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Kulitalai Bank Ltd., Tiruchirapalli Vs. S.V. Nagamanickam and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberAppeal No. 902 of 1950
Judge
Reported inAIR1955Mad670; (1955)2MLJ485
ActsHindu Law; Debt Law; Madras Agriculturists' Relief Act, 1938 - Sections 13 and 13A; Madras Agriculturists' Relief (Amendment) Act, 1948; Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantKulitalai Bank Ltd., Tiruchirapalli
RespondentS.V. Nagamanickam and ors.
Appellant AdvocateA.V. Narayanaswami Iyer and ;R. Venkatachalam, Advs.
Respondent AdvocateT.A. Anantha Iyer, Adv.
DispositionAppeal allowed
Cases ReferredRaghunathji Tarachand v. Bank of Rom
Excerpt:
hindu law--joint hindu family belonging to trading community--manager borrowing for business purposes--whether debt binding on minor members--whether legal necessity or benefit need be proved--if manager of trading family can start new business-limitations ; n, a hindu belonging to vaishya community whose father was carrying on money-lending business, continued to carry on that business after his father's death and also started a rice mill subsequently. he executed a security bond in favour of a bank for overdraft facilities stating that he required the same for shroff business. in a suit by the bank against n and his minor sons for recovery of the amount,; held, the mortgage was binding on the minor sons also and the father was competent to incur debts in the course of running.....1. the appellant is the plaintiff, the kulitatai bank ltd., tiruchirapalli. they filed the suit against defendant 1 and his four sous, three of whom were minors, (or recovery of rs. 20,826 due on a security bond, ex. a. 3 dated 30-11-1945, for advances made by the bank. it was executed by defendant 1 (or himself and as guardian of his four sons, all then minors, who were in existence. the subordinate judge passed a preliminary mortgage decree against defendant 1's share in the hypotheca and dismissed the suit against defendants 2 to 5, holding that the mortgage was not binding on their interests. the evidence shows, nor is it disputed, that defendant 1, a chettiar of the vysia community, got the hypotheca. under a partition deed, ex. a. 7 (b) in 1938 with his-younger brother then aged.....
Judgment:
1. The appellant is the plaintiff, the Kulitatai Bank Ltd., Tiruchirapalli. They filed the suit against defendant 1 and his four sous, three of whom were minors, (or recovery of Rs. 20,826 due on a security bond, Ex. A. 3 dated 30-11-1945, for advances made by the bank. It was executed by defendant 1 (or himself and as guardian of his four sons, all then minors, who were in existence. The Subordinate Judge passed a preliminary mortgage decree against defendant 1's share in the hypotheca and dismissed the suit against defendants 2 to 5, holding that the mortgage was not binding on their interests. The evidence shows, nor is it disputed, that defendant 1, a Chettiar of the Vysia community, got the hypotheca. under a partition deed, Ex. A. 7 (b) in 1938 with his-younger brother then aged about 16. This document refers to a shop business conducted by defendant 1 on his own account, the assets and liabilities of which all belonged to him. There can be no doubt the hypotheca is ancestral joint family property. Defendant 1 filed a written statement supporting the case for his minor sons who were represented by their mother as guardian, denying that he carried on a shop business as an ancestral joint family business and he also ran a rice mill as a family business. He did not go into the witness-box himself.

2. On behalf of the bank the agent was examined as P. W. 1, the cashier, as P. W. 2 and one Krishnamurthi Chettiar as P. W. 3. On behalf of the defendants only one witness was examined, one Radhakrishna Chettiar, who claims to have known the family of the defendants for the past thirty five years. According to him, defendant 1's father did a money lending business and was Secretary of a Bank for a time. Defendant 1 has run a shop business for the past 25 years and a rice mill for the past 6 or 7 years. A certificate by the Commissioner of the Karur Municipality relating to profession tax, Ex. A. 12, shows that defendant 1's half yearly income for the years 1943 to 1949 ranged from Rs. 1900 to Rs. 3100 a half year from his shop business. The eldest son, defendant 2, was at the time of the suit a medical student. P. W. 3 produced some accounts showing, transactions between defendant 1 and a relation of his, Ex. A. 11 series, showing transactions relied on to support the fact that defendant 1 was a trader and doing a 'Maligai' business. There appears to be nothing suspicious about Exs. A, 11 (a) and A. 11 (b), two ledger pages exhibited showing 'inter alia' three separate purchases of 50 measures of gingelly. But the ledger page, Ex, A. 11 (c) at p. 154 which appears to have been written up at one stretch and refers to the jaggery mundy of defendant 1 is a most suspicious document 011 which no reliance can be placed. P. W. 3 admitted that defendant 1 had got an eviction order against him. We think the learned Subordinate Judge rightly declined to find these entries conclusive as regards anything.

