1. All that need be said byway of introduction is to be found in my earlier judgments on the questions which arose when learned Counsel submitted the issues to be tried.
2. The principal points argued are embodied in issues 1 and 7, but they will be more conveniently considered later.
3. There is no doubt whatever in my mind that; Charu Chunder Mitter entered into the transaction with the plaintiff as karta of the family. Nor have I any doubt that this liability after his death was treated as a liability of the family which had the use of the money. In support of these conclusions there is the oral evidence of the plaintiff as to the circumstances in which the loan was made there are the payments by Sourendra Nath of interest endorsed on the note, and the corresponding entries in the family accounts; there are a series of statements made by the parties contained in judicial records; and there are Sourendra's own letters.
4. I do not propose to state the material exhaustively nor need I consider it in detail. To my mind it is overwhelming, and as against all this the defendants have produced nothing; they have not given evidence on their own behalf; and as regards the defendant Sourendra he has not even the excuse that at the time of the advance he was a minor.
5. On behalf of his clients Mr. Banerjee has argued that at the time of the transaction the family was no longer joint. They certainly so regarded themselves and continued to do so till the 22nd March 1923 as the letter bearing that date from the solicitor to the widow of Charu Chunder Mitter to Sourendra Nath Mittar and the plaint in the suit for partition establish.
6. But notwithstanding these matters the point has been persisted in and upon the ground that certain members of the family were minors, and guardians of their property had been appointed under the statute before the execution of the promissory note in suit. The statute places certain limitations upon a guardian's power of disposing of the ward's property. It is contended that the incompatibility of the rights of a karta of a Hindu joint family to bind the minor members with the limitations imposed by the statute upon a guardian's power of disposing of the ward's property is such that ipso facto the minor ceases to be a member of the joint family.
7. This is to me an entirely novel doctrine, and to do learned Counsel justice he admitted that the proposition could not be supported by authority. I cannot conceive that a doctrine involving automatic disruption of the family upon the appointment of a guardian of the property of a minor member would not long ere this have found judicial expression were it one that was well founded in law.
8. The further argument advanced on behalf of the defendants in support of the contentions embodied in Issues 2 (b), (c) and 6 is based upon the doctrine as to necessity, but it is not one which in the circumstances of the case can carry any weight.
9. In the absence of any evidence to contradict it I have no hesitation in accepting the plaintiff's contention as to what took place at the time when the transaction was entered into. Such evidence as regards necessity, as the plaintiff gives is hardly required; for it does not admit of argument:, in view of the mass of evidence, that the money went into the family coffers, was so entered in its books, and that in barest was paid by the karta who succeeded Charu Chunder Mitter.
10. In my opinion the foregoing contentions furnish no grounds upon which, the defendant can avoid liability.
11. A snore substantiated plea is based upon the terms of the promissory note. It has been argued that the plaintiff is not entitled to recover on the basis of the promissory note except as regards the estate of the deceased executant, in which ease his widow alone would be liable as representing his estate. The solution to this question depends upon the principles governing liability upon a promissory note and whether, he such principles what they may, the karta of a Hindu joint family may bind the member: of the family by his signature alone, no other names appearing upon the document as those of persons to be charged.
12. The leading authority on the point relied upon on behalf of the defendants is Sadasuk Jankidas v. Sir Kishan Pershad A.I.R. 1918 P.C. 146. That was a case in which it was sought) to make the respondent liable upon a hundi accepted by his agent. Their Lordships of the Judicial Committee stated in the clearest possible terms that it is of the utmost importance that the name of a person or firm to be charged upon a negotiable document should be clearly stated on the face or on the back of the document, and that it is contrary to all established rules that in an action on a bill of exchange or promissory note against a person, whose name properly appears as party to the instrument, it is open either by way of claim or defence to show that the signatory was in reality acting for an undisclosed principal. In the course of the argument I was referred to Sections 26, 27 and 28 of the Negotiable Instruments Act and it was suggested that as Section 23 of the Bills of Exchange Act had not been reproduced in the Indian Act, those sections permitted a per: on to be bound by a promissory note signed by his agent even if his own name did not appear upon it. Any such suggestion is disposed of by this judgment of the Privy Council for the passage which I have read had reference to those very sections which their Lordships declared contained nothing inconsistent with the principle enunciated. This I take to mean that, notwithstanding those sections where a person is to be bound by a negotiable instrument made on his behalf by his agent his name must appear upon it as a person to be bound thereby.
