1. The facts in this case are : Defendant on June 8, 1924, executed four bonds and a yadi of the total sum of Rs. 700 in favour of plaintiff's father, who died sometime thereafter, leaving three sons. Plaintiff is the eldest of them and the two others were then minors and were also minors at the date of the suit. It is not known if they have attained majority since then. It is stated that the bonds prescribed a time of one year for re-payment. The suit was filed on June 5, 1928, by the plaintiff alone. In the plaint, the plaintiff was named individually and the plaint stated in paragraph 7 that the original creditor-meaning thereby the plaintiff's father-being dead, plaintiff was his son and heir. The defendant objected to the plaint on the ground of non-joinder of the other brothers of the plaintiff, and alleged that the three constituted an undivided Hindu family, and that, as a consequence, the suit, as framed, was not maintainable. Thereupon, the plaintiff filed an application for amendment of the plaint and prayed that he should be described in the plaint as the manager of the joint family consisting of himself and his minor brothers, who were mentioned by names in the amendment application. A corresponding amendment was also prayed for in paragraph 7 of the plaint. Defendant objected to the amendment. The Court passed an order disallowing the amendment, as, in the opinion of the Court, the amendment would have changed the legal capacity of the plaintiff and would have amounted to addition of new parties after the period of limitation for the suit was over. The Court held that the plaintiff could not sue alone in his individual capacity and dismissed the suit without going into merits. The appellate Court took the same view and dismissed the appeal. It, however, held that the suit was in time. Plaintiff filed this second appeal.
2. According to the view which once prevailed in this High Court, where a contract was entered into on behalf of a joint Hindu family by a coparcener, he could not sue alone. It was necessary that he should join the other coparceners as parties. Thus, in Kalidas Kevaldas v. Nathu Bhagvan I.L.R. (1883) Bom. 217 A, who, with his brothers, formed a joint Hindu family, brought a suit in his own name to recover a joint debt. When the objection was taken to the form of the suit on the ground of non-joinder of A's brothers, it was considered too late to add them as co-plaintiffs by reason of Section 22 of the Indian Limitation Act. The brothers at the hearing expressed their willingness that ' A ' should sue alone. It was held that such assent did not obviate the necessity of joining all the brothers as parties and that the suit, as framed, would not lie. This case was followed in Naranji v. Moti : (1907)9BOMLR1126 . In that case it was held that where we have one or more members of a joint Hindu family filing a suit in respect of the property of the family, it is essential that all persons who compose the family should be joined as parties to the suit, and as that was not done, the suit was dismissed. In Shivjiram v. Vishnu Vaman Patale (1900) 2 Bom. L.R. 121 the suit was filed by the plaintiff in his individual capacity. It was found that the plaintiff had been recognised as manager by all the persons of the family to which he belonged. It was held that the plaintiff had no right to sue in his individual capacity. There are a few other cases to the same effect but I do not wish to encumber my judgment by citing them. Some of the cases mentioned above have been criticised in later cases-see, for instance, the observations of Scott C. J. in Lalji Nensey v. Keshowji Punjab I.L.R. (1912) Bom. 340 : 14 Bom. L.R. 840
3. Had these cases stood by themselves, I should have hesitated to depart from the principle enunciated in them. In Gan Savant Bal Savant v. Narayan Dhond Savant I.L.R. (1883) Bom. 467 a suit was brought by V, a manager of a joint Hindu family consisting of himself and one N (a minor). He obtained a decree for redemption but the decree was never executed. Subsequently, N, on coming of age, brought a suit to redeem the same property. The High Court dismissed the suit. West J. observed as follows (p. 471) :
The Hindu family was, in fact, considered as a corporation whose interests were necessarily centred in the manager; while the manager, as the chief member of the family, was understood to represent the common interests whenever these were subject to be affected by transactions in which he engaged, even in his own sole name. Union and undivided interests being the rule, the presumption was that a manager was acting for the family, unless it were made out that he acted and professed to act, for himself alone.' Chandavarkar J. in Vithu Dhondi v. Babaji I.L.R. (1908) Bom. 375 : 10 Bom. L.R. 505 observed as follows (p. 377): The rule of Hindu law is that a joint family is represented in all transactions or concerns with the outside world by its Karta (manager), provided they are for the benefit or necessity of the family; and that any coparcener, who does not occupy that position of manager, can represent and bind the family in such transactions or concerns provided he was either previously authorised to represent it, or, in the absence of such authority, the other coparcener subsequently by words or conduct ratified his acts.
