Lutchmanen Chetty vs Sivaprokasa Modelier

Sale, J.—The Plaintiff in this case claims judgment for the amount of principal and interest due on a promissory note executed by the Defendant on the 31st January 1891. The note is executed in favour of A.R.L.N. Hamanathen Chetty. It appears that the Plaintiff and one A. R. L. N. Hamanathen Chetty were undivided brothers constituting a joint-family governed by the Mitakshara Law. They carried on a business together at Devaeotta in the Madras Presidency and subsequently opened a branch business in Calcutta in the name of Hamanathen Chetty who was the older brother, which was managed on their behalf by a gomashta of the name Viena Rava Hamanathen Chetty. In the year 1889 dealings were commenced with the Defendant, moneys being advanced to him by the Calcutta, firm through their gomashta Viena Hamanathen Chetty. In the month of March 1890 the Plaintiff''s brother, Hamanathen Chetty, died intestate, leaving an only son. The business in Calcutta was continued in the name of the deceased brother, and there were further dealings between the firm of Hamanathen Chetty and the Defendant till some time shortly before the execution of the promissory note in suit. It has been proved that an account was taken and adjusted of the dealings between the Defendant and the firm of Hamanathen Chetty, that a sum of Rs. 12,000 was found due by the Defendant to the firm and that for that sum and interest the note in suit was executed in the name of the firm, and was given by the Defendant to the gomashta Viena Hamanathen Chetty for and in respect of the debt due to the firm. The Defendant has filed three different written statements raising various grounds of defence and there has been a considerable body of evidence adduced both at the hearing and on two Commissions which were issued by this Court. At the hearing no serious attempt was made upon the evidence to contest the Plaintiff''s claim on the merits but a plea of non-joinder of parties as Plaintiffs was relied on in bar of the suit. The plea was raised on the second and third written statements after evidence had been taken on the first of the Commissions issued by this Court. The facts which have been proved and which it is necessary to state relative to this plea are as follows :--The Plaintiff has now four sons living, the eldest of whom is nine or nine-and-a.-half years old, the youngest having been born since the institution of this suit. The son of the Plaintiff''s brother, Ramanathen Chetty, has died since the institution of this suit, leaving only a daughter. The Plaintiff and his brother, Ramanathen Chetty, carried on their business both in Calcutta and at Devacotta jointly for the benefit of themselves and of their families and since the death of Ramanathen Chetty the business have been carried on for the benefit of the members of the joint-family by the Plaintiff, as the manager or head of that family. It has not been shown by whom the Devacotta business was started nor has it been shewn that it was an ancestral business, that is to say, a business which descended to the Plaintiff and his brother from their father or their ancestors. Nor does it appear that the Calcutta business was started by the brother with ancestral funds, as distinguished from their own acquisitions. None of the Plaintiff''s sons were in existence at the time the dealings with the Defendant commenced. At the date of the execution of the note in suit the Plaintiff''s eldest son was probably in existence and the Plaintiff''s brother''s son was also in existence but it does not appear when he was born.

It is contended that the family being governed by the Mitakshara Law, the Plaintiff''s sons on birth became co-sharers in the joint-family properties which included the note in suit and that moreover they succeeded to a share in the joint-family property by inheritance on the death of their father''s brother, Hamauathen Chetty, and that as such co-sharers they are necessary parties to the suit and should have been joined as Plaintiffs. A plea of non-joinder of Plaintiffs in an action of contract is a plea in bar of the suit, and if established at the hearing, must, as explained in the case of Ramsebuk v. Ramlall Koondoo ILR 6 Cal. 815 (1881), result in the dismissal of the suit.

No authority has been cited to show that infant members of a Hindu coparcenary must be joined as co-Plaintiffs in suits to recover claims arising out of a joint-family business managed by adult members of the family. A debtor of a firm carrying on a joint-family business is no doubt entitled to insist that all his co-contractors should join as Plaintiffs in a suit instituted to recover the debt but on what principle can it be said that infants, possibly of tender years as in this case, who are not shown to have been admitted into the trading partnership or to have taken any part in the business or exercised any control therein are in any sense co-contractors of the debtor % A trade like other personal property is descendible amongst Hindus but it does not follow that a Hindu infant who by birth or inheritance becomes entitled to an interest in a joint-family business becomes at the same time a member of the trading partnership which carries on the business. He can only become a member of the partnership by a consentient act on the part of himself and his partners, and it was on this ground held by the late Supreme Court that an infant of tender years, whose name was used in a partnership business need not be joined as a co-Plaintiff in a suit by the father to recover a trade debt. Petum Bass v. Ramdhone Bass 1 Taylor 279 (1851).

It is true that the parties in that case were not governed by the Mitakshara Law and that the infant was not entitled to a share in the joint estate, but it seems to me that the same principle would have applied if the infant had been a member of a coparcenary governed by the Mitakshara Law.

In the case of Ramsebuk v. Ramlall Koondoo I. L. R. 6 Cal. 815 (1881) already cited the plea of non-joinder was held to be established on Principles applicable to a case of an ordinary contractual partnership, although the Plaintiffs, both original and added, were all members of a joint-family governed by the Mitakshara Law, and the debt sought to be recovered was a debt due in respect of the joint-family business. Moreover it is not necessary in order to bind the interest of infant members of a Hindu coparcenary that they should be joined as co-Plaintiffs in suits instituted by the adult members of the family who carry on the joint-family business on contracts entered into with the firm, because decrees obtained in such suits by or against the managers of the business will be presumed to have been obtained by or against them in their representative capacity and will be binding on the whole joint-family. Bissessur Lall Sahoo v. Luchmessur Singh L. R. 6 T. A. 233 (1878-79). It is settled law in England that dormant partners may join as co-Plaintiffs in suits on contracts of entered into with the firm but that they need not do so. Lindley on Partnership, 5th ed., Vol. I, p. 276. It would seem that this rule would apply with greater force to the case of infant co-sharers of a Hindu joint-family who have not in fact been admitted into the trading partnership by which the family business is carried on for the mutual benefit of all the members of the family.

In the present case the evidence shows that the only original partners of the firm in whose name the note in suit was given were the Plaintiff and his brother, Ramanathen Chetty, and upon the death of the latter and at the date of the note the Plaintiff was the solo surviving partner of the firm and that as such and as the managing member of the family he continued to carry on the business of the firm in Calcutta until it was closed.

These facts in my opinion are sufficient to establish the Plaintiff''s right to maintain this suit in his own name without joining his sons as co-Plaintiffs. Nor is the gomashta Viena Ramanathen Chetty a necessary party to this suit as it has been shown that the Defendant''s dealings with him throughout were as agent of the firm and that it was in that capacity the note in suit was given to him. The result is that there must be judgment for the Plaintiff for the amount claimed with costs of suit including the costs of the commissions on Scale 2.