JUDGMENT
Atkinson, J.
1. This is an action brought by the plaintiff to recover Rs. 9,863-8-0 for principal and interest due on three separate notes of hand. The first note is dated 22nd July 1908, for Rs. 5,000 and carries interest at 9 per cent., the second note is dated 8th November 1909, for Rs. 1,000 and the third is dated 5th May 1910, for Rs. 1,000. The first was made by the defendant with the plaintiff’s father and in respect of the first note for Rs. 5,000, the defendant No. 1 offers no defence on the merits. As to the two subsequent notes of hand amounting to Rs. 2,000 in all, these notes were made by defendant No. 2, who was the agent and manager of defendant No. 1’s property. Two defences are set up for the purpose of repudiating liability for the entire debt. The first defence applies to the first two notes, namely, that the money advanced on the two notes of hand dated the 22nd July 1908 and 8th November 1909 was the money of the joint family of which the plaintiff’s father was the head, and that thus it being joint property, all the joint members of the family must be joined as plaintiffs in the action to entitle the plaintiff to succeed in recovering the amount due on this debt from defendant No. 1. This argument does not apply to the Rs. 1,000 under the note of hand of the 5th May 1910, for that admittedly was a sum advanced by the plaintiff to the defendant No. 2 himself and was in no way connected with the two other transactions between the plaintiff’s father and the defendants Nos. 1 and 2. The second defence put forward is as to the two notes’ for Rs. 1,000 each raised by the defendant No. 2. These, it is said, were transactions in which the defendant No. 2 was not acting as the lawful agent of defendant No. 1 and that he had no authority to raise money on behalf of defendant No. 1 and consequently the defendant No. 1 is not liable for any portion of such debt. In dealing with the first argument put forward, let us see how the matter stands. The only oral evidence given as to whether the money advanced was or was not the joint property of the plaintiff’s family at the time the advances were made is the evidence of the plaintiff himself. If the matter rested on his evidence alone, it would be very strong and conclusive to show that the property was not joint property, but that the money advanced was the sole property of plaintiff’s father. The learned Subordinate Judge, however, seems to have misconceived the true position of affairs, because he says that it was unnecessary for the purpose of this action to determine the rights of the several co-sharers inter se; and he comes to no express finding on this aspect of the case. We think in this respect the learned Judge has erred in law, because it is quite clear that if the money that was advanced was the joint property of all the members of the plaintiff’s family, the members who now represent the joint family would have to be joined as plaintiffs, to entitle them to succeed in recovering the money as joint family property. The evidence which is so strong in this case is the solenamah of 1910, a document that cannot be impeached, and it is almost conclusive as to the rights of the parties. It shows the condition of things existing at the time of the plaintiff’s father’s death when the property was divided or partitioned. It is quite clear that the plaintiff himself was the objector claiming a division of the property as joint family property, and he instituted proceedings and eventually agreed that the rights and liabilities of the family should be determined by certain arbitrators in respect of the properties claimed as joint property as well as all other moveable and immoveable properties belonging to his father and alleged not to be joint. And the properties which were the subject-matter of the arbitration are set out categorically in paragraph 2 of the award, and by this document it appears that all the landed property, the money lending, the paddy-lending business and so forth of the plaintiff’s father (the father of the objector) were declared to be the property of each member of the joint family in the following proportion, namely, that the plaintiff should be entitled to eight-annas share and the other plaintiffs eight-annas share between them. The plaintiff’s evidence in this matter is untrustworthy, when he says that the arbitrators only ascertained the shares of the family in respect of 11 mouzas but not in respect of any other property, moveable or immoveable. The document itself contradicts the plaintiff’s evidence most emphatically, and also the additional evidence which he gave stating that his uncles were not members of the joint family. Therefore, we hold that the advances that were made on foot of the two first notes were the joint property of the plaintiff’s family. After the arbitration proceedings were effected the property became free and was no longer the joint property of the family, and the plaintiff became entitled by the award to eight-annas share of what had been originally joint property. Therefore, if we decide that the plaintiff is entitled to recover he will recover only in respect of an eight-annas share of the debt due on the note for Rs. 5,000, and the note of Rs. 1,000 dated the 8th November 1909. He cannot recover the full sum secured by these two notes.
2. As to the question of agency I think the defendant No. 1’s defence on this aspect of the case is one quite unworthy of credit. I think it is an exceptionally dishonest defence, because the defendant No. 1 himself, for whose benefit this money was raised, was apparently a careless man and entrusted the management of his business to others, and he entrusted his agent, defendant No. 2, with the widest powers possible. He held him out to the world as his agent. He endowed his agent with powers to sell and buy property, authorised him to deal with the Government, pay revenue and so forth. Nobody can read the power of attorney itself and not be impressed by the wide and extensive powers conferred upon the agent. But after all the great test in judging a case of this kind is to see what was the attitude and conduct of the man who seeks to repudiate liability, at the time when he ascertained for the first time that a debt had been contracted by his agent on his behalf. The money was given to and received by his agent and defendant No. 1 had knowledge of the fact in July 1911. The plaintiff demanded in July 1911 payment of the entire debt from the defendant after the death of his father. Defendant No. 1 in response to the demand for payment stated that the two hand notes for Rs. 1,000 each would not be barred, as the hand note for Rs. 5,000 would, if no payment were made on foot of some, be barred and that he, the defendant No. 1, would make a payment on foot of it to save limitation, And he did there and then make a payment of Rs. 100 on foot of the note for Rs. 5,000 and with knowledge of the existence of the debt of Rs. 2,000 due on foot of the two hand notes dated the 8th November 1909 and 5th May 1910. This conduct on the part of defendant No. 1 would in itself amount to a ratification of defendant No. 2’s agency, and the contract he made on behalf of his principal. It is not certainly a repudiation of the acts of the defendant No. 2 in raising this money on behalf of his master.
3. Taking the evidence, oral and documentary, we are of opinion that the defendant No. 2 acted as the agent of defendant No. 1 in raising this money, and that he raised this sum of Rs. 2,000 on 8th November 1909 and 9th May 1910 for the purpose of discharging a debt due by his master, and in respect of which his master has received the benefit thereof and that the defendant No. 1 never at any time prior to the institution of this suit repudiated the obligations incurred by the defendant No. 2 on his behalf in securing both these sums of Rs. 1,000 each. Consequently we shall give a decree for a sum less than the sum claimed:
4. Eight-annas share as to the note for Rs. 5,000 with interest at 9 per cent., per annum;
5. Eight-annas share in the note of hand, dated the 8th November 1909, with interest at 6 per cent. ; and we declare the plaintiff entitled to recover the full sum of Rs. 1,000 with interest at 6 per cent. on foot of the hand note dated the 5th May 1910. Interest on the decretal amount for which the plaintiff is to have judgment to be at the rate of 6 per cent. until payment.
Mullick, J.
6. I concur. I have only to add that in my opinion the learned Subordinate Judge should have decided the question, whether the amounts of the three hand-notes belonged exclusively to the father of the plaintiff, and in declining to come to a decision upon that point he adopted an unsatisfactory mode of trial.
