1. Plaintiffs' firm carried on business in Bombay as commission agents at the data of the suit, but has since been dissolved. They acted as commission agents in Bombay for the firm of Chaturbhuj Pitamberdas & Co., and filed this suit to recover from the defendants as constituting the firm of Chaturbhuj Pitamberdas & Co., the sum of Rs. 29,984-12-0 with further interest in respect of their several dealings with the firm. According to the plaintiffs, the original defendant 1 and his two sons, defendants 2 and 3, formed a joint and undivided Hindu family of which the original defendant 1 was the “karta” or manager; defendant 4 and his son defendant 5 formed another joint and undivided Hindu family of which defendant 4 was the manager; and the original defendant 1 and defendant 4 on behalf of themselves and their respective joint families and defendant 6 and 7 carried on business in partnership in the name of Chaturbhuj Pitamberdas & Co. at Bahrein in the Persian Gulf. It is the plaintiffs' case that on 22nd June 1925, a sum of Rs. 12,082 was found due and payable to them at the foot of the account of their dealings with the firm, and the original defendant 1 signed an acknowledgment in the plaintiffs' books of the correctness of the account. I may mention here that it was pointed out by plaintiffs' counsel that the date mentioned in the plaint, viz., 10th July 1926, is a mistake for 22nd June 1925, as the calculation ought to be according to the Sindhi year which terminates at the end of seth and begins from Ashad Sud 1. The acknowledgment was signed on behalf of the firm of Chaturbhuj Pitamberdas & Co.; the original defendant 1 has admitted liability not, only for himself, but for “us,” presumably meaning his firm.

2. It is the plaintiffs' case further that they and Chaturbhuj Pitamberdas & Co., did business in partnership in pearls in Duboi, also in the Persian Gulf, in the name of Gordhandas Dwarkadas Chaturbhujdas Pitamberdas since about May 1924. Goverdhandas and Dwarkadas are the sons of Mulchand Hemraj, a partner of the plaintiffs' firm, since deceased. “The shares of the plaintiffs and of Chaturbhuj Pitamberdas & Co. in the pearl business were equal. The names of the partners representing Chaturbhuj Pitamberdas & Co., in the written agreement of partnership, are those of defendants 1, 4 and 6 only, but it is stated that the firm at Duboi shall be managed by defendant 6 as well as defendant 7 who are admittedly partners of Chaturbhuj Pitamberdas & Co., and the share of Chaturbhuj Pitamberdas & Co., is mentioned in Cl. 10 as eight annas in the rupee. There was a loss in the pearl business, and the share of the loss debatable to Chaturbhuj Pitamberdas & Co., along with some cash drawings, came to Rs. 10,064-9-6. This amount was debited to Chaturbhuj Pitamberdas & Co., in the account of the commission agency business in the plaintiffs' books in Bombay on the instructions contained in a letter written to the plaintiffs by defendants 1, 4 and 6, the correct date of which is 28th May 1925, and in another letter by defendant 7, also written to the plaintiffs and dated 24th June 1925. The acknowledgment was signed by the original defendant 1 in the plaintiffs' books after the sum of Rs. 10,064-9-6 had been debited according to the instructions of defendants 1, 4 and 6. Thereafter, there was a further loss in the pearl business, and the amount of the loss debitable to Chaturbhuj Pitamberdas & Co. came to Rs. 15,760-1-6. This sum was also debited to the firm of Chaturbuj Pitamberdas & Co. in the commission agency account in the plaintiffs' book in Bombay under the instructions of defendants 1, 4 and 6 conveyed to the plaintiffs by a letter, the correct date of which is 3rd June 1926. A sum of Rs. 20 was paid to the plaintiffs on or about 27th February 1928, and after debiting interest at six per cent and other items of expense and some cash drawings to Chaturbhuj Pitamberdas & Co., and after crediting them with their share of the outstandings recovered in the pearl business, a turn of Rupees 29,984-12-0 was found due and payable to the plaintiffs at the foot of the account on 22nd March 1928. Plaintiffs have filed the suit to recover this sum from the defendants jointly and severally, and it is added in parenthesis in the prayer of the plaint that defendants 2, 3 and 5 are liable “only to the extent of their respective interests in the respective properties of their respective joint family firms.”

3. Different written statements have been filed on behalf of the defendants. The origininal defendant 1 and defendants 4 and 6 contend that the acknowledgment is not valid and binding on the firm of Chaturbhuj Pitamberdas & Co. as the plaintiffs' admitted to defendants 6 and 7 on or before 27th February 1928, in Bombay that the accounts had not been adjusted, and that they would not make a claim against the firm until the final disposal of another suit, viz. Suit No. 2260 of 1927, and that therefore this suit is premature. The sum of Rs. 20 was according to them paid expressly at the plaintiff's request to save the bar of limitation. They further say that they and defendant 7 alone were partners in the firm of Chaturbhuj Pitamberdas & Co., and that some of the partners of the plaintiff's firm did business in pearls in partnership with defendants 1, 4 and 6. They do not admit the correctness of the account, and say that the acknowledgment was signed by the original defendant 1, and certain letters were written to the plaintiffs, on false representations made by the plaintiffs. They therefore counterclaim for the taking of the accounts of the commission agency and the pearl business. Defendants 2, 3 and 5 deny that they are members of the respective joint families alleged by the plaintiffs, or that they were in any way concerned with the business of Chaturbhuj Pitamberdas & Co. either in commission agency or in pearls. Defendant 7 denies that he was a partner in the pearl business. He also denies the validity of the acknowledgment, and says that on correct accounts being taken of the commission agency dealings between the parties nothing will be found due to the plaintiffs. None of the defendants are at present in Bombay, and an application was made on behalf of all of them to have the suit adjourned. The application was opposed, and rejected, as the suit is an old one, and the negotiations for settlement between the parties had long since broken off. The next day counsel appeared for defendants 2, 3, 5 and 7 only, and the suit was partly heard, but was adjourned for a week, as defendant's attorney was ill, and the account books of Chaturbhuj Pitamberdas & Co. which, as the Court was then informed were in the office of the attorney, could not be produced. At the adjourned hearing counsel, has appeared for defendants 2, 3 and 5 only, and with regard to the production of the books the attorneys appearing only for defendants 2, 3 and 5 wrote a letter to the plaintiffs' attorneys that these books were no longer with them. A large number of issues was raised, some or which are unnecessary. Issues Nos. 9 and 17 do not arise, as counsel is not appearing either for defendant 7 or for defendants 1-a and 1-b. There was correspondence between the attorneys after the death of the original defendant 1 in 1929 about his heirs and legal representatives. On the plaintiffs learning that he left only two sons, namely defendants' 2 and 3, they were impleaded as his heirs and legal representatives as defendants 1-a and 1-b. Subsequently, the defendants' attorneys informed the plaintiffs that there were two other sons of the original defendant 1, and at one time the plaintiffs were willing to bring them on the record, but have not done so. It was argued by counsel for defendants 2, 3 and 5 that the suit had abated by reason of the other heirs not having been impleaded, and he contended also that the suit had abated not only as against the original deceased defendant 1, but as a whole. It has however been held that it is sufficient compliance with O. 22, R. 4 of the CPC, if one legal representative alone is brought on the record, and that it is not necessary that all of them should be impleaded: see 1924 Bom. 420 (1); see also 1928 All. 532 (2). If one or more of the legal representatives is or are unknown, it is sufficient if the known legal representative is impleaded. Even if the suit be deemed to have abated for that reason, though I hold that it has not, it can only be deemed to have abated against the original defendant 1 and not as a whole. That is clear from the words of O. 22, R. 4(3).

4. There is one other preliminary issue which I should like to deal with before dealing with the main issue, viz., whether the suit is maintainable on the ground of multifariousness. It was argued by counsel for defendants 2, 3 and 5 that there was a misjoinder of defendants and causes of action, as the suit is for an amalgamated liability in respect of the commission agency business as well as the pearl business of Chaturbhuj Pitamberdas & Co., and defendant 7 was not a partner in the pearl business. Plaintiffs' counsel referred to certain letters written to them by defendants 1, 4 and 6 and also by defendant 7, by virtue of which the plaintiffs agreed to release the partners in the pearl business and to look to the partners in the commission agency business of Chaturbhuj Pitamberdas & Co. for their joint claim in respect of both. That, however is not the case made out by the plaintiffs in para. 3 of the plaint for it is there distinctly alleged that the plaintiffs and the defendants carried on business in partnership at Dubo in pearls. That assumes that defendant 7 was a partner also in the pear business of Chaturbhuj Pitamberdas & Co. I will deal with the question of the seven defendants partnership later, because if it is held that he was a partner the suit cannot be said to be bad on the ground of multifariousness.

