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Abdul Majid Khan Vs. Sarasvatibai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1934)36BOMLR225
AppellantAbdul Majid Khan
RespondentSarasvatibai
DispositionAppeal dismissed
Excerpt:
.....in the name of the firm, there is no presumption that the borrowing was for the purposes of the joint family business, and the lender must prove that the money was required for the family business.;the sole question on appeal was whether one pandurang, who was the karta of a joint hindu family, incurred the debts in suit (secured by. promissory notes executed in his own name) as the manager of the joint family. the trial judge, in answering the question in the affirmative, said: ' the fact that the promissory notes in suit do not show on their face that pandurang incurred the loans in suit as manager of the family is immaterial. i thus find that the deceased pandurang borrowed the debts in suit as manager of the family and for family cultivation and banking business and as such the..........who died before the suit was brought, and the suit is brought against the surviving members of the joint family. it may be taken as established by the concurrent findings of the courts below that at the time pandurang was the karta of the joint family, and although the appellate court was not quite satisfied in the matter, their lordships are prepared to assume that it was necessary for the proper conduct of the joint family business that money should be borrowed from time to time in such a way on promissory notes. that being so, as is established by a judgment of this board, it would be within the authority of the deceased as karta to borrow money in his own name for the purpose of the family business.2. the question then remains whether the two sums here in question were debts incurred.....
Judgment:

Thankerton, J.

1. The appellants in this case are the plantiffs in an action on two promissory notes for sums of Rs. 4,000 each executed in or about the year 1925 by one Pandurang who died before the suit was brought, and the suit is brought against the surviving members of the joint family. It may be taken as established by the concurrent findings of the Courts below that at the time Pandurang was the karta of the joint family, and although the appellate Court was not quite satisfied in the matter, their Lordships are prepared to assume that it was necessary for the proper conduct of the joint family business that money should be borrowed from time to time in such a way on promissory notes. That being so, as is established by a judgment of this Board, it would be within the authority of the deceased as karta to borrow money in his own name for the purpose of the family business.

2. The question then remains whether the two sums here in question were debts incurred by the deceased as karta of the joint family business, or in his own individual capacity. The promissory notes were signed by Pandurang in his own name and not in the name of the firm, and in their Lordships' opinion the promissory notes being signed by Pandurang in his own name is equally consistent either with a borrowing by him for his own individual purposes, or a borrowing for the purposes of the joint family business, and they are unable to accept the argument for the appellants, which was dealt with very fully and clearly by their counsel, Mr. Jinnah, that that state of facts would raise a presumption that the borrowing was for the purpose of the joint family business.

3. It then remains to consider whether the plaintiffs have proved that these particular sums were borrowed by the deceased for the purpose of the joint family business. On that matter it is unnecessary to go through the evidence in detail, because the appellate Court have dealt with it fully, and their Lordships see no reason to differ from the conclusion at which they arrived, that the evidence is insufficient to prove the plaintiffs' case. It is right to observe that the learned trial Judge does not appear to have directed his mind towards the point which was made the subject of the unfavourable decision to the appellants in the appellate Court, and which has been the main subject of the argument before their Lordships.

4. Accordingly, their Lordships agree with the conclusion of the appellate Court, and they will humbly advise his Majesty that this appeal should be dismissed.


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