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Haji Noor Mahomed Vs. N.C. Macleod - Court Judgment

LegalCrystal Citation
Decided On
Case NumberOriginal Civil Suit No. 611 of 1905
Reported in(1907)9BOMLR274
AppellantHaji Noor Mahomed
RespondentN.C. Macleod
civil procedure code (act xivof 1882), section 13-res judicata-judgment obtained against a dead man cannot operate as res judicata in a subsequent suit-cutclti memons-doctrine of survivorship applies to the cutchi memons -mahomedan law governs the internal relationship of a cutchi memon firm.;if a judgment be improperly obtained so that it never ought to have been signed there can be no doubt, when set aside, it ought to be treated as never having existed.;hammond v. schofield [1891] 1 q.b. 455 followed.;where, therefore, a judgment was obtained against a dead man and subsequently another suit was brought against his representatives, it was held that the former judgment must be treated as never having existed and that it could not operate as res judicata.;where causes of action are.....russell, j.1. although the amount claimed in this suit is a little over rs. 1800 only, the facts in it have necessarily taken up some time and a novel question of law has been raised in it.2. the suit was originally filed by the plaintiff who is a money lender residing in bombay, against (1) abdoola joosub abba, hereinaftor referred to as a. j., (2) jan mahomed joosub abba, hereinafter referred to as j.m., (3) saffarabai, widow of joosub abba, hereinafter referred to as j.a. and (4) sooleman abdoola joosub, a minor son of defendant (1) a. j.3. a.j. became insolvent on the 28th april 1905 and mr. macleod, official assignee, is now defendant 1 on the record in his place.4. j.m. died intestate in bombay on the 27th july 1906. leaving his only heir bayabai, his widow, who is now defendant 2.....

Russell, J.

1. Although the amount claimed in this suit is a little over Rs. 1800 only, the facts in it have necessarily taken up some time and a novel question of law has been raised in it.

2. The suit was originally filed by the plaintiff who is a money lender residing in Bombay, against (1) Abdoola Joosub Abba, hereinaftor referred to as A. J., (2) Jan Mahomed Joosub Abba, hereinafter referred to as J.M., (3) Saffarabai, widow of Joosub Abba, hereinafter referred to as J.A. and (4) Sooleman Abdoola Joosub, a minor son of defendant (1) A. J.

3. A.J. became insolvent on the 28th April 1905 and Mr. Macleod, Official Assignee, is now defendant 1 on the record in his place.

4. J.M. died intestate in Bombay on the 27th July 1906. leaving his only heir Bayabai, his widow, who is now defendant 2 and is a minor. Saffarabai, widow of J.A., is still alive and has been appointed guardian ad litem of Bayabai and Sooleman Abdoola Joosub.

5. J.A., it appears, carried on a tailoring business in a shop, opposite the Watson's Hotel, known as J.A. Cheap Jack and in another shop in the premises of the Great Western Hotel. J.A. also had purchased certain two properties at Memonwada in Bombay and it has been stated, although not formally proved, that the said properties were purchased by him out of the profits of his tailoring business.

6. Amongst other things, the plaintiff in the plaint says that J.A., who died on the 5th February 1902, leaving him surviving the original defendants herein abovenamed as his heirs, was one of his constituents; and the plaintiff seeks to make the present defendants liable as representatives of the said deceased in respect of two Hundies for Rs. 120 and Rs. 600, under the circumstances mentioned in the plaint, paras 3 to 7 of which are as follows :-

3. The plaintiff discounted and purchased a Hundi for Rs. 1200, dated 5th of September 1904, drawn by one Abdur Reheman Nur Mahomed in favour of Joosub Abba and endorsed by the said Abdoola Joosub in the name of his father's firm. Similarly the plaintiff purchased and discounted another Hundi for Rs. 600 dated the 8th of September 1904 drawn and endorsed in the same way as the previous one. Copy translations of the said two Hundies are annexed hereto and marked respectively A and B.

4. The aforesaid Hundies on maturity were dishonoured and the plaintiff thereupon instituted a suit in this Court been Suit No. 863 of 1904 wherein the said Abdur Rehman was first defendant and Joosub Abba was the second defendant. The plaintiff obtained a decree in the said suit on the 2nd day of February 1905 for Rs. 1833-14-11 and costs. The first defendant therein appeared and admitted the claim and there was no appearance for the second defendant. The summons therein was served on the said Ahdoola Joosub.

