P RAMA PATTER Vs. VISWANATHA PATTER

JUDGEMENT

(1.) The two acknowledgments made by defendants Nos. 1 and 2 in the account book, Exhibit B, are of no avail to save limitation against the joint family or against defendants Nos. 3 and 4, who were no parties to those acknowledgments. The District Judge has found on the evidence in this case that defendant No. 3, the father and managing member of the family, never ceased to be the manager, and never authorised any one else to act for him to manage and never held out any one as acting for him. This is a finding of fact which, I think, we mast accept in second appeal. It was, however, contended that, even apart from any authority given by the third defendant, his son, the first defendant, was entitled under the Hindu Law to act as the manager of the family in the absence of his father in Burma and elsewhere. For this position, reliance was placed on the ruling in Mudit Narayan Singh V/s. Ranglal Singh 29 C. 797, and on the texts cited therein, particularly on that of Harita, The ruling itself is not applicable, as in that case it was found that the younger member had been put forward by his elders as the managing member. The text of Harita so far as it is relevant here (as translated by Setlur), says that if he (the manager) is remotely absent, the eldest son may manage the affairs of the family. See Setlur, page 217 The words "remotely absent" are vague in their import, and I think they cannot be construed so as to bring within their scope the case of a manager who, though absent from his home, was in correspondence with the junior members and was controlling the management, as the District Judge finds was the case here. No reliance was placed on this text in the lower Courts, and, therefore, the question has not been properly threshed out on fast; it is, therefore, sufficient to say that plaintiff has not proved that the first defendant, the eldest son, had authority under the Hindu Law to bind the family by his acknowledgments.

(2.) The question still remains how far defendants Nos. 1 and 2 are liable on their promise to pay the amount due on 11 September 1913. I think they are liable. It is conceded the words used therein clearly amount to a promissory note, for they say "we have hereby promised on signing this to give on demand Rs. 1,577-4(sic)5, the balance amount, with interest at Ra, 1 per cent from this day" and so on. Viewing this document as a promissory-note, the executants of it must be held to be liable on it unless they prove that there was no consideration for it. This question should not be confused with the other question how far it was a valid acknowledgment against the family; I have already held that it was not, as the signatories were not authorised agents of the family to acknowledge. Taking it as a promissory-note, does the evidence here establish that there was no consideration for it? The amount mentioned in it no doubt includes the sum of Rs. 1,084(sic)5(sic)6 and interest due by the father to the plaintiff on account of his dealings on behalf of the family and acknowledged by him to be correct in Exhibit A on 16 September 1907, or as much of it as has not been paid off. The dealings were subsequently carried on by defendants Nos. 1 and 2, professedly, no doubt, on behalf of the family and for themselves, for the account was changed into the names of defendants Nos. 1, 2 and 3 in the plaintiff's books. It is the result of these dealings, taken with previous debt that amounted to Rs. 1,577 and odd included in the promissory note. Out of that sum, it is clear that both the defendants were personally liable for the items on the debit side in the account after the 16 September 1907, when the father ceased to have dealings and they began the dealings; the credit items would be taken towards the old debt. The amount of it has not been ascertained, but it is apparently not very large. Though defendants Nos. 1 and 2 anted on behalf of the family in entering into those dealings, they would become personally liable for the amount, on the finding that the family was not liable as they bad no power to act on its behalf, The bulk of the amount included in the promissory- note was no doubt the old debt that the father incurred, with interest added to it as appears from the account. For that portion of the note amount, though first defendant wag not originally personally liable and second defendant was not liable at all, the whole of it was admittedly binding on the family property including the first defendant's share in it; in other word, it was a debt realisable from first defendant's joint property. The note being executed thus for a sum partly realisable from his property and partly from his person, it seems to me there is full consideration for it so far as the 1 defendant is concerned. Even if we suppose the original family debt was not saved from limitation even as against defendants Nos. 1 and 2 by their acknowledgment of September 1910, the note would still be saved from being void against him under Section 25 of the Contrast Act, both because his personal liability for his own dealings as to which there is proper consideration remains affected by limitation and also because under Section 25, Clause (3), an agreement to pay a time barred debt is sufficient to constitute a contrast, It was argued that the liability of a member of a joint family to have his joint property sold for a debt contrasted by the manager for a joint family purpose and binding on the joint family property is not an obligation that san be described as a debt within the meaning of Section 25. No authority has been sited to support this argument. No doubt it was ruled in Narayana Chettiar V/s. Veerappa Chettiat 29 C. 797, that a son was not "jointly bound" with his father within the meaning of the Bankruptcy Law of Singapore; but that is not the question here at all. The question here is whether a liability to have one's joint property sold for a sum due is not a debt within the meaning of Section 25, Clause (3). I am inclined to think it is. The word "debt" does not necessarily imply an obligation created by the debtor himself, as argued by Mr. Venkatarama Sastri; we have decree debts imposed by Courts, for example. Debt is defined as "a sum payable in respect of a liquidated money demand, recoverable by action." See Stroud's Judicial Dictionary on page 471, 2nd Edition, and the cases cited there. On this view there is no doubt that there was consideration for the promissory-note, and it is enforceable against the first defendant. It is then equally enforceable against the second defendant, the other executant of it, as it is not necessary in law that consideration should move to each executant separately to make the note binding on him or her. It is sufficient if there was consideration for the instrument as a whole, for it to be enforceable against all executants. Furthermore, in this case there was some consideration moving to the second defendant herself for the note, viz., the amount due by her on the joint dealings of herself and her son after 1907; and inadequacy of consideration is not a ground for avoiding a contract; vide Explanation II of Section 25 of the Contract Act.

(3.) I would, therefore, confirm the decree of the lower Appellate Court and dismiss the second appeal with costs as regards defendants Nos. 3 and 4, but allow the appeal and restore the Munsif's decree as regards defendants Nos. 1 and 2 with costs in this and the lower Appellate Court. Odgers, J.