BHAWARJIT CHETRI Vs. KEDARMAL BANARASILAL

JUDGEMENT

(1.) THIS appeal has been preferred by the defendant to the action. The suit was for recovery of money due on adjustment of accounts which was acknowledged in the books of the Plaintiff by the Defendant. The Plaintiff Banarashilal Agar -walla is said to carry on business in the name and style of Kedarmal Banarashilal, of which Banarashilal himself and his sons are the proprietors. It is a joint family business, and not a business constituted under the terms of the Partnership Act. The Defendants are Joarji Pabudan Chetri and Bhawarji Chetri. They are also described as carrying on business in the name and style of Joarji Pabudan and Bhawarji Chetri, having been described as the managing proprietor of the business. The Defendants had transaction with the Plaintiff for about the last 25 years and on 11 -6 -44 the Defendant Bhawarji Chetri, on adjustment of accounts, acknowledged in Plaintiff 's 'khata' the liability for payment of Rs. 2843/4/ -. The stipulation further was to pay in instalments, but as nothing was paid, the Plaintiff was compelled to institute the suit.

(2.) THE Defendant Bhawarji Chetri contested the suit. His defence was that the Defendant was not the proprietor of the firm Joarji Babudan nor was it a joint family concern, but that Pabudan Rajput was the sole proprietor of the firm. This Defendant disclaimed all interest in the business and stated that he was a mere employee and on the death of the sole proprietor, Pabudan Rajput, the Plaintiff, called this Defendant and succeeded in getting an acknowledgment from him under threat and coercion.

(3.) THE first contention of Mr. Sen is that the suit is not properly framed, in that the Plaintiff Banarasilal Agarwall did not describe himself as the Karta or managing member of his joint family, and the suit, as such, was not maintainable. In the first place, if it is actually held that the Plaintiff Banarasilal was the head member or Karta of the joint family consisting of himself and his minor sons, then the suit cannot fail merely because of the absence of any such description in the cause title. It is obvious on the findings in this case that the joint family consisted of the Plaintiff and his minor sons. In the plaint also he has described himself as such and he definitely alleges that he and his sons are the proprietors of the firm which carries on the business. The firm is merely a joint family firm and is not a firm constituted under the Partnership Act. Therefore, there is no defect in the frame of the suit and the Courts below have rightly held that the suit, as framed, is maintainable. They have even found, and in my opinion, rightly, that having regard to the recitals in the plaint, as also the description in the cause title, the Plaintiff had given sufficient indication that he was suing as the Karta of the joint family.