5. When the plaintiff purchased and paid for the Hundies he was not aware that Joosub Abba was then dead nor was he aware of his death when he filed the aforesaid R suit and obtained the decree therein. It was only in the course of execution proceedings that the plaintiff discovered that Joosub Abba had died long before the date of the Hundies.

6. The plaintiff is advised that his decree in Suit No. 863 of 1904 so far as the second defendant therein is concerned is a nullity as before the time of the institution of the suit he was dead and the plaintiff hereby abandons all his rights if any under the said decree so far as the second defendant therein is concerned.

7. The plaintiff believes that after the death of Joosub Abba his two shops one opposite the Watson's Hotel carried on in the name of Cheap Jack and another in the Esplanade Watson's Hotel in the name of Haji & Co. were carried on by the said Abdula Joosub Abba with the consent of his mother and brother for the benefit of the estate of the deceased Joosub Abba and of his family. The defendants and the said Abdula Joosub as representing the estate of Joosub Abba have had the benefit of the moneys advanced by the plaintiff in discounting the two Hundies for Rs. 1800 mentioned above and the plaintiff submits the defendants as representing such estate are liable to pay out of the assets thereof the sum of Rs. 1800 with interest on Its. 1200 at 9 per cent per annum from the 3rd day of December 1904 and on Rs. 600 at 9 per cent per annum from the 6th day of December 1904,

7. The defendant's case is set out in the written statement of the third and fourth defendants. The material portion of this written statement is as follows:

During the life-time of Joosub Abba the first defendant did not manage his father's business.

Joosub Abba was dead at the time when the Hundies referred to in plaint are alleged to have been endorsed. After his death his business was not continued in his name. The first defendant had no authority to endorse the Hundies in the name of Joosub Abba after his death. He endorsed it on his own account for the accomoda-tion of one Abdur Rahman Nur Mahomed from whom he had received no consideration. The plaintiff and Abdur Rehiman are in collusion.

The first defendant did not endorse the Hundies in the name of his father's firm.

The Hundies were drawn in favour of Joosub Abba personally and the first defendant could not therefore endorse them in the name of the firm.

The first defendant bad no authority to endorse Hundies in the name of Joosub Abba be as to bind the latter's estate.

As Joosub Abba was dead two years before the endorsement of the Hundies, the endorsement created no binding contract between the first defendant and Joosub Abba.

The plaintiff is bound by the decree in Suit No. 863 of 1904 and is debarred from maintaining the present suit.

The estate of Joosub Abba received no benefit of the moneys alleged to have been advanced by the plaintiff in discounting the Hundies.

The following were the issues raised:

(1) Whether Abdoola Joosub was managing his father's business in his father's life-time as in para 1 of the plaint.

(2) Whether the said Jousub Abba was a constituent of the plaintiff as alleged. [Mr. Lowndes on this issue being raised disclaimed such contention but said that the plaintiff's case was that Joosub Abba in the plaint mentioned meant Joosub Abba a or the original Joosub Abba's death.]

(3) Whether the business of J.A. was continued in the name of J.A. as in the Plaint alleged.

(4) Whether A.J. endorsed the Handles sued on in the name of the father's firm.

(5) Whether A.J. had authority to endorse the Hundies sued on in the name of the firm Joosub Abba if any such firm then existed.

(6) Whether A.J. had authority to bind the estate of J.A. by such endorsement.

(7) Whether A.J. endorsed the said Hundies otherwise than as surety and without consideration.

(8) Whether it is true that the plaintiff came to know of the death of J. A, for the first time at the time stated in the plaint.

(9) Whether, if so, the endorsements on the Hundies are valid and binding on the defendants 2, 3 and 4,

(10) Whether the plaintiff is not barred from maintaining this suit as against the defendants 2, 3 and 4, behaving sued to judgment the parties-defendants in the Suit No. 8C3 of 1904.

[This issue was put in its present form by Mr. Robertson in substitution for the original issue which was as follows ;-' he having sued to judgment the first defendant in Suit 863 of 1904.']