In Ramkrishna v. Vinayak Narayan I.L.R. (1910) Bom. 354 : 12 Bom. L.R. 219the facts were as follows: A Hindu family living jointly consisted of S, his son M, and his two grandsons S1 and R (both minors) by his predeceased son. S mortgaged a house for purposes allowed by Hindu law. The deed of mortgage was signed S, M, and by S1 represented by his mother. The mortgagee sued the executing parties and obtained a decree. The house was sold in execution and was purchased by the plaintiff. In the meantime S had died and plaintiff sued M, S1 and R for possession of the house. R claimed to exempt from the sale his share in the house on the ground that he was not a party to the suit and was not bound by the decree. It was held that R was represented by the adult members who were the managing members. In Hori Lal v. Munman Kunwar I.L.R. (1912) All. 549 there was a suit for sale brought on a mortgage against certain persons who were the mortgagors. It was held that the family was sufficiently represented by the managing members and that the suit would not fail by reason of the non-joinder of the other members of the family. Tudball J. observed (pp. 564, 565) :
Now the general rule of Hindu Law is that a joint family is represented by its manage in all its transactions or concerns with the outer world, provided they are for family necessity.. 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 represent the family in its litigations in the courts.
4. Previous to this decision the High Court of Allahabad had decided [vide Jaddo Kunwar v. Sheo Shankar Ram I.L.R. (1910) All. 71 that although the manager of a joint Hindu family is not as a rule entitled to sue or liable to be sued on behalf of the family, nevertheless, in certain circumstances, the whole family may be bound by the result of suits brought by or against the manager notwithstanding that some members of the family were not made parties thereto. On appeal against the decision, their Lordships of the Privy Council held that, having regard to the facts of the case, the managing members so effectively represented all the other members of the family that the family as a whole was bound by the foreclosure decree, unless it was established that the managing members did not act in every way in the interest of the family: vide Sheo Shankar Ram v. Jaddo Kunwar. After a reference to these decisions, Fawcett J. observed in Ramnath v. Ramrao I.L.R. (1921) Bom. 358 : 23 Bom. L.R. 1135 as follows (p. 362 ):
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.
5. In Guruvayya v. Dattatraya I.L.R. (1903) Bom. 11 : 5 Bom. L.R. 618 a suit was filed by plaintiffs Nos. 1 and 2. It was based on alleged oral leases but they were held not proved. Plaintiff No. 2 was from the outset joined as manager of the joint family in view of an alternative prayer for declaration of ownership and for recovery of possession, failing proof of the oral leases set up. On the objection of the opposite side, other members of the family were subsequently added as co-plaintiffs. This was done after the limitation period for the suit was over. The claim was allowed by the trial Court but was dismissed by the District Court. The High Court allowed the claim, Jacob J. observed (p. 18) :
If fresh parties are merely joined for the purpose of Safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination (by application of the provisions of Section 22 of the Limitation Act) of the date of institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit, and would not therefore attract the application of the general provisions of the Limitation Act.
6. The same view has been taken by the High Court of Allahabad in Pateshri Partap Narain Singh v. Rudra Narain Singh I.L.R. (1904) All. 528 same case on appeal to the Privy Council sub-nomine, Imdad Ahmad v. Pateshri Narain Singh The High Court of Calcutta has held that the addition even of a minor coparcener as plaintiff after the expiry of the period of limitation is not fatal to the suit : Thakurmani Singh v. Dai Rani Koeri. I.L.R. (1906) Cal. 1079 Reference may also be made to Chetan Singh v. Sartaj Singh. I.L.R. (1924) All. 709
7. In Guran Ditta v. Pokhar Ram I.L.R. (1927) Lah. 693 it was held that a reference to arbitration made by the manager of a joint Hindu family consisting of himself and his sons was binding upon the sons unless the latter showed that the father's act was tainted with fraud or collusion or was otherwise done in bad faith. In Ganpat Lal v. Bindbasini Prasad Narayan Singh it was held that in a suit on a mortgage against the manager of a joint Hindu family all other members are represented by the manager. In Lingangowda v. Basangowda (1927) L.R. 54 IndAp 122 : 29 Bom. L.R. 848 it was held that if the Court considers that the manager of a joint Hindu family was acting on behalf of the minor members in a previous suit, then a decree obtained in the suit would be binding on them. In Madhusudan Pandurang v. Bhagwan Atmaram I.L.R. (1928) Bom. 444 : 31 Bom. L.R. 395 a decree in a suit on a mortgage, obtained against a Hindu mortgagor, whose minor undivided sons were not made parties to the suit, was held binding on the sons as res judicata inasmuch as they were sufficiently represented by their father in the suit.
