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P. Rama Pattar Vs. A. Viswanatha Patter, - Court Judgment

LegalCrystal Citation
SubjectContract;Family
CourtChennai
Decided On
Reported inAIR1922Mad23; (1921)41MLJ567
AppellantP. Rama Pattar
RespondentA. Viswanatha Patter, ;lakshmi Alias Ammu Ammal, ;v. Anantarama Patter and Parameswaran, Minor by G
Cases ReferredCf. Letchmi Narain v. Daya Shankar
Excerpt:
- - it is conceded the words used therein clearly amount to a promissory note, for they say 'we have hereby promised on signing this to give on demand rs......consideration for it so far as the 1st defendant is concerned. even if we suppose the original family debt was not saved from limitation even as against defendant's 1 and 2 by their acknowledgment of september 1910, the note would still be saved from being void against him under section 25 of the contract act, both because his personal liability for his own dealings as to which there is proper consideration remains unaffected by limitation and also because under section 25, clause (3), an agreement to pay a time-barred debt is sufficient to constitute a contract. it was argued that the liability of a member of a joint family to have his joint property sold for a debt contracted by the manager for a joint family purpose and binding on the joint family property is not an obligation.....
Judgment:

Krishnan, J.

1. The two acknowledgments made by defendants I and 2 in the account book, Exhibit B, are of no avail to save limitation against the joint family or against defendants 3 and 4, who were no parties to those acknowledgments. The District Judge has found on the evidence in this case that defendant 3, the father and managing member of the family, never ceased to be the manager, and never authorised any one else to act for him to manage and never held out any one as acting for him. This is a finding of fact which I think We must accept in Second Appeal. It was, however, contended that, even apart from any authority given by the 3rd. defendant, his son, the 1st. defendant, was entitled under the Hindu Law to act as the manager of the family in the absence of his father in Bjarma and elsewhere. For this position, reliance was placed on the ruling in Mud it Narayan Singh v. Ranglal Singh I.L.R. (1902) Cal. 797 and on the texts cited therein, particularly on that of Harita. The ruling itself is not applicable, as in that case it was found that the younger member had been put forward by his elders as the managing member. The text of Harita so far as it is relevant here (as translated by Setlur), says that; if he (the manager) is remotely absent, the eldest son may manage the affairs of the family. See Setlur page 217. The words ' remotely absent ' are vague in their import, and I think they cannot be construed so as to bring within their scope the case of a manager who, though absent from his home, was in correspondence with the junior members and was controlling the management, as the District Judge finds was the case here. No reliance was placed on this text in the lower Courts, and, therefore, the question has not been properly threshedout on facts ; it is, therefore, sufficient to say that plaintiff has not proved that the 1st. defendant, the eldest son, had authority under the Hindu Law to bind the family by his acknowledgments.