(11) Whether the Hundies being drawn in favour of a deceased person the endorsements thereon by A.J. created any binding obligation as against defendants 2, 3 and 4.

(12) Whether the estate of J.A. received any benefit from the Hundies as alleged in the plaint.

(13) Whether defendants 2 to 4 as representatives of the deceased J. A, are liable in respect of the said Hundies.

(14) The general issue.

8. It is obvious that issue 10 raises a preliminary question, which must be decided in the first place, the point being whether the proceedings in Suit No. 863 of 1904 are a bar to this suit.

9. There can be no doubt that J.A. carried on his business in his own name. There can also be no doubt that during his life-time his sons A.J. and J.M. the latter a minor at first, assisted him in his business. There can also be no doubt that after his death his business was carried on by his said two sons under the name of J.A.

10. The first Hundi for Rs. 1200 was dated the 5th September 1904 and was drawn by one Abdool Rehman Noor Mohamed hereinafter called A. R. in favour of J.A. and endorsed by A.J. in the name of J.A. and was discounted by the plaintiflf. The second Hundi was for Rs. 600, dated the 8th September 1904, endorsed in the same way as the previous one and was also discounted by the plaintiff.

11. Exhibit No. 7 is the plaint in Suit No. 863 of 1904 and the defendants therein were (1) A. R., (2) 'J.A. of Bombay Memon Mahomed an inhabitants doing business in Bombay opposite the Watson's Hotel in the Fort.' The suit was filed under Ch. xxxix of the Civil Procedure Code.

12. Exhibit No. 8 is the affidavit by N. F. D'Souza and Haji Noor Mahomed Cassum of service on defendant 2. D'Souza says that on the 12th of January he served the above-named second defendant J.A., who was pointed out by his co-deponent with the writ of summons herein by leaving with him at the auction rooms of A. Readymoney and Company, auctioneers in Hank Street, a duplicate copy etc and at the time of such service he showed to the said second defendant the original of the said writ of summons. Haji Noor Mahomed Kays that on the 12th of January he accompanied D'Souza to Readymoney's Rooms and there pointed out the above named second defendant to his co-deponent, who sowed the said defendant with the writ of summons etc.

13. At the hearing the first defendant A. R. appeared and admitted the claim, there being no appearance for the second defendant. The decree was passed for the plaintiff and directed the defendants to pay to him Rs. 1833-14-11 and the costs of the suit which were taxed for Rs. 225-8-0 only.

14. On the 18th of May 1905, the plaintiff in Suit No. 863 of 1904 took out a Notice, Ex. A 20, against the two sons and widow of J.A., under Section 248 of the Civil Procedure Code 1882, but that was abandoned as against the widow and the plaintiff had to pay the costs of the notice-see Mr. Justice Scott's order of the 20th January 190o endorsed on A 20. The said notice, it appears, was not served upon the sons and grandson of J.A. See endorsement on A 20.

15. From Ex. A. 21, application for execution issued on the 11th October 1905, it appears that Saffarabai, the widow, having alleged that the second defendant was dead before the date of the decree the notice of the 8th of May was abandoned by the plaintiff and this suit has been filed by the plaintiff being Suit No. 611 of 1905, to recover the amount of the said decree out of the estate of the second defendant.

16. It appears that the plaintiff has not abandoned execution against A. R., the first defendant in Suit No. 863 of 1904-see Ex.A 22 in this case.

17. Now the question that arises is whether the law as laid down in Kendall v. Hamilton (1879) 4. App. Cas. 404 and King v. Hoare (1844) 13 M. & W. 494 applies to the present suit. It appears to me that neither of these cases can be said to have any application. As I have pointed out above Suit No. 863 of 1904 was against J.A. in his individunal capacity. When the suit was filed he was dead and had been dead since February 1902. Although it may be difficult to find that the plaintiff did not know of J.A's death before the time he says he did, namely, during the execution proceedings, still the question put by Mr. Lowndes in his arguments has a consider- able force and that is this : Can it be believed that the plaintiff would have sued J.A. if he had known that he was dead? No doubt the plaintiff in his joins affidavit above referred to swears that he saw the summons served on the second defendant. That of course is impossible. That he took from the commencement A.J. to be the; same as J. A is possible though not likely looking at the way in which the Hundies were endorsed. It may of course be that he considered A.J. to be the accredited agent of J.A., in which case the service upon J.A. would be good service under Section 75 of the Civil Procedure Code.