8. Where a joint family carries on a business, it has been held that the members of the family, who are minors and who are not shown to have been admitted into the trading firm or to have taken any part in the business or exercised any control therein, need not be joined as plaintiffs in a suit to recover money due to the family trading firm: Lutchmanen Chetty v. Siva Prokasa Modeliar I.L.R. (1899) Cal. 349 In Lalji Nensey v. Keshowji Punja I.L.R. (1912) Bom. 340 : 14 Bom. L.R. 840it has been held that it is not necessary in the case of a Hindu family to join in a suit upon a business contract minor members of the family who in fact take no share in the business, which is carried on on behalf of the family. In Raghunathji Tarachand v. The Bank of Bombay I.L.R. (1909) Bom. 72 : 11 Bom. L.R. 255 it has been held that the rule of Hindu Law that debts contracted by a managing member of a joint family are binding on the other members only when they are for a family purpose is subject at least to one important exception. Where a family carries on a business or profession and maintains itself by means of it, the member who manages it for the family has an implied authority to contract debts for its purpose, and the creditor is not bound to inquire into the purpose of the debt in order to bind the whole family thereby, because that power is necessary for the very existence of the family. In Kishen Parshad v. Har Narain Singh it has been held that where a joint family business has to be carried on in the interest of the joint family as a whole the various members may properly be entrusted with the power of making contracts, giving receipts and compromising or discharging claims ordinarily incidental to the business, and where they are so entrusted and empowered, they are entitled as sole managers of the family business to make in their own names contracts in the course of that business and to maintain suits to enforce the contracts without joining in the suits other members of the family, and if the latter are brought on the record on an objection taken by the defendant after the period of limitation, the suit is not barred. See also Madivallappa v. Mallappa : (1926)28BOMLR711 .
9. This is a survey of some of the important cases bearing on the point of the power of a manager in a joint Hindu family carrying on an ancestral trade or living as an ordinary joint family without having any ancestral trade. Indeed, the case law is voluminous and I have selected some of the cases bearing on the point. There are, no doubt, some cases which probably take a discordant view. In my opinion, they are either distinguishable or are not in accord with the general trend of decisions. Thus, in Kashinath Chimnaji v. Chimnaji Sadashiv I.L.R. (1906) Bom. 477 : 8 Bom. L.R. 268 it was observed that even if on the face of the plaint there was an allegation of a sole plaintiff that he sued as manager on behalf of the coparcenary, the minor coparcener could not be bound by the proceedings unless by a judicial sale under the decree rights had been created in innocent third parties and no prejudice were shown to the absent minors. The general consensus of opinion, however, seems to be in favour of the view that the manager of a joint Hindu family may sue or be sued as representing the family in respect of a transaction entered into by him as manager of the family or in respect of joint family properties.
10. The only question that remains to be considered is whether this rule will apply to a case where the manager does not describe himself as manager in the plaint filed in a suit. No doubt, in Ramchandra Narayan v. Shripatrao I.L.R. (1915) Bom. 248 : 18 Bom. L.R. 33 there are observations to the effect that if a manager sues on a mortgage on behalf of all his coparceners, he should at least purport to sue in his representative capacity. Is it, however, essential that such a statement or indication should necessarily appear in the plaint? According to the view of Fawcett J. in Ramnath v. Ramrao I.L.R. (1921) Bom. 358 : 23 Bom. L.R. 1135 the plaint need not contain a statement or indication to the effect that the plaintiff is suing as manager. In the case of Gan Savant Bal Savant v. Narayan Dhond Savant I.L.R. (1883) Bom. 467 where a decree for redemption was obtained by the manager of a joint Hindu family, who had not alleged in the suit that he was suing as manager, it was held that the decree barred the subsequent suit brought by another coparcener who at the date of the first suit was a minor. In Hori Lal v. Munman Kunwar I.L.R. (1912) All. 549 it was observed by Banerji J. as follows (p. 561):
I do not think that it is essential that the manager, when he brings his suit, should state in distinct terms that he is suing as manager, or that the plaintiff in a suit against the family should describe the defendant as the manager of the family. All that is essential is that the manager is in fact suing or is being sued as such in respect of a family debt.
In Pirthipal Singh v. Rameshwar I.L.R. (1926) Luck. 288 it has been held that a suit by a manager will be deemed to be one brought by him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, and that it is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager, or where he is defendant, that he is being sued as manager. In Surendra Nath Rath v. Sambhunath Dobey I.L.R. (1927) Cal. 210 plaintiffs to the suit were sons of defendant No. 9. A suit for rent of certain lands was instituted by defendants Nos. 1 to 8 against defendant No. 9. In that suit, defendant No. 9 did not disclose that he and the plaintiffs were members of a joint family governed by the Mitakshara law but asserted that he had exclusive title. The suit was eventually compromised. Subsequently, a suit was instituted on behalf of the plaintiffs. One of the reliefs sought was that it should be declared that the compromise and the decree passed upon it did not bind them. It was held that the compromise decree was binding on the plaintiffs. In that case, defendant No. 9 was not stated to be the manager, but on the contrary, he had apparently claimed to be the exclusive owner. Having regard to these authorities, it is clear that the plaint in the present case cannot be regarded as defective merely on the ground that it did not state that plaintiff had brought the suit as manager.
