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Har Prosad Dass Alias Dewan Dass Vs. Bakshi Bindeswari Prosad Singh Alias Lalluji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.30
AppellantHar Prosad Dass Alias Dewan Dass
RespondentBakshi Bindeswari Prosad Singh Alias Lalluji and anr.
Cases ReferredChinnaya v. Gurunatham Chetti
Excerpt:
limitation act (ix of 1908), section 19 - karta of joint hindu family, acknowledgment by, if valid--other members, if bound--promissory note filed with plaint missing from, court records--copy filed--suit, if fails--evidence act (i of 1872), section 65. - .....him from the defendants. the first defendant, bakshi harihar prosad singh, had a brother, bakshi sheo prosad singh. in the year 1907 sheo prosad singh died leaving the second defendant, his only son. in his life-time, sheo prosad had executed certain promissory notes and, on the 30th april 1906, he executed a fresh hand-note for rs, 6,000 in favour of the plaintiff in lieu of all the notes that had been executed by him down to that date. on the 22nd november 1906, sheo prosad executed a further hand-note for the sum of rs. 1,000. sheo prosad was the karta of this joint hindu family and the defendant no. 2, his infant son, was a member of that family which was undivided at all times material for the purposes of the present case. on the death of sheo prosad, the first defendant succeeded.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiff against a decision of the learned Subordinate Judge of Shahabad, dated the 9th September 1912. The plaintiff sued to recover certain suras that were alleged to be due to him from the defendants. The first defendant, Bakshi Harihar Prosad Singh, had a brother, Bakshi Sheo Prosad Singh. In the year 1907 Sheo Prosad Singh died leaving the second defendant, his only son. In his life-time, Sheo Prosad had executed certain promissory notes and, on the 30th April 1906, he executed a fresh hand-note for Rs, 6,000 in favour of the plaintiff in lieu of all the notes that had been executed by him down to that date. On the 22nd November 1906, Sheo Prosad executed a further hand-note for the sum of Rs. 1,000. Sheo Prosad was the karta of this joint Hindu family and the defendant No. 2, his infant son, was a member of that family which was undivided at all times material for the purposes of the present case. On the death of Sheo Prosad, the first defendant succeeded to the office of the karta and be executed five promissory notes in favour of the plaintiff, two being dated the 5th April 1908 and the 12th November 1908 respectively, each of them being for Rs. 1,000, another one dated the 26th December 1908 for Rs. 300 and the two remaining ones being dated the 28th April 1909 and the 15th May 1909, the first one being for Rs. 1,400 and the last one being for Rs. 1,0-00. Harihar Prosad Singh, the first defendant, also on the 30th April 1909, renewed the hand-note for Rs. 6,000 which had been given by Sheo Prosad Singh by giving a note for Rs. 7,720-2-9. On the original note there was endorsed executed another hand-note in its stead of the value of Rs. 7,720-2-9' up to date,' and it was signed by the defendant No. 1. Default having been made in paying the amount covered by these notes as well as the note for Rs. 1,000 executed by Sheo Prosad on the 22nd November 1906, the plaintiff brought the present suit. The learned Judge of the Court below has given a decree to the plaintiff against the defendant No. 1 alone for the whole amount sued for, except the Rs. 1,000 covered by the hand-note dated the 22nd November 1906. He has dismissed the suit as against the defendant No. 2. The plaintiff has appealed against that decision.

2. It will be convenient to deal with the five notes that were given by the defendant No. 1 himself after the death of Sheo Prosad in the first place, and then to deal with the renewed note for Rs. 7,720-2-9 that was given by the defendant No. 1 in renewal of the note for Rs. 6,000 executed by Sheo Prosad. No argument was advanced before us as regards the amount covered by the note dated the 22nd November 1906 executed by Sheo Prosad Singh, the claim as regards that being evidently barred' by limitation.

3. The learned Judge has made this finding with reference to the five notes that were given by the defendant No. 1 himself: There is nothing to show that the moneys were borrowed for family purposes or for the benefit of the minor. On the other hand, there is evidence adduced by the defendant No. 2 to show that the defendant No. 1 has been leading an extravagant and dissipated life, which renders it highly probable that he borrowed the moneys for his own personal use.' The evidence on which the learned Judge came to that conclusion is ample to warrant the conclusion that he came to. The evidence is not very much one way or the other, but it seems to me that, on these five notes, the evidence is not sufficient to establish the liability of the infant, that is the defendant No. 2, with respect to the moneys so advanced. I think, with regard to the amounts due on those five notes, we ought to affirm the decision of the learned Subordinate Judge.

4. The case on the note for Rs. 7.720-2-9 is not so easy. The first point that was objected to was that the learned Judge of the Court below admitted a copy of this note in evidence and also copies of the notes in respect of which it was a renewal, on the ground that the original documents had been stolen from the Court records. It is said that the whole of that story about the documents having been stolen is a false story. There does not seem to be any reason why the plaintiff who appears to be a man of substance should have set up a bogus story as to these documents having been stolen, so that he could give false copies in evidence. The learned Judge remarks that it is not altogether improbable that the hand-notes alleged to have been filed with the plaint were stolen about the same time. However this may have been, it cannot be doubted that the hand-notes, or at least, those detailed in paragraph 5 of the plaint were really executed and that the debts have not been repaid.' The objection of the respondents to this appeal is that the learned Judge of the Court below admitted secondary evidence of these notes without coming to a definite finding that the document had been stolen or lost. I think the learned Judge, when he remarked that it was not altogether improbable that the hand-notes were stolen, meant to come to the conclusion that whether those documents had been actually stolen or not, at any rate they had been mislaid or had not been found at that time and further, that there was no doubt that the documents had been in existence and that the copies filed were the true copies of those documents. I think the learned Judge was clearly right in holding that the plaintiff's claim should not fail by reason of the theft or his inability to produce the original documents before the Court.