18. Another matter lias to be noticed and that is this : that, as the proceedings I. have referred to above show, as soon as Saffarabai informed the plaintiff of the death of her husband he abandoned the execution proceedings and filed this fresh suit.

19. J.A. was not sued to judgment as one of two joint contractors and it seems to me that the remarks of Wills J. in Hammond v. Schofield [1891] 1 Q.B. 455, are directly applicable : ' If a judgment be improperly obtained so that it never ought to have been signed there can be no doubt when set aside it ought to be treated as never having existed.' And this was the idea of Saffarabai herself in her affidavit No. 21 para. 7.

20. Here, therefore, the judgment having been obtained against a dead man never ought to have been passed and when set aside it must be treated as never having existed.

21. As regards A.J. of course as pointed out by Mr. Lowndes, he is not being sued now in the present suit but Mr. Macleod the Official Assignee, stands in his place.

22. Further, it appears to me that the present suit is not one in respect of the same cause of action as Suit.No. 863 of 1904. Assuming that to have been a suit against J.A. personally together with A.R. upon the Hundies. the present suit is one filed against the defendants No. 1 as assignee of the estate of A.J. and defendants 2 to 4 to recover from them monies of the plaintiffs which the plaintiff alleges have reached their hands and which he claims to be entitled to recover from the estate of J.A. now in. their hands and of which they arc the present proprietors. The causes of action being, therefore, different, Kendall v. Hamilton does not apply. See Wegg Prosser v. Evansi [1895] 1 Q.B. 108. The preliminary point, therefore, raised for the defendants, in my opinion fails It is impossible to contend after looking at the plaint in Suit No. 863 of 1904 that J.A. was sued as a firm. So the rules on that, behalf on which Mr. Robertson relied can have no application.

23. I will now proceed to deal with the merits of the case.

24. The plaintiff says that he first knew A.J. in Samvat 1959 and he was doing business then. He did not then know whether J.A. was alive or dead. There were two immovoable properties of J.A. He ascertained that before he began lending monies and he ascertained that he was the owner of these two shops and these two lands. Ho would not have lent monies had it not been for these two shops and lands. He had an account with him which is headed 'The account of J.A. ' and he advanced Rs. 24,000 on that account down to Samvat 1961. All except the two Hundies sued upon has been recovered, a part thereof under decrees in the Small Cause Court, see Ex. B.,

25. In one case he levied an attachment on the estate but it was paid off. He says that A.J. told him that the monies were required for the purposes of the estate. This statement was objected to by Mr. Robertson but in my opinion seeing that A.J. was managing the shop for the benefit of the family, I do not think it is inadmissible. The plaintiff further says that he lent the monies on the credit of J.A. (of his estate). The entries I. J. and K. which were put in from Ex. R, the Cash Book (produced from the Official Assignee's office) of the shop show that credit was given to the plaintiff for the various Hundies under those dates, respectively, which appear in the shop book.

26. Now it appears that the Hundies in question are renewals of Hundies for Rs. 6000, which were first discounted on the 17th December 1903-see the tabular statement A. 19 put in by Mr. Lowndes for convenience. It is clear from Ex. A. 37 that those Rs. 6000 were paid to A.S. himself and he acknowledges his liability in respect thereof by A 39. These documents were produced in a striking but of course very unsatisfactory manner. They were never disclosed in the plaintiff's affidavit. A.J's case was at first that he never received these monies. Then suddenly these two documents were produced and put into the hands of Mr. Lowndes the plaintiffs counsel. Of course, they ought to have been disclosed in the plaintiffs affidavit of documents. But they arc most important, as showing that A.J. in the first place did receive these monies from the plaintiff. The course of dealing ; between A.J. and A.R. seems to have been that the latter kept supplying the former with the goods for the shop and from time to time. A.R. says he credits the plaintiff with monies obtained on the discount of Hundies. Abdul Reheman admits in his cross-examination as to the two Hundies in suit, ho received Rs. 3600, of which these two equalling Us. 1800 formed a part. Abdul Reheman also says that he got about Rs. 2400 from J.A. and against that supplied him with goods. The rest. i. e. Rs. 1200, he used in his business. No doubt at the date when the Hundies in question were renewed A. R. owed A.J. Rs. 2879 but the debit and credit entries in the Journal for Samvat 1961. the next year, show that the result of the dealings for that year was that he owed A.J. or J.A. Rs. 112 only; and he says that he paid all but that to him by the end of Samvat 1961 including the amount of the Hundies in suit. Now we know that A. R. was in the habit of supplying goods to A.J. for his shop. A. B. does business in hats and caps which formel part of the business of J.A. and although Mr. Robertson attempted to show that the Hundies in question were merely bills discounted for the accomo-dation of A.R. in my opinion, they were bills discounted on the security of J.A. as well as of A.R. and were not accomodation bills. In my opinion, therefore, these bills were discount ed with the plaintiff for the purpose of business carried on in the name of J.A. An attempt was made to show that A.J, endorsed the Hundies in blank and therefore they could not bind the firm but this was not set up in the written statement and it failed.

