Patna High Court
Nathu Rai vs Dindayal Rai on 4 January, 1917
Equivalent citations: 39IND. CAS.665, AIR 1917 PATNA 504(2)
JUDGMENT Chapman, J.
1. This appeal arises out of a suit upon a simple bond. The plaintiff alleged that the executant of the bond, one Sowkhi Rai, was dead: that he had executed the bond as manager of the joint family of which the defendants were the surviving members. The defence was that the bond had been executed under duress in jail at a time when the executant Sowkhi Rai was falsely charged with the offence of murder, and that no consideration passed. The suit was decreed in the first Court, the rate of interest being modified. In appeal the learned Subordinate Judge has modified the decree of the first Court by holding that the decretal money was to be realised only from the assets, if any, left by Sowkhi Rai in the hands of the defendants, and that the defendants merely as members of the joint family were not bound by the bond. The ground for this decision is that the money was under the terms of the bond to be realised from the person and property of the executant himself and that it was not borrowed in his representative capacity as manager of the family. It has been contended in appeal that this decision is wrong and that the manager of the joint family is entitled to spend the family funds in his own defence to a criminal charge and that he is entitled to hypothecate the family property in order to raise money to meet the expenses of such a defence. I am of opinion that such a contention could prevail only upon the ground of consent by the members of the joint family or upon the ground that from the circumstances it could be inferred that the other members of the family had consented. In the present case there is no ground upon which it is possible to hold that there was such consent, for the bond itself appears to recite that the money was to be realised not from the other members of the join family but from the person and property of the executant himself. The result is that the appeal fails. It is dismissed with costs.
Roe, J.
2. I agree.