3. Had this family not been one whose hereditary vocation or 'kulchara' is trade or commerce, the learned Subordinate Judge's finding that the bank has not discharged its onus of proving legal necessity for this mortgage would have been correct and in accordance with settled law unto date. As ex-pounded in Mayne's Hindu Law, Edn. 11, at p. 382 to 385 a managing member, whether he is a father or, a senior coparcencer, cannot start a new trade or business so as to impose upon minor members the risk of such business. Whether however this limitation on the powers of a manager applies to the manager of a trading family or one whose kulachara or hereditary vocation is trade was held to be not free from doubt in view of--'Ramnath v. Chiranji Lal', AIR 1935 All 221 (FB) (A), and other earlier decisions cited. We would with respect agree with the view expressed by the learned commentator that the better view seems to He against the imposition of any such limitation; otherwise there would be an undue curtailment of commercial adventure and enterprise, which is the very life, so to speak, of a hereditary trading family. This distinction has been made in this domain of case law, distinguishing between a family whose hereditary vocation or kulachara is trade or commerce and a non-trading family. It is argued that there is nothing to show in the first place that the shop business carried on by defendant 1 was ancestral. It does not appear to he necessary that a family whose hereditary vocation is business, trade or commerce, should continue even for more than one generation one particular type of business in order to take the family out of this category. In this connection we must comment on the failure of defendant 1 to go into the witness-box. He had the best evidence in his possession as to what his father and grand-father did and has withheld his knowledge from the Court. We can take his absence from the witness-box into consideration in drawing an adverse inference against his family that they and their ancestors did business of some kind as their hereditary vocation in the course of which they may have acquired some land.

4. It is next urged that defendant 1 had no right to start a new venture of a rice business which ran for seven years before he got into financial difficulties. Reliance has been placed on--'Nataraja v. Lakshman', AIR 1937 Mad 195 (B), a decision of Varadachariar and Mockett JJ. which dealt with the case of a father of a joint Hindu Brahmin family incurring debts by starting a rice mill with a view to give tliem all comforts. It was held that the father was neither obliged to adopt, nor was justified in adopting this course on the ground of family necessity. I would have felt myself constrained to follow that decision; but I think that this family belonging to a community whose hereditary avocation or kulachara is trade or commerce is in a different category and that the borrowings of the father for purposes of the family business he entered upon for the benefit of his family need not be justified on the ground of legal necessity or benefit. By executing this mortgage in favour of the bank by himself and as guardian of his minor sons, he made it irrevocably clear that the business was not his separate one to which he could put forward any claim as his self-acquisition, but that he intended it to be from the commencement a joint family business in accordance with the hereditary vocation of his family, and community. It is true that in these days many other communities have entered the fields of business, trade and commerce and that some of the members of the community to which the family of the defendants belong have left their hereditary vocation for other spheres of activity. We appreciate that under case law the onus is on the bank to establish family necessity or benefit. This is a case, in our opinion of a family whose kulachara is business, seeking to extend its enterprise from a shop business into a rice business, one it is true of a different kind. Every new business undertaken must of course carry with it the risk of loss, but in the case of a business of a trading family such risk is inevitable and expected, and it is only where the business can be shown to be imprudent or rash can it be held to be, in the case of a business family, not binding when started by a father, on his sons. For those reasons we would reverse the finding of the learned Subordinate Judge and hold that the mortgage is binding on the shares of the sons.

