JUDGMENT
K.A. Swami, J.
1. This Appeal by the 2nd defendant is preferred against the judgment and decree dated 11-4-1991 passed by the learned XIII Additional City Civil Judge, Bangalore City in O.S.No.860/1987.
1.1. The Appeal lies in a narrow compass. The respondents are notified and are represented through a Counsel. The Appeal is admitted. Production of Paper Books is dispensed with. The Appeal is heard for final disposal.
2. The respondents are the plaintiffs. They filed the aforesaid suit for recovery of a sum of Rs. 29,394/- from the appellant-2nd defendant and also from the 1st defendant. In this Appeal, the 1st defendant has not been impleaded as a party respondent. The 1st defendant was not other than the wife of the appellant. She has now been divorced with effect from 13-2-1987 by the appellant. The City Civil Court, Bangalore, has granted a decree for divorce.
3. The plaintiffs claimed the aforesaid amount on the ground that they are the landlords of the house bearing No. 25/1, situated at Chowdaiah Road, Lower Palace Orchards, Bangalore, which was allotted in favour of the 1st defendant – the then wife of the 2nd defendant on 30-3-1984 by the Rent Controller. Pursuant to the allotment, the 1st defendant was put in possession of the schedule premises on 9-4-1984. The rent fixed by the Rent Controller was Rs. 1300/- p.m. According to the case of the plaintiffs, from the date of occupation of the premises, the defendants did not pay the rent till they vacated on 1-1-1986.
4. It is not in dispute that the rent for the period from 9-4-1984 to 1-1-1986 was not paid. The suit was filed on 19-2-1987 preceded by a notice to the 1st defendant. The 2nd defendant was made a party to the suit on the ground that he was the husband of the 1st defendant and had approved the allotment made in favour of the 1st defendant and he not only resided in the house along with the 1st defendant but also by his conduct approved the act of the 1st defendant and made himself liable for payment of the rent of the premises,
5. The trial Court has held that even though the house was allotted in the name of the 1st defendant – the then wife of the 2nd defendant – on the principle of agency, the 2nd defendant as the husband of the 1st defendant would be liable for having approved the act of his wife as his agent.
6. Sri. Krishnamurthy – the 2nd defendant – who has filed this Appeal appeared in person and argued. He putforth the following contentions.
That he was not served with the suit summons before the issues were framed in the suit; that after he was served with the suit summons, he filed the written statement, sought for recasting the issues, but the issues were not recast, therefore, great prejudice was caused to him; that the trial Court has determined the liability on the principle of agency without framing a specific issue in that regard; that as there was a divorce proceeding pending between the 1st defendant and the 2nd defendant, that 1st defendant could not have been considered as the agent of the 2nd defendant appellant; that in the event the Court is not inclined to accept the contentions of the appellant, he may be granted instalments for payment of the amount; that the decree has not been drawn in conformity with the judgment.
6.1. In the light of these contentions, the following points arise for consideration:
Whether failure to recast the issues after the 2nd defendant filed the written statement, has caused prejudice to the 2nd defendant?
2. Whether the trial Court is justified in law and on facts in applying the principle of agency and holding the appellant – 2nd defendant – liable for the decretal amount?
3. Whether the trial Court has drawn the decree in conformity with the judgment?
4. Whether the appellant – 2nd defendant – is entitled to instalments for paying the amount decreed?
POINT NO 1
7. We are of the view that it is not possible to accept the contention of the appellant that prejudice is caused to him by not recasting the issues, ft is no doubt true and it is not in dispute before us that 2nd defendant was served after the issues were framed. After filing the written statement the 2nd defendant sought for recasting the issues. However, the trial Court rejected the application and held that the issues already framed covered the case pleaded by the 2nd defendant also.
8. This is not a case in which there was no proper plea raised. This is a case in which proper issues were not framed according to the appellant-defendant No. 2; but both the sides were quite aware of the controversy involved between them and the facts required to be proved and accordingly adduced evidence. When the parties were fully aware as to what was the issue involved between them and adduced evidence, the question of absence of proper issue would not become material as long as the necessary pleas were raised and the evidence was adduced by the parties with regard to the real controversy involved between them. The very purpose of raising the issue also is this. Therefore, the fact that the issues were not recast after the written statement was filed by the appellant-2nd defendant cannot be held to have caused any prejudice to the appellant-2nd defendant because he was fully aware of the fact as to what was in issue in the suit and what he was required to prove and accordingly adduced the evidence. Therefore, we reject the contention of the appellant that the trial Court was not right in refusing to recast the issues. Accordingly point No. 1 is answered in the negative.
POINT NO. 2
9. On the basis of the evidence, the trial Court has held that the appellant has proved that taking of the house on rent by the 1st defendant through the Rent Controller on a rent of Rs. 1300/- per month was with the implied authority of the 2nd defendant; therefore, he was liable for the suit claim. In para 13 of the judgment, the learned trial Judge has summarised his conclusion as follows:
“Looking to the contentions urged by the parties it clearly appears from the material that the 1st defendant had alt implied authority to take the allotment of house. Circumstances of the 2nd defendant using the address of the premises in question in his letter heads – issuing cheques towards arrears of rent and his admission in evidence that he was sending money for maintenance of his family and admission that he lived with family in the premises in question after his retirement for about 4 to 5 months and his admission in evidence that he was visiting his family frequently when he was staying at Belgaum when the family was staying in the premises in question – all these factors clearly goes to show that 2nd defendant has acquiesced the allotment of house made in favour of his family, As contended by the Counsel for the plaintiff, it is also observed by the Special Deputy Commissioner in his order that the status of 2nd defendant and his income was taken into consideration while alloting house to the 1st defendant who was getting only salary of Rs. 900/- p.m. whereas the rent fixed was Rs. 1,300/- p.m. During the time of tenancy and occupation, there was valid marriage subsisting between the 1st and 2nd defendants. The authorities cited at the Bar by plaintiff clearly go in favour of plaintiff’s case and admitting of the lease or letting of the property in favour of 1st defendant for the benefit of the family of the 2nd defendant is very much a necessity that was supplied and that, 1st defendant had all the implied authority of pledging the credit of her husband and it is also come in evidence that, 1st defendant was managing the affairs of the family and she was looking after the children. Therefore, under the circumstances I am of opinion that, both the defendants are liable to pay the suit claim,”
10. Before us, it is not disputed by the appellant who has appeared in person that when the house was taken on rent by the first defendant and possession was obtained on 9-4-1984, the relationship of husband and wife between the appellant and the first defendant was subsisting. It is also not disputed before us that he issued two cheques towards the rent of the premises, it is also not disputed that he used the address of the house in his letter head and also visited on more than one occasion the first defendant, and lived in the schedule premises. Over and above, after the retirement he lived in the schedule premises along with the 1st defendant for a period of four to five months, These circumstances which are not in dispute have been, in our view, rightly held to be sufficient by the trial Court to prove the implied authority of the 1st defendant to secure the schedule premises on a rent of Rs. 1300/- per month on behalf of the 2nd defendant as his wife. In addition to this, the 2nd defendant has also approved the act of the 1st defendant in taking the schedule house on rent by residing in it along with the 1st defendant. An implied agency arises from the act or situation of the parties or from necessity. Section 187 of the Indian Contract Act, 1872 also provides that an authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written or the ordinary course of dealing, may be accounted circumstances of the case. The very relationship of husband and wife between the 2nd defendant and the 1st defendant is a familiar and special case of implied agency. The liability of a husband for his wife’s debt is founded on the principles of agency, ft has to be shown by the creditor that the husband has expressly or impliedly approved what the wife has done. An implied agency of a wile of her husband arises out of the marital obligations required to be discharged by the husband. Apart from other marital obligations, it is obligatory for a husband to provide food, shelter and clothing to his wife. Therefore, during the cordial relationship between them as husband and wife, in other words when a wife is not living separately from her husband due to estrangement or a legal proceeding or because of his marriage with a second wife, a wife will have implied authority of her husband to pledge her husband’s credit to secure proper shelter, food and clothing according to the status of her husband and their style of living. The creditors are entitled to claim the debt incurred by her in that regard from a husband as long as the husband himself does not attend to all the aforesaid requirements and allows his wife to attend to the aforesaid necessities and has not made separate and specific allowance to her to meet the expenditure on account of the aforesaid necessities. Of course, the presumption of implied agency arising out of the special relationship of husband and wife can be rebutted by showing that the wife was prohibited to act on behalf of the husband or to attend to the necessities of life or by proving that sufficient allowance had been made to meet the expenditure for meeting the necessities. Therefore, a person dealing with a wife and seeking to charge her husband for the debts incurred by his wife, is required to show either that the wife was living with her husband and managing the household affairs, in which case, an implied agency to buy necessities can be presumed or he must show that the existence of such state of things as it warrant her living apart from her husband and claiming support or maintenance, in which case, the law would give her an implied authority to bind her husband for necessaries supplied to her during such separation in the event of his not providing her with maintenance.
