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Case Number

Letters Patent No. 8 of 1957, against judgment and decree of Mohd. Ahmed Ansari J.

Advocates

For the Appellant: HARI NARAYANLAL, VINAYAK RAO VAIDYA, Advocates.

Judges

P. Chandra Reddy, C.J
Sanjeeva Rao Nayudu, J.

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Smart Summary

Structured Summary of the Opinion (P. Chandra Reddy, C.J.)

Factual and Procedural Background

On 24 April 1941 one Basi Reddy executed a document evidencing a loan of Rs. 1,425 in favour of two persons, Ramanna and Chinna Basappa. The two promisees brought a suit for recovery under that document against the heirs of the executant, who had died. During the pendency of the suit Ramanna died and another Basappa was brought on record as his legal representative. The defendants resisted the suit inter alia on the ground that only two of the three members of the joint family had sued, and that by the time the third member was impleaded the period of limitation had expired.

The trial court accepted the defence and dismissed the suit. The Subordinate Judge affirmed that dismissal on appeal. The plaintiffs appealed to the erstwhile Hyderabad High Court. A Bench (of which Ansari, J. was a member) allowed the second appeal and remanded the matter to the lower appellate court for decision on merits. That judgment was delivered ex parte (the defendant and his advocate were absent). An application was later filed and allowed to set aside the ex parte judgment; Ansari, J. then heard the appeal and again took the view that non-joinder of the third member of the joint family was not fatal to the suit.

The present proceedings are a letters patent appeal (before P. Chandra Reddy, C.J.) against the judgment of Ansari, J.

Legal Issues Presented

Whether two members of a Hindu joint family (the promisees) could maintain a suit in their names alone, or whether non-joinder of the other member(s) of the joint family was fatal to the suit.
Whether the decision in ILR 32 Mad 284 (Seshan Pattar v. Veeraraghava Pattar) — which held that where the benefit of a contract belonged to an undivided family a fresh contract made in the name of one member required the joinder of all members — should govern the present case.
Whether the line of authority exemplified by ILR 22 Mad 326 and the pronouncement of the Privy Council in Kishan Prasad v. Harnarain Singh (ILR 33 All 272 (PC)) controls the legal question of maintainability where a contract is in the name of an individual and does not purport to be on behalf of others.