5. One of the contentions raised was that the interest charged, which was 12 per cent. compound interest, was excessive. The learned Subordinate Judge considered this penal and excessive and reduced it to 9 per cent, compound interest. The defendants pleaded that they, were agriculturists entitled to relief under Act 4 of 1938. Regarding this as a contention raised only on behalf of defendants 2 to 5, the learned Judge did not think it necessary to consider it in view of his finding that the mortgage did not bind them. On going into this question of scaling down we find that all the defendants are entitled to have this mortgage debt scaled down under Section 13-A of Act 4 of 1938 as amended by Act 23 of 1948. This Act was in force at the time the suit was tried and it would appear that no relief was claimed under this section in ignorance of this amendment. In fact the learned advocates before us, while this question of interest was discussed were not aware of this relief to which all the defendants appear to be entitled. Under Section 13-A :

"Where a debt is incurred by a person who would be an agriculturist as defined in Section 3 (ii) but for the operation of proviso (B) or proviso (C) to that section, the rate of interest applicable to the debt shall be the rate applicable to it under the law, custom, contract or decree of Court under which the debt arises or the rate applicable to an agriculturist under Section 13, whichever is less."

Defendant I prior to this amendment would not have been entitled to any relief as he paid a profession tax. Under this section, which now excludes in the categories of tax-payers only those who pay income-tax from relief as an agriculturist, defendant 1 would be clearly entitled to relief under Section 13, i.e., to have the interest reduced to 5 1/2 per cent. simple per annum (vide G. O. Mis. 2919, Develop- ment (Dept.) dated 7-7-47 published in Fort St. George Gaz. dated 29-7-47). The lower Court decree will be modified accordingly.

6. Mr. Narayanaswami has informed us that a review application was filed, I. A. No. 434 of 1950, which was allowed by the Subordinate Judge who made a direction that his judgment would not preclude the liability of the sons on the pious obligation doctrine in subsequent proceedings. As regards this, C. M. A. No. 360 of 1951 has been filed on behalf of the sons. This civil miscellaneous appeal is dismissed without any order as to costs.

7. I wish to make some observations of my own as regards what appears to me to be a cumbrous procedure adopted in this type ot case. Mr. Narayan-swami has informed us that the bank has obtained a personal decree against defendant 1 and in execution brought his one-fifth share to sale, which was pur- chased by a third party for about Rs. 9000. Me explains that if we were not to allow this appeal, he would have been entitled to proceed by way of attachment of the sons' shares in execution of the personal decree against the father and bring them to sale, in which case the only defence the sons would be able to put forward would be that the father's debts were incurred for illegal or immoral consideration. This procedure appears to be supported by this observation of Varadachariar J. in A 1 R 1937 Mad 195 (B) referred to supra.

"It is true that in execution of the personal decree to be obtained against the father alter the sale of his share, joint family properties may be brought to sale; but we think the proper stage for determining the extent to which the family properties may be made liable even on the basis of the sons' liability under the pious obligation doctrine will be when the plaintiff applies for the passing of a personal decree."

Our attention has been drawn to a recent Full Bench decision of our Court in Abdul Hameed Sait v. Provident Investment Co. Ltd., (C) which held that a mortgage decree for sale

simpli-citer without any personal liability obtained against a father alone, on a mortgage of the joint family property created by him for purposes not binding on the family, cannot be made to bind the sons share by the application of the principle of pious obligation but that a sale held of the joint family property in execution of such a decree is binding on the sons' share. I am not here concerned with the reasoning which led the learned Full Bench to that conclusion, but with great respect from a practical standpoint the decision represents a practical progressive advance in the clarification of a most confused domain of law over which conflict has raged upto, and also since the time of the leading Privy Council decision in Hunoo-man Pershad v. Mr. Bobooee Mundraj, 6 Moo I A 393 (P C) (D) I have found 'it extremely difficult myself with great respect to appreciate the difference in case law between a debt on a mortgage and any other kind of debt which a Hindu son is under a pious obligation to discharge. The procedure in a promissory note debt is quite simple tor the bank or a creditor who lends to a Hindu father. He sues on the pro-missory note and to avoid subsequent litigation makes the sons parties and the only manner in which they can avoid a decree is by pleading that the debts are not binding upon them on the ground of illegal or immoral consideration. No question of legal benefit or necessity arises. The creditor can then proceed against the joint family property without fear of subsequent litigation. When we enter the domain of mortgage case which law regarded as settled has considered to be primarily an alienation, (sic) the position becomes far more complicated for the banker or creditor who lends on security to a Hindu father. The precaution of making the sons parties to the mortgage becomes of little practical avail in case the Bank is unable to discharge the onus of proving legal necessity or benefit, if they can question the right of the creditor to bring their shares to sale on other grounds later in execution.

