THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1658 OF 1993 JUDGMENT: The defendants 2 to 4 in O.S.No.12 of 1987 on the file of the Additional Subordinate Judge, Ongole are the appellants herein. The suit was one filed for recovery of a sum of Rs.70,448/- being the principal and interest due on a promissory note dated 25.01.1984 executed by the 1st defendant for a sum of Rs.51,800/-. The allegations in the plaint go to show that the 2nd defendant is the father of the other defendants and manager of the Hindu joint family. The 2nd defendant obtained a license to deal with tobacco in his name for the benefit of the family and did business for some time. As the 2nd defendant became old, first defendant, who is the elder son took up the management of the business and did business in the name of Ramakrishna Tobacco Company and later as Modern Tobacco Company. The 1st defendant during 1983 purchased tobacco from the plaintiff and passed vouchers with the Modern Tobacco Company and later disputes arose between the partners and the debt has fallen to the share of the 1st defendant and consequently the 1st defendant has executed the promissory note towards the said debt on 25.01.1984. Therefore, all the defendants are liable to pay the said amount as it was not paid in spite of demands. The 1st defendant filed a written statement contending that there is no joint family and they have divided long time back and properties have enjoyed separately since 1982. He admitted to have done business along with Hari Prasad and Veera Reddy and the firm purchased some tobacco and suffered losses. There was a settlement by the elders and 40 paise out of one rupee shall be paid towards discharge of the debts and all the creditors including the plaintiff were paid the amount in full satisfaction. Therefore, the suit promissory note is not proved and the plaintiff being aggrieved by the non-receipt of the total amount might have fabricated the pronote. The 2nd defendant filed a written statement, which was adopted by defendants 3 and 4, contending that the 1st defendant did not do any business on behalf of the family and there is no liability as they were due long time back. After considering the material on record, the lower Court has decreed the suit of the plaintiff against all the defendants and aggrieved by the said judgment and decree dated 11.03.1993, the present appeal is filed. The points that arise for consideration are: 1. Whether the appellants are liable for the suit debt? 2. Whether the 1st defendant acted as a manager on behalf of the family and the debt was binding on the defendant with appellant? POINTS: The execution of the promissory note was even denied by the 1st defendant and, therefore, in order to prove the execution the plaintiff has examined apart from himself, P.Ws.2 and 3. According to the evidence of the plaintiff, the license for doing the business is in the name of the 1st defendant. The evidence of the plaintiff does not show as to what was the name of the firm, which was carried the joint family business and which has purchased the tobacco. The averments in chief examination and the plaint are totally silent. But in cross-examination he stated that tobacco was sold to Modern Tobacco Company of which the defendant No.1 is a partner. But there is no material to show that any of the other defendants are also associated with the said business. Furthermore, even if defendant No.2 was to have a license earlier for doing tobacco business, there is no material on the side of the plaintiff to show that the 1st defendant continued the business with the same license. The evidence of P.W.2, who is the attestor on the promissory note does not show that the promissory note was executed towards the amount due as a debt due by the 1st defendant to the plaintiff after supply of the tobacco. The nature of the transaction only he deposed is money transaction. It was only the evidence of P.W.2, who deposed that defendant No.1 executed a promissory note towards the value of the tobacco purchased from the plaintiff and it was scribed by the 1st defendant. It does not show that the purchase of the tobacco was on behalf of the Modern Tobacco Company or on any other firm, of which defendants 2 to 4 are the partners. The promissory note under Ex.A-1 itself does not disclose that the value of the tobacco purchased on behalf of the joint family firm, the 1st defendant has executed the promissory note. The legal notice under Ex.A-2 also does not show that the 1st defendant, as a manager of the joint family, did business and purchased the tobacco on behalf of the Modern Tobacco Company and became liable to pay the suit amount. It is important to note that the legal notice was not given to the appellants herein calling upon them to pay the debt alleging that the 1st defendant has done the business on behalf of the joint family and the liability of the defendants 2 to 4 has, therefore, arisen due to the execution of the promissory note by defendant No.1. The version of the plaintiff that the 1st defendant acted as a manager on behalf of the family and did the business and executed the promissory note is to be believed. Then the plaintiff would not have failed to mention this fact in the legal notice under Ex.A-2. Furthermore, there is no other material evidence on record to show that the firm which did the business and purchased the tobacco is a joint family firm in which defendants 2 to 4 are interested, merely because at an earlier point of time the 2nd defendant was having a license to do business in tobacco. It does not mean that whatever business was taken up by the 1st defendant is a family business making all the members of the joint family liable for the debts contracted by him. It is also to be noted that when the father is alive, the 1st defendant under ordinary circumstances will not be a manager of the family unless there is serious disability for the father. No explanation is given of any acceptable nature to show how the 2nd defendant has become disabled to be a manager of the family. Therefore, from the material on record, it is difficult to hold that the 1st defendant has done business on behalf of the joint family and the debt contracted by him under Ex.A-1 binding on the joint family. Therefore, for the above reasons, the judgment and decree passed by the lower Court cannot be sustained and there can be no liability for the appellants. Accordingly, the appeal suit is allowed so far as the appellants are concerned and the suit against them is dismissed, but under the circumstances, no costs. ________________________ N.R.L.NAGESWARA RAO, J 20-10-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1658 OF 1993 Date: 20-10-2011 MR