13. Vithalrao v. Vithalrao A.I.R. 1923 Bom. 244, is a case directly in point. The claim was against the members of a joint Hindu family upon a promissory note signed by the Manager in his own name. The decision, depends upon the view taken as to the pleadings enabling the plaintiff to succeed upon the debt, but the judgment proceeds upon the footing that the claim upon the note cannot succeed.
14. On the other hand there is a direct authority in support of the plaintiff in Krishnanand Nath Khare v. Raja Ram Singh A.I.R. 1922 All. 116. Sadasuk Jankidas v. Sir Kishan Pershad A.I.R. 1918 P.C. 146 was distinguished on the ground that the principle upon which the Judicial Committee decided has no application to the case of a Hindu joint family which it is sought to make liable through the signature of the managing member thereof. I confess I am unable to agree with the conclusion which wish all respect appears to be based upon convenience.
15. Krishna Ayyar v. Krishnasami Ayyar (1900) 23 Mad. 597, may be an authority in favour of the plaintiff on this point unless the comment upon it to be found in the judgment of the learned Chief Justice in Vithalrao v. Vithalrao A.I.R. 1923 Bom. 244 that the judgments were based on the fact that all the members of the family were liable for the debt which was due under the promissory note in suit, represents the correct view to be taken of that decision. This also seems to have been the view taken in Subba Narayana Vathiyar v. Ramaswami Aiyar(1906) 30 Mad. 88, where the same principle as the Privy Council enunciated later was stated though from the point of view of the payee or endorsee. Referring to the case last cited the judgment of the Court states that the decision in Krishna Ayyar v. Krishnaswami Ayyar (1900) 23 Mad. 597: as to the liability of the other members of a joint family on a bill accepted by the managing member proceeded upon consideration'; of Hindu Law and does not affect the present question.
16. Lastly, I will refer to Baisnab Chandra De v. Ramdhon Dhor (1906) 11 C.W.N. 139. There too the claim was against the members of a joint family who were not all parties to the notes, and the decree of the lower appellate Court was affirmed. The learned Judges referred to Nagendra Chandra Dey v. Amur Chandra Kundu (1903) 7 C.W.N. 725, a somewhat similar case, and to Krishna Ayyar v. Krishnaswami Ayyar (1900) 23 Mad. 597, with which I Lave already dealt.
17. The decisions apart from Krishnanand Nath Khare v. Raja Ram Singh A.I.R. 1922 All. 116, are only in conflict if all possibility of the judgments having been for the amounts of the several debts as distinct from the claims on the notes themselves is excluded. Without examining the pleadings in each case it is not possible to say with confidence that; that was not present to the minds of the learned Judges. So far as the authorities support the view that in the circumstances in question all the members of the family may be made liable no principle is enunciated justifying a conclusion in the case of a Hindu joint family which would not be entertained were the case one in which a member of an ordinary trading partnership alone had signed a promissory note in respect of a loan made to the firm of which he was a member. Merely to state the principle, that the karta has authority to bind the members of the family, given certain conditions immaterial for the present purpose, does not carry the matter to a point which it is necessary to reach before members of the family can be held liable on a promissory note signed by the karta alone and not bearing the name of any one of them.
18. The principle upon which a person can be made liable upon a promissory note is so clear that I am quite unable to reconcile it with any conclusion which would have the effect of charging members of a Hindu joint family whose names do not appear upon the note.
19. In my opinion the defendants other than the widow are not liable upon the promissory note in suit.
20. This brings me to the issue which learned Counsel for the plaintiff submitted. The defendants are sought to be made liable upon the advance.
21. The argument advanced on behalf of the defendants other than the widow is that independently of the note there is no cause of action, and that even if any such independent cause of notion can be established any terms to be found in the note, can only be established by the note itself.
22. This argument has been supported by reference to 'a series of cases of which Sheikh Akbar v. Sheikh Khan (1881) 7 Cal. 256 is that chiefly relied upon in which owing to failure to comply with the provisions of the Stamp Act the promissory note sued upon was not admissible in evidence and the plaintiffs were compelled to resort to the original cause of action in order to recover independently of the note.