Arguments of the Parties

Appellant's Arguments

Sri Harinarayanlal, for the appellants, contended that two only of the three members of the joint family were not entitled to file the suit and therefore the action was incompetent.
The appellants placed strong reliance on Seshan Pattar v. Veeraraghava Pattar (ILR 32 Mad 284) for the proposition that where the benefit of a contract belonged to an undivided family, a fresh contract entered into in the name of one only of the members required joinder of all members and an action by one member alone was incompetent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Seshan Pattar v. Veeraraghava Pattar, ILR 32 Mad 284	Held that when the benefit of a contract belonged to an undivided family and a fresh contract was entered into in the name of one member only, all members were necessary parties and an action by the single member was incompetent.	The appellants relied heavily on this decision. The Court concluded that ILR 32 Mad 284 does not hold the field in view of later authority (particularly the Privy Council decision in Kishan Prasad v. Harnarain Singh) and therefore it is not followed as controlling law in this matter.
Alagappa Chettiar v. Vellian Chetti, ILR 18 Mad 33	Held that where members of a joint Hindu family traded in partnership the contract was on behalf of the firm and all partners ought to be joined as plaintiffs.	The Court regarded this as a partnership case and therefore not supportive of the principle in ILR 32 Mad 284 when applied to contracts made in an individual's name. The Court treated ILR 18 Mad 33 as inapplicable to the present facts.
Angamuthu Pillai v. Kolandavelu Pillai, ILR 23 Mad 190	Identified in the opinion as being in consonance with the principle underlying ILR 32 Mad 284.	The Court acknowledged that ILR 23 Mad 190 is in consonance with ILR 32 Mad 284 but did not treat it as decisive in light of the Privy Council authority favouring the opposite view.
Adaikkalam Chetty v. Marimuthu, ILR 22 Mad 326	Held that a promisee was entitled to sue without impleading other members of the family when the contract did not purport to have been entered into on behalf of others.	The Court endorsed this principle as correct, stating that ILR 22 Mad 326 and that line of cases are sound and consistent with the Privy Council's decision in Kishan Prasad v. Harnarain Singh.
Ramanujachariar v. Srinivasachariar, 9 Mad LJ 103	Described in the opinion as one of the rulings from which White C.J. and Miller J. in ILR 32 Mad 284 dissented; later noted as consistent with ILR 22 Mad 326 in holding that a promisee could sue without impleading other members where the contract did not purport to be on behalf of others.	The Court treated 9 Mad LJ 103 as part of the line of authority that supports the proposition that an individual who contracts in his own name may sue without joining other family members when the contract does not purport to be on behalf of the family.
Shamrathi Singh v. Kishan Prasad, ILR 29 All 311	Noted as being in consonance with ILR 32 Mad 284.	The Court acknowledged this consonance but did not treat the decision as prevailing over the Privy Council's later ruling; it observed that some rulings followed in ILR 32 Mad 284 were reversed by the Privy Council.
Kishan Prasad v. Harnarain Singh, ILR 33 All 272 (Privy Council)	Held that managing members of a Hindu joint family who made contracts in their own names in the course of business could maintain suits on those contracts without joining other members where the contract did not purport to be on behalf of others; reversed an earlier ruling (ILR 29 All 811) followed in ILR 32 Mad 284.	The Court treated this Privy Council decision as authoritative and controlling. It relied on this pronouncement to conclude that when a contract is in the name of an individual and does not purport to have been entered into on behalf of others, that individual may sue without impleading other members of the family.
Ramsebuk v. Ramlall Koondoo, ILR 6 Cal 815	Illustrated dismissal of a suit brought by two of four partners; Garth C.J. observed that if the contract were found to be between defendant and two original plaintiffs only, joinder of the others would be a misjoinder (not fatal under Section 31 CPC).	The Privy Council distinguished this case and approved the observations that misjoinder would not be fatal where the contract was actually between the defendant and the suing parties. The Court cited these observations approvingly when explaining why joinder of other family members may not be necessary.
Adaikulam Chetti v. Subban Chetti (referred as Adaikulam Chetti… Plaintiff v. Subban Chetti… Defendants), 27 Mad LJ 621 (AIR 1915 Mad 387)	Discussed the question at length and expressed the view that ILR 32 Mad 284 was no longer good law in light of the Privy Council's ruling in ILR 33 All 272 (PC).	The Court relied on this decision as supporting the proposition that ILR 32 Mad 284 was no longer good law and that the line favouring individual suits without impleading other family members should be followed.
Mulla's Hindu Law (annotative note)	Contains a note stating that the decisions in ILR 32 Mad 284 and ILR 29 All 311 are no longer good law.	The Court referred to this note to support the position that ILR 32 Mad 284 and related authorities have been displaced by later authoritative rulings (notably the Privy Council decision).

Court's Reasoning and Analysis

The Court approached the matter by identifying the core question: whether non-joinder of the other members of a Hindu joint family rendered the suit incompetent where the contract was in the name of two of the family members. It reviewed the competing lines of authority.

The Court noted the proposition in ILR 32 Mad 284 (Seshan Pattar) that where a contract's benefit belonged to an undivided family and a fresh contract was made in the name of one member only, all members must be parties; White C.J. and Miller J. took that view in ILR 32 Mad 284. The Court then examined earlier and later decisions, including ILR 18 Mad 33 (Alagappa Chettiar), ILR 22 Mad 326 (Adaikkalam Chetty), 9 Mad LJ 103, ILR 23 Mad 190, and various All-India decisions.