8. The practical effect of the recent Full Bench decision in (C) which arose out of a suit by a son who was not

impleaded in the mortgage suit after joint family property had in fact been sold in execution of the decree against the father, is that the only defence open to the sons of a Hindu family to save joint family property from being brought to sale for the father's debt is by proving that the debt was for illegal or immoral consideration and indeed had the bank taken an outright sale from the father of the hypotheca or a portion thereof and entered into possession the only remedy by the sons would have been by way of a suit to declare that the sale was not binding on them on this ground. Is it therefore necessary only in the case of a mortgage to force a creditor or expose him to contentious litigation in two different stages even though he may implead the sons to have the liability of their shares to be brought to sale finally determined? As it appears to me, if the sons are impleaded in the mortgage suit as parties, they must in the suit itself plead that the debt is not binding on them on grounds of illegal or immoral consideration and if they do not do so, it is not open to them to raise this plea at any subsequent stage or in any further legal proceedings. With great respect to the opinion of Varadachariar J. extracted supra in AIR 1937 Mad 195 (B) I can only regard it as an obiter dictum and not a finding on a point for determination in the case decided there which can be regarded as a binding and authoritative pronouncement of law or procedure. Both learned advocates agree that it was open to the sons in this suit on the mortgage on which they have been impleaded to take the defence of illegal or immoral consideration. It necessarily follows, in accordance with principles of ordinary established law and practice, that a defence open in a suit must be taken in the suit and resolved at the trial and cannot be taken as a second alternative defence at some later stage. The different stages of a mortgage suit, preliminary decree, final decree and personal decree do not appear to provide any justification for a deviation from this regular procedure. The mortgage simpliciter Subba Kao J. referred to in (FB) (C) 1 understand to be a mortgage-decree only against the father in a suit in which the sons have not been impleaded. When the sons are impleaded in such a suit, they must as it appears to me, take the plea of illegal or immoral consideration or suffer a decree against their shares of the property, the question of antecedent debt or legal necessity being matters, therefore, in such a suit of purely academic interest. This is the only practical application to be given to the Full Bench decision in (C).

9. The procedure to which the bank has been driven in this case, of selling first the father's one-fifth share only and then later, seeking to attach the sons' shares in execution of the personal decree, against the father, puts a premium on fragmentation of land and long drawn out contentious litigation which merely opens out avenues for unnecessary suits. The purchaser of the undivided one-fifth share has to file a partition suit against the sons and realise his purchase, and when the shares of the sons ultimately are brought to sale, as indeed they must if they cannot prove illegal or immoral consideration, and bought by a third party, further avenues of litigation are opened out. This is a case in which the hypotheca was of substantial value, greatly in excess of the bank debt which it secured. Judging by the purchase of an undivided one-filth share for about Rs. 9000 the sale of a portion of the hypotheca would have liquidated the entire debt and left the family with substantial property. Probably after the cumbrous procedure adopted and the litigation entailed, the family will have little or nothing left. The procedure has it is true enabled the family to hang on to possession for some years but with ultimately deleterious results to themselves, the rural economy of the country and generally speaking, commercial morality.

10. The appeal is allowed with costs throughout. Time for redemption three months from this date.

Krishnaswami Navudu, J.

11. I had the advantage of perusing the judgment just now delivered by my learned brother and I am in agreement with him that the appeal should be allowed. However, I would like to make the following observations regarding the question of law arising in this case.

12. My learned brother, referring to the view of the commentator of Mayae's_Hindu Law, Edn. 11 at pp. 382 to 385 that a managing member, whether he is a father or a senior coparcener, cannot start a new trade or business, so as to impose upon minor members the risk of such business, observed :

"Whether however this limitation on the powers of a manager applies to the manager of a trading family or one whose 'kulachara' or hereditary vocation is trade was held to be not free from doubt in view of AIR 1935 All 221 (A), and other earlier decisions cited. We would with respect agree with the view expressed by the learned commentator that the better view seems to lie against the imposition of any such limitation; otherwise there would be an undue curtailment of commercial adventure and enterprise, which is the very life, so to speak of a hereditary trading family."

I would, however, like to clarify the position even as regards a hereditary trading family. The principle of the Privy Council decision in 'Benaras Bank Ltd. v. Hari Narain, AIR 1932 PC 182(E),' viz., that the manager of a joint Hindu family, whether governed by the Mitakshara or the Dayabhaga, has no authority to impose upon a minor member the risk and liability of a new business started by him and that it will not make any difference when the manager is the father of the minor must be deemed to have set at rest the view taken by some High Courts including the view taken by some learned Judges of this Court that a ather can bind his minor sons by starting a new business with the aid of family funds.