23. It is assumed that because in those cases, and in this, the plaintiff cannot recover upon the promissory note itself, they, all stand upon the same footing and that the same line of reasoning is applicable.
24. But that assumption and argument are based upon a fundamental error. They inference confusion between inadmissibility of the note in the evidence and the constitution of a cause of action by the note. In the cases cited the note furnished a cause of action, but could not be proved, in this case the note may be, and has been, proved but for reasons already stated furnishes no cause of action against those defendants.
25. I may at once go further and say that no question under Section 91 of the Evidence Act can arise because, by reason of what] I have already decided, which for the purpose of argument was assumed those defendants did not become parties to, or bound by, this note, and such agreement as was entered into by Charu Chunder Mitter on their behalf was not reduced into writing, for he made no written agreement on their behalf capable of being enforced.
26. The case is not one of resorting to the original consideration an inappropriate form of expression. The cause of action is entirely distinct from that upon the note upon which the plaintiff never had nor has any cause of action against any person other than Charu Chunder Mitter or his estate.
27. The only question, therefore, which arises is whether the plaintiff has established the cause of action which is embodied in Issue No. 7.
28. I have already decided that the plaintiff may make such a case without amendment. At that time I was influenced by the view that the defendants would not be prejudiced if the issue were allowed, even if strictly it were not so fully pleaded as might have been done.
29. Now that the hearing is concluded I find that my anticipations have been justified. The defendants have had every opportunity of meeting this case and have called no evidence. In Vithalrao v. Vithalrao A.I.R. 1923 Bom. 244 the learned Chief Justice discussed the distinction in procedure between a suit on a promissory note and a suit for the debt and pointed out the different course the trial may take in either case. The stage at which the question was raised has given the defendants every opportunity of adopting the course indicated by the learned Chief Justice of Bombay.
30. I see no reason for not accepting the evidence of the plaintiff to the fullest extent. He has proved the advance and the promise made by Charu Chunder Mitter as manager of the family to repay Rs. 35,000 with interest at 6 1/2 per cent. per annum. Charu Chunder Mitter undoubtedly bound himself by the promissory note, but it is not necessary for the plaintiff to rely upon it except for such corroboration as it provides of the evidence which he has given in the witness box laying the effect of charging the defendants generally. The payments of interest endorsed on the back of the note were undoubtedly payments made not merely in respect of interest due on the note itself, but in respect of interest due from the other persons as well. If the plaintiff's evidence as to the advance is accepted this must follow. That the payments were made in respect of the liability of the members of the family by Sourendra as manager is also shown by the entries in the books of account relative to the respective payments endorsed on the note.
31. The authority of Sourendra to make such acknowledgments has been questioned though more particularly on behalf of the widow, but that does not arise. It has been held that the karta has the same authority to acknowledge a debt as he has to incur it and that the acknowledgment need not be expressed as having been made in his capacity of karta; Chinnaya Naidu v. Gurunatham Chetti (1881) 5 Mad. 169 (F.B.); Har Prosad Das v. Harihar Prosad Singh (1915) 19 C.W.N. 360 authorities from which it has not been argued that 1 should differ.
32. The last of such acknowledgments if all such were within 3 years of that immediately preceding, is slated the 16th February 1920. This suit was filed on the 12th February 1923, and within the period of limitation as intended thereby.
33. There will be judgment for the sum claimed and interest on Rs. 35,000 pending suit until realization at 6 per cent. per annum.
34. Judgment in thin case will be against the defendants as members of the joint family the amount to be paid out of the joint family property. I see no reason for differentiating the case of the other defendants from that of Sourendra Nath Mitter and in my opinion, as I have held, in all he did he acted as karta of the family in succession to Charu Chunder Mitter.
35. As regards costs, an order for the costs of the suit and hearing will go against all the defendants other than the widow. As regards the widow, the position is that she supported the plaintiff on the point on which he has succeeded. She had in re-serve a defence which it was not necessary to consider. Most of the time occupied at the trial has been occupied in deciding the question as to which she raised no defence. Consequently she will only be liable for the general costs of the suit and the costs of the first day's hearing.