INDU BALA DASSI Vs. LAKSHMI NARAYAN GANGULY

JUDGEMENT

(1.) The facts which give rise to these rules are as follows: One Indu Bala instituted Suit No, 86 of 1933 in the Court of the Subordinate Judge of Nadia for recovery of a certain amount of money on certain promissory notes. Another suit, viz., Suit No. 85 of 1933, was instituted by one Gurudasi against the same defendants for recovery of another sum of money on the basis of certain other promissory notes.. The two suits were consolidated. It appears that both the suits were instituted on 29 May 1933. Written statements were filed by the defendants on 19 August 1933. Certain issues were settled by the Court on those pleadings on 30 August 1933. The issues which are relevant for the purposes of the present rules are as follows: Issue 7. Is the business an ancestral joint Hindu family business? Was it inherited by the sons of Ananda Ganguly? If so, did the business go by the name of Ganguly Brothers? Issue 8. Did the father of defendants 7 to 14 inherit along with the brothers the karbar of Ananda Ganguly? Did they and thereafter the present defendants form a joint Hindu family? Was their karbar a joint family karbar and carried on in the name of Ganguly Brothers? and Issue 9. Did Ganesh and Rakhal and on Ganesh's death Lakshmi Narayan and Rakhal and Rakhal's death Lakshmi Narayan act jointly and severally as the karta of the joint family and of the joint family karbar? Did they raise the loans for carrying on the joint family business or for the benefit of the joint family.

(2.) The hearing of the suit commenced on 7 May 1934. On 10 May 1934 the plaintiff wanted to adduce evidence on these issues. The learned Judge by his order dated 31 May 1934 refused to take evidence on these issues on the objections of the defendants to the reception of this evidence. On the same day the plaintiffs in the two suits filed applications for amendment of the plaints. On 7 June 1934 the learned Judge rejected the plaintiffs applications for amendment. The Rules Nos. 768 and 769 are directed against the orders of the Subordinate Judge, dated 31 May 1934, in the two suits, and Rules Nos. 192 and 193 are for the revision of the orders of the Subordinate Judge dated 7 June 1934 in the two suits.

(3.) The learned Subordinate Judge refused to allow the plaintiffs to adduce evidence on the aforesaid issues on the ground that the suits were based on the hand notes only on the allegation that the makers thereof were the kartas of a joint Hindu family and manager of a joint family business and that the loans were taken by the hand notes executed personally in their names for the purpose of their joint family and joint business and that the plaintiff's in their plaints did not make an alternative case for recovery of money lent on the basis of an agreement independently of the promissory notes. It may be stated here that the promissory note dated 24 December 1930 which is included in Schedule (kha) of the plaint in Sutt No. 86 of 1933 is not admissible in evidence as it is not properly stamped and that the promissory notes which are mentioned in Schedule (ka) of the plaint in Suit No. 86 and the promissory notes mentioned in the plaint in Suit No. 85 of 1933 were executed by Rakhal Das Ganguli, the predecessor of opposite parties 7-14 and Lakshmi Narayan Ganguli opposite party 1 in their own names and not as kartas of a joint Hindu family or as manager of a joint family business. We are concerned with these promissory notes only in the present rules. The plaints in the two suits have been placed before us by the learned advocates appearing for the petitioner in this case. It seems to us that the plaintiffs case in substance is that though the managers of the joint family and the joint business executed the promissory notes in their own names, the loans were taken by the joint family through their managers for the purposes of the joint family and joint family business. It is no doubt true that it is not specifically stated in the plaint that the promissory notes were taken as securities for the loans advanced to the joint family.