Report No. 89
II Joint Families
21.9. Joint Hindu Famili.-Suits by or again.-Legislative history.- Even though the newly added proviso to section 21(1) takes care of such contingencies where the plaintiff has inadvertently forgotten to implead a necessary party, it must be conceded that suits by or against joint Hindu families form a class by themselves and need an express provision. The legislative history of this section throws considerable light as regards the thinking on the subject even in 1907, when the draft Bill which led to the Limitation Act, 1908 was circulated for comments.
21.10. Comment-1907.- Mr. H.S. Phadnis, Acting District Judge Khandesh, while commenting upon the newly added sub-section (2) to section 21 exempting certain cases from the operation of sub-section (1), observed that at the end of sub-section (2), the following words should be added.-
"Nor to a suit by or against the members of a joint Hindu family to enforce a joint family right or liability, where one or more of the members being originally omitted are brought on record in the course of the suit at the instance of either party."
Explaining the 'reasons in support of his proposal, the District Judge observe.-
"By reason of improved facilities for travelling and other courses, different members of a joint Hindu family are now-a-days generally found living in different places. A joint family creditor, being unaware of the existence of the whereabouts of a particular member, often omits to make him a defendant. Or, in a suit by the family, the resident members may omit to join another member living in some distant place as a co-plaintiff, under a bona fide belief that he was not a necessary party or that he had no active concern in the debt sued for.
It is distinctly hard that in such cases a just claim should fail simply because one of the members of the family is brought on the record after the expiry of the period of limitation. The proposed addition seems desirable to meet cases of such hardship, vide Nooranji v. Moti Govanji, 9 Bom LR 1126, where it is laid down that in a suit in respect of the property of a joint family it is essential that all the persons who compose the family should be joined as party plaintiffs."
1. No. 2751, dated the 30th November, 1907 (National Archives File, relating to the Indian Limitation Act, 1908).
21.11. Comme.-Nasik.- In the comments in 1907 Mr. B.C. Kennedy, District Judge, Nasik pointed out the inequities of the section.1
"There is a general feeling that it is inequitable that when A, B, C are joint obligees and the suit is brought within time against A and B alone and C is subsequently added after the limitation period elapses the suit must necessarily fail as against all three. It is frequently the case that the existence of C is not known till after the limitation period expires. It should be in the discretion of the court to allow or not allow C to be brought on the record even after the statutory period. The High Courts2-3 differ in their views as to the present state of the law."
1. Section 16, dated 4th December, 1907 (National Archieves file).
2. All XIV 524.
3. Calcutta XXVII 540.
21.12. Comme.-Bombay High Court.- Honourable Mr. Justice Knight of the Bombay High Court, being well-versed in Hindu Law as prevailing in the Bombay Presidency, desired that the suits brought by a manager of a Hindu joint family should be exempted from the purview of section 21(1) of the Act:
"I advocate the addition of a clause to the following effect:
(3) Nothing in sub-section (1) shall apply to a case where a party is added by the direction of the court, or where the addition is made for the protection of the opposite party against the separate advancement of the same claim by the party so added, and the claim itself is not modified or extended by such addition.
The first of these two paragraphs will embody the case law11 in the Act, at least so far as added defendants are concerned. The object of the second paragraph is to protect claims brought by the manager of a Hindu Joint family who has omitted to join all his co-parceners as co-plaintiffs.
According to Hindu ideas, though not according to the law as laid down in our courts, a Hindu manager is competent to institute suits on behalf of the family; and there does not seem to be any good or equitable reason for allowing a defendant to escape from the payment of a just debt by a technical plea of non-joinder. The Hindu sentiment the exemption suggested will assuredly commend itself; and it is not easy to see why others should object2."
1. ILR 12 Cal 642: 24 Cal 640 and 27 Cal 540.
2. Imdad Ahmed v. Pabitra Partap Narain, 1910 ILR 32 All 241 (PC).
21.13. Suggestions not incorporated in 1908.- Though these comments were tabulated and duly placed before the Select Committee, for some obscure reasons the suggestions were not incorporated the Bill.
