Bapna, J. - (1.) THIS is a second appeal by the defendant in a suit for recovery of money.
(2.) THE respondent Mohansingh instituted a suit for recovery of Rs. 925/- in the court of Munsif, Banera, on 29th January, 1952, on the allegation that the plaintiff Mohansingh and his younger brother Chandrasingh were members of a joint Hindu family carrying on business, and plaintiff was the Karta thereof. It was then alleged that the defendant was indebted to the plaintiff for a sum of Rs. 780/- carrying interest 6% per annum in respect of a promissory note executed by the defendant on 1st February, 1949. THE plaintiff claimed Rs. 780/- as principal and Rs. 145/- on account of interest. The defendant admitted the execution of the promissory note, but pleaded want of consideration. It was also pleaded that the promissory note was in the name of the plaintiff and his brother Chandra Singh, who were not members of a joint Hindu family, and the suit could not proceed without Chandra Singh joining the plaintiff in the suit. In respect of the plea of want of consideration, the contention of the defendant was that originally only Rs. 150/ had been advanced by the plaintiff to one Ramprasad, and that sum accumulated by compound interest to Rs. 780/-, for which a pro-note was got executed from the defendant. During the course of the suit, a further plea was taken by the defendant that the contract evidenced by the pro-note had been altered, and the amount had been agreed to be paid by instalments, according to Ex. A. 3, and, therefore, the suit was not maintainable on the basis of the pro-note. The case came for decision before the Civil Judge at Bhilwara, who rejected the pleas of the defendant, and gave a decree for Rs. 925/- to the plaintiff with costs. Interest pendente lite and in future was allowed at 4% p. a. The defendant filed an appeal. It was rejected by the District Judge by judgment of 30th April, 1954. The defendant has come in second appeal. The first point argued by learned counsel for the defendant was that Chandra Singh was a necessary party in view of sec. 45 of the Contract Act, and since he was not impleaded either as a plaintiff or defendant, the suit must fail. In order to appreciate the argument, it is necessary to look into the pro-note itself, and the facts and circumstances of this case. A copy of the pro-note is on the record (Ex. CX P. 1) and if translated, is as follows: - "greetings to Bhandariji Sahib Mohansinghji Chandrasinghji from Radha Kishan Sodani of Banera. Whereas I have obtained Rs. 780/- on loan from you, I shall repay with interest at eight annas (per cent per mensem ). I shall pay the amount with interest on demand by you. I have written this promissory note after receiving the amount in cash. Dated Mah Sudi 3, Smt. 2005 (1st February, 1949 ). Sd/- Radha Kishan Sodani. The document Ex. A. 3, when rendered into English, is as follows:-- "syt. Radha Kishanji Sodani. You are indebted to the tune of Rs. 780/under the promissory note of 1st February, and you want to repay the amount by instalments. Therefore, if you pay as follows, interest will not be charged: - Rs. 200/- on Mah Sudi 15, Smt. 2005. Rs. 100/- on Jeth. Sudi 15, Smt. 2006. Rs. 200/- on Pos Sudi 15, Smt. 2006. Rs. 100/- on Jeth Sudi 15, Smt. 2007. Rs. 180/- on Mangsir Sudi 15, S. 2007 If any one instalment is not paid on the due date, interest on the full amount will be chargeable. Sd/- Bhandari Mohan Singh. " Chandrasingh came in the witness box as P. W. 1, and stated that he and his brother Mohansingh were members of a joint Hindu family, and carried on business in the name of Mohansingh Chandrasingh. He stated further that the plaintiff Mohansingh was the Karta of the joint family business, and he had the power to do all things necessary in connection with the business, and to give a proper discharge, and that he had no objection to the suit as had been brought. Mohansingh as P. W. 2 said that he and his brother Chandrasingh were members of the joint Hindu family and carried on business in the name of Mohansigh Chandrasingh, of which the plaintiff was the Karta. He said that he had advanced the loan of Rs. 780/- to the defendant which had remained unpaid. In respect of the alleged loan to Ramprasad, he said that it was a separate transaction, and had been satisfied. He said in cross examination that the document Ex. A, 3 was written a few days after the pronote, as the defendant wanted to repay by instalments. The defendant's evidence in rebuttal is that Mohansingh and Chandrasingh lived separately, and were not members of a Hindu undivided family and further that they carried on business separately. The finding of the two courts is concurrent that the plaintiff Mohan Singh and his brother Chandrasingh were members of the joint Hindu family, and carried on joint family business, of which the Karta was the plaintiff. The trial court was of opinion that the pro-note was in the personal names of Mohansingh Chandrasingh. Nevertheless, it was of opinion that it was in respect of the business of the joint family, and, therefore, Mohansingh as Karta of the family could sue. The District Judge was also of the same opinion. As to the novation of contract by Ex. A. 3, the opinion of the trial court was that the said document purported to grant some relief, but as the instalments, which the plaintiff had agreed to receive, had not been paid, the plaintiff was justified in suing on the pronote. On this point also the learned District Judge concurred. On the finding of the two courts that the pronote was written in respect of a debt advanced by the joint family firm, the other finding that the document was executed in the personal names of Mohansingh and Chandrasingh does not stand together. There is positive evidence that the joint family business was carried on in the name of Mohansingh Chandrasingh, and the document is also addressed in the name of Mohansingh Chandra Singh, although their caste has been prefixed, and the appellation "ji" is also added to Mohansingh & Chandrasingh. The business has been found to have been