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Vithalrao Sheshgirirao Moktesar Vs. Vithalrao Sondekar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 47 of 1922
Judge
Reported inAIR1923Bom244; (1923)25BOMLR151
AppellantVithalrao Sheshgirirao Moktesar
RespondentVithalrao Sondekar
DispositionAppeal dismissed
Excerpt:
hindu law - manager-promissory note signed by manager-suit on the promissory note-co-parceners not liable-liability of co-parceners to a suit to recover debt due under the promissory note.; the members of a joint hindu family cannot be held liable in a suit filed on a promissory note signed by one of the members of the family as manager in his own name. but a suit to recover the debt due under the promissory note can be maintained against all the members of the joint family. - .....why the managing member of a joint hindu family could not in that capacity execute in his sole name a promissory note which should be binding on the family as a whole and the property owned by it.3. it seems to me, with all due respect, that the judgment was based mainly on the difficulties which might arise if a hindu joint family could not be sued on a promissory note unless all the members had signed it. the real point is whether a suit which is primarily a suit on a promissory note and therefore a suit to which particular rules of procedure apply, could also be treated as a suit for the debt for which the promissory note was paused. if that were permissible difficulties would arise, because the issues in a suit on a promissory note would be entirely different from the issues.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover Kg. 532-6-5 from the defendants as balance still due on a promissory note dated October 17, 1917, passed by defendant No. 1 to plaintiff with future interest and costs, In the trial Court a decree was passed in favour of the plaintiff against alt the defendants. Defendant No. 2 appealed. By the directions of the District Judge his name was scored out of the decree, The question at issue was whether in a suit on a promissory note signed by the first defendant alone in his own name the second defendant could be joined as a party. Various cases have been cited in which questions have arisen whether a member of a joint Hindu family could be held liable in a suit filed on a promissory note signed by one of the members of the family as manager in his own name, Reliance was placed by the appellant on the case of Krishna Ayyar v. Krishnasami Ayyar. I.L.R. (1900) Mad. 597 Though it was held that all the members of the undivided family were liable on a promissory note signed by the manager of the family, it seems to me that the judgments of Shephard J. and Subrahmania Ayyer J. were based on the fact that all the members of the family were liable for the debt which was due under the promissory note in suit. Therefore they could be taken as being sued on the debt and not on the promissory note.

2. Then in Krishnanand Nath Khare v. Raja Ram Singh I.L.R. (1922) All. 393 it was held that there was no inherent reason why the managing member of a joint Hindu family could not in that capacity execute in his sole name a promissory note which should be binding on the family as a whole and the property owned by it.

3. It seems to me, with all due respect, that the judgment was based mainly on the difficulties which might arise if a Hindu joint family could not be sued on a promissory note unless all the members had signed it. The real point is whether a suit which is primarily a suit on a promissory note and therefore a suit to which particular rules of procedure apply, could also be treated as a suit for the debt for which the promissory note was paused. If that were permissible difficulties would arise, because the issues in a suit on a promissory note would be entirely different from the issues which would be raised in a suit against the whole family to recover debt. I think an application should have been made in the first instance for amendment of the pleadings when the point was taken that only the party signing the note could be liable in a suit based on the note itself. It is obvious that defences which would be open to members of the family when sued for a debt would not be open to the person who passed the cote, so that with regard to other members of the family the trial would take an entirely different course from the trial against the original maker of the note. It seems to me, therefore, that in this suit if the plaintiff seeks to make other members of the family liable the plaint is defective, and he ought to have asked for amendment of his plaint at the earliest opportunity, when evidence could have been led on the proper issues which would arise between the plaintiff and the other members of the family as debtors. I do not think, therefore, that in second appeal we could possibly say that the learned District Judge was wrong in striking out the second defendant's name from the decree on the ground that this was a suit on a note, and not a suit on any pre-existing debt. No injustice will result as the plaintiff has a decree against five defendants and if any of them on paying the debt desire to seek contribution from the second defendant, they can do so in a separate suit. The appeal, therefore, will be dismissed with costs.


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