27. A very great deal of time has been taken up in this case with regard to the alleged suppression of the books of the firm of J.A. after his death and there can be no question whatever that, except the cash-book Ex. R. none of the books of that business are forthcoming. Exhibit R itself which is very irregularly kept, having gaps of several months in it and goes down only to January 1904, has been distinctly and seriously mutilated. On the part of the defendants it is alleged that these books have been suppressed by either the mortgagee of the Memonwada property Keekabhoy or the Receiver Elias, the last appointed in Suit No. 176 of 1905. On the other land, the plaintiff says that these books have been suppressed by A.J. and the family generally. Upon the evidence I have come to the conclusion that as to the books other than Ex. R. which were kept after the death of J.A., it is impossible for me to say whether they have been suppressed by either Keekabhoy and Elias or the defendants. Looking at the litigation with regard to the mortgage to Keekabhoy, as to which I need not go into details, it may very well be said that the mortgagee would have a strong interest in suppressing the books which would show the result of the carrying on of the business after the death of J.A. On the other hand, looking at the natures of the plaintiff's case in this suit, it may very well be urged that it was to the interest of A.J. to suppress the books with a view of throwing as much difficulty in the plaintiffs way herein as he could. But really for the purpose of this case it its not necessary for me to come to any Hading upon this question.

28. Exhibit R. however, does throw a considerable light upon the question of whether or not this business was a family business, because we find there a series or entries which show that almost every kind of expense incurred by the family for their private purposes was paid out of the shop See Exhibits L.M.N.O.P.Q.A 10, A 27, A 31, A 24.

29. This then brings me to what is an interesting question of law raised in this suit, that is, what is the status of a family firm of Cutchi Memons with regard to the powers of a person managing the same, or in other words, is it to be governed by the Hindu law pure and simple, or not

30. Mr. Robertson argued this case upon the basis of this family Jinn being governed by Hindu law alone.

31. Mr. Lowndes, on the other hand, said that the Hindu law applies only to Cutchi Memons with regard to succession and inheritance.

32. There is direct authority see In the matter of Haroon Mahomed I L R (1590) 14 Bom. 189 to the effect that the rules of Hindu law and custom applied to the appellant in that case (who was a Cutchi Memon) and that his position with regard to the family property was to be determined by the same conditions as would apply in the case of a member of a joint and undivided Hindu family. It was held further that the firm in question was a family firm and was the property of a family subject to Hindu law; that whatever might have been the appellant's position previously, it was clear that on his father's death his father's share in the firm descended to him and his brothers if he had any. But the question of the position and power of the managing member of such a family was obviously not considered as it did not arise.

33. On the other hand, we have the judgment of Mr. Justice Ranade in the case of Bai Baiji v. Bai Santok ILR (1894) 20 Bom. 53 where he says inter alia that as to the law governing Hindu converts to Mahomedanism (e. g. Cutchi Memons) the custom of such converts following the Hindu law should be confined strictly to cases of succession and inheritance. The learned Judge, as Mr. Lowndcs pointed out. referred to all the cases upon the point except unfortunately the case of In re Haroon Mohomed I L R (1890) 14 Bom. 189 which he did not refer to.