Crucially, the Court relied on the Privy Council decision in Kishan Prasad v. Harnarain Singh (ILR 33 All 272 (PC)). The Privy Council posed the question whether managing members of a joint family, who made and entered into business contracts in their own names, were incompetent to enforce such ordinary business contracts in their own names. Their Lordships held that if the contract was in an individual's name and did not purport to have been entered into on behalf of others, that individual could sue without impleading other family members. The Privy Council expressly reversed an earlier ruling (ILR 29 All 811) that had been followed in ILR 32 Mad 284 and approved the reasoning that misjoinder is not necessarily fatal where the contract was actually between the defendant and the suing parties.

The Court distinguished ILR 18 Mad 33 as concerning a joint Hindu family that traded in partnership; in that context, the principle that all partners must be joined is uncontroversial and does not support the proposition in ILR 32 Mad 284 when applied to cases where contracts are in an individual's name and do not purport to bind the family.

After reviewing Adaikulam Chetti (27 Mad LJ 621 / AIR 1915 Mad 387) and the note in Mulla's Hindu Law that ILR 32 Mad 284 and ILR 29 All 311 are no longer good law, the Court concluded that the correct line of authority is that represented by ILR 22 Mad 326 and the Privy Council's decision. Applying that principle to the facts, the Court held that the suit as originally filed by the two promisees was properly constituted because the contract did not purport to have been entered into on behalf of others and therefore their non-joinder of the other family member did not affect maintainability.

Holding and Implications

Holding: The Court's final decision was to affirm the judgment under appeal and dismiss the letters patent appeal. The Court ordered that the appeal be dismissed with costs. The immediate disposition is summarized as: Appeal dismissed.

Implications:

Direct effect on the parties: The judgment under appeal is affirmed; the plaintiffs' suit was held to have been properly constituted originally and the letters patent appeal is dismissed with costs.
Broader legal implication articulated by the Court: The opinion endorses the principle that where a contract is in the name of an individual and does not purport to have been made on behalf of other members of a Hindu joint family, that individual (or individuals who contracted in their own names) may sue without impleading the other members. The Court concluded that the line of authority represented by ILR 22 Mad 326 and the Privy Council's Kishan Prasad v. Harnarain Singh (ILR 33 All 272 (PC)) is sound, and that ILR 32 Mad 284 does not hold the field in view of that authoritative pronouncement.

The opinion therefore resolves the specific dispute in favour of the plaintiffs and clarifies that the non-joinder objection, on the facts and legal principles examined, did not make the suit incompetent.

HD/H.G.P

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Nagamma And Others v. Chin Basappa And Others

P. Chandra Reddy, C.J:— This appeal is against the judgment of Ansari, J. (as he then was) with his leave under clause 15 of the Letters Patent.

2. The material facts leading to this appeal may be briefly narrated. One Basi Reddy executed a document on 24th April, 1941 to evidence a loan of Rs. 1425/- in favour of two persons, Ramanna and Chinna Basappa. A suit was brought by the two promisees for recovery of the money due, under the document against the heirs of the executant who died in the meantime. Pending the suit, Ramanna died and anothher Basappa was brought on record as his legal representative. The suit was inter alia resisted on the objection that it was not competent for two of the promisees alone to raise the action as they were only two of the three members of the joint family and that by the time the third member was impleaded as a party the period of limitation had already expired.

3. The defence prevailed with the trial court with the result that the suit was dismissed.

4. This was confirmed on appeal by the Subordinate Judge.

5. The aggrieved plaintiffs brought a second appeal which was heard by a Bench of the erstwhile Hyderabad High Court of which Ansari, J. was a member. The appeal was allowed and it was remanded to the lower appellate court for decision on merits. When this judgment was delivered, the defendant and his advocate were absent. Sometime later, an application was filed to set aside the ex parte judgment.

