1. The plaintiff sues to receiver the amount duo on a promissory note for Rs. 2,600 passed in his favour by the defendant on the 16th of April 1920. He claims the sum of Rs. 2,390 together with interest thereon at nine per cent.
2. The defendant in his written statement sets up various objections to the suit, and the substantial ones are embodied in the following issues:-
(1) Whether the plaintiff can are on the promissory note without ranking his brothers parties to the suit?
(2) Whether in any event he can sue Without obtaining Letters of Adminis' tration to the estate of his father 2
(3) Whether at the date of the promissory note the plaintiff was the manager of the joint Hindu family ?
(4) Whether there was a subsequent oral agreement as alleged in pavalof the written statement ?
(5) If so, whether the suit is not premature except as to Rs. 100 ?
3. The oral agreement referred to is that the plaintiff should not demand the sum of Rs. 2,600 at once and that the defendant should pay the said sum by instalments of Rs. 50 every two months and in the meanwhile pay interest thereon at the rate of nine per cent, per annum every month.
4. The plaintiff and defendant are relations and the promissory note in question really arose out of a previous transaction in April 1917 when the defendant borrowed from the plaintiff's father, Dwarkanath, the sum of Rs. 3,500 and passed in his favour a promissory note for that sum, with an agreement to pay interest thereon at nine per cent, per annum. The defendant made various payments to the plaintiff's father which are shown in the accounts that he produces, Exh. 1, relating to payment of interest and Exh. 2, to repayment of principal. These show that he paid the sum of Us. 26-4-0, which is the exact amount of interest due on Rs. 3.500 at nine per cent, regularly up to April 1919; after which he paid the sum of Ra. 22-8-0 being the interest on Rs. 3,000 up to the 17th of January 1920. Meanwhile, the defendant had paid off Rs. 500 towards the principal by fairly regular instalments of Rs. 50 and sometimes Rs. 30 a month, and this accounts for the reduced amount of interest paid from April 1919. He continued his payments towards the principal at the rate of Rs. 60 a month up to 17th of January 1920. But the interest paid still continued to be that chargeable on the amount of Rs. 3,000. The father Dwarkanath is said to have died come time in Januauy 1920 and defendant then continued his payments, at any rate to the extent of payment of interest at the rate of Rs. 22-8-0, up to the 15th of April 1920. He also paid one of his monthly instalments of Rs. 50 in February 1920. Then the promissory note in suit was passed, the amount of principal of the old note having been reduced by defendant's payments to the sum of Rs. 2,600. The plaintiff says that, on the death of his father, he became manager of the joint Hindu family consisting of himeelf and five brothers, of whom the last three are minors, and that ho took the note from the defendant in his capacity of managing member of the family. The defendant himself did not dispute this in the witness box. He says:-
I passed a note to plaintiff because he was the managing member and when I passed the note, I told plaintiff lie had brothers, and how could I renew the pro-note without his consulting them.
5. He also further said :-
The family is still joint; plaintiff is eldest member of it. He Would as such look after the family estate as manager.
6. Therefore, I think, the third issue must clearly be answered in the affirmative, and it is quite unnecessary for me to consider the contention of defendant's counsel that, as plaintiff admitted that the money for the promissory note of 1917 came out of the salary earnings of Dwarkanath, therefore the money in question was Dwarkanath's separate property, to which the plaintiff and his coparceners succeeded on Dwarkanath'a death. That is not really the case of eithor party, and there is also against it the fact that, where a -joint Hindu family does possess joint property, the presumption of law is that all the property they are possessed of is joint. There is, 1 think, no reason to suppose that Dwarkanabh did not treat his earnings as joint family property and did nob advance the money to the defendant in his capacity of manager of the joint family.