5. The original defendant 1 and defendants 4, 6 and 7 were the principal defendants in the suit. The original defendant 1 is dead, and defendants 4, 6 and 7 have not appeared at the hearing. The only defendants who have been re presented by counsel are defendants 2, 3 and 5, and they too are not at present in Bombay. I have already held that the acknowledgment was signed by defendant 1 on behalf of Chaturbhu Pitamberdas & Co., and as there is nothing to show it was signed on any alleged false representation made by the plaintiffs to him, I hold that the acknowledgment is binding upon the firm of Chaturbhuj Pitamberdas & Co. I also hold that the two sums of Rs. 10,064-9-6 and Rs. 15,760-1-6 have been rightly debited by the plaintiffs to Chaturbhuj Pitamberdas & Co., and that they have also rightly credited that firm with their share of the outstandings in the pearl business which have been recovered by the plaintiffs. There is nothing to show that the plaintiffs have not accounted for all the outstandings of the pearl business recovered by them. The account kept by the plaintiffs in their books is in order, and the amount has been carried forward from year to year with the addition of the interest due thereon at six per cent, per annum.

6. With regard to defendant 7 it must be stated that his name has not been clearly mentioned as a partner in the partnership agreement of Gordhandas Dwarkadas Chaturbhujdas Pitamberdas, the pearl partnership, but, as I have said before, the names of defendants 6 and 7, two of the partners of Chaturbhuj Pitamberdas & Co., are mentioned in Cl. 2 as managers, and it is Chaturbhuj Pitamberdas & Co. who are, according to Cl. 10 to have eight annas' share in that business. There is further his letter dated 24th June 1925, in which he asks the plaintiffs to credit a certain sum to “our account”, meaning the account of the pearl business, and to debit the half share of that sum as loss to Chaturbhuj Pitamberdas & Co. The letter is not very clearly worded, but it seems to have been signed by him as a partner in the pearl business, as otherwise, there was no reason for him to write when the other defendants who were admittedly partners had already written a separate letter to the plaintiffs. According to defendant 1's written statement, defendant 7 was not a partner in the pearl business, but he admits that it was defendants 6 and 7 who met the plaintiffs in Bombay in February 1928, when the plaintiffs admitted to them that the accounts both of the commission agency and the pearl business had not been made up.

7. There would be no need for such an admission to defendant 7, if he was not interested in both the businesses. It is true that the letter of demand of 27th August 1927 is not addressed to defendant 7, but that seems to me to be an inadvertent omission, as the amount claimed includes the liability in the commission agency business in which defendant 7 was admittedly a partner. In any event, defendant 7 is not here to meet the allegations made against him, and I hold that he is liable as a partner not only in the commission agency business but also in the pearl business of Chaturbhuj Pitamberdas & Co. I also hold that the suit is not bad on the ground of multifariousness and is maintainable as framed.

8. The most important question however in the suit relates to the liability of defendants 2, 3, and 5 who contend that they are not members of the respective joint families alleged in the plaint, and were in no way concerned with the business carried on by the original defendant 1 and defendants 4, 6 and 7. The parties being Hindus, there is a presumption that they are members of a joint and undivided Hindu family which is the normal state of a Hindu family, and this presumption is strengthened when the relationship of the members is that of father and son. There can be no dispute that defendants 2 and 3 are the sons of the original defendant 1. That is admitted in the correspondence which passed between the attorneys when defendants 1a and 1b were brought on the record as the heirs and legal representatives of the original defendant 1. Govindram Tawalram, the munim of the plaintiffs, who gave evidence, stated that defendant 5 is the son of defendant 4, and his testimony on that point has not been contradicted. Defendants 2, 3 and 5 have not alleged any partition or separation, and therefore the onus is on them to show that they are not members of their respective joint families; that onus is not discharged by merely alleging that they are not. There is however no presumption in Hindu law that a business carried on by a member of a joint family is joint family business, nor that all the other coparceners are the partners of that member in that business: see 27 Bom. 157 (3). There is also no presumption that a business carried on by a member of a joint family in partnership with a stranger is joint family business: 1929 All. 536 (4).