6. The application was allowed and the appeal was heard by Ansari, J. The learned Judge took the same view as the Bench of the erstwhile Hyderabad High Court took, namely, that the non-joinder of the third member of the joint family who was not one of the promisees, was not fatal to the suit. It is this view that is canvassed in this letters patent appeal.

7. In support of the appeal, it is urged by Sri Harinarayanlal for the appellants that two only of the three members of the joint family were not entitled to file the suit. In support of this theory, strong reliance is placed on Seshan Pattar v. Veeraraghava Pattar, ILR 32 Mad 284. In that case, White C.J and Miller J. expressed the opinion that where the benefit of a contract belonged to an undivided family and a fresh contract by which the original contract was discharged was entered into in the name of one only of the members of such family, all the members of the family were necessary parties to the suit on the fresh contract and an action by the member in whose name the contract was made was incompetent.

8. In support of their decision, the learned Judges, White C.J and Miller J. cited Alagappa Chettiar v. Vellian Chetti, ILR 18 Mad 33 and Angamuthu Pillai v. Kolandavelu Pillai, ILR 23, Mad 190. They dissented from Ramanujachariar v. Srinivasachariar, 9 Mad LJ 103 and Adaikkalam Chetty v. Marimuthu, ILR 22 Mad 326.

9. In ILR 22 Mad 326 it was ruled by a Bench of the same Court that a promisee was entitled to sue without impleading the other members of the family, when the contract did not purport to have been on behalf of others. To the same effect is the judgment in 9 Mad LJ 103.

10. There is no doubt that ILR 23 Mad 190 and Shamrathi Singh v. Kishan Prasad, ILR 29 All 311 are in consonance with the principle underlying in ILR 32 Mad 284. But we are not convinced that ILR 18 Mad 33 lends much assistance to that view. In our judgment, the view expressed in ILR 22 Mad 326 is the correct one and is in accord with the authoritative pronouncement of the Privy Council in Kishan Prasad v. Harnarain Singh, ILR 33 All 272 (PC) which reversed ILR 29 All 811 one of the rulings followed in ILR 32 Mad 284.

11. The question that fell to be decided in the Privy Council case was whether the managing members of the family, who made contracts in the course of their business in their own names, could maintain a suit to recover the amount found due on settlement of accounts. An objection was raised that the suit was not properly constituted, the other members not having been joined as plaintiffs.

12. To get over this, the other members were sought to be impleaded but by that time the statutory period had expired. The High Court, reversing the judgment of the Subordinate Judge gave effect to the defence as regards limitation, in the view that the other members of the family ought to have been added as parties to the suit. On appeal their Lordships of the Privy Council, in disagreement with the conclusion of the High Court allowed the claim of the plaintiffs and restored the judgment and decree of the Subordinate Judge.

13. The question posed by their Lordships was whether there was any principle of law or any custom applicable to a case like that according to which the managing members of a Hindu joint family entrusted with the management of business must be held incompetent to enforce at law the ordinary business contracts they were entitled to make or discharge in their own names, It was answered in the following words:—

“The defendant is, of course, entitled to insist on all the persons with whom he expressly contracted being made parties to the suit, and that was done in the action as originally framed in this case. There were no other parties to the contract of the 9th August, 1901, than the respondents and the first three plaintiffs……”

14. It is clear from these observations that the decision of their Lordships rested on the principle that if the contract on which the suit is based is in the name of an individual and it does not purport to have been entered into on behalf of others, he is entitled to sue without impleading the other members. That this is so is made clear by their Lordships distinguishing Ramsebuk v. Ramlall Koondoo, ILR 6 Cal 815, in which the suit brought by two only of the four partners was dismissed. Their Lordships referred with approval to the following observations of Garth C.J

“If in this case it had been found in the Court below as a fact that the contract was made between the defendant and the two original plaintiffs only there would be no difficulty in deciding in their favour, because the joinder of the other two plaintiffs would only have been a misjoinder which, by Section 31 of the CPC, is never now fatal to a suit.” Again, the learned Chief Justice says:

“The lower court has found in this case that all the four plaintiffs were partners in the concern, and that the defendants contracted with all jointly.”

