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Sridharan (Minor) and ors. Vs. Murthi Brothers, by Partner C.S. Balasubramani and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1976)1MLJ100
AppellantSridharan (Minor) and ors.
RespondentMurthi Brothers, by Partner C.S. Balasubramani and anr.
Cases ReferredRajan v. Kannikonda Reddiar
Excerpt:
- - for example, if an agricultural family, like the one under consideration, suddenly thinks of starting a gaming house with the intention of making profits thereon, though licensed under the provisions of the appropriate legislation, yet the very impression gained by a third party who is apprised of such an activity on the part of the father-manager, would be revolting, in the sense that he would adjudge such an activity as an avyavaharika activity or as abnormal activity......demand prior to the action is concerned, it is not disputed that no such notice was given to the minor defendants, though they were impleaded in the action, and that the notice said to have been issued to the first defendant was not even exhibited in the course of the trial.8. in a joint family, which is a non-trading family, it is left to the option of the father-manager, as patria potestas of the family to formulate schemes of expansion in the matter of acquisition of property by lawful means and if, in the course of such wishful thinking, the father-manager departs from the usual avocation of the family and starts a new business as an entrepreneur, that by itself cannot be characterised as an activity of the father which is not contemplated in the personal law or against it. if such.....
Judgment:

T. Ramaprasada Rao, J.

1. Defendants 2 to 4, who are the minor sons of the first defendant in the suit, O.S. No. 501 of 1967, on the file of the Court of the Subordinate Judge, Coimbatore, are the appellants. The plaintiff is a trader. He sold and delivered goods on credit to the first defendant, who was carrying on business under the name and style of Coimbatore Cotton Company and was also running a ginning factory, known as the Rukmani Ginning Factory, at Sultanpet in Palladam Taluk. The plaintiff's case is that for a considerable length of time the first defendant, the father of the appellants herein, though an agriculturist, was also doing business in cotton. In the course of such business, which the first defendant claimed as his sole proprietory business, goods were supplied on credit to him by the plaintiff during the period from 6th August, 1966 to 30th September, 1967. In accordance, with the accounts regularly kept by the plaintiff, a sum of Rs. 45,907.11 was due by the first defendant as the principal debtor, and defendants 2 to 4 as members of the undivided family, as also interest thereon, from that date to the date of the institution of the action. The plaintiff claims that the business was conducted by the first defendant as the manager of the joint family consisting of himself and defendants 2 to 4 and that, as the borrowing was for the benefit of the minor children, all the defendants were liable for the suit claim, as, according to the plaintiff, there was no taint in the borrowing and in that sense it was not an avyavaharika debt.

2. The first defendant submitted to a decree and prayed for six months' time, though in the first instance, he disputed the quantum of the liability.

3. The mother of defendants 2 to 4, as their guardian, filed a written statement, stating that the family was purely an agricultural family, that the first defendant started the cotton trade by himself, and that, as that business was started newly by the father-manager, the minor coparceners were not liable for the suit claim.

4. It is common ground that prior to the institution of the action, no notice of demand was issued to defendants 2 to 4 as minor coparceners of the family. Even the notice said to have been issued by the plaintiff to the first defendant has not been filed. It was under those circumstances and on the above relevant pleadings, the trial Court took up the case for trial after framing the following issues:

1. Whether the suit debt was incurred for any purposes binding on the defendants 2 to 4?

2. Whether defendants 2 to 4 have benefited by the suit debt?

3. Whether the defendants 2 to 4 are liable to pay the suit debt from out of their 3/4 share of the family properties set out in schedule I of the petition for attachment before judgment.

4. Whether the defendants 2 to 4 are entitled to compensatory costs?

5. Whether the account maintained by plaintiff is true and correct?

6. Whether the plaintiff is entitled to any interest?

Additional issue:

1. Whether the suit debt is an avyavaharika one as contended by defendants 2 to 4 in paras. 11 and 16 of their written statement?

5. The learned trial Judge found that the plaintiff's accounts were regularly kept and that the amount as claimed was due and payable. On issues 1 to 3 and on additional issue 1 he held that the suit debt was not an avyavaharika debt and that the fact that the father started a new business by himself would not militate against the entitlement of the creditor from recovering such a debt from all the members of the coparcenary, including the minor members. The learned Judge, however, did not notice that no suit notice was given prior to the action, and, in the end, he decreed the suit with costs. It is as against this the present appeal has been filed.

6. Mr. Soundarapandian, learned Counsel for the appellants, does not dispute before us the quantum of liability of the first defendant, as the principal borrower. He, however, contends that though the first defendant was the father-manager of the coparcenary, yet as the family was essentially as agricultural family and not a trading family, the business started suo motu by the father cannot be accepted without further elucidation or evidence that it was carried on for the benefit of the minor members of the family, the appellants herein. He would also say that, as cotton trade involved speculation and as an agricultural family indulged in such a trade, the prima facie presumption is that such a new business cannot be deemed to be for the benefit of the minor coparceners and that, in that sense, the debt, though incurred in the course of such a trade, or dealing should be badged as an avyavaharika debt. He therefore disclaims liability on the part of the minor coparceners of the family. He also contends that the appellants are not liable for costs.