10.1. A Full Bench of Allahabad High Court in GIRDHARI v. W. CRAWFORD, IILR Allahabad Series Vol. IX, 1387 @ 147 held that the liability of a husband for his wife’s debts depended upon the principles of agency and the husband could be liable only when it was shown that he has expressly or impliedly sanctioned what the wife had done. Of course in the facts and circumstances of that case it was held that no agency on the wife’s part for her husband was established and that the husband was therefore not liable to the claim.
10.2 In MOHAMED SULTAN SAHIB AND ANR. v. HORACE ROBINSON, ILR 1907 Madras 543 it was held that the presumption of implied authority on the part of the wife to pledge her husband’s credit for necessities may be rebutted by proof of circumstances inconsistent with the existence of such authority.
10.3. In BABOOLAL BHAGWAN DAS v. M. PURCELL AND ORS., AIR 1936 Allahabad 869 it was held that where a wife executed a promissory note for a sum of money found to be due in respect of necessaries supplied to her while she and her husband lived together and she managed the household affairs, therefore it could be reasonably inferred from the circumstances that the wife had express or implied authority to pledge the credit of her husband for the necessaries of life suited to their style of living, as such the husband was liable under the promissory note, executed by his wife.
10.4. The aforesaid Decisions also accord with the view expressed by us above. It was obligatory on the part of the 2nd defendant to provide food, shelter and clothing to the 1st defendant. It was to discharge these obligations the 2nd defendant rightly approved the conduct of the 1st defendant in taking the house on rent. Therefore, we are of the view that the ultimate conclusion reached by the trial Court that the 2nd defendant is liable for the suit claim along with the 1st defendant as he had approved the act of the 1st defendant in taking the house on rent is justified. Therefore, the ultimate conclusion reached by the trial Court that the plaintiff is entitled to a decree for a sum of Rs. 27,300/- which -included the interest from 9-4-1984 to 2-1 -1986 is justified both on facts and in law. Awarding of interest at the rate of 6% from the date of suit till the date of realisation is also in accordance with law. Accordingly, Point No. 2 is answered in the affirmative.
POINT NO. 3
11. We notice that the decree has not been drawn in accordance with the judgment. The decree has been drawn for a sum of Rs. 29,394/-inclusive of interest of Rs. 1844/- claimed by plaintiffs till the date of the suit. The trial Court has disallowed that claim and has decreed the suit only for a sum of Rs. 27,300/-. The costs and the Court fee have been calculated on a sum of Rs. 29,394/- which is not correct as the suit has been decreed for a sum of Rs. 27,300/-, the costs and Court fee have to be calculated on a sum of Rs. 27,300/- only. Point No. 3 is answered accordingly in the negative.
POINT No. 4
12. Lastly it is submitted by the appellant that since he has heavily committed to meet other demands, he will not be in a position to pay the decretal amount in a Jump sum, He submits that he may be granted six equal instalments of two months each commencing from 15th of March 1992.
13. Learned Counsel appearing for the respondents plaintiffs submits that with a single default clause six bi-monthly instalments commencing from 15th of March 1992 may be granted to the appellant. We place this submission on record and grant sic equal bi-monthly instalments with single default to the appellant to pay the decretal amount. The 1st instalment shall be paid on or before 15th of March 1992. The subsequent instalments shall be paid on the 15th of May, July, September, November 1992 and January 1993. If the appellant fails to pay any one of the instalments it would be open to the respondents to proceed to recover the balance of the decretal amount in lump sum.
14. For the reasons stated above, the judgment and decree of the trial Court are modified. The decree of the trial Court decreeing the suit for Rs. 27,300/- with costs and interest at the rate of 6% per annum from the date of suit till realisation is affirmed. However it is further ordered that the appellant- defendant-2 is granted six equal bi-monthly instalments to pay the decretal amount. The first instalment shall be paid on or before the 15th of March 1992, The subsequent instalments shall be paid on the 15th of May, July, September, November 1992 and January 1993. If the appellant fails to pay any one of the instalments, it would be open to the respondents-plaintiffs to proceed to recover the balance of the decretal amount in lump sum.
15. In this Appeal, we direct that the parties shall bear their own costs.