9. The trend of the earlier decisions was that a father or any other manager of a joint family could not impose upon the adult members of the family the risk and liability of a new business, unless that business was started or carried on with their express or implied consent, or the business was adopted by all the members as an asset of the joint family or was carried on for their common benefit. Thereafter it was held in 1928 Bom. 232 (5) and also in 127 IC 507 (6) that if a business was newly started by the father as the manager of the family, it would be nonetheless ancestral, and the father's debt for such business was binding on his issue to the extent of their shares in the joint family property. In my opinion these decisions must be deemed to have been overruled by the Privy Council in 1932 P.C 182 (7) following 1922 P.C 237 (8). It was held there that the father or any other manager of the joint family, both under the Mitakshara and the Dayabhaga, had no authority to impose the risk and liabilities of a new business started by him upon the minor coparceners. Equally he could not impose any such liability upon the adult members of the joint family. The separate property of any other member of the family is not liable for the debts of such business, unless the adult member sought to be made liable has given his consent, express or implied, to the carrying on of that business, or the transaction out of which the liability arose has been subsequently ratified.

10. That being the state of the law on the subject, what is the evidence in this case? It is not alleged that the business of Chaturbhuj Pitamberdas & Co. was an ancestral business. It has not been proved that in the business of that firm, both as commission agents and in pearls, the original defendant 1 for himself and on behalf of defendants 2, 3 and defendant 4 on behalf of himself and his son defendant 5, joined defendants 6 and 7 as partners on behalf of their respective joint families. There is nothing in the evidence to show whether defendants 2, 3 and 5 were minors or adults when these two businesses were started, or, if they were adults, to show that they were consenting parties to it, and had adopted it as their own. There is no express consent alleged, and no consent can be implied from their conduct in relation to the business. It has not even been suggested that they took part in the business. There is no evidence that the plaintiffs made any reasonable inquiries or any inquiries at all as to the character of the business alleged, to have been carried on by the original defendant 1 and defendants 2 and 3, and defendants 4 and 5 and defendants 6 and 7. Plaintiffs have for some reason or the other not even called a single partner of their firm, and their munim Govindram only said that he once saw defendants 2 and 3 in the house of defendant 1 when he went there to dine, and that when the original defendant 1 came to Bombay to sell pearls, his son defendant 3 used to accompany him. This is not sufficient evidence to establish a joint family business. It is true that defendants 2, 3 and 5 have not appeared, but it was for the plaintiffs to show that the business carried on by Chaturbhuj Pitamberdas & Co. was joint family business or a business binding upon defendants 2, 3 and 5. It was for the plaintiffs to have shown that the business was carried on with the consent of defendants 2, 3 and 5, or was carried on for their benefit. No such allegation has been made and no evidence adduced. Even in the notice of demand of 27th August 1927, the names of defendants 2, 3 and 5 have not been mentioned as members of their joint families, or as being interested in the two businesses, in respect of the liability of which the demand was made for payment.

