VISHNU DHONDI Vs. BABAJI BAHIRU

JUDGEMENT

(1.) The only point of law arising on this second appeal is whether the co-parceners of a joint Hindu family are entitled to maintain a suit, to which the provision of Section 47 of the Dekkhan Agriculturists Belief Act apply, on the strength of a Conciliator's certificate obtained under Section 46 of the Act by only one of those co-parceners, who was either the managing member of the family at the time the certificate was obtained, or, who, though not manager, obtained it with the consent and on behalf of the joint family, acting as its agent.

(2.) The rule of Hindu law is that a joint family is represented in all transactions or concerns with the outside world by its Karta (manager), provided they are for the benefit or necessity of the family ; and that any co-parcener, who does not occupy that position of manager, can represent and bind the family in such transactions or concerns, provided he was either previously authorised to represent it, or, in the absence of such authority, the other co- parceners subsequently by words or conduct ratified his acts.

(3.) In the present case, though the Conciliator's certificate stands in the name of one of the plaintiffs only, all the plaintiffs joined in the suit and admitted in the plaint that the certificate had been obtained on behalf of the joint family. That averment, was not traversed in the written statement, or made the subject of an issue in the Court of first instance. The certificate must be treated as having been obtained by the coparcener in whose name it is not only for himself but also as the agent of the other co-parceners. Whether such a certificate entitles all the co-parceners who are not named in it to join in a suit brought by the co-parcener who is named is a question which must be determined upon the proper construction of the provisions in Chapter VI of the Dekkhan Agriculturists Relief Act. A Conciliator exercises under the Act certain functions for the purpose of bringing about an amicable settlement of the dispute between two or more of the parties falling within the scope and object of the Act, and he has to exercise those functions subject to its provisions. One of them, viz., Section 41, provides that "whenever all the parties are present, the Conciliator shall call upon each in turn to explain his case." That means that a party to a dispute is entitled to appear before the Conciliator ; and if he should appear it is the duty of the Conciliator to call upon him to explain his case. But what if a party wishes to appear before the Conciliator by an agent to explain his case and to act for him otherwise in the matter of the conciliation ? Is such agent entitled to, appear and obtain a certificate for his principal or principals? The Dekkhan Agriculturists Relief Act being silent upon that point, the case falls within the rule of construction stated as follows by Stirling J. in Jackson and Go. V/s. Napper, In re Schmidt's Trade-Mark (1886) 35 Ch. D. 162:- I understand the law to be that in order to make out that a right conferred by statute is to be exercised personally, and not by an agent you must find something in the Act, either by way of express enactment or necessary implication, which limits the common law right of any person who is sui juris to appoint an agent to act on his behalf. Of course the legislature may do so; but prima facie, when there is nothing said about it, a person has the same right of appointing an agent for the purpose of exercising a statutory right as for any other purpose.