PT LALMANI PANDE Vs. LALA GOPAL SAH

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for recovery of Rs. 1800 on a promissory note of 19 November 1934. This promissory note was executed by two men Keshav Dutt and Gopal Dutt for Rs. 1358. Keshav Dutt and Lalmani are the sons of a man named Moti Ram. Lalmani is the appellant before us. This promissory note was in lieu of two earlier promissory notes, one of 18 November 1931 for Rs. 400 and the other" of 30 November 1931 by Keshav Dutt alone. The first two promissory notes were executed in favour of Lachhi Ram, the uncle of the plaintiffs, whereas the one in suit was executed in favour of his nephews who are the plaintiffs in this action.

(2.) The suit was instituted against Keshav Dutt, Lalmani and Gopal Dutt. The defence of Gopal Dutt was that he was merely a surety. But this will not affect the fate of the case, inasmuch as even if he is not the executant but a surety, the liability of the two is under the law, co-extensive. The defence of Lalmani with which we are concerned in this second appeal was that he was not liable for the debt, inasmuch as he had separated from his brother, Keshav Dutt. The learned Munsif decreed the suit as against Keshav Dutt and Gopal Dutt, but exempted Lalmani. On appeal by the plaintiffs, the learned District Judge of Kumaun has passed a decree also against Lalmani. He has, therefore, come in appeal before us. In support of his case that he was separate from his brother Keshav Dutt, Lalmani produced a partition deed dated 17 December 1928. It was an unregistered document and both the Courts below refused to admit it in evidence. In the view which we have taken of this case it is not necessary to decide if the Courts below were right in discarding the partition deed for want of registration. On the question whether the family was joint or separate and also whether Keshav Dutt executed the promissory note for himself or both for himself and for his brother Lalmani, the learned Judge has made certain observations which might be quoted. It has been proved by Jai Datt and his evidence has not been rebutted, that Lalmani was prosecuted by the Forest Department and convicted with the result that the timber contracts from 1928 until 1934 stood in the name of Keshav Dutt alone.... Their evidence shows that during the period when the promissory notes were executed both brothers were engaged in the timber trade though the contract from 1928 stood in the name of Keshav Dutt only. The reason why the contract was in Keshav Dutt's name was probably because the Forest Department was not willing to give a contract to Lalmani whose conduct had been unsatisfactory. There is overwhelming evidence, indeed, to prove that both brothers were joint in this timber business.

(3.) The learned Judge has found that both the brothers were members of a joint Hindu family, but even if we refuse to accept his finding on the status of the brothers as members of a joint Hindu family by reason of the exclusion from evidence of the deed of 17 December 1928, the above lines clearly establish a joint partnership between them. A joint family and a joint partnership are two distinct things and the deed, while it might have been disruptive of the joint status of the family, cannot disprove the joint partnership. Once it is established that there was a joint partnership between the two brothers, the first question which falls for our consideration is in what capacity did Keshav Dutt execute the promissory note? The observations quoted from the judgment of the learned Judge establish, in point of fact and beyond doubt, that although the promissory note was ostensibly executed by Keshav Dutt yet he executed it not for himself but also for his brother Lalmani. In this connexion certain provisions of the Partnership Act which have replaced some of the provisions of the Contract Act, may be considered. Section 11, Partnership Act, says that, Subject to the provisions of this Act, the mutual rights and duties of the partners of a firm may be determined by contract between the partners, and such contract may be express or may be implied by a course of dealing.