1. The plaintiff is the appellant in this case, and she brought the suit, out of which this appeal arises, for a declaration that her title to one-third share in certain properties in the town of Gauhati, which she had inherited from a deceased son, had not been affected by a sale in execution of a money decree. The trial Court decreed the suit, but on appeal the Special Subordinate Judge, Assam Valley Districts, reversed the decision.
2. The facts were as follows. One Lakshmiram Bisaya died, leaving two widows, Lilabati and Goneswari, and three sons, Barada, Nagendra and Kanak, by Lilabati, and one Harendra, by Goneswari. Lilabati is the plaintiff and Harendra is defendant 2, while Barada and Nagendra are defendants 3 and 4, Kanak having died before the date of the suit. Upon Lakshmiram's death, his properties devolved upon his four sons. Then there was a partition amongst the parties, by virtue of which the sons by Lilabati, namely, Barada, Nagendra and Kanak, got certain properties in their exclusive share, each of these three brothers being interested to the extent of a one-third share therein. On 10-7-1928, Barada executed a promissory note in favour of one Guruprasad Baruah, who is defendant 1 in the suit, for a sum of Rs. 892, out of which Rs. 292 was on account of two previous debts and the balance was new borrowing. In due course, defendant 1 brought a suit on the promissory note, and on 15-9-1936, obtained a consent decree for a sum of Rs. 500. The decree was thereafter put into execution, and the family dwelling house of the parties was put up to sale in that proceeding and purchased by the decree-holder himself for Rs. 100. The sale was held on 30-11-1938 and duly confirmed on 13-3-1940. The plaintiff's case is that her third son, Kanak had died in1936, leaving her as the sole heiress under the Hindu law, and that as defendant 1 had not made her a party in the suit, the one-third share in the dwelling house, which she had inherited from her deceased son, did not pass at the sale.
3. The suit was contested by defendant 1 alone, and his case was that though the promissory note had been executed by Barada, the loan was for and on behalf of the joint family, of which Barada was the karta, and that the entire family was represented in the suit, so that the decree was enforceable against the whole of the joint family assets, including Kanak's one-third share which was held by the plaintiff.
4. The learned Munsif found that, after Lakshmiram's death, Barada, the eldest son, had separated in mess from his brothers, both of whom were minors at the time living under the guardianship of their mother Lilabati, the present plaintiff. He held, however, that the debt had been incurred by Barada for the purposes of the fishery business of the joint family, and that all the brothers including Kanak were accordingly liable for it. It was in fact found that both Nagendra and Kanak, by making part payments of the loan, had accepted liability for the debt. The learned Munsif was nevertheless of opinion that as the plaintiff had not been made a party in defendant 1's suit, the decree passed therein could not bind her, and in that view decreed the suit.
5. The facts which led the learned Munsif to hold that Kanak's share in the estate had not been represented in defendant 1's suit were these. The suit as framed was instituted by defendant 1 only against Barada and Nagendra, the present defendants 3 and 4; but they were impleaded both in their individual capacity and as legal representatives of their deceased brother Kanak. It was overlooked that Kanak's heiress was his mother Lilabati, and that his surviving brothers were not competent to represent him. The decree was also accordingly passed against Barada and Nagendra as representing themselves and their deceased brother Kanak. The learned Munsif was of opinion that this was not sufficient in fact or in law to constitute proper representation of Kanak's interest.
6. On appeal, the learned Special Subordinate Judge affirmed the finding as to the loan being a joint family liability. Differing from the learned Munsif, he however found that at the date of the loan Barada was actually living jointly with the rest of the family. Accepting further the trial Court's view that the debt was binding on all the three branches of the family, the learned Judge went on to say that, that being so, it was immaterial if, due to the mistake of the plaintiff, there was no proper representation of Kanak's share in the suit. In his opinion, as Barada was the karta of the family and had executed the promissory note in that capa city, it was sufficient that he had been sued by defendant 1, and the other brothers might well have been left out of the suit. The learned Judge accordingly held that the whole of the joint estate including the share of Kanak was liable under the decree.
7. An attempt was made in this Court on behalf of the appellant to disturb the concurrent finding of the Courts below to the effect that the loan was a joint family loan, having been incurred for joint family business. Relying on the facts found by the trial Court that Barada had been living separately from his mother and the other two brothers, and further that, although the fishery business was a family business, the leases of the fishery from the Government stood in the name of both Barada and the plaintiff, - the plaintiff being the guardian of the other two brothers, - it was contended that the lower appellate Court was not justified in holding that the promissory note had been executed by Barada on behalf of the joint family. It was sought to bring the case within the ruling in Sanyasi Charan v. Krishnadhan Banerji 9 A.I.R. 1922 P.C. 237, on the footing that the business carried on by Barada was really a new business started after his father's death, and not an ancestral business which had devolved upon the sons from the father.
8. I am afraid I cannot give effect to this contention on behalf of the appellant. The mere fact, that the leases stood in the name of Barada as well as of Lilabati as the guardian of her two minor sons Nagendra and Kanak, does not, in my opinion, show that the business could not have been an ancestral business. If the family was joint, and if, as has been found, there was a fishery business carried on by the father which descended upon his death to his sons and heirs, I do not think that it would make any difference in the joint character of that business, merely because the leases were renewed after the father's death in the names of his sons and heirs The lease in the name of Lilabati was obviously intended to be a lease in favour of her two minor sons.
