MADHGOUDA BABAJI PATIL Vs. HALAPPA BALAPPA PATIL

JUDGEMENT

(1.) The facts in this case are : Defendant on June 8, 1924, executed four bonds and a yadi of the total sum of Rs. 700 in favour of plaintiff's father, who died sometime thereafter, leaving three sons. Plaintiff is the eldest of them and the two others were then minors and were also minors at the date of the suit. It is not known if they have attained majority since then. It is stated that the bonds prescribed a time of one year for re-payment. The suit was filed on June 5, 1928, by the plaintiff alone. In the plaint, the plaintiff was named individually and the plaint stated in paragraph 7 that the original creditor-meaning thereby the plaintiff's father-being dead, plaintiff was his son and heir. The defendant objected to the plaint on the ground of non-joinder of the other brothers of the plaintiff, and alleged that the three constituted an undivided Hindu family, and that, as a consequence, the suit, as framed, was not maintainable. Thereupon, the plaintiff filed an application for amendment of the plaint and prayed that he should be described in the plaint as the manager of the joint family consisting of himself and his minor brothers, who were mentioned by names in the amendment application. A corresponding amendment was also prayed for in paragraph 7 of the plaint. Defendant objected to the amendment. The Court passed an order disallowing the amendment, as, in the opinion of the Court, the amendment would have changed the legal capacity of the plaintiff and would have amounted to addition of new parties after the period of limitation for the suit was over. The Court held that the plaintiff could not sue alone in his individual capacity and dismissed the suit without going into merits. The appellate Court took the same view and dismissed the appeal. It, however, held that the suit was in time. Plaintiff filed this second appeal.

(2.) According to the view which once prevailed in this High Court, where a contract was entered into on behalf of a joint Hindu family by a coparcener, he could not sue alone. It was necessary that he should join the other coparceners as parties. Thus, in Kalidas Kevaldas v. Nathu Bhagvan (1883) I.L.R. 7 Bom. 217 A, who, with his brothers, formed a joint Hindu family, brought a suit in his own name to recover a joint debt. When the objection was taken to the form of the suit on the ground of non-joinder of A's brothers, it was considered too late to add them as co-plaintiffs by reason of Section 22 of the Indian Limitation Act. The brothers at the hearing expressed their willingness that " A " should sue alone. It was held that such assent did not obviate the necessity of joining all the brothers as parties and that the suit, as framed, would not lie. This case was followed in Naranji V/s. Moti . In that case it was held that where we have one or more members of a joint Hindu family filing a suit in respect of the property of the family, it is essential that all persons who compose the family should be joined as parties to the suit, and as that was not done, the suit was dismissed. In Shivjiram V/s. Vishnu Vaman Patale (1900) 2 Bom. L.R. 121 the suit was filed by the plaintiff in his individual capacity. It was found that the plaintiff had been recognised as manager by all the persons of the family to which he belonged. It was held that the plaintiff had no right to sue in his individual capacity. There are a few other cases to the same effect but I do not wish to encumber my judgment by citing them. Some of the cases mentioned above have been criticised in later cases-see, for instance, the observations of Scott C. J. in Lalji Nensey v. Keshowji Punjab (1912) I.L.R. 37 Bom. 340, 343-4 : s.c. 14 Bom. L.R. 840.

(3.) Had these cases stood by themselves, I should have hesitated to depart from the principle enunciated in them. In Gan Savant Bal Savant V/s. Narayan Dhond Savant (1883) I.L.R. 7 Bom. 467, a suit was brought by V, a manager of a joint Hindu family consisting of himself and one N (a minor). He obtained a decree for redemption but the decree was never executed. Subsequently, N, on coming of age, brought a suit to redeem the same property. The High Court dismissed the suit. West J. observed as follows (p. 471) : The Hindu family was, in fact, considered as a corporation whose interests were necessarily centred in the manager; while the manager, as the chief member of the family, was understood to represent the common interests whenever these were subject to be affected by transactions in which he engaged, even in his own sole name. Union and undivided interests being the rule, the presumption was that a manager was acting for the family, unless it were made out that he acted and professed to act, for himself alone." Chandavarkar J. in Vithu Dhondi V/s. Babaji (1908) I.L.R. 32 Bom. 375 observed as follows (p. 377): The rule of Hindu law is that a joint family is represented in all transactions or concerns with the outside world by its Karta (manager), provided they are for the benefit or necessity of the family; and that any coparcener, who does not occupy that position of manager, can represent and bind the family in such transactions or concerns provided he was either previously authorised to represent it, or, in the absence of such authority, the other coparcener subsequently by words or conduct ratified his acts. In Ramkrishna V/s. Vinayak Narayan (1910) I.L.R. 34 Bom. 354 the facts were as follows: A Hindu family living jointly consisted of S, his son M, and his two grandsons S1 and R (both minors) by his predeceased son. S mortgaged a house for purposes allowed by Hindu law. The deed of mortgage was signed S, M, and by S1 represented by his mother. The mortgagee sued the executing parties and obtained a decree. The house was sold in execution and was purchased by the plaintiff. In the meantime S had died and plaintiff sued M, S1 and R for possession of the house. R claimed to exempt from the sale his share in the house on the ground that he was not a party to the suit and was not bound by the decree. It was held that R was represented by the adult members who were the managing members. In Hori Lal V/s. Munman Kunwar (1912) I.L.R. 34 All. 549, F.B there was a suit for sale brought on a mortgage against certain persons who were the mortgagors. It was held that the family was sufficiently represented by the managing members and that the suit would not fail by reason of the non-joinder of the other members of the family. Tudball J. observed (pp. 564, 565) : Now the general rule of Hindu Law is that a joint family is represented by its manage in all its transactions or concerns with the outer world, provided they are for family necessity.. It is difficult to see, therefore, why a manager, if he can represent the family in its transactions and concerns with the outer world, should not be also able to represent the family in its litigations in the courts.