12. Upon the finding of the Subordinate Judge that the compromise agreement was reduced to writing, and that the document was not stamped, we must accept his finding that the respondent failed to prove the agreement upon which he relied. We are not prepared to say that the admissions in the appellant's affidavit relieved the respondent from the obligation of proving the agreement which he set up.
13. The objection taken on behalf of the respondent that the appellant ought to have made the persons whom he made parties to his appeal to the lower appellate Court parties to this appeal must, we think, be upheld. We accordingly direct that this appeal stand over in order that these persons may be brought on the record as respondents.
14. Any question of limitation is reserved.
15. The case was accordingly reported for hearing after the addition of those persons as respondents.
16. The contentions raised on behalf of the appellant were first that the agreement come to in April 1899 and recorded in Exhibits A and B was invalid as contravening the rules of Gramajenam, and secondly, that the plaintiff's claim was barred by limitation. As regards the first point, under paragraph 19 of the proceedings of the Gramajenam of 1893 (Exhibit--I) the power of the Committee to incur debts was restricted to the purposes mentioned in that paragraph. This restriction on the powers of the Committee does not affect the powers of the whole body of members of the Gramajenam. As regards paragragh 21 of the proceedings' of 1893, the resolution recorded in Exhibit--B does not purport to cancel or modify any prescribed rule and is not inconsistent with any prescribed rule. The question is: Are the resolutions contained in paragraph 6 of the proceedings of the meeting of April 1899 (Exhibit B), and the 'receipt' of the same date (Exhibit A), binding on all the members? Paragraph 12 of Exhibit--I provides that a resolution of the members of the Gramajenam at a general meeting shall be binding on all the Gramajenam. Exhibit--B is a record of a resolution passed at a general meeting and, signed by 25 of the Gramajenam who were present at the general meeting. The Subordinate Judge found (paragraph 17) that the meeting was held after notice to all the villagers. True, it was not shown that the meeting was convened by the Secretary on a requisition of members as provided by resolution 12 of the proceedings of 1893, but the meeting was duly held after notice to members, and we are of opinion that the resolution passed at that meeting was binding on all the members, and that it did not contravene any of the rules of Gramajenam.
17. As regards the question of limitation it was contended on behalf of the appellant that what took place in April 1899 did not give the plaintiff an independent cause of action, and that, if it did, inasmuch as the 2nd plaintiff was necessary party and was not made a party till September 1903, the claim in any view, was barred by limitation.
18. The general authority to bind all the members by a resolution passed at a general meeting, in our opinion, includes an authority to make an acknowledgment on their behalf and to enter into a fresh contract on their behalf. Assuming that an 'account stated' cannot, as in England, be sued on as a fresh contract see Shankar v. Mukta 22 B.k 513 an account stated, which is signed by the defendant or his duly authorized agent gives a substantive cause of action see Amathu v. Muthayya 16 M.k 339. The resolution, in our opinion, is something more than an agreement to give time. It is an agreement under which the defendants accept the accuracy of the accounts and agree to pay the debt in certain instalments with interest, the defendants not being liable to pay interest on the original debt. We are of opinion that the resolution constitutes a fresh contract Holding on all the members, and that if the 1st plaintiff was entitled to sue alone, the suit was in time. In the view we take that that the resolution constituted a fresh contract the point taken on behalf of the appellant that if the resolution was to be regarded as an acknowledgment for the purposes of Section 19 of the Limitation Act, the suit was still out of time, does not arise. As regards the point whether the plaintiff was entitled to sue without making his brother, the 2nd plaintiff, a party, the 1st plaintiff admitted in his evidence that he and his brother were undivided, that the brother used to help him in his business, and that the amount advanced was from their trade funds. The Subordinate Judge found that the plaintiff was the manager of the joint family (though he is not so described in the plaint), that the 2nd plaintiff acquiesced in the suit being brought in the name of the 1st plaintiff alone, and that as the fresh contract was with the plaintiff himself, and did not show that the money was due to the family, the plaintiff was entitled to sue alone, and the suit was not time-barred. The Subordinate Judge relied on the decisions in Ramanuja Chariar v. Srinivasa. Chariar 9 M.L.J. 103 and Adaikkalam Chetti v. Marimuthu 22 M.k 326.
19. In view of the state of authorities, this question is one of some difficulty. Subject to the question of acquiescence by the 2nd plaintiff in the present case, the case of Alagappa Chetti v. Vellan Chetti 18 M.k 33 would seem to be a clear authority for holding that the 2nd plaintiff was necessary party to the suit and that the suit was time-barred. This case was followed in Angamuthu Pillai v. Kolandavelu Pillai 23 M.k 190 where there was no evidence that the undivided brother acquiesced in the institution of the suit. The same view was taken in the recent case of Shamrathi Singh v. Kishan Prasad 4 A.L.J. 194 where the authorities were reviewed, and the view there taken is supported by the passages from Mr. Mayne's book on Hindu Law which are cited in the judgment in the Shamrathi Singh v. Kishan Prasad 4 A.L.J. 194 The cases of Ramanujah Chariar v. Sirinivasa Chariar 9 M.L.J. 103 and Adaikkalam Chetti v. Marimuthu 22 M.k 326 are authorities the other way. We do not think the present case could be distinguished from the cases in which it has been held that the undivided member was a necessary party to the suit on the ground suggested on behalf of the respondent, viz., that though the moneys may have been advanced in the first instance out of family funds and on behalf of the family, the fresh contract was made with the 1st plaintiff in his own name and for his own benefit. The fresh contract was made for the purpose of discharging the original liability, and if the family were entitled to the benefit of the discharge of the original liability, they are entitled to the benefit of the payment in discharge of the fresh contract. The balance of authority appears to be in favour of the view that the 2nd plaintiff was a necessary party and that the suit is time-barred. We are not prepared to hold that the defect of the non-joinder of the 2nd plaintiff is cured by the fact that he acquiesced in the bringing of the suit in the name of the 1st plaintiff alone.
20. The point was taken on behalf of the respondent that, in any view, the suit was not time-barred as regards the 3rd instalment.
21. Under Article 75 of the 2nd Schedule to the Limitation Act time begins to run, in the case of an instrument like the one in question in the present case, from the 1st default, unless where the payee waives the benefit of the provision, and then when fresh default is made in respect of which there is no waiver.
22. It appears to be well settled that mere abstinence from suing does not amount to waiver see Sethu v. Narayana 7 M.k 577; Gopala v. Paramma 7 M.k 583 and Jadab Chandra Bakshi v. Bhairab Chandra Chukerbutty 31 C.p 297. An acceptance of an overdue instalment may be evidence of a waiver see Nagappa v. Ismail 12 M.k 192; Kashiram v. Pandu 27 B.k 1; Jadab Chandra Bakshi v. Bairab Chandra Chukerbutty 31 C.k 297 but it is not suggested in the present case that any instalment was paid. All that the plaintiff could rely on was the evidence that in his (the plaintiff's) books he credited the defendants in connection with this debt with certain moneys which the plaintiff had received. It is not shown that the credits were in respect of the 1st instalment or that the fact of these sums being credited was communicated to the defendants. This being so, we must hold there was no evidence of waiver and that the suit was barred by limitation.
23. On this ground the appeal must be allowed and the suit dismissed with costs throughout.