11. Plaintiffs' counsel next contended that even if defendants 2, 3 and 5 were not in any way concerned with the two businesses carried on by the original defendant 1 and defendants 4, 6 and 7, in the name of Chaturbhuj Pitamberdas & Co., the plaintiffs would still be entitled in this suit to a decree against defendants 2, 3 and 5 for the amount claimed by them limited to the interest of defendants 2, 3 and 5 in their respective joint family properties, as the sons of their respective fathers. The liability to pay those debts arises by virtue of the pious and moral duty of a eon under the Hindu law to pay his father's debts which are not tainted with illegality or immorality. It is a duty which arises even in the father's lifetime, and is incumbent not only on the son and the grandson but also on the great-grandson, and can be enforced. In 1926 P.C 105 (9) Counsel for defendants 2, 3 and 5 pointed out that there was no alternative case pleaded by the plaintiffs to the effect that the defendants were in any event liable on the ground which I have just mentioned. He also pointed out that no amendment had been asked for, and that in the absence of such an amendment the Court could not go into the question of the sons' liability under Hindu law as sons. I must admit that in the first instance I was prepared to hold that this alternative case could not be argued without an amendment, but before completing my judgment and passing my final orders plaintiffs' counsel drew my attention to certain other authorities bearing directly on the point, and I allowed it to be further argued before the final judgment was delivered. The last issue raised by counsel is sufficiently wide to cover the liability of the sons as such. It has now been well settled that as long as a Hindu father remains undivided, a creditor can proceed against the interest of the son in the joint family property for the personal debts of the father which had not been contracted for an illegal or immoral purpose. A creditor can during the father's lifetime enforce his claim by a decree against the entire family property. Plaintiffs' counsel relied on the Full Bench decision in 22 Mad. 49 (10), in which it was held that a creditor can prosecute his claim against the sons in the same suit filed against the father and obtain a decree making the sons' interest in the family property liable for the father's debts. It appears that the creditor had filed two suits against the father as the executant of certain bonds, and sought to make the sons also liable on the ground that the bonds were executed by the father for the benefit of the family. The father died in 1893, but his death not having been notified to the Court, a decree was passed against him, and the suit against the sons was dismissed. The plaintiff-creditor then brought a fresh suit against the sons, and the question was referred to the Full Bench, viz., whether the plaintiff could not have in the previous two suits prosecuted his claim against the sons, and obtained a decree against them making their interests in the joint family property liable for their father's debt. The question was answered by the Full Bench in the affirmative. A subsequent suit however can be maintained against the sons, if the sons have not been impleaded in the previous suit against the father, in respect of the same debt for which the father was held liable: see 21 All. 301 (11). The Full Bench decision of 22 Mad. 41 was referred to with approval by the Privy Council in 1924 P.C 50 (12), in which it was held that if the manager of the joint family is the father and the other members of the family are his sons, the father might, by incurring a debt, so long as it was not for an illegal or immoral purpose, lay the whole estate open to be taken in execution proceedings upon a decree for payment of that debt. The creditor can realize his claim out of the entire estate. In 13 I.A 1 (13), Lord Hobhouse observed as follows (p. 17):

Destructive as it may be of the principle of independent co-parcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against the creditors' remedies for their debts if not tainted with immorality. On this important question of the liability of the joint estate their Lordships think that there is now no conflict of authority.”

12. The liability of the son is however not a personal liability. It is limited to sons who are joint with their father, and it is limited only to their interests in the coparcenary property. It subsists so long as the liability of the father subsists. It would cease on the debt becoming time-barred against the father. It is not a joint or a joint and several liability in the sense in which those terms are understood in English law. At the same time, a suit cannot be filed against the son alone. The liability arises from the obligations of religion and piety imposed upon the son under the Mitakshara law to discharge the father's debts which are not illegal or immoral. Courts Trotter, C.J, pointed out in 49 Mad. 211 (14) (p. 213):

… The whole doctrine of the pious obligation is itself a relic of antiquity based originally on a religious and not a legal conception, but it has been controlled and moulded into shape by a series of decisions which, in my opinion, make it a working rule which in its actual application is neither inconvenient nor unjust.