13. In--'Venkataswami v. Palaniswami, AIR 1929 Mad. 153(F) Venkatasubba Rao J., held that a Hindu father by starting a business with the aid of family funds can make that a family business and in such a case, an alienation made by the father, for raising funds or carrying on that business is binding upon the sons, on the ground that it was for legal necessity.

14. In 'Damodaram Chetti v. Bansilal Abeer-chand', AIR 1928 Mad 566 (G), Coutts-Trotter C. J. and Srinivasa Aiyangar J. while approving the dictum of Sadasiva Aiyav J. in 'Official Assignee of Madras v. Palaniappa Chetti', AIR 1919 Mad 690 at p. 895 (H), to the effect that a Hindu father belonging to a trading community has a right to begin a lawful and ordinary trade business as a joint family business in which himself and his minor sons were partners, observed that two narrow a construction should not be allowed to be placed on such expressions as "family trade or business" and that with changes of civilisations and conditions what should be applied is not a rigid rule of law but the principle on which it is based, that it seemed to them absurd to suppose that if a family business should be found to have consisted in the purchase and sale of one commodity, purchase and sale of another commodity should be eld to be outside the scope of the family business, that each case will have to be determined only with regard to its particular facts and that the question to be determined in each case should be whether having regard to the recognised business, profession, means of livelihood or what is called the "kulachara'' of the iamiiy, the particular enterprise or embarking was only within the reasonable limits of the exercise thereof or really having regard to its nature or extent, a new speculative enterprise. In that case, however, the father was carrying on business in the purchase and sale of piece-goods; but he ceased to carry it for some time, and alter his death a similar business was started by the son and the fact that the father ceased to carry on the business for a few years was held not sufficient to make a similar business started by the son any the less a family business.

15. In AIR 1937 Mad 195 (B), Varadachartar J. observed that the view of Venkatasubba Rao J. in AIR 1929 Mad 153 (F) can no longer be valid in view of the Privy Council decision in AIR 1932 P C 182 (E). With reference to the contention based on the observations of the Full Bench in AIR 1935 All 221 (A), that it would be open to the creditor to show that apart from the ancestral character of the business the debts themselves were borrowed in circumstances or for purposes that will make them binding on the family by independent evidence, the learned Judge observed that in that case the ancestral character of the business or otherwise would not come into the picture and no difference could turn on the fact that the debts are incurred by the father and not by any other manager and the proof must therefore amount to proof of necessity in the sense ordinarily known to the Hindu law.

16. In AIR 1935 All 221 (FB) (A), the father in a joint Hindu family consisting of himself and his sons, raised money on a mortgage of the family property, two-thirds of the amount being expressed to be for the purpose of an ancestral lace shop at Muttra and the Balance for a cloth shop in Delhi, which had been in existence for a number of years. In a suit for sale on the mortgage brought against the sons, the father having died, the defence was that there was no legal necessity for the mortgage and it was not binding on the family. Following the pronouncement in AIR 1932 P C 182 (E), it was held that it is settled law that money borrowed for the purposes of an ancestral family business is per se a valid justification for alienation of family property and in such a case no further inquiry on the part of the creditor is required. It was held further that :

"But the question" whether a particular transaction, even though the money was required for the purposes of a newly started business, was for legal necessity or for the benefit of the estate and the family is a separate question. If the business though not ancestral, had become joint family business and was not the separate business of particular members then there may be circumstances under which money required for such business may either be for legal necessity or for the benefit of the family and the family estate. The question whether the transaction was for such benefit or not is a question of fact depending on the circumstances of each case and it is for the Court to decide whether it was so beneficial and was such as an ordinary prudent manager would have entered into in the interests of the family."