5. Then the next point is--'Is the defendant No. 2 liable for this amount?' It cannot be denied that the defendant No. 2 was liable to repay the six thousand rupees which was secured by the promissory note of the 30th April 1906. The maker of that promissory note was the father of the defendant No. 2 and, unless it was for an immoral consideration, the defendant No. 2 was liable to pay his father's debt. So far from this debt being given for an, immoral consideration, the evidence shows that the moneys were borrowed with reference to a hosiery business that Sheo Prasad was carrying on for the benefit of the joint family. There is no doubt that the defendant No. 2 was liable to pay the amount secured by that note. There are, therefore, only two questions with reference to this matter. First of all 'Had Harihar Prosad, that is, the defendant No. 1, power to give an acknowledgment of the debt secured by the note for Rs. 6,000 so as to prevent it from being barred by limitation?' and, secondly, If he had, whether the acknowledgment in this case is sufficient to answer the purpose of the Statute?' There has been a good deal of conflict of judicial authorities on the question as to whether the persons acting for those under disablity are entitled to give an acknowledgment or not. The balance of judicial authorities appears to me to have held that they are able to do so, provided that the debt is not barred by limitation on the date when the acknowledgment is given. That was decided in the Full-Bench case of Chinnaya v. Gurunatham Chetti 5 M. 169 of the Madras High Court. That case was followed and approved of in the case of Bhasker Tatya Shet v. Vijalal Nathu 17 B. 512. Whatever conflict there was in the various decisions, it was set at rest by the 21st section of the Indian Limitation Act of 1908, which provides that 'the agent duly authorized, as is mentioned in Sections 19 and 20 of the Act shall in the case of a person under disability include his lawful guardian, committee or manager.' The decisions that the learned Vakil for the respondents relied upon, namely, in the cases of Wajibun v. Kadir Buksh 13 C. 292 and Chhato Ram v. Bilto Ali 26 C. 53 : 3 C.W.N. 313 can no longer be considered to be good law. These decisions are inconsistent with the statutory provision that now appears in Section 21. I think that there is no doubt that the defendant No. 2 being a person liable to pay this debt contracted by his father the defendant No. 1, as the karta of the family, was an agent duly authorized in this behalf so as to give an acknowledgment under Section 19 and thus to give a new period of limitation with regard to the amount remaining due on the promissory note for Rs. 6,000. If that is so, the only other question is is the acknowledgment in this case sufficient to bind the defendant No. 2?' The learned Yakil for the defendant No. 2, respondent, has tried to limit the acknowledgment to the promissory note for Rs. 7,720-2-9. He says that that does not show any connection between the original hand-note for Rs. 6,000 and this renewed note and that, therefore, as there is no connection between the two documents, it cannot be taken to be an acknowledgment of the liability that existed on the defendant No. 2 to pay the amount which his father was liable to pay on the note for Rs. 6 000. As a matter of fact, that is not strictly so, because the hand-note for Rs. 7,720-2-9 is expressed to be given in lieu of the hand-note dated the 30th April 1906. That certainly established a connection between that hand-note and the hand-note for Rs. 6,000. But, in addition to that, there is the endorsement upon the hand-note for Rs. 6,000 itself in these terms: 'Executed another hand-note in its stead of the value of Rs. 7,720-2-9 up to date.' It is quite clear that it was an acknowledgment in respect of the amount due on the former hand-note. It is said that the defendant No. 1 did not express to have made the acknowledgment as the karta of joint family. There is not much authority on that point, but in the case that I have referred to, namely, the Full Bench case reported as Chinnaya v. Gurunatham Chetti 5 M. 169 the acknowledgment did not express that it was made as binding the family and notwithstanding that the Full Bench considered that the acknowledgment bound the family, on the ground that the karta having power to borrow money for proper purposes had power to give a proper acknowledgment of the existing debt. During the course of the argument it was somewhat faintly suggested that the infant was not liable on this note at all on the ground that he was not a party to the present note. The claim in this suit is not limited to suing on the promissary note itself. There is an obligation to pay outside the note and that obligation bound the other members of the joint family, notwithstanding that they could not be sued upon the note. As a matter of fact presumably the second defendant is bound to pay his father's debt if not contracted for immoral purposes, whether it is a debt on a promissory note or in any other form. In this case, the obligation to repay the money remains on the defendant No. 2. That liability has been, to my mind, properly acknowledged by an agent duly authorized to make the acknowledgment under Section 9 of the Limitation Act and the second defendant is, therefore, liable to pay to the plaintiff out of his share of the family estate the amount so due upon that promissory note. I think that we ought to set aside the judgment and decree passed by the learned Subordinate Judge in so far as it relates to the liability of the defendant No. 2 under the promissory note for Rs. 7,720-2 9 and in lieu thereof direct that the defendant No. 2 is liable along with the defendant No. 1 to pay that amount together with interest thereon at the contractual rate down to the institution of the suit out of his share of the joint family property. In other respects the decree of the lower Court will stand. As both parties have partially succeeded in this Court, we make no order as to the costs of this Court. Similarly we think we ought to direct that the plaintiff and the defendant No. 2 should bear their own costs in the lower Court, the plaintiff having succeeded against the defendant No. 2 on one claim and having failed on the other. The order passed by the lower Court for costs as against the defendant No. 1 will stand.

Teunon, J.

6. I agree.


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