15. After extracting this passage, it was remarked by the Judicial Committee:—

“It is to be observed that there were other members of the family who had an equal family interest in the profits of the business, but it was not suggested that they should be joined as plaintiffs or that they were to be treated as partners in the firm of managing members.”

16. This makes it explicit that some of the members of the family who have obtained the, contract in their own names could enforce it without joining the other members of the family to the action. The same principle emerges from these observations as well:—

“In the opinion of their Lordships, the original plaintiffs in this case were entitled, as the sole managers of the family business, to make in their own names, the contracts which gave rise to the claim, and that they properly sued on such contracts without joining the other members of the family.”

17. Their Lordships said that ILR 18 Mad 33 did not in any way support the contention of the defendants that all the members of the family should join the suit based on a contract.

18. In ILR 18 Mad 33 one of the defendants was engaged by the plaintiff to carry on business in Burma for a particular period. The defendant, in discharge of his duties as the agent of the plaintiff, acted in contravention of the plaintiffs orders and also refused to render an account when called upon to do so. This led the plaintiff to file a suit for certain reliefs. The defendants pleaded inter alia that the plaintiff being only One member of the family trading in partnership could not maintain the suit in his own name. This defence was accepted by the High Court. Dealing with the objection as to joinder of parties, Muttusami Ayyar and Shephard JJ. oberved.

“There can be no doubt that as a general rule all the members of a partnership firm ought to be joined as plaintiffs in a suit brought in respect of transactions with the partnership. It makes no difference that the persons carrying on business together, were also members of a Hindu family.”

“There can be no doubt, in the present case, that the employment of Vellian as agent was an employment in the business of the firm and that the contract was made by Alagappa on behalf of the firm.”

19. It is to be noted that this was a case of the members of a joint Hindu family trading in partnership. Therefore, no exception could be taken to the proposition contained in that case as on principle some of the several partners of a firm could not maintain a suit. So the doctrine enunciated in ILR 18 Mad 33 does not support the principle laid down in ILR 32 Mad 284

20. In a later decision rendered by Wallis (Offg. C.J) and Kumarasami Sastri J., in Adaikulam Chetti…Plaintiff v. Subban Chetti…Defendants, 27 Mad LJ 621. (AIR 1915 Mad 387) this point was discussed at some length. The learned Judges expressed the opinion that ILR 32 Mad 284 was no longer good law, having regard to the Privy Council ruling in ILR 33 All 272 (PC).

21. There it was laid down that where a mortgage was taken by a member of a joint Hindu family in his own name out of the funds belonging to the family without disclosing that he was acting as an agent of the family, he could sue on the mortgage without impleading the other members. Their Lordships followed the principle laid down in Adaikkalam Chetty v. Marimuthu, ILR 22 Mad 326 as it accorded with the pronouncement of the Privy Council referred to. In Mulla's Hindu law there is a note to the effect that the decisions in ILR 32 Mad 284 and ILR 29 All 311 are no longer good law.

22. In our considered judgment, the law as stated in ILR 22 Mad 326 and that line of cases is sound and ILR 32 Mad 284 does not hold the field in view of the above mentioned ruling of the Privy Council.

23. On this decision, it follows that the suit as originally filed was properly constituted and that the non-joinder of the other members of the family did not in any way affect the maintainability of the suit. In the result, the judgment under appeal is affirmed and the appeal is dismissed with costs.

HD/H.G.P

24. Appeal dismissed.

Nagamma And Others v. Chin Basappa And Others

Structured Summary of the Opinion (P. Chandra Reddy, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Nagamma And Others v. Chin Basappa And Others

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