2. The question still remains how far defendents 1 and 2 are liable on then promise to pay the amount due on 14th September 1913. I think they are liable. It is conceded the words used therein clearly amount to a promissory note, for they say ' we have Hereby promised on signing this to give on demand Rs.,1,577-4-5,'the balance amount, with interest at Re. 1 percent, from this day ' and so on. Viewing this document as a promissory note, the executants of it must be held to be. liable on it unless they prove that there was no consideration for it. This. question should not be confused with the other question how far it was a valid acknowledgment against the family ; I have already held that it was not, as the signatories were not authorised agents of the famliy to acknowledge. Taking it as a promissory note,, does the evidence here establish that there was no consideration for it? The amount mentioned in it no doubt includes the sum of Rs. 1,084-5-6 and interest due by the father to the plaintiff on account of his dealings on behalf of the family and acknowledged by him to be correct in Exhibit A on 16th September 1907, or as much of it as has not been paid off. The dealings were subsequently carried on by defendants 1 and 2, professedly, no doubt, on behalf of the family and for themselves, for the account was changed into the names of defendants 1, 2 and 3 in the plaintiff's books. It is the result of these dealings taken with previous debt that amounted to Rs. 1,577 and odd included in the promissory note. Out of that sum, it is clear that both the defendants were personally liable for the items on the debit side in the account after the 16th September 1907, when the father ceased to have dealings and they began the dealings ; the credit items would betaken towards the old debt. The amount of it has not been ascertained, but it is apparently not very large. Though defendants I and 2 acted on behalf of the family in entering into those dealings, they would become personally Mable for the amount on the finding that the family was not liable as ' they had no power to act on its behalf. The bulk of the amount included in the promissory note was no doubt the old debt that the father incurred, with interest added to it as appears from the account. For that portion of the note amount, though 1st. defendant was not originally personally liable and 2nd defendant was not liable at all, the whole of it was admittedly binding on the family property including the 1st. defendant's share in it; in other words, it was a debt realisable from 1st defendant's joint property. The note being executed thus for a sum partly realisable from his property and partly from his person, it seems to me there is full consideration for it so far as the 1st defendant is concerned. Even if we suppose the original family debt was not saved from limitation even as against defendant's 1 and 2 by their acknowledgment of September 1910, the note would still be saved from being void against him under Section 25 of the Contract Act, both because his personal liability for his own dealings as to which there is proper consideration remains unaffected by limitation and also because under Section 25, Clause (3), an agreement to pay a time-barred debt is sufficient to constitute a contract. It was argued that the liability of a member of a joint family to have his joint property sold for a debt contracted by the manager for a joint family purpose and binding on the joint family property is not an obligation that can be described as a debt within the meaning of Section 12 5. No authority has been cited to support this argument. No doubt it was ruled in Narayanan v. Veerappa I.L.R. (1916) Mad. 581 that a son was not 'jointly bound' with his father within the meaning of the Bankruptcy Law of Singapore ; but that is not the question here at all. The question here is whether a liability to 'have one's joint property sold for a sum due is not a debt within the meaning of Section 25, clause (3) I am inclined to think it is. The; word 'debt' does not necessarily imply an obligation created by the debtor himself as argued by Mr. Venkatarama Sastri: we have decree debts imposed by Courts, for example. Debt is defined as 'a sum payable in respect of a liquidated money demand, recoverable by action'. See Stroud's Judicial Dictionary on page 471, 2nd edition, and the cases cited there, On this view there is no doubt that there was consideration for the promissory-note, and it is enforceable against the 1st defendant. It is then equally enforceable against the 2nd defendant, the: other executant of it, as it is not necessary in law that consideration should move to each executant separately to make the note binding on him or her. It is sufficient if there was consideration for the instrument as a whole for it to be enforceable against all executants. Furthermore, in this case there was; some consideration moving to the 2nd. defendant herself for the note, viz., the amount due by her on the joint dealings of herself and her after 1907 ; and inadequacy of the consideration is not a ground for avoiding a contract ; vide Expln 2 of Section 25 of the Contract Act.

3. I would therefore confirm the decree of the Lower Appellate Court and dismiss the Second Appeal with costs as regards defendants 3 and 4 but allow the appeal and restore the Munsif's decree as regards 1 and 2 with costs in this and the Lower Appellate Courts.

Odgers, J.

4. This is a suit to recover money due on an account. The 3rd defendant is the father of 1st and 4th defendants, and the manager of a Mitakshara joint Hindu family ' consisting of 1st and 4th defendants and himself. The 2nd defendant is his wife, and mother of 1st and 4th. defendants. The father (3rd. defendant,), had incurred debts for family necessity to plaintiff. He served a period of over three years imprisonment from 1903 or 1904. The dealings began in 1901. On 16th September 1907, while third defendant was in jail, accounts were adjusted and balance struck by 3rd defendant and plaintiff and acknowledged by the former (Exhibit A.) Subsequently 3rd defendant was released form jail, but did not return to his family ; it appears that he was living in Rangoon. On 16th September 1910, 2nd defendant and her son 1st defendant, who had just then attained majority, signed the following, statement 'Since the bar of limitation is approaching etc.'