9. Such being the position, it must be conceded that the debt under the promissory note was binding on all the three brothers, notwithstanding that the promissory note had been executed by Barada alone. It must further be admitted that the creditor could at his option bring the suit only against Barada and still be able to enforce the decree against all the three brothers. Reliance was in fact placed by the respondent on this last mentioned proposition, and a number of authorities were cited in support of it. But for the purposes of this case this proposition need not be disputed at all. It was certainly open to defendant 1 to sue Barada alone as representative of the entire joint family of which he was the karta.
10. The point which has, however, been argued on behalf of the appellant is that, although this is se, it does not mean that the decree obtained by defendant 1, in the actual circumstances of the case, was such as could have the effect of binding the entire joint family estate. The main ground urged was that defendant 1, had, by his own action in that suit, shown that he did not intend to proceed against Barada in a representative capacity. It is one thing to say that Barada was liable to be sued as karta so as to make the decree binding not only on Barada but also on his co-sharers, and it is a different proposition to maintain that, although the suit was against Barada in his individual capacity, it should still bind the other co-sharers, who were not impleaded or represented. It is the propriety of this last contention which requires to be considered.
11. On behalf of the appellant, reliance was placed on the case in Chandi Prasad v. Balaji Misir : AIR1931All136 . There the karta of a Hindu joint family was impleaded in a suit along with a minor member, but the plaintiff omitted to get a guardian appointed for the minor. On behalf of the minor, a suit was afterwards brought for a declaration that the decree did not bind him. It was argued that as the manager of a joint Hindu family represents the whole family, it was not necessary to make all the individual members parties to a suit in order to bind them, but that it would be enough to implead the karta. Sulaiman and Young JJ., pointed out that that proposition had no application to a case where a minor member was impleaded as such and the suit was not instituted against the other member as karta of the family. In other words, where the plaintiff by his action shows that he is proceeding against the members of a family in their individual capacities and has made the karta a defendant not in his representative capacity but on his personal account, it is not open to the plaintiff to say that merely because the karta is a party, the decree will bind all the members of the family, whether the representation of the remaining members in the suit was good or not.
12. In my opinion, there is a good deal of substance in this point of view. It is not met by anything appearing in some of the judgments which were cited on behalf of the respondent, viz. the typical Pull Bench case in Horilal v. Nimman Kunwar ('12) 34 All. 549. That was a case of a redemption suit, and the question was whether in view of Order 34, Rule 1, Civil P.C., it was necessary to implead by name all the members of the joint Hindu family in a mortgage suit, in order that their rights of redemption might be cut off. It was held that the family would be sufficiently represented by the managing member, and the mortgage suit would not fail by reason of the non-joinder of the other members of the family. At p. 560 of the report, Banerji J., one of the members of the Pull Bench, referred to an earlier Pull Bench decision of the same Court, where it was held that when a member of a Hindu joint family is sued for a family debt, it may be assumed that he is sued. for the same as the representative of the family; and when the decree in such a suit is substantially one in respect of the family debt and against the representative of the family, such decree may properly be executed against the family property, Reference was also made to the principle which was laid down by the Judicial Committee in the case in Kishan Parshad v. Har Narain Singh ('11) 33 All. 272. Banerji J. further went on to state as follows:
In the case of a joint Hindu family, all persona interested are represented in the suit by the manager and are substantially parties to it through the manager. I do not think that it is essential that the manager, when he brings his suit, should state in distinct terms that he is suing as manager, or that the plaintiff in a suit against the family should describe the defendant as the manager of the family. All that is essential is that the manager is in feet suing or is being sued as such in respect of a family debt.
14. This last passage is specially relied on by the respondent, but I do not think it is sufficient to carry him all the way he must go. There is nothing in the present suit to show that Barada was sued as manager. In that case it might have been Contended that the addition of the other members of the joint family by name would have been a mere surplusage. As regards the presumption, to which Banerji J. refers, that where a member of a joint Hindu family is sued for a family debt, he is sued for the same as the representative of the family, all that need be said, so far as the present case is concerned, is that there is no room for the application of such a presumption here. As I have stated before, it was open to defendant 1 to frame his suit in a way which would have given rise to such a presumption, but the manner in which the suit was actually constituted, in my opinion, had the effect of negativing any such presumption. Not only was Barada not referred to or described as a karta, but the other members of the family including Kanak were sought to be separately impleaded, showing that the plaintiff was proceeding against each in his individual capacity. If Kanak's proper legal representative had, therefore, been placed upon the record, the plaintiff undoubtedly would have been able to obtain a decree binding on his share of the estate, but either through mistake or otherwise, the persons who were put forward as his heirs and legal representatives were not such in fact and in law. The parties are governed by the Dayabhaga School of Hindu Law, and it is not disputed that upon Kanak's death his interest passed to his mother as his sole heiress and legal representative. That being so, the position is as if Kanak's share was not at all represented in defendant 1's suit. In these circumstances, it will not do for defendant 1 now to turn round and say that the fact of Barada having been made a party was sufficient to cover the defect arising from the non-representation of Kanak.
14. In this view of the matter, I must hold that the learned Munsif was quite right in saying that the question of effective representation of all the members of the family through the karta could not arise in the suit, seeing that the members were all sought to be proceeded against separately and in their individual capacity. The result is that the appeal must be allowed, the judgment and decree of the lower appellate Court must be set aside and those of the trial Court restored. The appellant will be entitled to her costs in all Courts. Leave to appeal under Clause 15, Letters Patent, is granted.