11. It is admitted in this case that besides the plaintiff there were two brothers of his who were minors at the date of the institution of the suit. According to Hindu Law, so long as the members of a joint Hindu family remain undivided, the senior member of the family is entitled to manage the family properties and other concerns of the family (Than-davaroya Pillai v. Shunmugam Pillai I.L.R. (1908) Mad. 167 The plaintiff is, therefore, presumably the manager of the family and he had made the position clear in the amendment application filed by him. Reverting to my view that it is not necessary, where the manager is plaintiff, that the plaint should state in distinct terms that he is suing as manager, I hold that the present suit can lie.
12. Order I, Rule 9, of the Civil Procedure Code, forbids any suit to be defeated by reason of mis-joinder or non-joinder. This rule was considered by Beaman J. in Mulji Tejsing v. Ransi Devraj I.L.R. (1909) Bom. 13 In that case the plaintiff firm sued to recover from the defendants a sum of money by way of damages. The defendants contended that as certain alleged partners of the plaintiff were not parties to the suit, the suit should be dismissed for non-joinder. Beaman J. held that though the alleged partnership was proved, yet the suit could not be dismissed for non-joinder. Beaman J. observed at p. 22 of the report as follows :
Certainly it is the defendant's right, if he can show that a person is plaintiff's partner to have that person made a party to the suit; but it is matter of procedure how that person is to be made a party, and also what the effect of his not having originally been made a party is to have on the course of the suit. All this is specifically provided for in Order I, Rule 10. True, the words of that rule appear to contemplate cases where the mis-joinder or non-joinder are attributable to bona fide mistakes, whereas here there can be no question of a bona-fide or any other mistake at all. Still the fact remains that the law says that no suit shall be defeated for non-joinder, and as non-joinder is all that the defendant alleges, I do not see how he can succeed in his further contention that if it is proved, the Court must dismiss the suit. I should be only too glad to take that view if I felt able to do so. But as I am quite unable to read any such qualification as would be needful to validate the defendant's plea, into the words of the law, it follows that even, should I on the question of fact find against the plaintiff, I could not for that reason dismiss the suit.
13. No doubt, in cases where all persons from the family are not on record, the position of the defendant or defendants (as the case may be) has to be safeguarded. In this respect, the procedure followed by this High Court in Hari Gopal v. Gokaldas Kushabashet I.L.R. (1887) Bom. 158 is instructive and useful. In that case, the plaintiff had sued as manager of a joint Hindu family. The suit was to recover certain lands from the defendant who contended that the plaintiff's minor brother and uncle should be joined as parties to the suit. The trial Court held that the plaintiff could sue alone. The appellate Court held that, as the plaint went, the plaintiff could not sue alone. It was held that the defendant was entitled to have the plaintiff's brother and uncle placed on the record either as co-plaintiffs or as defendants to ensure the defendant against the possibility of the plaintiff's acting without authority and the plaintiff was allowed to amend the plaint by making the other members of the family parties to the suit and the case was remanded. The procedure, thus adopted, was in consonance with the ends of justice. As observed by Banerji J. in the full bench case ins Hori Lal v. Munman Kunwar I.L.R. (1912) All. 549:
The question is merely one of procedure, and I do not think it affects the substantive law as to the representation of members of a joint Hindu family by the manager of the family. Procedure,' said Lord Penzance in the well-known case of Kendall v. Hamilton (1879) 4 App. Cas. 504 'is but a machinery of the law after all-the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when in place of facilitating it is permitted to obstruct, and even extinguish legal rights, and is thus made to govern where it ought to subserve.'
14. In the present case, the amendment application was made in the trial Court but was disallowed. I think that, having regard to the case law discussed above, the amendment should have been allowed and the suit proceeded with. As observed by Jacob J. in Guruvayya's case, such an amendment would not attract the operation of Section 22 of the Indian Limitation Act.
15. Having regard to what has been stated above, I reverse the decree of the lower Court, allow the appeal, and send the case to the trial Court to be disposed of on merits (after amending the record as prayed for by the plaintiff) on all points except that of limitation. Costs of this Court and the District Court will be costs in the suit.