NANGELI NANGIAR Vs. GOPALA SARMA

JUDGEMENT

(1.) This is an appeal by the defendant from a decree in a suit for recovery of the amount due under a pronote executed by the defendant to deceased Vydianatha Iyer the father of the plaintiff on 3-4-1952 in renewal of a pronote executed by him on 26-8-1124. The plaintiffs father died. The plaintiff, as manager of the joint family has filed this suit for recovery of the amount alleging that the defendant had not paid the amount in spite of demand. The defendant contended that Vydianatha Iyer had another son, P.W. 2, that there was a partition between the plaintiff, his brother P.W. 2 and their father in 1120 by which they divided the properties of the joint family, that the note was taken by the father after the partition, that the assets of Vydianatha Iyer devolved on the plaintiff and his brother by succession as tenants in common, that the plaintiff alone was not entitled to recover the amount, that P.W. 2 was a necessary party to the suit and that the suit was not maintainable.

(2.) The Trial Court dismissed the suit on the ground that the plaintiff alone was not entitled to maintain the suit. On appeal by the plaintiff the lower appellate court gave a decree to the plaintiff in respect of one half of the amount due under the promissory note. It is against this decree that the defendant has filed the appeal.

(3.) Therefore the question for consideration is whether the suit was maintainable. It is well settled by authorities that though the right of a deceased person vests in his legal representatives in several shares, so far as the ancestors debtor is concerned, they take as one unit, and a suit to enforce the right must be instituted by all of him. The plaintiff, his brother P.W. 2 and their father were divided under Ext. P5 partition and were no longer members of a joint Hindu family. Ext. P1 was executed in favour of the plaintiffs father long after the partition, and therefore the property therein cannot be considered as coparcenary property in the hands of the plaintiff and P.W. 2.