17. In--'Raghunathji Tarachand v. Bank of Rom-bay', 34 Bom 72 (I), where an adult male member carried on ancestral business in the name of the ancestral firm and a suit was instituted for recovering the amounts due on pronotes from the firm, it was held that the minor coparcener's share in the firm was liable. Chandavarkar J. observed at p. 76 :

"According to Hindu law givers from Manu downwards, traders formed a part of the Hindu polity and the profession of trade was meant for the third and last of the twice born castes, namely, Vai-shyas. The Brahmins and the 'Kshatrias were allowed to trade only in case of necessity and in times of distress. There are special rules laid down for traders. Where a caste or a joint family takes to trading, and that is handed down from one generation to the next and so on, it is called a trading caste or a trading family and trade becomes its duly or practice. In that case the duty or practice is called 'kulachara'. The Smriti writers and the commentators all lay down the injunction that the king should see that 'kulachara,' meaning the duly of every family or caste, is properly preserved."

The learned Judge further observed that a joint family, which carries on a trade handed down from its ancestors, becomes a trading family; trade being one of its 'kulachara' as it attracts to itself all the neces-sary incidents o trade. Then at p. 78 :

"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 to at least one important exception. According to a text of Yajnavalkya "among herdsmen, vintners, dancers, washermen and hunters, the husband shall pay the debts of his wife," and the reason is stated to be that "the livelihood of the family depends," upon the wife ... In his gloss upon this text Vijnaneshwara in the Mitakshara points out that the reason assigned in the text for this exception shows that the rule applies to similar cases. Apararka stages that this is an exception to the general rule relating to families. Ralambhatta in his commentary on the Mitakshara points out that the specified cases in the text are not exhaustive but illustrative and that the principle applies to all alike--Brahmins and others similarly situated. That is, the term 'wife' in the text stands for the 'karta' or manager of the family and the terms "herdsmen etc.," stand for its members carrying on a family business. From this text it follows that 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 purposes, and the creditor is not bound to inquire into the purpose of the debt to bind the whole family thereby because that power is necessary for the very existence of the family. Whether the debt was contracted for the purpose of the family profession or not, it binds the members."

The view of Chandavarkar J. based on the view of the Hindu law givers from Manu downwards is that where the 'kulachara' of the family is trade and such a trade had been handed down from the ancestors, the family becomes a trading family and when a 'karta or manager of the family carries on a business or profession, which is the 'kulachara' of the family, he is competent to contract debts so as to bind the other members of the family. But the extension of the principle, that whether the debt was contracted for the purpose of the family profession or not, it binds the members, cannot, however, with respect, to the learned Judge be considered to be supported by the texts referred to. The equation of the 'karta' for the "wife" in the text of Yajnavalkya white opposite in the sense that the 'karta or manager carries on a family business just as a wife engaged in the professions referred to in the test of Yajnavalkya, cannot he extended to lead to the inference that whenever a 'karta' is engaged in a business, whether it is a family business or not and the family is maintained by that business, the 'karta' is empowered to incur debts and bind the other members of the family. It is only debts incurred in respect of the family trade, profession or avocation, whoever it may be that carries it--the wife in the class of professions referred to in the text of Yajna-valkya, and the father or manager in the case of a family trade handed down from its ancestors -- that can bind the members of the family. The Full Bench in A I R 1935 All 221 (A) to a certain extent bases its conclusion on the observations of Chandavarkar J. in 34 Bom 72 (1).

18. In AIR 1937 Mad 195 (B) which has already been referred to, the lamily was a Brahmin family, whose 'kulachara' obviously was not trading. The family had an income of about Rs. 1000 per annum from family lands. The father of the minor sons started a rice mill business for which he borrowed, whch debts were sought to be made binding on the sons, Varadachariar J. while dealing with the Full Bench case in A I R 1935 All 221 (A), observe I that it might be possible in cases where the other members of the family were adults by conduct of the parties the buincss started by the father might be regarded as joint business, but not so in cases where the other members were minors. Finding that the starting of a rice mill business py a person situated in the position of defendant 1 (the father) could not be said to be not attended with risk or danger to the family property, the teamed judge was of the opinion that oven a tamily manager, though actuated by the motive of increasing the family income, was neither obligated to adopt nor was justified in adopting a course of that kind with a view to give the minor members more comfort than the normal income of the tamily properties would make possible and that such a transaction could not be supported either on the ground of family necessity or benefit on the ground that it was executed in connection with an ancestral business in the sense in which the expression was known to Hindu law.

