ADAPA VENKATACHALAM Vs. VEMALEPATHI VENKATESWARA RAO

JUDGEMENT

(1.) Defendants 2 to 6, 8 and 9 in O.S. No. ,38 of 1933 on the file of the Subordinate Judge's Court of Masulipatam are the appellants in this second appeal, and the appeal arises out of a suit filed by the first respondent plaintiff for recovery of money due on a hypothecation deed for Rs. 2,000 executed by one the late Subbarayadu and his sons defendants I and 2 and the late Venkayya, the father of defendants 3 and 4. Defendants 5 and 6 are the undivided sons of the first defendant and 7 to 9 the undivided sons of the second defendant. Defendants ,10 and 11 are subsequent alienees and the 12 defendant is said to be the cousin of the plaintiff. The plaintiff's case was that the hypothecation deed was executed in favour of his grandfather and that in the partition in his family this outstanding fell to his share. A payment of Rs. 747-1-0 on 22nd January, 1921, endorsed on the document with the signature of the first defendant who was said to be in management of the business of the family for which the debt was borrowed was alleged as saving the suit from being barred by limitation. The first defendant admitted the claim but pleaded that the debt was liable to be scaled down under Madras Act IV of 1938. The second defendant denied that the first defendant was the manager of the family and that the debt was contracted for family necessity. Defendants 3 to 6, 8 and 9 contended that the suit debt was not a debt binding on the joint family that the first defendant was not the manager and hence the payment made by him will not avail as against them. The other defendants were ex parte. The Subordinate Judge dismissed the suit so far as defendants 2 to 6 and 8 and 9 were concerned on the ground that the suit debt was not binding against defendants 3,4,5,6, 8 and 9 and on the ground that the payment by the first defendant would not save limitation as against defendants 2 to 9. He scaled down the debt and gave a decree against the first defendant for the amount scaled down. On appeal by the plaintiff the learned District Judge of Kistna found that the trade for which the debt was borrowed was a joint family trade and that therefore Ex. A the suit hypothecation deed was binding on defendants 1 to 9. He also held that the first defendant was the manager of the business on the date of the endorsement of payment, Ex A-3, and as such he could pay and acknowledge the debt so as to bind the joint family, allowed the appeal and decreed the suit as against defendants 2 to 6, 8 and 9--the suit against the 7 defendant not having been pressed. Hence this second appeal by defendants 2 to 6, 8 and 9.

(2.) The only two points for consideration therefore in this second appeal are : (1) whether the suit hypothecation deed is binding on defendants 3 to 6, 8 and 9 to any and to what extent; and (2) whether the suit is not barred by limitation so far as defendants 2 to 6, 8 and 9 are concerned.

(3.) Point No 1. The learned District Judge has found that defendants 1 to 9 and Subbarayadu, father of defendants 1 and 2 and of Venkayya, father of defendants 3 and 4 were all members of a joint Hindu family till 1923. He also found that Subbarayadu and his sons were carrying on business since somewhere about 1909, that in the course of that business Ex. A was executed; that the sum of Rs. 2,000 was borrowed for the trade and that the business was jointly carried on till 1923 when there was a partition of the family. He held that the business was a joint family business and that even though two members who were alive at the time when the business was started namely, defendants 3 and 7, were minors, there was evidence that the family treated it as joint family business and that consequently the business must be considered to be a joint family business and the debt incurred for that business would be binding on all the members of that family.