AJUDHIA PERSHAD AND ANOTHER Vs. SIDH GOPAL

JUDGEMENT

(1.) THE Appellants in this appeal, who are the Plaintiffs in the suit, are bankers at Cawnpore. The Respondents are a joint Hindu family consisting of four brothers, the sons of Divarka Das, and carried on business at Cawnpore, Calcutta, and Luchnow, the business at the different places being managed by some members of the family. It was a family business, apparently founded by Dwarka Das, the father; and the evidence was that the joint expenses of the family were paid out of the profits of the business. Indeed, on the argument of the appeal it was not disputed by the counsel for the Respondents that the members of the family would be bound by the deed upon which the suit was brought if it were valid and binding in other respects. In June, 1875, the Calcutta firm of the Respondents stopped payment, and that brought the firm at Cawnpore into financial difficulties. Huudis had become due, and other hundis, for which the Cawnpore firm was liable, were becoming due. It appeared to be the object of the creditors of the Cawnpore firm to prevent a stoppage of payment, and, by giving time to that firm, to tide them over the difficulties in which they were placed. For that purpose it seems to have been arranged by some of the creditors that a meeting should take place to see what could be done.

(2.) THE evidence with regard to this is as follows: - The first witness to which it is necessary to refer is Kakai Mal, who was one of the creditors. He said: - "Five or six days before the execution of the mortgage deed I had a conversation with Ajudhia Pershad" - that is the Appellant and Plaintiff in the suit - "at his house, to the effect that if all the creditors were willing a deed may be obtained from Kanha Mal" - the Defendant, who appeared to have the management of the business at Gawnpore "regarding the property. Kanha Mal was then sent for. He said that though the hundis had not fallen due, yet he would pay half of the amount of the hundi which would fall due, and give a hundi for the other half. I and Ajudhia Pershad asked Kanha Mal to give a mortgage of his property for three months, and that we would settle with the creditors. I had made mention of my Rs. 8000. It was agreed at the time that all the money due to me would be entered. When I came from Luchnow I then learnt that only Rs. 300 of the amount due were entered. I got very much displeased with Kanha Mal for Rs. 300 only being entered as due to me. Kanha Mal had asked me to obtain the consent of all the creditors, and that then he would execute a deed. He had told this to me and Ajudhia Pershad. Both of us had agreed to this, that we would obtain the consent of all the creditors." The next witness is. Madho Ram, who was also a creditor. He said: - "The amount due to me was Rs. 1500. I said that I was not agreeable" - that is with reference to their asking him to join in giving time. - "Ajudhia Pershad, Puran Chand, and others, said that I should get my money included in the bond which was to be executed in favour of all persons. Afterwards I said that I was agreeable to what all proposed. Afterwards Kanha Mal was asked to execute the deed. He said that as some were agreeable and some not, let the dates of the bills of exchange expire, and he would pay the money as each date expired. Ajudhia Pershad told him to execute the deed, and that he would obtain the consent of all."

(3.) KANHA Mal was also called as a witness, and after speaking as to the firms at Cawnpore and Calcutta, he said: - "Five or six days prior to the execution of the document the creditors began to make their demands. Radhe Pershad, Puran Chand, and Parmeshri Das made demands in respect of kutcha and pucca hundis. No other creditors made demands. The request made was to have the property made over to them, lest we should hereafter deny, as others had done, and that a suit should be brought, and a proportionate division of any moneys be paid. Ajudhia Pershad and others said that all would be settled up, and I asked how those were to be settled whose dates for payment had fallen due. The first day the conversation was held with me alone, and the next day Behari Das was also with me. Ajudhia Pershad said that he had prevailed on all to take a proportionate share." Further on he made a statement to which the Subordinate Judge who tried the suit seems to have attached some importance. He said: - "There was no stipulation as to what would be the result if any creditor complained after the document had been written."