34. Similarly in Hakim Khan v. Gool Khan I L R (1882) Cal. 826 it was held that when the members of a Mahomedan family live in commensality they do not form a joint family in the sense in which that expression is used with regard to Hindus and in Mahomedan law there is not. as there is in Hindu Law, any presumption that the acquisitions of the several members are made for the benefit of the family jointly. See also the case referred to in the note to that case.

35. Mr. Mayne, at page 67, Note (a) says in the last case Hakim Khan v. Gool Khan I L R(1882) 8 Cal. 826 the Court with much reason doubted the decision in Rupchand v. Latu Chowdhry 1878)3 C.L.R. 97.

36. where it was laid down as settled law that, with Mahomedan s living in a Hindu country the presumption of joint family and commensality arises.

37. Now the distinction between co-parcenership and inheritance is that in the case of inheritance property devolves on death, it survives in the case of co-parcenership ; on inheritance new rights are acquired, on survivorship the enjoyment of existing rights is increased by the removal of one from the body of cosharers. - See the Chief Justice's judgment in Francis Ghosal v. Gabri Ghosal I L R( 1906) 31 Bom.

38. It appears to me, therefore, that the doctrine of survivorship must apply to a family firm of Cutchi Memons, e. g. in the present case, on the removal of J.A. the enjoyment of the then existing rights in the family firm was increased and his grandson the son of A.J. acquires rights therein merely by being a member of the family. But it also seems to me that this does not carry with it other questions of Hindu Law which are applicable to the Manager of a joint Hindu family firm or estate for this reason that if Hindu law is to be exclusively applicable to cases of inheritance or succession, to which I think I may add the devolution by survivorship of a family firm, Hindu law is not applicable to the relationship between the manager and the members of a Cutchi Memon family firm. When once the firm has devolved the Mahomedanlaw, 1 apprehend, will apply.

39. Therefore, in my opinion, Mr. Lowndes was correct in saying that in the present case this family firm was a quasi partnership or societas and that A.J. was propositus negotio societatis. If, then, the strict rule of Hindu law is not applicable to this societas, it follows that there was no obligation on the plaintiff to enquire into the necessity for the advance of the monies by these Hundies to A.J. It is clear law that a partner in a trading firm may draw, endorse etc. Hundies for the purpose of partnership. See the, Bank of Australasia v. Breillat (1847) 6 Moo. P.C.C. 198 where it is said:

The general power of partners in ordinary trading partnerships,and the restrictions upon such powers, appear to us to be stated with great accuracy by Mr. Justice Story. in his Treatises on Partnership and on Agency and we willingly adopt his language. In the latter of these works, Ch. VI, ss. 124 and 125, the law is thus stated : Section 124. ' Every partner is, in contemplation of law, the general and accredited agent of the partnership, or, as it is sometimes expressed, each partner is procepositus negotiis societitis ; and may, consequently, bind all the other partners by his acts, in all matters which are within the scope and objects of the partnership. Hence, if the partnership he of a general commercial nature, he may pledge or sell the partnership property, he may buy goods on account of the partnership ; he may borrow money, contract debts and pay debt.) on account of the partnership ; he may draw, make, sign, indorse, accept, transfer, negotiate and procure to be discounted, promissory notes, bills of exchange, checks and other negotiable paper, in the name and or account of the partnership. ' Section 125. ' The restrictions of this implied authority of partners to bind the partnership are apparent from what has been already stated. Each partner is an agent only in and for the business of the firm; and, therefore, his acts beyond that business will not bind the firm. Neither will his nets done in violation of his duty to the firm, bind it, when the other party to the transaction is cognizant of, or co-operates in such breach of duty.

That in ordinaly trading partnerships, the power of borrowing money for partnership purposes exists and that bills or notes given by one of the partners in the partnership firm, for money so borrowed, will bind the firm, in too clear to require any authority. It is treated as clear law from the case of Lane v. Williams (1892) 2 Vern. 277 to that of Thicknesse v. Bromilow (1832) 2 Cr. & 425.

