NATHUSA PASUSA LAD Vs. MAHADEO

JUDGEMENT

(1.) 1. This appeal arises from a suit instituted for the recovery of Rs. 6,250 due on a promissory note dated 18th June 1926 executed by respondent 1, Mahadeo acting for himself and as guardian for respondent

(2.) , Vishwas Rao, and his brother, Ram Rao who is not a party in this appeal. The defendants are brothers constituting a Hindu joint family. The defence inter alia was that Ram Rao, one of the brothers who joined in executing the promissory note, had been adjudged an insolvent prior to the institution of the suit and that the suit was not maintainable against him or his brothers. A plea was also raised that the debt incurred was not justified by legal necessity and did not bind Vishwas Rao. The lower Court found that the debt was incurred for the benefit of the joint family, but that the suit was not maintainable on account of Ram Rao having been declared an insolvent. The plaintiff has preferred this appeal. Defendant 3, Vishwas Rao, has in resisting the appeal pressed the contention that the debt not being justified by legal necessity or benefit' to him, did not bind him. 2. On behalf of the appellant reliance is placed on Vithal v. Ramchandra AIR 1923 Nag 257 in which it was held that if the managing member of a joint family has been adjudged an insolvent, a suit by a creditor for the recovery of the debt owned by the joint family would lie in the insolvency Court and not in the Small Cause Court. In the present case it has been found that Mahadeo, respondent 1, and not Ram Rao, was the manager of the joint family. This finding is not contested here; consequently the ruling relied on is not quite apposite. The principle on which the decision was rested was that when a father of a Hindu joint family seeks the protection of the bankruptcy Court the entire joint family property is placed at the disposal of the insolvency Court, a view which was enunciated in Bawan Dac v. Order M. Chiene AIR 1922 All 79. This however was not approved by their Lordships of the Privy Council Sat Narain v. Behari Lal . The Allahabad High Court itself is divided in opinion as will be clear from Allahabad Bank Ltd., Bareilly v. Bhagwan Das Johari and Om Prakash v. Moti Ram . While in the one case it held that the interest of the sons in the joint family does not become vested in the receiver, in the other case, it held that the whole of the coparcenary property vests in the receiver.

(3.) THE receiver cannot legally deal with the joint family property except to the extent of the share vested in him. There is thus no reason in law why the creditor, who is entitled to recover his debt from the members of the family other than the insolvent, should be debarred from prosecuting the usual remedy of the suit in the civil Court; in so far as the liability of Mahadeo, defendant 1, and Vishwas Rao, defendant 3, is concerned the suit must be held to be in order.