carried on by Mohansingh for and on behalf of the family. The document Ex. A. 3 is executed by Mohansingh alone giving relief to the defendant to a certain extent, if the conditions mentioned in that document are fulfilled by the defendant. All this shows that it was Mohansingh who carried on the business on behalf of the joint family consisting of himself and his brother. The defendant in the witness box also gave his statement, which shows that he had dealings with Mohansingh alone. The present case is, therefore, one in which the document has been written in favour of the joint family firm, the karta whereof has brought the suit and has mentioned his status as such in the plaint. The case is, therefore, not at all covered by sec. 43 of the Contract Act. Learned counsel for the appellant relied on Achaldas vs. Chimniram (1), which purported to hold that sec. 45 of the Contract Act applied to all co-contractors, whether they be members of a joint Hindu family, co-sharers, or co-partners. This decision does not seem to have taken into consideration the full import of the decision in Kishanprasad vs. Harnarainsingh (2), although the case has been referred to in that judgment. Their Lordships of the Privy Council referred to the observations in Arunachata Pillai vs. Vytbialinga Mudaliya (3) with approval: - "the managing member of an undivided Hindu family, suing as such, is entitled to bring a suit to establish a right belonging to the family without making the other members of the family parties to the suit. " Their Lordships also referred to a case Alagappa Chetti vs. Vellian Chetti (4), and distinguished the same on the ground that in that case the single plaintiff was not shown to be the managing member of the family or to be the only partner of the business with which the litigation was concerned. The following further observation is also very relevant: - "their Lordships think, however, that the interested with him, if literally construed, goes proposition there laid down to the effect that the too far. " manager cannot sue without joining all those I am inclined to think that if a document is executed in favour of two persons who are members of the joint Hindu family, and concerns the business of that joint Hindu family, and one of them is the Karta of the family, the Karta alone can bring a suit, for he effectively represents the joint Hindu family. The other members of the family may be a proper party to the suit, but not a necessary party to the suit. ' In this connection learned counsel for the appellant relied on two more cases, which, are, however, distinguishable. The case of Ramsehuk vs. Ramlall Koondoo (5), which is also cited in sub-para 2 of para 252 of Mulla's Hindu Law, 11th Edition, did not relate to joint family business, but was in respect of a business which was carried on in partnership by certain member of the joint family. The other case, viz. , Imamuddin Liladbar (6) was also a case where the document was in favour of two partners. Both these cases were noticed by their Lordships of the Privy Council in Kishan Prasad vs. Har-narainsingh (2), and distinguished. A few more cases were also relied upon by learned counsel for the appellant. In Munshi Sahu vs. Bhupal Mahton (7) the facts were that a hand-note was executed in favour of two brothers, one of whom, the elder, brought a suit for recovery of the debt without making his brother a party to the suit. By the time the other brother was made a co-plaintiff, the limitation had expired, and the suit was dismissed by the Judge of the Court of Small Causes in view of sec. 22 of the Limitation Act. In revision a contention was raised that the other brother was not a necessary party, since the elder brother as manager of the family could give a valid discharge. This contention was repelled by reference to sec. 45 of the Contract Act. The case can, however, be distinguished as there is an observation that: - ''in the present case, moreover, as I have said, the original plaintiff was not suing as karta of the family. " The manager of a joint Hindu family has undoubtedly a power to give a valid discharge for a debt due to the family. There is no reason, therefore, for holding that the manager alone cannot sue for a debt which has been advanced by the joint Hindu family firm, and is due to the joint Hindu family.
(3.) LEARNED counsel for the appellant also relied on an unreported decision of this Court in Bherunlal vs. Mohansingh (civil second appeal No. 199 of 1954 ). That case concerns the same two persons Mohansingh and Chandrasingh, although the defendant was different, but it relates to a suit for sale of mortgage property on the basis of a mortgage deed, which had been executed in favour of Mohansingh and Chandrasingh. The Court relied on Achaldas vs. Chimniram (1), but that case can also be distinguished on the ground that it related to the enforcement of a mortgage, and in the deed they were described as comortgagees. The judgment does not say that this was a debt advanced by the joint Hindu family firm, and it was the joint family which was interested in recovering the debt. On a careful consideration of the facts and circumstances of this case, as stated above, I am of the opinion that this particular debt was advanced by the joint family firm Mohansingh Chandra Singh, and Mohansingh as Karta of that family instituted the suit, and was entitled to do so. On the legal aspect of the case also, I am of the opinion that if a document is executed in respect of a debt owing to a joint Hindu family, the karta alone can institute the suit, and represents not only himself, but all other members of the joint Hindu family. Learned counsel for the appellant contended that there was novation of the contract by Ex. A. 3. A mere perusal of the document shows that no novation of the contract had been made, but a certain facility had been allowed to the defendant, which not having been availed of, the creditor could fall back upon to enforce the original promissory note. There is no force in this appeal. It is accordingly dismissed with costs. . ;