Skip to content


Gokal Kastur Vs. Amarchand Jasraj - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 171 of 1907
Judge
Reported in(1907)9BOMLR1289
AppellantGokal Kastur
RespondentAmarchand Jasraj
Excerpt:
hindu law-joint family-manager-debts for the family concern-liability of sons to pay the debt.;the father, bring the managing member of a joint hindu family which consisted of himself and his four eons, contracted a debt in the course of dealings relating to the joint family concern and for the purposes of that concern. he was assisted in his business by three of his sons (defendants nos. 1-3) the fourth son was a minor. after his death, the creditor brought suit against all the four sons to recover the amount from them;that the estate of defendants nos. 1-3. as well as their person were, liable to pay the debt while the share of defendant no. 4 in the family property alone was liable.;chalamayya v. faradayya (1898) i.l.r. 22 mad. 166 doubted. - .....appellate court has found that the debts in dispute were contracted by kastur as the manager of a joint hindu family of which he and the defendants were coparceners for the purposes of a partnership business of that family. the necessary sequence of that finding is that the debts are legally binding upon the defendants. it is, however, contended that the debts would be barred by limitation but for an acknowledgment by kastur which is relied upon by the respondent to save the bar. the lower appellate court has held upon the strength of that acknowledgment that the debts are not barred by limitation. it is argued by the appellants' pleader mr. desai that the acknowledgment is not binding upon the defendants, because, it is urged, it was an acknowledgment made by kastur at a time when the.....
Judgment:

Chandavarkar, J.

1. The lower appellate Court has found that the debts in dispute were contracted by Kastur as the manager of a joint Hindu family of which he and the defendants were coparceners for the purposes of a partnership business of that family. The necessary sequence of that finding is that the debts are legally binding upon the defendants. It is, however, contended that the debts would be barred by limitation but for an acknowledgment by Kastur which is relied upon by the respondent to save the bar. The lower appellate Court has held upon the strength of that acknowledgment that the debts are not barred by limitation. It is argued by the appellants' pleader Mr. Desai that the acknowledgment is not binding upon the defendants, because, it is urged, it was an acknowledgment made by Kastur at a time when the partnership business had come to an end. Assuming that the business had come to an end at the time that this acknowledgment was made by Kastur, still we must have regard to the principles of the Hindu Law in determining the question whether the acknowledgment is binding upon defendants or not. The business was a joint family concern and as has been held in Samalbhai Nathubhai v. Someshvar, Mangal and Harkisan I L R (1880). .5 Bom. 38 'the rules which regulate such a business in which a joint Hindu family is concerned, are the rules which must be drawn from the Hindu Law.' According to the Hindu Law, if this was a joint family business, Kastur as joint manager was entitled to incur any debt and the case would fall within the principle laid down in Bhaskar Tatyaahet v. Vijalal Nathu I L R (1892) 17 Bom. 512 namely, 'The manager of a joint Hindu family has authority to acknowledge the liability of the family for the debts which he has properly contracted.'

2. Then it is argued that if the defendants are liable for the debts, the extent of their liability is confined only to the family property or assets and that no personal decree can be passed against them in respect of those debts and in support of that, reliance is placed upon a decision in Chalamayya v. Varadayya I L R (1898) 22 Mad. 166. There it has been held that 'a creditor of a joint Hindu family is not entitled to a personal decree against any coparcener other than the manager, who contracted the debt on behalf of the family.' Whether that decision in laying down that principle is correct according to Hindu Law or not, it is unnecessary to decide in the present case. It is sufficient, however, to say that we have serious doubts about the correctness of that principle. It is sufficient for the purposes of the present case to say that even in this Madras decision the Judges say that a coparcener as such wouldbe responsible though he did not 'assent to the particular contract if there had been such acquiescence on his part in the course of dealings in which the particular contract was entered, as to warrant his being treated in the matter as a contracting party.' Here the finding of the lower appellate Court is distinct. According to that finding the debts were contracted by Kastur in the course of dealings relating to the joint family concern and for the purposes of that concern and therefore the defendants other than the minor defendant No. 4 must be treated as having acquiesced in the course of that dealing. The only question is whether the decree passed against defendant No. 4 is correct. We think that there is no reason whatever why defendant 4-on account of his minority-ought to be exempted from the liability resting on him in respect of his share in the property. We modify the decree so far as defendant No. 4 is concerned. As to him 'there should be a decree executable only against his share in the family property and not personally. In other respects the decree is confirmed. The respondent must have his costs from the appellants.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //