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Khetra Mohan Poddar and ors. Vs. Aswini Kumar Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.667
AppellantKhetra Mohan Poddar and ors.
RespondentAswini Kumar Saha and ors.
Cases ReferredSaunnadanappa v. Shivbasawa
Excerpt:
minor, liability of, for debt incurred in carrying on ancestral trade - minor, liability of, for partnership debt--interest whether can be allowed as damages for detention of money--contract act (ix of 1872), section 247--interest act xxxii of 1839. - .....the liability of the minor in the case of an ancestral family trade is not greater than that of a minor admitted to a partnership as laid down by section 247 of the contract act.6. we are accordingly of opinion that although his share in the assets of the shop is liable, the defendant no. 2 is not personally liable for the debt.7. the next question is whether the plaintiff is entitled to interest. there was no time fixed for payment, nor was any notice given that interest would be claimed. the plaintiff, therefore, is not entitled to the benefit of the interest act (xxxii of 1839).8. it is open, however, to the court to award damages for wrongful detention of money, even though the claim of the plaintiff is limited to interest which is not recoverable either under a contract or under.....
Judgment:

1. The main question involved in this appeal is whether a minor, on whose behalf an ancestral trade is carried on, is personally liable for debts incurred in such business.

2. It appears that one Bhaja Krishna, the father of the defendants Nos. 1 and 2 who had a Karbar in cloth, used to purchase cloth from the plaintiff's firm. On his death the defendant No. 1, his elder son, for himself and his younger brother, the defendant No. 2, who was and is still a minor, carried on the business and took cloth on credit from the plaintiff's firm. The plaintiff brought the suit out of which this appeal arises for recovery of Rs. 460-10.6, which was found due from the defendants on adjustment of accounts, and also for Rs. 82-56 as interest on the said sum.

3. The Court of first instance allowed the principal claimed together with damages at 1 per cent, in lieu of interest against both the defendants. On appeal, the learned Subordinate Judge held that the defendant No. 2 was not personally liable, and gave a decree against the defendant No. 1 and the assets of the shop. He disallowed interest as no written notice was served upon the defendants that interest would be charged. The plaintiffs have appealed to this Court.

4. We are of opinion that the Court below is right in holding that the minor is not personally liable. Section 247 of the Contract Act lays down that a person who is under the age of majority, according to the law to which he is subject, may be admitted to the benefits of partnership, but cannot be made personally liable for any obligation of the firm, but the share of such minor in the property of the firm is liable for the obligations of the firm.' That section refers to a case where a minor is admitted by contract into a partnership business. But as pointed out in the case of Joykisto Oowar v. Nittyanund Nundy 3 C. 738 : 2 C.L.R. 440 : 3 Ind. Jur. 117 : 1 Ind. Dec. (N.S.) 1053 (F.B.), 'on principle there ought not to be any difference between the nature of the liability of an infant admitted by contract into a partnership business and that of one on whose behalf an ancestral trade is carried on by a manager', and that the 'limit of the infant's liability which has been adopted by the Legislature in the case of a minor being admitted by contract into a partnership business ought to be adopted in such a case as the present.' It was accordingly held in that case that a minor Hindu, on whose behalf a trade is carried on, is not personally liable for the debts incurred in sudh trade, but his share therein is alone liable. See also Ram Partab Samrathrai v. Foolibai 20 B. 767 at pp. 777, 778 : 10 Ind. Dec. (N.S.) 1082.

5. These cases were decided before it was settled by the Judicial Committee in the case of Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 30 I.A. 114 : 7 C.W.N. 441 : 5 Bom. L.R. 421 : 8 Sar. P.C.J. 374(P.C.). that a minor cannot make any contract at all. In view of that decision a minor cannot really be a partner. It is unnecessary, however, to consider in this case whether the provisions of Section 247 of the Contract Act have in any way been affected by the above decision. We think that the liability of the minor in the case of an ancestral family trade is not greater than that of a minor admitted to a partnership as laid down by Section 247 of the Contract Act.

6. We are accordingly of opinion that although his share in the assets of the shop is liable, the defendant No. 2 is not personally liable for the debt.

7. The next question is whether the plaintiff is entitled to interest. There was no time fixed for payment, nor was any notice given that interest would be claimed. The plaintiff, therefore, is not entitled to the benefit of the Interest Act (XXXII of 1839).

8. It is open, however, to the Court to award damages for wrongful detention of money, even though the claim of the plaintiff is limited to interest which is not recoverable either under a contract or under the provisions of the Interest Act. See Mohamay Prosad v. Ram Khelawan Singh 15 lad. Cas. 911 : 15 C.L.J. 684 at p. 687. and the cases cited therein. The Opposite view taken in Kamalammal v. Peeru Meera Levvai Routhen 20 M. 481 : 7 M.L.J. 263 : 7 Ind. Dec. (N.S.) 341. has been dissented from in this Court. See the observations of Banerji, J., in Surjo Narain Mukhopadhya v. Partap Narain Mukhopadhya 26 C. 955 : 13 Ind. Dec. (N.S.) 1211. See also Saunnadanappa v. Shivbasawa 31 B. 354 at p. 359 : 9 Bom. L.R. 439.

9. In the present case so long as the accounts were not adjusted, the defendant did not know what amount was to be paid. But after the adjustment of accounts bad been made, and the defendant signed the moblogbandi, the defendant knew the exact amount to be paid, and he did not pay it. Under the circumstances and having regard to the long time during which the plaintiff has been kept out of the money, we think some damages should be awarded for the detention of the money. In the absence of any evidence, we assess the damages at 6 per cent per annum. The decree of the lower Appellate Court will accordingly be varied and the plaintiff will get damages at 6 per cent, on the principal sum claimed from the date of the last moblogbandi. In other respects that decree will be affirmed.


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