Debi Saran Sahai and Bhirgunath Sahai and Others vs Bankey Behari Lal @ Raja Lal and Others

Das, J.—The plaintiffs, who are the respondents in this Court, are dealers in sloth and have a cloth shop at Arrah and the suit out of which this appeal arises was instituted by them for the recovery of Rs. 3,152-5-6 with further interest. The case, as made by them in the plaint, is that the defendants constitute a joint Mitakshara family and that Munshi Durga Prasad, who at one time was the head of the family, used to deal with the plaintiff''s shop and pay the prices regularly. After the death of Durga Prasad, Harihar Prasad, one of the sons of Durga Prasad, opened an account in his name but for the benefit of the joint family, and it was in respect of the transactions of Harihar Prasad that this suit has been instituted. The plaintiff says that there was an adjustment of account on the 27th Falgun 1321, when the defendant No. 1 Debi Saran and defendant No. 5 Harihar Prasad signed the adjusted account in acknowledgment of their liability to the plaintiff. Thereafter there was another adjustment on the 12th Kartic 1322, which was signed not by the defendant No. 1 but by defendant No. 5, The plaintiff''s case is that all the defendants are liable, because the family is joint and the purchase of cloth was for the benefit of the joint family.

The Court of first instance came to the conclusion that the defendants other than defendant No. 1 were members of a joint family and that they would be liable upon the transactions of Harihar Prasad, if the suit against them was within time. Dealing with the question of limitation he found that all the items were barred against the joint family except an item of Rs. 98-2-6. As regards defendant No. 1 he came to the conclusion that he was not a member of the joint family and that the allegation of the plaintiff that he had signed the adjusted, account was untrue and that accordingly, defendant No. 1 was not at all liable. He thought, however, that defendant No. 5 was clearly liable and the plaintiffs were entitled to a decree as against defendant No. 5 for the sum of Rs. 2,353-6-3 with further interest up to the date of suit and that the defendants other than defendant No. 1 were jointly liable with defendant No 5 to the plaintiffs for the sum of Rs. 98-2-6.

The lower Appellate Court came to the conclusion that as the family was joint, all the defendants were equally liable to the plaintiffs and that defendant No. 1 was alto liable not as a member of the joint family, but on the acknowledgment of liability as evidenced by the adjusted account; in other words, be differed from the Court of first instance as to the liability of the defendant No. 1 and also as regards the liability of the defendants other than defendant No. 5. In the result he passed a decree as against all the defendants for the sum of Rs. 2,347-6 8.

We must in this Court accept the finding of the lower Appellate Court theft the family is joint. It follows from this finding that all the defendants would be liable, if it is established that the transactions of defendant No. 5 were for the benefit of the joint family. I shall consider the case of defendant No. 1 separately. Now on the question of benefit the learned Judge''s finding is as follows: "Purchases were made obviously for the use of the members of the joint family and it, therefore, follows that all of them are benefited by the transactions. In such a case I think that all the members of this branch of the family are liable for the claim. It is submitted on behalf of defendant No. 6 that the plaintiffs were bound to satisfy themselves that the advance was required by the manager for a valid family necessity and it was not enough merely to show that the manager stated that it was required for certain specified purposes, and reliance is placed on the case of Mandil Das v. Megh Narain Dubey 34 Ind. Cas. 742 : 1 P.L.J. 39 : 3 P.L.W. 45. Suffice it to say that that case referred to a loan, bat in the present case cloths were purchased for the use of the members of the joint family. I am, therefore, of opinion that in such a case all the member of the joint family are liable." In my opinion the finding of the learned District Judge does not amount to a finding that the cloth was purchased for the use of the joint family. His finding, in my opinion, amounts to a finding that as the cloth was purchased by Haribar Prasad, it mast be assumed that it was purchased for and on behalf of the joint family. On no other hypothesis san the use of the word "obviously" be explained. His view appears to be that if it is established that Haribar went to the plaintiffs'' shop and purchased the cloth, it must follow that the sloth was purchased for and on behalf of the joint family of which Haribar was a member. Now I quite agree with the contention which has been put forward in this Court that if the transaction was for the benefit of the joint family, it is immaterial to consider whether the person who entered into the transaction was or was not the karta of the joint family; but I think it must be established that the transaction was for the benefit of the joint family. I do no regard the finding of the learned District Judge as a finding that the cloth was in fast purchased for and on behalf of the joint family, Again the distinction made by the learned District Judge between the case which was sited before him and the present case to my mind does not hold. There is, in my opinion, no difference at all between the case of a loan and the case of the purchase of goods. In either case it must be established by the creditor either that the transaction was for the benefit of the joint family or that he made an honest enquiry into the matter and was satisfied that the transaction was for the benefit of the joint family. The learned Judge does not seem to recognise that the law is exactly the same when a person walks into a shop and buys articles of general use as when he goes to a moneylender''s place of business and borrows money. There is no difference in principle and we have been referred to no oases that recognised any difference. In my opinion, therefore, the finding of the learned Judge cannot be sustained the result is that so far as the members of the joint family other than Harihar are concerned the decree of the learned District Judge must be set aside.

I now come to the question whether Debi Saran, defendant No. 1, is liable. I do not, understood the learned Additional District Judge to dissent from the view of the learned Munsifthat Debi Saran was not a member of the joint family, but he obviously differs from the view of the learned Munsif that the signature purporting to be the signature of Dabi Saran on the account of the. 27th Falgan 1321 was not the signature of Debi Saran. But since the suit is not based upon the acknowledgment of the 27th Falgan 1321, I do not see how that acknowledgment can possibly benefit the plaintiffs. As a matter of fact the liability of defendant No. 1, had the suit been brought upon the acknowledgment of the 27th Falgnn 1321, would have been established not on the, ground that he had received any personal consideration for the credit which the plaintiffs had allowed to Haribar but on the ground that be had made himself liable as a surety for Harihar. But the plaintiffs did not sue upon the acknowledgment of the 27th Falgan 1321 the subsequent acknowledgment of the 42th Kartic 1322 is signed only by defendant No. 5. Upon the finding it follows that defendant No. 1, not being a member of the joint family, has received no benefit whatever from the purchases made by Harihar nor did be make himself personally liable in respect of any of the items. No doubt he made himself personally liable on the adjustment of the 27th Falgun 1321 and if the suit had been framed on that adjustment, the plaintiffs would have been entitled to a decree as against defendant No. 1. But I do not think that since the suit is not based on that adjustment that the plaintiffs are entitled to a decree as against defendant No. 1.

The result is that these appeals must be allowed and the plaintiffs'' suit dismissed as against all the defendants except as against Harihar. The defendants who have appealed to this Court are entitled to their costs throughout.

Jwala Prasad, A.C.J.

I agree.