5. Subsequently on 14th September 1913, the same two persons executed a promissory note to plaintiff in the following terms 'We have hereby', etc.' Two questions have been argued (1) Do the above operate as valid acknowledgments in order to save limitation against defendant 3 as manager of the family, (2) Do the above operate in any event against defendant 2 and defendant 1 personally

6. As to (1), reliance is first placed on a text of Harita (Setlur page 217), where it is said 'But if he (eldest unember) be decayed, remotely absent or afflicted with disease, let the eldest son manage the affairs as he pleases'. Also on 1. L. R. 29 Cal 791, where it was decided 'that a younger' member of a mitakshara family may deal with family property for family necessity whenever he is put forward' to the outside world by the elder members as the managing member'. The finding of the Lower Appellate Court is that defendant 3 never ceased at any time to be manager, and this finding is based on a voluminous correspondence carried on between the. defendants with regard to family affairs while defendant 3 was absent. It is difficult to see how 3rd defendant's absence in Rangoon can justly be said to make him 'remotely absent' in modern days with all the conveniences of modern communication. It is equally difficult to see how defendant 1 was ever put forward to the outside world as managing member, I agree with the District Judge that mere payment of rents by. defendant 1 and defendant 2 is insufficient to show this.

7. Further, in Patti Hart Premji v. Hukamchand I.L.R.(1884) 10 Bom. 363 it is laid ' down that temporary absence of the father conferred no legal authority on the son, if not authorised by the father, but assuming to act for him. The words in Ex, B, 'as per the instructions of the said Anantarama Patter (defendant 3) and ourselves ' are insufficient-to import either of these elements, as they refer to the 'amount expended by you (i.e., plaintiff) for our family necessities'. It is further clear that under no circumstances could the wife, defendant 2, have any authority or power to act as manager so as to bind the joint family after her son, defendant 1 had attained his majority.

8. I am, therefore, of opinion that neither defendant 1 nor defendant 2 had any power or authority from defendant' 3 to, act as managers of the family, nor did defendant 3 ever cease to be the manager.

9. As to their personal liability, I must differ with reluctance from my learned brother. Reliance is placed on the fact that some new items of credit and debit appear in the accounts signed by defendant 1 and defendant 2. The accounts settled by defendant 3 in 1907 was admittedly an account binding on the family for supplies for family purposes. In the absence of evidence to the contrary it must be assumed that the new items of debit were of the same nature. In my opinion there was no extinction of, the old debt and a novatio by which the plaintiff undertook to look to the credit of defendant 2. and defendant 1 alone. The account stood in the name of defendant 3 alone up to 1911,' and plaintiff's case has always been that the debt is binding on, the family; defendant 2 was as stated not authorised either in law or in fact to bind the family; it seems, therefore, that there was no consideration for her signatures in Ex. B, and the fact that the 2nd signature was to a promissory note would make no difference, considering the nature of the debt (which was not hers) and for which she was in no way personally liable, nor could she make herself so liable. As to defendant 1, is he a debtor within the meaning of Sections 19-21 of the Limitation Act? If he had no authority to act as manager for his father, as I found above, he cannot be a duly authorised agent to sign for him as such, Cf. Letchmi Narain v. Daya Shankar (1918) 47 I.C. 655. Further, according to I.L.R. 40 Mad. 581, a Hindu son is not jointly bound with his father to pay debts contracted by the father. For the reasons stated, the debts which defendant No, 1 bound himself to pay were the debts of the father contracted by the father.

10. The debts were not the debts of defendant No, 1. Further, the case does not fall within Section 25(3), Contract Act, as the son was not generally or specially authorised to sign for his father. For these reasons, I am of opinion that neither defendant 2 nor defendant 1 is personally liable.

11. On both the grounds raised in this Second Appeal, in my opinion, the appeal must be dismissed with costs.

12. By Court: - As we have differed in our opinion on the questions whether there was consideration in law for the promissory note of date 14th. September 1913 and executed by defendants 1 and 2 and whether it is binding on those defendants, we refer those questions under Section 98, Civil Procedure Code, Clause (2) proviso, for the opinion of a third Judge. The case will thereafter be posted again before us.


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