CHANDRA KANTA BHATTACHARJEE Vs. BEHARI LAL BHATTACHARJEE

JUDGEMENT

(1.) The suit out of which the present appeal arises was instituted on the 4th of April 1912 against defendants Nos. 1 and 2, sons of one Uma Kanta, for enforcement of a mortgage- bond, dated the 5th Bhadra 1307 B.S. (21st August 1900), executed by Uma Kanta and defendant No. 1. A mortgage-decree was passed in favour of the plaintiff and the mortgaged properties were sold in execution of such decree. The sale-proceeds having proved insufficient, an application was made for a personal decree in respect of the balance. The suit was instituted on the 4th of April 1912 and on that date the personal remedy was barred by limitation unless payment of a part of the interest made on the 29th of Chaitra 1312 (12th April 1906) gave a fresh start to the plaintiff under Section 20 of the Limitation Act. That payment was made by the defendant No. 1 who was at the time the karta of the joint family, the father having died in the meantime. The defendant No. 2 is a minor. It is found that the amount borrowed was for family purposes, viz., for defraying the marriage expenses of defendant No. 1. The endorsement made on the back of the bond clearly shows that in making the payment the defendant No. 1 purported to act for himself- and for his minor brother, which would indicate that he was acting for the minor as karta of the joint family. The learned Munsif found that the payment was made from the funds belonging to both the defendants by defendant No. 1 who was the managing member of the family and passed a personal decree against both the defendants. On appeal by the defendant No. 2 the learned Additional District Judge of Backerganj absolved him from personal liability. Against this decree of the lower Court the plaintiff has appealed to this Court, and the only substantial question of law that arises for our consideration is whether the payment made by the defendant No. I under the circumstances stated above had the effect of saving limitation in respect of the claim as against defendant No. 2. The decision turns upon the question whether the defendant No. 1 was an agent of defendant No. 2 duly authorised to make such payment. I think the answer must be in the affirmative. For authority, if any is needed, I may refer to Chinnaya Nayudu v. Gurunathatn Chetti 5 M. 169 (F.B.) 2 Ind. Dec. (N.S.) 118, Saroda Charan Chuckerbutty v. Durga Ram De Sinha 5 Ind. Cas. 484 : 14 C.W.N. 741 : 11 C.L.J. 484 : 37 C. 461, Bhasker Tatya Shet v. Vijalal Nathu 17 B. 512 : 9 Ind. Dec. (N.S.) 333, Har Prosad Dass v. Bakshi Bindeswari Prosad Singh 31 Ind. Cas. 30 : 19 C.W.N. 860 and Ram Charan Das v. Gaya Prasad 30 A. 422 (F.B.) 4 M.L.T. 49 : A.W.N. (1908) 175 : 5 A.L.J. 375. The decision of the Madras High Court in Narayana Ayyar v. Venkataramana Ayyar 25 M. 220 (F.B.) has, however, been relied upon as making those decisions inapplicable to oases in which a creditor deals not with the karta as such but with the individual members of the joint family. This decision seems to have been followed by a Division Bench of this Court in the case of Baikunta Gui v. Lal Chand Samanta 26 Ind. Cas. 511. The decision of the Madras High Court on this particular point is not, I may state, a decision of a Full Bench. I find it difficult to understand how, where no question of estoppel arises, a creditor s course of dealing with the members of a joint family including the karta can possibly affect the relation inter se between the karta and the other members of the family, nor does the case, when carefully examined, lend any support to such a proposition. Apart from the fact that that was a case of acknowledgment under Section 19 of the Limitation Act, which stands on a somewhat different footing from the case of a payment under Section 20 of the Act, the decision rests on the peculiar fasts of that case from which the inference was drawn that in making the acknowledgment the karta was acting in his individual capacity and not as representing the other co-parceners. As a mater of fact the question regarding the authority of the karta to bind the other members of his family by his own acknowledgment did not arise, the learned Judges having come to the conclusion that the karta in making the acknowledgment had acted in collusion with the creditor, and, therefore, in contravention of the duty which he owed to the other co parceners. All that the learned Judges laid down in that case was that when a creditor deals, not with the managing member only of a family, but with all the members of the undivided family as co-obligors and on that footing enters into a transaction--thereby avoiding any question as to whether the transaction was really for the benefit of the family--he cannot rely upon an acknowledgment of the liability, made by one of them, as an acknowledgment duly made on behalf of the co-obligors, by reason only that the person acknowledging is in fact the managing member of the family consisting of the co-obligors. The words agent duly authorised would include authority given by law as well as authority given by the act of parties. This point was truly discussed by Banerjee, J., in the case of Ram Charan Das v. Gaya Prasad 30 A. 422 (F.B.) : 4 M.L.T. 49 : A.W.N. (1908) 175 : 5 A.L.J. 375 already referred to. In the present case there is the further fact that in so far at least as the liability of the father extended, the debt was binding on both the sons. As karta the defendant No. 1 had not only authority to pay the debt of his minor coparcener but bad the authority even to sell, if necessary, the joint family property to satisfy such debt. In taking this view of the case I do not feel pressed by the decision of this Court in the case of Baiktnta Gui v. Lal Chand Somanta 26 Ind. Cas. 511, as the facts of that case are materially different from the facts of this case. In that case it was found that the existence of joint family was not proved, that it was not proved that the payment was made as karta of the joint family, it was not shown that the money had come from the joint family fund, and it was not found that the borrowing had been made in respect of the joint family estate. Upon these findings the question of law did not really arise. The case of Saroda Charan Chuckerbutty v. Durga Ram De Sinha 5 Ind. Cas. 484 : 14 C.W.N. 741 : 11 C.L.J. 484 : 37 C. 461 and the later decision in Har Prosad Dass v. Bakshi Bindeswari Prosad Singh 31 Ind. Cas. 30 : 19 C.W.N. 860 seem to me exactly in point.

(2.) I would, therefore, reverse the decision of the Court below and restore that of the Munsif.

(3.) The appellant is entitled to his costs in this Court and in the lower Courts. Walmsley, J.