THAKUR PRASAD Vs. AJODHYA PRASAD CHAUDHURY

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of money from the defendants who are members of a Hindu Mitak-shara joint family. It is alleged in the plaint that for the necessities of the family, defendant 2 who was its karta from time to time took goods on credit or advances of cash from the firm of the plaintiffs. Account was adjusted on 16 Chaith 1327 Fasli and a hathchitha taken. Account was again adjusted on 3 Chaith 1330 Fasli and a hathchitha taken. Accounts were again adjusted on 5 Aswin 1333 and the adjustment was signed by defendant 2 as karta. Account was again adjusted on 11 Sraban 1335, and defendant 2 executed a hand-note for the balance due. A similar adjustment was made on 1 Asarh 1338, and defendant 2 executed a handnote for the amount due. The last adjustment was made on 1 Jeth 1341, when Rs. 5754 was found due, in proof of which defendant 2 as head of the family, executed a handnote dated 1 Jeth 1341. The suit is to recover the amount entered in the handnote with interest.

(2.) It is alleged that all the defendants have been benefited by the money which is previous debt due from the joint family and spent for meeting the family expenses and for the benefit of the joint family of the defendants. Hence all the defendants are liable to repay it. The cause of action is said to have arisen on the day when the handnote was executed and also on 25 Aghan 1343 Fasli, when the demand was made. Interest is claimed at one per cent, per mensem as entered in the handnote. Defendant 2 did not contest the suit; he appeared and admitted the claim but prayed for an instalment decree. Contest was not entered on behalf of other major defendants. The suit was contested only for the minor defendants through the guardian ad litem. The written statement substantially puts the plaintiffs to the proof of all the allegations in the plaint, denies that the suit is maintainable and denies that the minor defendants were benefited.

(3.) The plaintiffs gave evidence of the previous indebtedness and of the benefit to all the defendants as well as of the execution of the handnotes. The Subordinate Judge held that the entire family of the defendants was benefited by the loans and transactions, the debts being incurred for the expenses of the family, but he held that the suit was a suit on a negotiable instrument, and as such was not maintainable against the minor defendants or against any of the other defendants besides defendant 2, the executant. He rested this conclusion on a decision of a Single Judge of this Court in Birkeswar Raut V/s. Ram Lochan A.I.R (1934). Pat 629 which follows a Division Bench decision, Jibach Mahton V/s. Shib Shankar A.I.R (1933) . Pat 687 and proceeds on the principle that in a suit based on a handnote no person other than the signatory of the handnote can be made liable. He gave the plaintiffs an instalment decree against defendant 2 only.