7. This finding also, in my opinion, disposes of the second issue. That issue refers to letters of administration. But the plaintiff as a Hindu is not a pram who comes within the provisions of Section 187 of the Indian Succession Act, 1865. It is, therefore not incumbent on him to obtain letters of administration before ho can establish a right as executor or legatees in a Court of justice. Mi'. Rangnekar for the defendant also contended that the case fell under the Succession certificate Act, but that depends on whether there was a succession in respect of the moneys in question upon Dwarkanath's death. As it is not proved that the moneys were Dwarkanath's separate property, and I have already held that the evidence points to their being advanced as joint family property, it follows that there was no succession but merely a survivorship which does not fall under the Succes-sion Certificate Act. 1, therefore, answer the second issue in the affirmative, that is to say, in the plaintiff's favour.
8. The fourth issue can also be very briefly disposed of. para 4 of the written statement and the issue thereon allege that there was a subsequent oral agreement to the effect stated. The defendant, however, in his deposition did not allege any such subsequent agreement but a contemporaneous one, and as such it would clearly fall under k. U2 of the Indian Evidence Act, so that that oral agreement cannot be s-.et up to vary the express terms of the promissory note making the amount due thereon payable on demand. Mr. Rangnekar for the defendant contended that the account of the defendant made it not an oral agreement but a written one. These accounts, however, merely show the payments made; they might afford evidence that such an agreement had been made, but they clearly are not a record of the alleged agreement. That contention, therefore, cannot be upheld. Consequently 1 answer the fourth issue in the negative, and it follows that the fifth issue, which is dependent on it, should also be answered in the negative.
9. There only remains the first issue which is the really substan-tial one raised, viz., whether the plaintiff can sue on the note without making his brothers parties to the suit? In support of his contention Mr. Rangnekar relied on the case of Naranji Vasanji v. Moti Govanji : (1907)9BOMLR1126 . and various other similar rulings of this Court. That case follows the one of Kalidas Kevaldas v. Nathu Bhagvan I.L.R (1883) Bom. 217. which in turn is based on the rule of English law that enables the defendant to insist on all the contractees being made co-plaintiffs when there is a joint cause of action. In this it follows Ramsebuk v. Ramlall Koondoo I.L.R(1881) Cal. 815. which lays down that, when a joint family carries on a trade in partnership and contracts with the outside public, they have no greater privileges than 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. This case was remarked upon by their Lordships of the Privy Council in Kishan Prasad v. liar Narain Singh 13 Bom. L.R. 359, p.c. They point out that in that case there were other members of the family who had an equal family interest in the profits of the business, but it was nowhere contended that those members were necessary parties, and they also lay emphasis on the remarks of Garth, C.J., which referred to the necessity of defendants being sued by all the partners or persons with whom they had made their contract. The ruling should, therefore, be confined to cases where the facts show that the actual contract is with particular partners or members of the family. The case of Kishan Prasad v. Har Narain Singh certainly affects the various rulings of this Court which went to the extent of saying that, in every case where a conract is entered into on behalf of a joint family by a co-parcener, lie cannot sue alone, but must join the other co-parceners as parties; for the Privy Council held that at any rate the manager of a joint family business may enter into contracts in his own name and may sue on such contracts without joining the other members of the family as plaintiffs. No doubt the Bombay decisions except a case like that in Jaga-bhai Lallubhai v. Rustamji Nasurwanji I.L.R (1885) Bom. 311. where the contract had been entered into by a co-parcener in his own name and he did not disclose to the defendant at the time of the contract that he was acting on behalf of the family. But that seems to have been the only exception which they permit from the general rule laid down; and this exception does not cover the present case because the plaintiff himself admits that, when the pro-missory note in suit was passed, defendant understood he was taking the promissory note as manager of the joint family. The defendant also corroborates this. Coming back to the effect of the Privy Council decision in Kiahan Prasad's case, it is to he remarked that two different views have been taken about it. In Ramchandra Narayam v. Shripatrao I.L.R (1915) Bom. 248; 18 Bom. L.K. 33. the judgment limits the decision to the case of managing members of the joint family entrusted with the management of a family business, On the other hand, the Madras High Court in Sheik Ibrahim Tharagan v. Rama Aiyar I.L.R (1911) 5 Mad. 685. have taken a different view. There it is pointed out that :-
In fact the Privy Council had even previously to their decision in the above case. practically upheld the right of the managing memher to represent the family in litigation. A long line of cases beginning with Girdharree Loll v. Kantoo Lall established the right of a creditor of a Hindu family to pro-need against the father or other managing member of the family alone and to effectively bind the whole family property, including the shares of those not actually parties to the litigation.