13. The judgment in that suit, viz., that a trade is nonetheless ancestral because it was started only by the father, must now be deemed to have been overruled by the Privy Council in 1932 P.C 182, to which I have referred before, but it is still an authority for the proposition that the commercial debts of the father which are valid and binding on the father are debts to which the pious obligation of the son extends. Since therefore it is competent for a creditor to bring a suit both against the father and the sons in the father's lifetime for payment of the father's personal debts, the question of the liability of defendants 2, 3 and 5 as the sons of their respective fathers still remains to be considered. I have already held that they are not liable for their father's debts on the ground that the debts were incurred in a business which was not binding on them. The liability now sought to be imposed upon them is their liability as sons under the Hindu law. The question is one of law or of mixed law and fact, and the point is whether an amendment of the plaint is strictly necessary. In my opinion it is not. It follows from the Full Bench decision in 22 Mad. 49 that a creditor can prosecute his claim against the sons, as sons, although it was alleged that the moneys were borrowed for the purposes of the family. It has also been held in 1933 All. 235 (15) that in such a case no amendment is necessary, and the learned Judge stated at p. 296 that he was not prepared to hold that because of the absence of an express allegation in the plaint that the sons were under a pious obligation to pay their father's debts the sons had in any way been prejudiced. This judgment is also referred to with approval by Sir Dinshah Mnlla in his Commentary on O. 6, R. 2 of the CPC, 10th Edn., p. 525. My attention was however drawn by counsel for defendants 2, 3 and 5 to 1932 P.C 182 . In that case before the Privy Council a further point was raised for the first time on behalf of the Benares Bank, Ltd., that the Bank was at least entitled to a decree for the sale of the sons' interests, the sons being minors, in execution. But the claim was negatived on the ground that the point had not been taken in the Courts below, and might involve questions of fact which had not till then been tried. The relationship of father and sons between the original defendant 1 and defendants 2 and 3 and defendants 4 and 5 has been established, as I have stated before. The nature of the debt is also indioated clearly in the plaint. But it is still open to defendants 2, 3 and 5 to prove that the debt was either time-barred or was illegal or immoral. It is also open to them to show that the joint families did not consist merely of father and sons or son but of other members also: see 1933 All. 334 (16). The fundamental rule is that a Hindu son is not under any liability for payment of his father's debts which are of a character that fall within one or other of the exceptions recognized by, the ancient Smritis. The limitation of the son's liability for the father's debt is based upon the text which says that the sons are not compellable to pay sums due by their father for spirituous liquors, for losses at play, for promises made without any consideration, or under the influence of lust or of wrath, or sums for which he is surety or for an unpaid fine or an unpaid toll, or for any other debt which comes under the expression ‘avyavaharika’. That expression was translated by Colebrooke as meaning a debt incurred “for a cause repugnant to good morals,” but since the judgment in 1 I.A 321 (17), in 1874, the translation of that term has now been crystallised into “illegal and immoral”. There are various decisions in Bombay and in Calcutta as to what debts come under that category or are excluded from it, but it is not necessary to deal with them for the purposes of the suit. It has however been held that it is a son's pious duty to pay out of ancestral property the debts of his father on account of a trade liability even though the trade might have been started by the father: see 127 I.C 507 . I have also referred to the judgment in 49 Mad. 211 where the Chief Justice of Madras pointed out that a father's commercial debts were not illegal or immoral. It is, as I have said before, open to defendants 2, 3 and 5 to put forward their defences or any of them, viz., that the debt is time-barred, or illegal, or immoral, or that there are other members of their respective joint families besides the father and sons. Plaintiffs' counsel argued that as defendants had adopted the written statement of their fathers, all admissions made by their fathers are also binding upon them. Nevertheless, it is but fair that before I pass a final decree these defendants should have an opportunity to put forward any of the defences that they may wish to urge before the Court. I accordingly adjourn this suit as against defendants 2, 3 and 5 till 24th September next, to be on board as a part heard and subject to a part heard case.

14. There will be therefore for the present a decree only as against defendants 1a and 1b and defendants 4, 6 and 7 for Rs. 29,984-12-0 with interest thereon at 8 per cent per annum from 22nd March 1928, till judgment, costs of the suit and interest on judgment at 6 per cent per annum till payment, the decretal amount as against defendants 1a and 1b to be payable out of the assets of the deceased original defendant 1. Counterclaim of defendants 1, 4 and 6 dismissed with costs.

15. 20th November. After delivering my judgment on 16th August 1934, the suit was adjourned till 24th September for further hearing as against defendants 2, 3 and 5 in case these defendants wanted to raise the defences or any of them which I have mentioned in my judgment. The suit came on for hearing again on 20th November, when defendants 2, 3 and 5 were absent, and no one appeared on their behalf. Accordingly on issue 19, which stood over, there will be a decree for the plaintiffs in the same terms as the decree which I passed on 16th August last against defendants 1a and 1b and defendants 4, 6 and 7, the decree against defendants 2 and 3 being limited to their respective interests in the coparcenary property if any of the joint family of which defendants 2 and 3 and the original defendant 1 were members, and the decree against defendant 5 being limited to the co-parcenary property if any of the joint family of which he and defendant 4 are or were members.

K.S

16. Suit decreed.