintiff. But he came to the finding that the defendant 1 being a junior member of the family, could not be held to be the Karta. The plaintiff has also failed to prove that in fact defen -dant -1 was the Karta of the Hindu joint family, and, as such, the loan contracted by defendant 1 could not bind defendant 2.