Deoki Nandan, J. - (1.) THIS is a defendants second appeal in a suit for recovery of Rs. 14,500/ - with interest, said to have been advanced as a loan by the plaintiffs Sachchidanand Pandey and Lal Bachan Pandey both sons of Raghunandan Pandey, on 9th February, 1959 to Madan Mohan Pandey, who was the father -in -law of the first plaintiff Sachchidanand Pandey and father of the sixth defendant Shiv Kumar and the 17th defendant Smt. Rajeshwari, and husband of the 7th defendant Smt. Santokhia. It was alleged that the family of the defendants was a Hindu joint family governed by Mitakshara; that Madan Mohan Pandey was its Karta and the loan was taken by him in his capacity as such for construction of residential house, paying sundry creditors and purchase of Bullocks. The rate at which interest was agreed to be payable was 3 per cent per annum and the loan was made re -payable by the 1st June, 1962. The suit was filed on 24th May, 1955, after the death of Madan Mohan Pandey and the amount claimed was Rs. 17,258/ - which comprised of Rs. 14,500/ - as principal Rs. 2,736/ - as interest, Rs. 2/ - as deficient stamp duty and Rs. 20/ - as penalty in respect of the Sarkhat evidencing the loan which was described as an agreement. It may be mentioned here that the original Sarkhat bears four revenue stamps of 10 np. each but could not be said to be a promissory note because the amount was not payable on demand but was made payable by 1st June, 1962 and it was not said that the amount was payable to Sachchidanand Pandey and Lal Bachan Pandey or to their order. I may here observe that the Munsarim of the trial Court had reported on the back of the original Sarkhat, when it was filed with the plaint, that it was an agreement and the deficiency in stamp duty amounted to Rs. 2/ - and the penalty payable thereon was Rs. 20/ -. The document was treated to be a bare agreement probably because it is not attested and otherwise too on its terms also it does not amount to a bond within the definition of that term as contained in clause (5) of Section 2 of the Indian Stamp Act, 1899. The duty and the penalty having been made good, the document was admitted in evidence and having been proved to be genuine, though after some contest, it has been exhibited and is Ext. 25 on the record. The relationship between the parties would appear from the following table:
(2.) BANWARI and Ram Nagina were older in age than Madan Mohan. The suit was contested by Banwari, Ram Nagina and Bachchan sons of Darshan Pandey and also by Kamla, Madan Mohan's brother. They alleged that there had been a partition in the joint family in the year 1946; that Madan Mohan Pandey was not the Karla of the joint family and that the alleged loan was a fictitious transaction. It was also alleged that even if the loan was taken, it was not for any legal necessity. The members of the family were well to do and there was no occasion for Madan Mohan Pandey to take a loan from his own son -in -law. The following were the issues raised: - - 1. Whether the Sarkhat dated 9th February, 1959 has been genuinely executed by the late Madan Mohan Pandey for the consideration of Rs. 14,500/ -. 2. Whether Madan Mohan Pandey was the Karta of alleged joint Hindu family of the defendants? Effect? 3. Whether defendants 1, 2, 4, 6, 7, and 17 are living separately from each other? If so its effect?
(3.) WHETHER , in the alternative, the loan alleged to be incorporated in the Sarkhat in suit is backed by legal necessity or benefit to the joint family? The trial Court held against the defendants on all the points and decreed the suit for recovery of Rs. 17,258/ - with pendente lite and future interest at 5 per cent per annum. The decree further provides that as against defendants Nos. 1 to 5 and 8 to 16 the decree shall be executable only against the assets of the joint Hindu family in their hands. 4. On appeal the four questions which were raised by the four issues framed by the trial Court, were raised by the lower appellate Court as the main points which arose for its determination. The lower appellate Court confirmed the findings and the decree of the trial Court but added that the decree shall be executable "against defendants Nos. 1 to 6 and 8 to 16 only against the assets of the joint Hindu family in the hands of the said defendants." According to the lower appellate Court the trial Court "probably by over sight has omitted to pass the decree against defendant No. 6 Sheo Kumar son of Madan Mohan Pandey deceased." The lower appellate Court was not right in doing so. The decree that was passed by the trial Court was primarily passed against all the defendants but so far as defendants No. 1 to 5 and 8 to 16 were concerned, an exception was made in their favour by providing that the decree shall be executable only against the assets of the joint Hindu family in their hands. So far as defendants Nos. 6, 7 and 17 were concerned, the decree could be executed against them personally as well for they were the heirs and legal representatives of Madan Mohan Pandey.;