10. The latter ruling is followed in this Presidency, cf. Ram-krishna v. Vinayak Narayan I.L.R (1910) Bom 354; 12 Bom, L.R. 219. In Mori Lal v. Munman Kunwar I.L.R (1913) All. 549. at pp. 564, and 565 Tudball J. points out:-
Now the general rule of Hindu Law is that a joint family is represented by its manager in all its transactions or concerns with the outer world, provided they are for family necessity...and that be can give a valid discharge without the concurrence of the minor members of the family.
11. He goes on:-
It is difficult to see, therefore, why a manager, if he can represent the family in its transactions and concerns with the outer world, should not be also able to ropreaent the family in its litigations in the Courts.
12. And similarly if in the case of a creditor suing on a mortgage the manager may sufficiently represent the other adult members of the joint Hindu family, it is difficult to see why a manager should not be permitted to sue alone if he sufficiently represents the rest of the family. In fact it seems to me that the Privy Council in Sheo Shankar Bam v. Jaddo Kunwar I.L.R (1914) All. 383; 16 Bom L.R. 810, P.C. has practically given effect to this view. Their Lordships at p. 386 say:-
There seems to be no doubt upon the Indian decisions (from which their Lordships see no reason to dissent) that there are occasions, including fore- closure actions, when the managers of a joint Hindu family so effectively re- present all other members of the family that the family as a whole is bound. It is quite clear from the facts of this case and the findings of the Courts upon them that this is a case where this principle ought to be applied.
13. And this was done in spite of the provisions of Section 85 of the Transfer of Property Act, now reproduced in Order XXXIV, Rule 1, Civil Procedure Code, under which all persons who have an interest in the property in suit should be joined as parties. If a foreclosure action is one where this principle can be applied, I cannot see why the present suit should not also be a case where it can be equally applied. Supposing the defendant had executed a mortgage of his immoveable property as security for the loan and owing to defendant's default the plaintiff could bring a foreclosure action, then if the circumstances were such as to make the plaintiff, as manager of the joint family, an effective representative of all the other members of the family so that the whole of the family would be bound, then clearly, hi the view taken by their Lordships, he could sue alone. Why, therefore, should he not sue alone in this case, where the only difference is that such a mortgage has not been executed? I think Sheo Shankar's case affords clear authority for saying that the facts of the particular case must be looked at in order to see whether it is proper for the manager to be allowed to sue alone as sufficiently representing all the other members of the family; and that in view of this decision of the Privy Council, even accepting the restricted view of the effect of the decision in Kishan Prasad's cave, which is taken in Ramchandra Nafayan v. Shripairao, the previous Bombay decisions, which support Mr. Rangnekar'a contention, require reconsideration and are not now really binding. Thus in Lalji Nensey v. Keshowji Punja I.L.R (1912) Bom. 310; 14 Bom. L.R. 810. it has been held that at any rate minors are unnecessary parties though the decision in Naranji Vasanji v. Moti Govanji went to the extent of requiring their being joined. Now, in this particular case, the facts are that the defendant has consistently been satisfied with the signature of plaintiff's father for his numerous payments, and since Dwarka-nath's death, has been satisfied with the signature of the plaintiff, although he was quite aware that the moneys were joint family moneys and that this was a joint Hindu family. He also executed the two promissory notes in favour of Dwarkanath personally and plaintiff personally. He has himself frankly admitted that he has no objection to pay the plaintiff alone as the manager of the family, but pleads that he cannot pay the whole sum at once. The contention that the other coparceners should be joined in this suit is purely one raised by his legal advisers, a technical objection which can at most stave off the evil day for a short time, without there being any real grievance on the part of the defendant. It is no doubt the case that, as ruled in Kalidas Kevaldas v. Nathu Bhagwan, the more fact that the other adult brothers say they have no objection to plaintiff recovering the amount due on the promissory note in this suit, does not afford valid ground for saying that the suit is not bad if it is really necessary that the other adult co-parceners should be joined in the suit. But this