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Kalidas Kevaldas Vs. Nathu Bhagvan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom217
AppellantKalidas Kevaldas
RespondentNathu Bhagvan
Excerpt:
joint cause of action - non-joinder of parties--joinder when too late--rejection of plaint--limitation--act xv of 1877, section 22. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared..........the court in the latter case to the question referred to it, 'that, as between the members of the joint family, any one or more may of course be authorized to act as their agent or agents in any business transaction; but when a joint family carries on trade in partnership, and contracts with the outside public in the course of that trade, they have no greater privileges than any other traders. if they are really partners, they must be bound by the same rules of law for enforcing their contracts in courts of law as any other partnership.'3. it remains to consider the effect of applying this rule when the suit would be barred as regards the new plaintiffs by reason of section 22 of the limitation act, xv of 1877. in boydonath bag v. grish chunder roy i.l.r. 3 cal 26 mr. justice markby.....
Judgment:

Charles Sargent, Kt., C.J.

1. The plaintiff sues upon a debt contracted with his deceased father when carrying on trade under the name of Kevaldas Hansi. The defendant pleaded that the shop at present belongs to the plaintiff and his three brothers--Mansuk, Amratlal and Harilal--as an undivided family, and that, therefore, plaintiff could not sue alone. Both the Courts below found that the fact was as stated by the defendants, and held that the plaintiff could not sue alone, and rejected the claim with costs. The three brothers, it appears, were examined at the hearing, and said that they had no objection to the plaintiff suing alone, as their father gave this debt to him before his death in consideration of his managing the business. The District Judge, however, disbelieved this story, holding that it had been invented for the purpose of avoiding the bar of limitation, and rejected the claim, holding on the authority of Ramsebuk v. Ramlal Kundoo I.L.R. 6 Cal 815 that the plaintiff could not sue alone. Although the District Judge disbelieved the story told by the brothers, still they must be taken to have assented to the plaintiff suing alone.

2. In Regular Appeal No. 20 of 1880, which was an action by the manager of a Hindu firm to which the defendants pleaded that there was a non-joinder owing to the other members of the family not being made plaintiffs, the latter appeared at the hearing as witnesses and expressed their consent to the plaintiff suing alone. The Court, consisting of Mr. Justice Melvill and Mr. Justice Kemball, held that the suit was properly constituted on the ground that, under the circumstances, the debt could be safely paid to the plaintiff alone. The rule of English law, which enables the defendant to insist on all the contractees being made co-plaintiffs when there is a joint cause of action, does not appear to have been considered. If that rule is to be applied in cases of this nature the defect could not, of course, be cured by an expression of willingness by the other members of the family that the plaintiff should sue alone. This was expressly decided in Dularchand v. Balramdas I.L.R. 1 All 453. As to the propriety of applying the rule, the above case, as well as the two Calcutta decisions--Boydonath Bag v. Grish Chunder Roy I.L.R. 3 Cal. 26 and Ramsebuk v. Ramlal Kundoo I.L.R. 6 Cal 815--are distinct authorities, and we entirely agree in the answer given by the Court in the latter case to the question referred to it, 'that, as between the members of the joint family, any one or more may of course be authorized to act as their agent or agents in any business transaction; but when a joint family carries on trade in partnership, and contracts with the outside public in the course of that trade, they have no greater privileges than any other traders. If they are really partners, they must be bound by the same rules of law for enforcing their contracts in Courts of law as any other partnership.'

3. It remains to consider the effect of applying this rule when the suit would be barred as regards the new plaintiffs by reason of Section 22 of the Limitation Act, XV of 1877. In Boydonath Bag v. Grish Chunder Roy I.L.R. 3 Cal 26 Mr. Justice Markby says; 'But it is said that for that reason the suit should be dismissed altogether. That really amounts to this that because two of the parties who joined are barred, the whole are also barred. The law does not say that, and it is not a reasonable construction of the Statute to hold that. I see no more difficulty in drawing up the decree in this case than there would be in the case in which some of the holders of the tenure, who had refused to join in the suit, might be made defendants.' In Ramsebuk v. Ramlal Kundoo I.L.R. 6 Cal 824 the Chief Justice and Mr. Justice Pontifex say 'they cannot understand or agree with that decision,' and we feel an equal difficulty. A suit by several persons, as to some of whom the right to sue is barred, is virtually a suit by the other plaintiff or plaintiffs alone, and if a suit so framed will not lie, as it will not in the case of a joint cause of action, unless the absence of the other contractees is satisfactorily accounted for, there can be no other course than to dismiss the claim. Whether Section 22 of the Statute of Limitation should not be amended to meet the case of joint contractees is worthy of consideration. We must, therefore, confirm the decree, but, under the circumstances, and the debt having been found due by the District Judge, wish costs on the parties respectively throughout.


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