21.14. Privy Council Case.- This resulted in avoidable litigation and conflict of opinion amongst various High Courts which was ultimated settled by the Privy Council in 1911.1 Three managing members of undivided Hindu joint family where the plaintiffs in a money suit who sought to bring other members of the family as co-plaintiffs after the period of limitation. Holding that the amendment was not fatal to the suit, the privy Council observe.-
"The Indian decisions as to the powers of managing members of an undivided Hindu joint family are somewhat conflicting. It is, however, clear that where a business, like money lending has to be carried on in the interests of the family as a whole, the managing members may properly be entrusted with the power of making contracts, giving receipts and compromising or discharging claims ordinarily incidental to the business."
1. Kishan Pershad v. Har Narain Singh, 1911 ILR 33 All 272 (PC).
21.15. Description of the Plaintiff as managing member.- The law was re-affirmed by the Privy Council in 19141 and the lead thus given has been followed2 by the High Courts. But the Patna High Court insisted5 that the plaint must show that the suit was by the present managing member as managing member. This view was not followed by the Bombay High Court6 which ruled that the plaint need not contain a statement or indication to the effect that the plaintiff was suing as a manager.
1. Sheo Shankar Rain v. Jaddo Kunwar, 1914 ILR 36 All 383 (PC).
2. Banwari v. Sekhrai, AIR 1931 All 585; Chetan Singh v. Sattal Singh, AIR 1924 All 908.
3. Girwar v. Makbithinnessa, AIR 1916 Pat 310.
4. Medgouda v. Halappa, AIR 1934 Born 178.
21.16. Gist of Privy Council ruling.- In the Privy Council decision1 relating to the position of suits filed concerning the affairs of a joint Hindu family and the addition of parties in such suits, two propositions seem to have been laid down with reference to section 21 of the Limitation Act of 1908, corresponding to section 21(1) of the present Act:
(i) The manager of joint Hindu family is entitled to sue in his own name on behalf of the family, without joining the other members of family, where the suit concerns affairs of the family.
(ii) If the other members of the family are later impleaded on the objection of the defendant, but by that time limitation has already run out, the plaintiff is nevertheless entitled to a decree.
To put it more briefly, in the case of a Hindu Joint Family, the manager sufficiently represents the family where he acts in the interests of the family, the other members will be bound by the result of the litigation, and the addition of the other members at a later stage would not be material in regard to the issue of limitation, such addition being regarded more as the addition of proper parties rather than the addition of necessary parties.
The situation of defendant's objection in regard to a joint Hindu family is illustrated in another Privy Council case2 also. Subsequent rulings are conveniently collected in a Madras case3. The Supreme Court has ruled4 that failure to describe oneself as a 'manager' in the plaint is not decisive of the question whether the suit was instituted by him in his capacity as a manager, this will depend upon the circumstances of each case. It could well be that the suit is instituted by the Manager in his personal capacity or it could be that he represented the family. The Supreme Court summarised the law as follow.-
"In a suit by the manager of a joint Hindu family for enforcement of a mortgage, an adult member who is interested in the mortgage security, is not a necessary party though he can be joined as a proper party; and failure to join a person who is a proper party not necessary party, does not affect the maintainability of the suit nor does it invite the application of section 22, Limitation Act."
1. Kishan Pershad, supra.
2. lmdad Ahmed v. Pabitra Partap Narain, 1910 ILR 32 All 241 (PC).
3. Venkatanarayana v. Somragu, AIR 1937 Mad 610.
4. Devidas v. Shrishailappa, AIR 1961 SC 1937.
21.17. Amendments needed with regard to suits concerning affairs of a Hindu family.- In the above position we recommend that suitable words may be added in section 21(2) on the above point. The amendment that is being recommended1 is merely intended to codify the well understood position as to suits concerning the affairs of the Hindu Undivided Family to which the managing member of the family is a party.
1. See para. 21.34, infra.
21.18. Position regarding Order 30, Bombay rule 10, C.P.C.- It may be incidentally mentioned that under Order 30, rule 10, as amended in 1976, a Hindu undivided Family carrying on business has been equated with a firm for the purposes of the rules contained in that order. But even before that amendment, the Bombay High Court1 had allowed the substitution of the names of the co-parceners in regard to what was admittedly a joint family business, on the ground that it is no more than a correction of misdescription, and not an addition of a party.2
1. Ram Prasad v. Shrinavas, AIR 1925 Bom 525 (527).
2. See further Law Commission of India, 54th Report, (Code of Civil Procedure, 1908 Chapter 30).