Damodar Naik vs Gayadhara Naik and Others

Das, J.—Defendant No. 3 is the Appellant. Banamali, the father of Gayadhar (Defendant No. 1), Kanduri (Defendant No. 2) and Damodar (Defendant No. 3) are three brothers. It is the case of the Plaintiff that these three brothers constituted a joint family of which the father of the 1st. Defendant was the Karta. These three brothers had some litigation with their agnates in connection with the said litigation, Banamali and Kanduri borrowed a sum of Rs. 700/- in several instalments from the Plaintiff for meeting the expenses of the family litigation. On 28-12-1951 Banamali and Kanduri had executed and registered the suit hand-note for the aforesaid amount with interest at 9 % per annum. On 1-9-1957 Defendants 1 and 2 paid a sum of Rs. 80/- towards the said loan and made necessary endorsement to save limitation. As on repeated demands, the Defendants failed to repay the loan, the Plaintiff filed the present suit for realisation of the amount.

The claim was admitted by Defendants 1 and 2, but was contested by Defendant No. 3 alone. According to him he did not know anything about the loan, nor was there any necessity for the same.

The trial court found that the parties were joint on the date of execution of the suit handnote and were separated on 1-9-1957, the date of alleged acknowledgment and therefore Defendant No. 3 had no liability for the same. He accordingly decreed the suit only against Defendants 1 and 2 and dismissed it against Defendant No. 3. Against this order of the trial court, Defendants 1 and 2 carried an appeal. The appellate court held that the parties were joint both on the date of execution of the suit-handnote and on the date of the acknowledgment that is, 1-9-1957, and that the money was borrowed for joint family necessity and the suit was for the loans incurred from time to time and the promissory note, ext. 1, was only an acknowledgment of the previous debts for which Defendant No. 3 was also liable. It is against this decision of the appellate court Defendant No. 3 has preferred this appeal.

Mr. R.N. Misra, learned Counsel for the Appellant, did not challenge the correctness of the finding of the appellate court. He, however, contended that the suit being one based on the handnote ana not on the original loans advanced from time to time, it is only the executants of the document who would be liable for the debt and no other.

From a perusal of the plaint it appears clear that the suit of the Plaintiff is based on the original loans advanced by him from time to time. It is also his case ill Court that the suit handnote was executed on 28-12-1951, only in acknowledgment of the prior debts. In view of this position, it cannot be disputed that the suit was not for the original loans, but was based only on ext. I the subsequent hand-note. Once it is held that the suit was for the original loans when the family continued to be joint, and that the debt was for the necessity of the family, Defendant No. 3 must be held to be equally liable; See Jibat Mahato v. Shiv Shankar A.R.I. 1936 Pat. 687.

Mr. Misra, however, contended that in any case Defendant No. 3 should not be held liable jointly for the entire loan and his liability may be apportioned to one-third of the suit loan. Counsel for the Plaintiff as also for Defendants 1 and 2 have no objection to such a position. In view of this, the appeal of Defendant No. 3 is allowed to the extent that he shall be liable to pay only one-third of the Plaintiff''s claim, Defendants 1 and 2 being liable for the other two-thirds. The appeal is accordingly partly allowed.

The parties to bear their own costs of this Court. The Appellant shall not bear the cost of the lower appellate court.

Appeal partly allowed.