K BALAKRISHNA PATRO Vs. CBALU SUBUDHI

JUDGEMENT

(1.) These are three appeals, which arise out of three suits, heard together in the Courts below and governed by one judgment. The defendants in the Court of first instance are the appellants before us. The appeals are from the judgment and decree of the learned District Judge of Ganjam-Puri, dated 21 September 1940, by which the learned District Judge has reversed the decision of the learned Subordinate Judge of Berhampore, dated 23 December 1939. The facts are simple enough, but a very interesting question of the liability of the members of a Sabha (a caste organisation or meeting) was raised in the Courts below, and has been pressed before us in the appeals. In order to appreciate the question raised, it is necessary to state some of the facts. The three plaintiffs in the three suits were Ramamurthy Subudhi, Balu Subudhi and Lingaraju Subudhi. They alleged that in order to effect a partition amongst the co-parceners of the families which they represented, they executed what has been called a "muchilika of reference" on 1 April 1925 in favour of defendants 1 to 3, whereby the latter were requested to divide the properties and pass an award in accordance with the terms of the reference. It was alleged that this muchilika was executed at the suggestion of the defendants who were the responsible members of the Vysya caste or community to which the parties belonged. Defendants 1 to 3 accepted the reference and proceeded with the arbitration. In October, 1926 the arbitrators divided the houses in a particular manner. The father of Ramamurthy Subudhi died in January 1927 and in March 1927 Ramamurthy sent a registered notice to defendants 1 to 3 alleging that the division of houses was not based on the principle of equality. The arbitrators (defendants 1 to 3) took umbrage at the allegations made by Ramamurthy Subudhi and at a meeting held of the caste organisation the three plaintiffs and their families were ordered to be boycotted or ex-communicated. Balu Subudhi, one of the plaintiffs, then called for a meeting of the whole caste community consisting of 14 Pentos. It has been stated before us that a Pento is a group or village of the community and the 14 Pentos constituted one caste or community Sabha. The meeting called for by Balu Subudhi was held at a place called Russelkonda from 4 July 1927 to 6 July 1927 and all the defendants were present at the meeting. As the marriage of a niece of Balu Subudhi had been arranged, Balu Subudhi wanted the ban of ex-communication to be lifted. At the meeting of the community held at the instance of Balu Subudhi, the defendants passed & resolution that each of the three plaintiffe Langaraju, Ramamurthy and Balu should deposit RS. 1500, Rs. 1000 and Rs. 1000 respectively before the ban could be lifted and the arbitration proceedings in the partition matter could continue. Accordingly, the three plaintiffs deposited the amounts, mentioned above, on 5 or 6 July 1927. The case of the plaintiffs was that the defendants had further promised that the amounts deposited by the plaintiffs would be repaid to them with interest at 12 per cent, per annum after the final award had been given by the arbitrators. Certain fines were also imposed on the plaintiffs which were paid by them. After the aforesaid payments, a fresh division of the houses was made and the parties took possession of their Bhare of the houses in January 1928. The plaintiffs were then directed to have their lands measured and other details worked out so that the arbitrators might make lots and pass a final award. The working out of these details took some time and it was stated that this was completed by about June 1936. The arbitrators were informed of the completion of the details, but they refused to make lots and pass a final award. In the meantime, one of the co-parceners brought a suit for partition. The plaintiffs then demanded their deposits back with interest and when that was refused, they brought the suits out of which the three appeals have arisen. The plaintiffs alleged that the defendants and other members of the caste community were jointly and severally liable to repay the amounts deposited by the plaintiffs. The suits were not brought against the Sabha as such but against; the defendants personally. The main defence, as disclosed by the various written statements filed, was a denial that the defendants had asked the plaintiffs to deposit certain sums of money before the ban of excommunication could be lifted and a further denial that any such sums were deposited by the plaintiffs or that the defendants had agreed to repay the sums deposited with interest at 12 per cent per annum. The calling of a Sabha at the place and about the time alleged by the plaintiffs was admitted, but it was alleged that the Sabha was called in respect of a personal matter of Balu Subudhi and not in connection with the partition matter. In some written statements filed at a later stage it was alleged that some subscription was raised at the Sabha held in Russelkonda on 5 or 3 July 1927, for the purpose of building a hostel for the students of the community and for helping the students of the community in the matter of higher education etc. In, the written statements filed by the appellants, no plea was definitely raised as to if the defendants (that is, the appellants) were or were not personally liable for the sums alleged to have been deposited by the plaintiffs.

(2.) The parties proceeded to trial on the pleadings mentioned above and the learned Subordinate Judge framed several issues. The first and foremost issue raised a question which was essentially a question of fact, namely, if the plaintiffs had deposited the sums of money as alleged in the plaints and if so, what the conditions of the deposits were. On a very elaborate consideration of the evidence, the learned Subordinate Judge found in favour of the plaintiffs on this issue. In other words, he found that the plaintiffs had deposited the sums of money in the circumstances alleged by them on the promise that the sums would be returned to them with interest after the final award had been given. He disbelieved the appellants case that no money had been deposited or that the meeting had been called for a different purpose, where subscription was raised for helping the students of the community etc. Though the plea that the defendants were not personally liable does not appear to have been specifically raised in the pleadings, there was an issue namely, issue 2, which was as follows: "Whether the defendants are liable for the suit amounts?" Dealing with this issue the learned Subordinate Judge expressed himself as follows: According to the plaintiffs own showing they did act ask for vouchers through fear as they had been under the ban of excommunication, but who excommunicated them, not any individual members of the community but on the authority of the 14 Pentos themselves. This being the state of things, the plaintiffs should have sued the 14 Pentos as also all the members of the 14 Pentos individually. In case of doubt that ought to have been their procedure when the society is an unregistered one. No doubt, there would be great difficulties in their way, but that could not be helped: vide Bhagwandas Singh V/s. Pinjra Pole Pashu Anathalaya and Ram Sarup V/s. Arya Samaj of Dhampur . There can be no doubt in this case that the defendants in their individual capacities never pledged their credit, but it was the 14 Pentos that pledged their credit. Evidently the plaintiffs looked to the 14 Pentos people for repayment of their deposits. There is no evidence to show that the defendants who have been actually brought on the record represented the entire body of members constituting or representing the 14 Pentos. On the other hand, the plaints themselves clearly indicate that other persons besides the defendants constitute the Sabha. In this view of the matter, the learned Subordinate Judge held that the suits were not maintainable against the defendants personally, inasmuch as they had no personal liability in the matter. The learned Subordinate Judge dismissed the three suits on this finding.

(3.) There were three appeals to the learned District Judge who affirmed the finding of the learned Subordinate Judge on the main question of fact, namely that the deposits had been made by the plaintiffs in the circumstances alleged by them. On the question of personal liability the learned District Judge expressed himself as follows: I find that the plaintiffs made the deposits in the Sabha that was held at Russelkonda on 6 July 1927 and the members of the Sabha including the defendants receive the deposits promising to pay interest at the rate of 12 per cent. per annum after the final settlement ol the partition dispute. He further found that the members of the Sabha including the defendants had contracted to repay the sums with interest aforesaid. The learned District Judge applied Section 43, Contract Act, and held that the defendants were joint promisors and the promisee was entitled to compel any one or more of such joint promisors to perform the whole of the promise. In that view of the matter, he held that the defendants along with others of the Sabha, who had contracted to repay the deposits with interest, were jointly and severally liable to refund the deposits with interest. Thereupon he decreed the suits with costs and future interest at 6 per cent, per annum.