Patna High Court
Ghasiram Biseswar Lal Firm vs Otla Gaurai Otla Basaraj Firm on 17 January, 1936
Equivalent citations: 164IND. CAS.876, AIR 1936 PATNA 485
JUDGMENT Courtney-Terrell, C.J.
1. This second appeal is from a judgment of the Subordinate Judge reversing the decision of the Munsif who had decreed the suit of. the plaintiff based on a, bahikhata account for cloth supplied. The defendants are alleged in the plaint, and it is not denied by defendant No. 2, the sole contesting defendant, to be members of a caste known as tilangatanti (weavers) and engaged in cloth business. The plaintiff supplied cloths to defendant No. 1 who is the elder step-brother of defendant No. 2. The defence taken by defendant No. 2 was that he was not joint with his elder brother, that he was a minor and had indeed no connection with defendant No. 1. The finding of fact by the trial Court was that it was admitted that the defendants are weavers by caste and maintained themselves by weaving cloths and selling them, that it was true that they had no shop or place of business, but they did purchase and sell cloths. The finding also by the trial Court was that they were joint, and indeed it is clear that neither the trial Court nor the Appellate Court believed the defence of defendant No. 2 that he was separate. The view of the lower Appellate Court is that in the first place there was no firm by which (if the words of the Subordinate Judge are to be treated in their proper legal significance) I take it, he means that defendant No. 2 being a minor he could not be in a state of legal partnership with his elder brother because he, was incapable of making a contract; that the business carried on, however, by the two brothers was a joint family business is not dissented from by the learned Subordinate Judge. His reason for dismissing the suit of the plaintiff was that the plaintiff had not proved that the goods were supplied to the joint family and the joint family business for any necessity of the joint family.
2. Now, where a member of a Hindu joint family carries on a business which is appropriate to the caste to which he belongs, it may properly be inferred that that business is part of the joint family property. In this case it is admitted that the defendant family are of the weaver and cloth-seller caste and in those circumstances it may reasonably be presumed that the business which they carry on is a joint family business. In any case the learned Subordinate Judge does not dissent from the finding that there is in fact a joint family business. Now when a Hindu joint family carries on business of a kind appropriate to the caste of that family, the member who manages, in this case defendant No. 1, has an implied authority to contract debts for the purpose of that business and a creditor supplying goods to the business of the class and character dealt with by the purchaser is not bound to inquire into the necessity of the family, because the purchase of cloth of that kind and in that sort of quantity is necessary for the carrying on of a business of that character and the share of a minor who is a co-parcener in such a joint family is liable for debts contracted by the managing co-parcener for the purpose of the joint family business. This principle was well established by the case in Raghunathji Tarachand v. The Bank of Bombay 34 B 72 : 2 Ind. Cas. 173 : 11 Bom. LR 255, and the law is made even more clear by the decision of the Privy Council in Niamat Rai v. Din Dayal 8 PLT 617 : 101 Ind. Cas. 373 : 54 IA 211 : 8 Lah 597 : AIR 1927 PC 121 : 29 Bom. LR 886 : 52 MLJ 729 : 4 OWN 537 : 25 ALJ 599 : 45 CLJ 518 : (1927) MWN 453 : 28 PLR 463 : 26 LW 442 (PC).
3. To my mind the learned Subordinate Judge has approached this case from the wrong point of view. The caste of the family to which the two defendants belong being what it is, the business carried on by the defendants being of the nature that it is, it is properly inferred by a supplier of goods of the kind that the goods are required for the joint family business and the family business needs such goods for the purpose of trade. In these circumstances the learned Subordinate Judge should have supported the decision of the learned Munsif. His finding that it could not be inferred that the goods supplied to defendant No. 1 were for family business is necessarily erroneous. In any case the defence of defendant No. 2, which is probably entered into with the collaboration of defendant No. 1, is thoroughly dishonest. The appeal will be allowed, the judgment of the learned Munsif restored and there will be a joint decree against defendant No. 2 on contest and ex parte, against defendant No. 1 with costs throughout. Leave to appeal under the Letters Patent is refused.