Judgment:
R.C. Lahoti, J.
1. Defendants Nos. 2 to 4 have come up in appeal challenging a money decree passed against the four defendants (including respondent No. 1, who was defendant No. 1 before the trial Court) in favour of the plaintiff/respondent No. 1.
2. The plaintiff is a registered partnership firm. It entered into commercial transactions, mostly consisting of selling cloth on credit to M/s. Maheshchand Ramjidas, allegedly a joint Hindu family firm. The firm M/s. Maheshchand Ramjidas was impleaded as defendant No. 1 sued through Maheshchand s/o Naraindas. Phodilal s/o Naraindas (that is, brother of Maheshchand, the defendant No. 1) and Ramjidas, Jagdish both sons of Phodilal, the defendant No. 2, were also joined as defendants described as partners of firm M/s. Maheshchand Ramjidas. The plaint alleged all the four defendants id have entered into the suit transactions. Para 1 of the plaint stated that the defendants were working as partners of the firm, also as members of joint Hindu family. These averments were denied in the written statement and it was pleaded that the business activity carried on in the name and style of M/s. Maheshchand Ramjidas was the business activity of Maheshchand, the defendant No. 1 alone. As already noticed, this is plea has not found favour with the Courts below.
3. At the very first blush, it may be stated that the appreciation of evidence made by the Courts below on this point is very cryptic. None of the courts below has kept in mind the law applicable to such pleadings and the law governing liability of the members of any joint Hindu family wherein business activity is carried on by any of its members.
4. Vide order dated 23-2-1983, this Court admitted the appeal for hearing parties on the following substantial question of law :--
'whether the finding about the appellants being the members of the firm Maheshchand Ramjidas is based on no legal evidence and has been arrived at without even there being any specific pleading about it?'
5. At the trial, Nandkishore, one of the partners, of the plaintiff firm entered into the witness-box. The plaintiff adduced no other evidence. Exs. P/2 to P/7 entries in the account-books evidenced the transactions forming basis of the suit. Of these entries, Exs. P/2, P/3, P/8, P/9, P/11 and P/12 bore the signatures of Maheshchand, the defendant No. 1 alone. Naturally, all the co-defendants would not invariably go collectively to enter into transactions with the plaintiffs. Nandkishore (P.W. 1's) statement leads to an inference that the transactions were being entered into by Maheshchand. The liability was proposed to be fastened on all the four defendants by Nandkishore (P.W. 1) stating that all the four defendants were the members of one joint Hindu family, residing together. However, vide Para 8 he stated that all the four defendants were the partners of the firm Maheshchand Ramjidas. Vide para 9, he admitted that the singular source of this information of the plaintiff was the defendants themselves and none else.
6. Defendants Phodilal, Ramjidas and Jagdish, respectively the defendants Nos. 2, 3, and 4 entered the witness-box. Maheshchand defendant No. 1 chose to keep away. All the three defendants stated on oath that none of them had ever entered in any transaction with the firm; they did not constitute joint Hindu family with the defendant No. 1; and that they had nothing to do with the business run in the name and style of M/s. Maheshchand Ramjidas which was the exclusive activity of Maheshchand, the defendant No. 1.
7. The Courts below have proceeded to fasten the liability of the suit transactions on all the defendants by proceeding on simple reasoning that all the four defendants being situated in the relationship as they do, would be presumed to be the members of the joint Hindu family and in the absence of evidence as to their having separated, they would continue to remain liable for the transactions entered into in the course of business carried on by any one of them. There, the Courts below committed an error of law. The manager of a joint family has an implied authority to contract debts for the ordinary purposes of the family business. Such debts if incurred in the ordinary course of the business are binding on the family property including the interest of the minor coparceners therein. However, there is no presumption that a business carried on by a member of the joint family is joint family business. There is no presumption that a business standing in the name of or started by even a manager is joint family business (see para 234(1) and (4) pp. 308, 312, Hindu Law by Mulla, 15th Edition, 1982).
8. The Apex Court in G. Narayana Raju v. Chamaraju. AIR 1968 SC 1276 has held:--
'It is will establieshed that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate.'
9. So is the view taken by a Division Bench of this Court in Rajkumar v. Ravikumar, 1977 MPLJ S.N. 54.
10. It will also be useful to quote the following passage from the Division Bench decision of this Court in Parmanand v. Firm Babulal Jain, Sagar, (1976 MPLJ 366, para 15 wherein the Bench was faced with more or less a similar problem : --
'The question that now remains for our decision is whether the defendant Rajendra Kumar can be made liable. We have already said that the hand note Ex.P/1 is executed by the defendant Babulal alone. The plaintiff seeks to make Rajendra Kumar liable on the allegation that the business carried on in the name of Babulal Rajendra Kumar is a joint business of both Babulal and Rajendra Kumar. There is no evidence that this business was an ancestral business or that it was opened with the help of joint family funds or joint funds. The evidence of Babulal is that the business was started by him in 1954-55 after obtaining bans from Singhai Karelal Kundanlal and that this was an entirely new business started by him in which Rajendra Kumar had no interest or share. It is true that the name of Rajendra Kumar is associated in the name under which the business is carried on. It is also true that there is evidence that Rajendra Kumar helped his father Babulal in carrying on the business. But, these facts are insufficient to hold that Rajendra Kumar had any interest in the business. It is a common practice to associate the name of sons and other members of the family in the business. It is also natural for a son to help his father in the business. But these facts cannot give rise to an inference that the son whose name is associated in the business or who helps the father in his business has any interest in the business. We are, therefore, of opinion that Rajendra Kumar cannot be made personally liable for payment of the money due under Ex. P/1.'
11. It is to be noted that the plaint averments are not only too vague but also lacking in necessary details, also self-contradictory to some extent. The defendants are sought to be made liable by pleading them to be the members of a joint Hindu family, also partners of a firm, in the same breath. The pleadings of the defendants are specific. There is absolutely no material brought on record, either in the pleadings or in the evidence, enabling an inference that the business of M/s. Maheshchand Ramjidas was started with the assistance of joint Hindu family property or joint family funds or that the earnings were blended with the joint family estate. Merely because the business was run in the name and style of Maheshchand Ramjidas, that would not necessarily mean that Ramjidas too had an interest in the business. The plaintiff adduced no evidence to hold that the defendants Nos. 2, 3 and 4 were taking any active part in that business activity. On the contrary, the manner in which the suit transactions are evidenced by the entries in the account books of the plaintiffs, goes to suggest that the transactions were entered into by Maheshchand alone. Such being the state of affairs, none except Maheshchand the defendant No. 1 alone could have been fastened with the liability for the suit transactions.
12. Reliance by the learned counsel for the plaintiff/respondent on Maniar Ismail v. Maniar Fakruddin, AIR 1989 SC 1509 laying down the well settled principle of law that interference by High Court with concurrent findings of fact is not permissible, is of no help in view of what has been found and discussed hereinabove.
13. For the foregoing reasons, the appeal is allowed. The judgments and decrees of the Courts below are set aside to the extent to which they direct the suit to be decreed against the defendants Nos. 2, 3 and 4/appellants. It is directed that the suit filed by the plaintiff/respondent No. 1 shall stand dismissed as against the appellants though the decree as against the defendant No. 1/respondent No. 2 shall stand. The appellants shall be entitled to their costs throughout from the plaintiff/respondent No. 1. Counsel's fee as per schedule, if precertified.