1. This appeal is by the defendants in a suit to enforce a promissory note for Rs. 14,121-14-6 said to have been executed by Purna Chandra Pal on 13th April 1934 (=30th chaitra 1340 B.S.) in favour of his second son, Rai Mohan Pal. The plaintiffs are the six sons of Rai Mohan who died in August 1935. Purna Chandra died eleven months later, in July 1936. The contesting defendants are the surviving sons of Purna and the sons of his predeceased sons. The family pedigree is as follows:
(See pedigree on next page)
_________________________________________| |Brindaban Purna Chandra(died 1920) (died July 1936)| |Joy Chandra ____________________________________________________________(died 1929) | | | | | || Lalit Rai Mohan Krishori Mukunda Debendra Gosta___________________ (D-1) (died Aug. Mohan (died 1915) (died 1925) D-3| | | 1935) D-2 | |Krishna Satish Narendra | | |Chandra | ________________ || | | || Krishna Haripada || Pada D-6 D-7 || || ________________________________| | || Ramendra Sailendra | D-4 D-5|___________________________________________________________________________________| | | | | |Manmatha Dhirendra Anukul Manindra Prafulla BenoyP-1 P-2 P-3 P-4 P-5 P-6
2. The two brothers, Brindaban Chandra Pal and Purna Chandra Pal were in affluent circumstances. They had joint karbars at Narayanganj. The older karbar called the Baragadi, was carried on in the name and style of 'Joy Chandra Pal.' In 1902-03 (1309 B.S.) they started another karbar at Narayanganj as commission agents in jute. It was a branch of the joint karbar at Baragadi and was carried on under the name and style of 'Joy Chandra Rai Mohan Pal.' It lasted for about two years and during this period it was in the charge of Rai Mohan Pal. It is established by the evidence, both documentary and oral, that Rai Mohan was a salaried officer in that branch karbar and his remuneration was seven annas of the net profits.
3. Purna Chandra had separate karbars of his own. He had a separate money lending business at Narayanganj. In 1905 (=1312B.S.) he started a business in corrugated iron at Chota Bhagwangunj in the name of his son Debendra Chandra Pal. This is called the tin business at Chota Bhagwanganj. In 1910-11 (=1317 B.S.) he started another business at Chota Bhagwangunj in the name of his son, Gosta Behery Pal. It dealt in jute. His son Eai Mohan managed these two concerns at Chota Bhagwangunj. The evidence establishes the fact that though his brothers Debendra and Gosta took some part in these two concerns their labours were insignificant in comparison with Rai Mohan's who was the moving figure in these two separate concerns of Purna Chandra. As Purna Chandra had become old, his interest in the joint karbar at Baragadi was looked after principally by Lalit. In 1926(=1833 B.S.) the sons and grandsons of Purna Chandra started separate messing, Purna messing with them in turns. Even before the separation in mess, Purna Chandra allowed his sons and grandsons to draw money from the Baragadi and his other business concerns for meeting their individual needs, and after the separation in mess, for their messing expenses also. It is I the plaintiffs' case that the sons of Purna other than Rai Mohan as also the sons of his sons who were dead drew money for those expenses from the Baragadi but Rai Mohan drew money for those expenses from the Chota Bhagwangunj concerns only. Gosta and Kishori Mohan also drew small amounts for those expenses from Chota Bhagwangunj concerns also. The plaintiffs' further case is that at the time of starting the two businesses at Chota Bhagwangunj Purna agreed to pay Rai Mohan a salary at the rate of Rs. 500 a year for looking after that business. When the jute business at Chota Bhagwangunj was started in 1317 his salary was increased to Rs. 750 a year and from 1322 it was further increased to Es. 1000 a year. This rate continued up to 1337, when those concerns collapsed. During the whole period of 26 years, from 1312 to 1337, Rai Mohan did not draw any salary. He had drawn some money to pay the premium of his life insurance policies and some money to start one of his sons in life. Those sums were debited to his salary account and for the balance of his salary Puma Chandra executed the promissory note, in suit on 30th chaitra 1840.
4. The material defences to the suit were as follows: (1) the promissory note is a forged document, (2) in any event, Purra Chandra had no mental capacity to execute the same, (3) in any event there was no consideration for the same; the story that Rai Mohan was to get pay for the supervision and management of the business at Chota Bhagwangunj is a false one. All those defences were overruled by the learned Subordinate Judge who gave the plaintiffs a decree for 5/6th of the amount claimed by them to be recovered out of the assets left by Purna Chandra. The contesting defendants have preferred this appeal. They do not now urge that the signature on the promissory note is not Puma's. They however say that (1) Purna had no mental capacity to execute the same, that even if he had not reached that stage when he could not understand what he was doing, it was very easy for any of his descendants to get his signature on anything, that there was no consideration for the promissory note and (i) that the suit a framed is not maintainable, seeing that the plaintiffs are also some of the principal defendants. We will take up the last point first.
5. We have already stated that Rai Mohan died before Purna. The suit has been brought by the sons of Rai Mohan after Puma's death. As Purna died intestate they are some of the heirs of Purna. They have made the other heirs of Puma defendants and they themselves are defendants 8 to 13. They have prayed for a decree for the whole of the sum ' mentioned in the promissory note together with interest against the properties of Purna in the 'hands of the defendants,' that (is to say, in the hands of themselves and of the other heirs of Purna. The appellants contend that such a suit is not maintainable on the ground that in a suit the same set of persons cannot figure both as plaintiffs and as defendants. They say that if the promissory note is a genuine one with consideration the plaintiffs ought to have instituted a suit for administration of Puma's estate or a suit is for partition and accounts. It is admitted that the assets left by Purna vastly exceed his debts. In fact there is no evidence that Purna left any other debt. We do not see why under these circumstances an administration suit is required, especially when the alleged loan is secured by a negotiable instrument. Nor do we see why a suit for partition and accounts is necessary. Here, Rai Mohan was and after his death his sons are creditors. We do not see how their alleged dues as such would enter into the accounts in a suit for partition of the joint family properties. The learned Subordinate Judge has passed a proper decree. The sons of Rai Mohan would have been liable for one sixth part of Puma's debts to be recovered from the latter's assets in their hand and by passing a decree in their favour for five-sixths of the amount claimed by them the learned Subordinate Judge has avoided a further suit for contribution. We accordingly overrule this point. (Their Lordships then discussed evidence as to the mental capacity of Purna to execute the promissory note and as to the consideration for the same and dismissed the suit.)