evidence, though not conclusive, does go to show that this is one of these occasions referred to by the Privy Council in Sheo Shankar's case where the principle that they mention can be properly applied. After all it is not the case that Hindu law in itself requires that all adult coparceners should be joined. I think I am correct in saying that no text or commentary can be cited to that effect., It is a rule which is simply based on the principle that all persons interested should be joined in the suit. That is a rule of procedure and that rule is subject to various exceptions, among which should be the case where a person sufficiently represents other members of his family; nor, in my opinion, does such a case fall under the provisions of Order VII, Rule 4, Civil Procedure Code. No doubt the plaintiff is a representative of the family, but it does not follow that he sues in a representative character. He really sues as the holder of the promissory note which is passed in his name. When an objection is raised by the defendant that he cannot sue without joining certain other persons, then and then only it becomes necessary for him to meet, that plea by saying that 'though I sue simply as the holder of the note, yet I am entitled to do so without my brothers being joined, because I am the manager of the Hindu family of which they are members.' That is an entirely different case to one where the basis of the plaintiffs claim is of a representative character, such as where he sues as an executor or administrator; and accordingly I do not consider that the plaint is in any way defective. No doubt is Ramchandra Narayan v. Shripatrao, there are remarks that, where a manager does sue, there should be an indication that he has sued in a representative capacity. But it does not follow that such indication should appear necessarily I in the plaint. The plaint is only one part of the pleadings and in a suit. Here we have had a direct inane on the question, and the judgment will record a finding regarding the plaintiff's representation of the family. Therefore there would be, to anybody who is searching the case hereafter, a clear indication that the plaintiff' was suing in a representative capacity, so far as that affects the question whether the other members of the joint family were bound. Here there can be no doubt that they are bound and they have themselves said that they accept that position. Therefore, I do not consider that the adult members of the plaintiff's family are necessary parties to the suit, and consequently I answer the first issue in the affirmative.
14. Mr. Rangnekar for the defendant has asked that the decree should allow the amount due to be payable by instalments under Order XX, Rule 11, of the Civil procedure Code. The defendant has in his favour the fact that he has been paying regularly towards the principal and also has generally paid the interest every month. It also appears from his evidence that he is a clerk in a bank drawing Rs. 120 a month as his net pay. On the other hand he admits that he has an immoveable property. He, however, agrees to give an undertaking not to alienate that property with the orders of the Court; and plaintiff's counsel accepts that undertaking, which is to the effect of the undertaking he had himself asked for, supposing the decretal amount wore made payable by instalments. I think, therefore, that there is in this case sufficient reason for passing an order under Rule 11, notwithstanding that the promissory note make a the amount payable on demand. As regards the amount of the instalments, plaintiff's counsel suggests that the instalments should not be less than 11s. 100 a month, and I think that that is a reasonable sum, I, accordingly, pass a decree against the defendant for the sum of Rs. 2,390 with interest thereon at nine per cent, from the 1st of March 1921 till judgment. But under Order XX, Rule 11, 1 order that payment of the amount of this decree shall be made by instalments of Rs. 100 a month beginning on the 15th of August 1921; in default of any two consecutive instalments, execution may issue for the whole amount due. The defendant has undertaken not to alienate or further charge his immoveable property without the orders of the Court. He has liberty to apply, should he find it necessary to alienate or charge it and be prepared to pay up the remainder of his decretal debt or a substantial part of it. Costs and interest on judgment fit six per cent., but the deficient penalty of Rs. 5 paid by defendant in respect of Exh. 3 should be born by the plaintiff, inasmuch as the receipt which the plaintiff gave for the five payments in question should have borne a receipt stamp of one anna each. This sum of Rs. 5 should be deducted from the plaintiff's costs payable by the defendant.