7. On the other hand, it is stated that it is not axiomatic that the starting of a new business by the father-manager of the joint family by itself raises a presumption that the debts contracted by him in the course of the running of such a business should always be held to be avyavaharika or non-binding debts, In so far as the non-issue of the notice of demand prior to the action is concerned, it is not disputed that no such notice was given to the minor defendants, though they were impleaded in the action, and that the notice said to have been issued to the first defendant was not even exhibited in the course of the trial.

8. In a joint family, which is a non-trading family, it is left to the option of the father-manager, as patria potestas of the family to formulate schemes of expansion in the matter of acquisition of property by lawful means and if, in the course of such wishful thinking, the father-manager departs from the usual avocation of the family and starts a new business as an entrepreneur, that by itself cannot be characterised as an activity of the father which is not contemplated in the personal law or against it. If such a business conducted by the father-manager is ex facie a speculative one or one which no reasonable or prudent person would characterise as a business undertaken by the father-manager in the interests of the other members of the family, then things might be different. But, on the only ground that the new business has been started by the father-manager, as a commercial activity thought of by him and for the purpose of prudentially conducting it for the benefit and welfare of his children and other coparceners of the family, that by itself would not raise any presumption, much less a reasonableg presumption that the debts contracted in the course of the working of such a commercial activity are by themselves avyavaharika debts. Avyavaharika is a concept which is peculiar to the personal law of the Hindus. It is not avyavaharika. The term 'vyavahara' means 'in the normal course'. The opposite of 'vyavahara' therefore should give an impression to a normal person that an abnormal activity was thought of by the father-manager or indulged in by him. For example, if an agricultural family, like the one under consideration, suddenly thinks of starting a gaming house with the intention of making profits thereon, though licensed under the provisions of the appropriate legislation, yet the very impression gained by a third party who is apprised of such an activity on the part of the father-manager, would be revolting, in the sense that he would adjudge such an activity as an avyavaharika activity or as abnormal activity. Each case has therefore to be decided on its own merits. In fact, there is high authority for the proposition that a trade is none-the-less ancestral, because it was started only by the father. Vide Achutaramayya v. Ratnajee Bhootaji : (1926)50MLJ208 .

9. We should therefore consider the evidence let in this case to find out whether the father, who started the cotton business as an agriculturist, wanted to indulge in abnormal activities so as to prejudice the minor sons then born or thereafter to be born to him. D.W. 2 is the wife of the first defendant. She was examined as the guardian of defendants 2 to 4. She says that for thirteen years her husband was doing cotton business, that he was a pious man and that he used to go to temples and spend moneys on charitable purposes. No doubt, there is the evidence of D.W. 1 who would, without hesitation, and without any basis either, attribute immoral activities to the first defendant. He would, however, honestly admit that he heard that the first defendant used to visit dancing girls' house. The learned trial Judge therefore discredited his testimoney as hearsay. Taking the evidence of D.W. 2 who is primarily interested in the minor defendants (appellants) we are unable to say that, when the father-manager started the new business thirteen years before, he contemplated to engage himself in abnormal or avyavaharika activities. It is not the case of D.W. 2 as the guardian of the appellants, that the first defendant was rash in the conduct of his business and that he was incurring loss ever-since, its inception. There is no evidence to that effect in this case. The overall picture gained by us is that the cotton business carried on by the first defendant was for the benefit of the family and that it was a new business which he bona fide started for the purpose of improving the finances of the family. In this connection, we may also refer to the decision of a Division Bench of this Court, consisting of Venkataraman and Gokulakrishnan, JJ., in Rajan v. Kannikonda Reddiar : AIR1975Mad117 , where the learned Judges observed that the starting of a new business (in that case a bus business) could not be called avyavaharika and that the sons would be liable to pay the debt incurred for the business on the pious obligation theory.

10. For these reasons we are unable to agree with Mr. Soundarapandian that the debt is tainted and that the appellants as minors are not liable to contribute to the same. The learned trial Judge rightly came to the conclusion that the debt was binding on defendants 2 to 4 and that they were also liable to pay the debt from and out of their share in the joint family properties.

11. The only surviving question is whether the appellants should suffer costs in this action. We have already referred to the fact that there was no notice before the suit which was given to the minor defendants in the action, though they were impleaded as such. Even the notice said to have been given to the first defendant has not been filed. No explanation is forth-coming as to why it has riot been produced. In these circumstances, we are of the view that the appellants have rightly come up to this Court at least to challenge the decree for costs given by the Court below. As regards the costs awarded by the Court below, we are of the view that defendants 2 to 4 need not be directed to pay the counsel 's fee which was made part of the decree, as a result of the decree for costs given against all the defendants. In this appeal, therefore, while dismissing the same, we direct that there will be no order as to costs in favour of the plaintiff-first respondent.


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