40. It cannot, I think, be said that the family firm is a partnership within the meaning of the Contract Act., because such an association requires the individual assent of all the members to it -an assent which of course in the case of minors could not be given. Even if the case were to be treated from the point of view of the Hindu law, in my opinion, the manager of the family firm would have the power to draw and endorse etc. Hundies etc. see Krishna v. Vasudev I L R (1896) Bojn. 808. For, as pointed out by Mr. Lowndes all the cases which refer to its being necessary to show necessity for loans are case dealing with mortgages. I would also, however, point out that in the Mortgage Exhibit, it is recited that this family firm had sustained great losses from which it may be inferred that there was a necessity for these Hundies being discounted by the plaintiff herein.

41. Mr. Robertson in the course of his arguments made repeated use of the well-known expression that -the touch stone' in caaes such as the present is 'Necessity.' But, as Mr. Lowndes pointed out, no specific, question of necessity has been raised in the pleadings in the present case and no specific issue was raised on the point. In the second place the above expression has been used solely with reference to the Hindu law pure and simple.

42. It appears to me that having regard to the cases I have quoted above the position of a family firm carried on by Cutchi Memons is between that of a joint Hindu family and that of a partnership under the Contract Act. Cutchi Memons acquire their fathers' estate as a Hindu 'universitas.' If that estate comprises a family firm it survives to them as Hindus. After born members acquire an interest in it on their birth. But in the conduct of business they are governed by Mahomedan law. The Hindu family business from this point of view becomes a Mahomedan 'societas ' and therefore the touch stone can no longer be said to be necessity but is the ordinary requirements of the business carried on (it may be) by adult members or by a credited agent who has the power to draw etc. Hundies etc., within the ordinary scope of the ' societas '. The case is the converse of that where it is said that a living Mahomodan by operation of law becomes a dead Hindu Rashid v. Sherbanoo (l904) 6 Bom. J. P. 874 Hero the family business on the death of J.A. devolved as if he had been a dead Hindu, but the conduct of that business by his sons A.J. and J.M. was in their hands as living Mahomedans. I do not think the carrying on of the family firm by them can attract the consequence that all persons dealing with the agent of the firm are bound to see that loans to the firm are strictly necessary. See Rashid v. Sherbanoo (1904) 6 Bom. L.R. 878. It is obvious that business could not be carried on it' this were held to be the law.

43. The result is that : (a) the estate of A.J. in Mr. Macleod's hands is liable in respect of the plaintiff's claim.

(b) the estate of J.A. including the partnership firm is also liable therefor;

(c) the share of the minor fourth defendant in the family firm alone will be liable for the plaintiff's claim under Section 247 of the Contract Act.

44. I find on the issues as follows:-

(1) Affirmative.

(2) Negative.

(3) Affirmative.

(4) Affirmative.

(5) Affirmative.

(6) 'Affirmative.

(7) The Hundies were endorsed by A.J. for consideration and not as surety.

(8) Whether the plaintiff knew or not of A.J.'s death at the time stated in the plaint, be dealt with A.J. as the credited agent of J.A.

(9) Affirmative.

(10) Negative.

(11) Affirmative.

(12) It was not obligatory on plaintiff'to ascertain this.

(13) They are liable as being the owners of the family firm in respect of the said Hundies.

(14) General issue:-I pass decree for the plaintiff for Rs. 1800 with interest at 9 per cent on Rs. 1200 from the 3rd of December 1904 and on Rs. 600 at 9 per cent from the 6th of December 1904; and costs of suit and interest on judgment at 6 per cent per annum.

(a) Declare that the estate of A.J. in the hands of the present defendant 1 is liable for the amount above mentioned.

(b) Declare that defendant 2 as the representative of 1, M., a leceased quasi-partner in the family firm and a co-parcener in the estate of J.A., is liable for the sum above named in respect of so much of her deceased husband's estate as may have come to tier hands.

(c) Declare defendant 3 liable as a quasi-partuer in the family firm of J.A. for the above named sum.

(d) Declare the share of the minor defendant No. 4 in the said family firm liable for the sum above named.

(Mr. Robertson applies for stay of execution.)

Mr. Davar opposes)

45. In my opinion this is a lit case for stay of execution. Execution stayed accordingly if memo of appeal filed within 20 days after copy of judgment is delivered to defendants who undertake to apply for the same forthwith. In default execution to proceed in due course.

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