A loan contracted by a junior member of a joint family for legal necessity is binding on the other members, and the plaintiff can recover the loan amount from the joint family.

JUDGMENT :- This a plaintiffs appeal against the reversing judgment of the learned District Judge, Cuttack, modifying the decree passed by the trial Judge to the extent that defendant 2 is not liable for the debt.

2. The facts leading up to this appeal are rather simple. The plaintiff filed a suit for recovery of money on a handnote dated 5-3-49 (Ext. I) for a sum of Rs. 500/-. The defendant 1 alone executed the document in favour of the plaintiff, but the plaintiff filed the suit against both the defendants 1 and 2 Defendant 1 is the nephew of defendant 2, and they are members of a joint family. The plaintiff in paragraph 1 of his plaint stated that defendant 1 as Karta of the joint family, for their common benefit, that is, to pay up the decretal dues of one Sri Kasinath Mukherjee of Howrah as well as for maintenance, borrowed the aforesaid sum of Rs. 500/-. The defendants in spite of demand by the plaintiff, did not pay anything towards the loan, and accordingly forced the plaintiff to file the present suit for realisation of his dues, that is, both principal and the interest.

3. Defendant 1 filed a written statement admitting the execution of the document, but took the plea that the document was taken from him by force and without any consideration. He also averred in his written statement that he is not the Karta of the joint family and that there was no necessity for the loan. After filing the written statement, defendant 1 did not appear in the proceeding and set down ex parte, Defendant 2 filed a separate written statement alleging that he is long separated from defendant 1 and that defendant 1 being his nephew cannot be the Karta or the manager of the Hindu joint family, and further, there was no legal necessity for the loan and hence he cannot be held liable for the debt under the suit-handnote.

4. The learned Additional Munsif of Jaipur, on a consideration of the evidence on record decreed the suit both against defendants 1 and 2, holding that they were members of the joint family and the document executed by defendant 1 is equally binding on defendant 2. On appeal, however, the learned District Judge modified the judgment of the learned Munsif, as indicated above, and decreed the suit only against defendant 1, absolving defendant 2 from all liability. But the learned District Judge on his part considered the entire case afresh and came to the finding that the hand-note was genuine and for consideration, and that defendant 2 did not pay his share of the decretal dues, due to the decree-holder Kashinath Mookherjee of Howrah. The learned District Judge further came to the finding that defendants 1 and 2 were members of a joint family and there was legal necessity for the payment of the previous loan due to the decree-holder, and defendant 1 paid the said decretal dues by borrowing the money from the plaintiff. But he came to the finding that the defendant 1 being a junior member of the family, could not be held to be the Karta. The plaintiff has also failed to prove that in fact defendant-1 was the Karta of the Hindu joint family, and, as such, the loan contracted by defendant 1 could not bind defendant 2.

5. Mr. R. N. Sinha, learned counsel appearing on behalf of the appellant, contended that in view of the findings of fact arrived at by the learned District Judge, he is entitled to a decree against both the defendants 1 and 2 on two grounds, viz., (1) that the finding being that the loan was contracted for legal necessity, it would bind all the members of the family; and (2) that the original loan evidenced by a handnote even if contracted for by a junior member of the family, would bind the entire family. I need not cover the grounds that have been discussed in the judgment of the learned District Judge and neither party had questioned the findings of fact arrived at in this Case. Both parties rather proceeded to argue the case accepting the findings as they stand.

6. Now, taking the first point as contended for by Mr.