HAR BILAS Vs. SHANKAR LAL

JUDGEMENT

(1.) This appeal is connected with First Appeal No. 182 of 1914. They both arise out of the same suit. The suit was brought on foot of five hundis executed in the name of the firm styled Baldeo Das-Gulab Chand. There was also a claim for a balance of account, amounting to Rs. 3,350, alleged to be due by the same firm to the plaintiff. The defendants were Gulab Chand and Har Bilas and some pro forma defendants. One Baldeo Das died leaving him surviving three sons and a widow, Khub Chand, the aforesaid Gulab Chand and Har Bilas Khub Chand was the son of one wife, while Gulab Chand and Har Bilas were the sons of a second wife. Previous to his death Baldeo Das made a Will. It has not been seriously suggested that this Will was not a genuine document. The Will begins with a recital that Baldeo Das was the absolute proprietor of all his moveable and immoveable property, that no one was joint with him, and that he had full power to dispose of the same in any way he thought fit. The testator proceeds to provide in his Will that the two younger sons who were then minors should live jointly with their brother Khub Chand, but that if any dispute should take place then the minors were to get Rs. 50 each per month for their support and upon their attaining majority the sum of Rs. 50,000 in cash and some landed property. All the residue of the testator s property was given to his eldest son, including bonds connected with the money-lending business, who was to be liable for the debts. The testator died in the year 1901. In the year 1901, whilst both Gulab Chand and Har Bilas were minors, Khub Chand paid over the sum of Rs. 20,000 and apparently gave to his brothers the property to which they were entitled under the Will. In the same year the business styled Baldeo Das, Gulab Chand was started (a money-lending business). Gulab Chand attained his majority of eighteen years in or about the years 1905. Har Bilas was a minor until the year 1912. There can be very little doubt that this business was looked upon as the business of the two younger brothers. It was started with money which Khub Chand had handed over out of his father s estate. The hundis sued upon were executed in 1910. They were executed by Gulab Chand on behalf of the firm. Gulab Chand pleaded that there was no consideration for the hundis and that no debt was due. He further pleaded that the hundis were payable in Bombay, and had not been duly presented. Har Bilas put in a separate defence and pleaded that he was not liable personally, the hundis having been executed and the debts (if any) incurred whilst he was a minor. The Court below has found that the hundis were given to discharge debts due by the firm styled Baldeo Das-Gulab Chand, that they were not accommodation hundis and that there was no necessity to present the hundis in Bombay and that the defendants had notice. The Court also held that Har Bilas carried on business jointly with Gulab Chand and gave a qualified decree against him.

(2.) We entirely agree with the view taken by the Court below as to the genuineness of the hundis, that they were given for good consideration, and that under the circumstances there was no necessity to present the hundis for payment in Bombay. This finding disposes of Appeal No. 132 of 1914. In our opinion the suit was properly decreed as against Gulab Chand.

(3.) The case of Har Bilas stands in a different position. If we assume that the property belonged to Baldeo Das and that he had power to dispose of it as he did by his Will, it is quite clear that Gulab Chand was not entitled to invest his minor brother s money in the business of Baldeo Das-Gulab Chand, and render him liable for the debts of the firm, It is said, however, that Baldeo Das had no authority to dispose of the joint family property by his Will, that after his death Khub Chand, the elder brother, separated from the two younger brothers who remained joint, the managing member of this surviving body being Gulab Chand, and that accordingly Har Bilas is liable for the debt incurred by Gulab Chand. The division of the property made by Baldeo Das (assuming that it was joint family property) was altogether wrong. Khub Chand got far more than his share. It seems to us that the only separation that could have taken place would be on the basis that the three brothers had agreed to accept the division made by their father, that is, to accept the Will. Such an arrangement necessarily involves a contract between the three brothers. It was impossible for these three brothers to enter into any such contract. A minor by the express provisions of law is prohibited from contracting.