19. In so far as ancestral business is concerned, it is competent to the adult son to carry on that business after his father's death and incur debts for the purpose of that business, which would bind the interest of the sons, since ancestral business must be considered to be an asset of the family which the adult son gets into possession and which he is entitled to maintain and carry on; and if in the course of carry-ing on that business he incurs debts, the minor sons cannot escape liability. The difficulty arises only in the case of a new business started. Even here, if the new business is started by a member of a family which had been a trading family in the sense that its ancestors' profession was trade and they actually carried on some business, then the mere fact that a new business is started which may not be the very same identical business started by the father would not be a sufficient defence to the minor sons to resist any proceeding against their interests in the family properties for debts incurred by their father in such a business. Even in such a case, it may not be open to the father or manager to start a new business which would be attended with risk and not akin to or of the nature carried on by his ancestors. The trade or the business carried on need not be the identical one. It may be that the family was doing money lending business. The father or manager therefore cannot be permitted to start a speculative business in stocks and shares, though the family is a trading family, the reason being that it is a business attendant with grave risks. Though the imposing of limitations on the powers of a manager of a trading family, whose kutachara is trade, may amount to a curtailment of the spirit of commercial adventure and enterprise in a trading family, on the other hand, to hold that in a trading family the father or manager can start any business or trade however risky it may be would be to hazard the interests of the minors in the joint family property. It will therefore be a question of fact in every case whether even in a trading family, a new business started is one which is akin to or of the nature carried on by the family, or is one attendant with risk and should not therefore have been started, which might result in detriment to the interests of the minor.

An extension of the old business may not be considered to be a new business, but a new business started must be shown lo be a business which is not one that would ordinarily lead the members of the family to great risk. The mere fact however that the business carried on, though started for the first time, is by a member who belonged to a family whose kulachara is trade but none of the ancestors of the family at any time engaged themselves in trade, cannot entitle the manager by starting a trade and incurring debts to seek to bind the interests of the other members of the family. Manu in his four-fold classification of Hindu assigns the profession or trade to Vaishyas. Similar professions are assigned to the other three castes. But it is common knowledge that several families belonging to the Vaishya community have not been in fact engaging themselves in trade and have taken to other avocations. To permit therefore a member of a Vaishya community, whose family at any rate for two or three generations previously had not engaged themselves in trade, to start a business and incur debts so as to bind the minor members of the family on the ground that he belongs to the community of Vaishyas would be placing in jeopardy the minors' interests in the joint family. In order to bind the minors' interests in the property it has lo be shown that not only that the family was a Vaishya family, but in fact the ancestors engaged themselves in trade.

20. In the present case, however, there is clear evidence oral and documentary referred to by my learned brother, especially that of D. W. 1 and Ex. 11 series to show that defendant 1 apart from his being a member of the Vaishya Community, whose Kulachara is trade, his father was carrying on money lending business, which defendant I was carrying on even during the lifetime of the father and after his death, in addition defendant 1 started a rice mill. But the representation made to the bank, under the security bond, Ex. A. 3 was that overdraft facilities to the extent of Rs. 17,000 were required for the family business as shroff merchants. Mr. Anantha Aiyar sought to build up an argument to support a distin-ction between shroff business and money lending business, the shroff business being considered to be mainly a business dealing with precious metals. In Ramanatha Aiyar's Law Lexicon, p. 1193, "Shroff" is understood to mean "banker, a money changer also and more commonly, an expert employed in banks and treasuries to examine money." A shroff business, according to the Tamil lexicon, means a business where precious metals are sold and.it includes also a business of banking. We have no doubt, however, that the shroff business which defendant 1 carried on was money lending and at any rate akin to the business which his father was carrying on. If the decision in the present case depended on the mere fact that defendant 1 was a Vaishya, and it was not shown that the father did any business, much less money lending business, it would not have been possible for holding that it is a business which could be considered, to be a family business. On. the evidence in this case, I am satisfied that not only that the family is a trading family by birth but also by avocation and as such the carrying on of the shroff business by defendant 1 for which purpose he borrowed from the plaintiffs is a family business and he was competent to incur debts in the course of the running of the business so as to bind his minor sons.

21. I am in agreement that the debt is liable to be scaled down in accordance with Sections 13 and 13-A, Agriculturists' Belief Act. I do not wish to express any opinion, however, with reference to the observations of my learned brother as to the procedure adopted in the case and the necessity for the minors to plead in the suit itself as to any illegality or immorality of the debts and the connected questions arising therefrom as it appears to me that they do not arise for determination in this appeal.


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