LAKSHMANDAS Vs. KARUNAKARAN

JUDGEMENT

(1.) This appeal arises out of a suit for partition. Plaintiff and defendant 2 are brothers, and defendant 1 is their father. According to the plaint allegations, plaintiff and defendants 1 and 2 constitute a joint Hindu family of which defendant 1 is the head and manager, and the plaint schedule properties (52 in number) belong to the said joint family, having been obtained by them under a partition of 1925 in the common family of which defendant 1 and his children had originally constituted a branch. Defendant 3 is the defendant 1's sister, and defendant 5 is her husband; Defendant 4 is the son of defendant 1's elder brother who had got divided from the branch of defendant 1, and defendant 6 is the wife of defendant 4. Defendant 7 is the wife of a brother of defendant 4. On two promissory notes executed by defendant 1, one in favour of defendant 3 and another in favour of defendant 4, defendants 3 and 4 obtained two decrees against defendant 1 and caused the plaint properties to be sold in execution thereof, and they were purchased by defendant. 5 at the Court sales. Defendant 3 obtained her decree in O.S. No. 222, of 1937 of the District Munsiff's Court of Palghat, and Ext. B1 is the sale certificate obtained by defendant 5 for the auction purchase in execution of the decree in that suit. Defendant 4 obtained his decree in S.C. No. 323 of 1937, of the Subordinate Judge's Court, Palghat and Ext. B2 is a copy of the sale certificate obtained by defendant 5 for the auction purchase in execution of that decree. The sale under Ext. B1 was confirmed on the 9th November 1940 and the sale under Ext. B2 on the 5th August 1941,. The plaintiff's case is that the decrees and execution proceedings and the sales in those two suits are all collusive and are not binding on him and his one-third share in the plaint properties as he was not a party to the suits and the execution proceedings and as defendant 1 was not impleaded therein in his capacity as the head and manager of the joint family and the two promissory notes themselves were executed by defendant 1 without receiving any consideration. According to him, the promissory notes were not executed for discharging any antecedent debt and they were also' not executed for any debt actually incurred at the time of their execution, and so, the decrees, execution proceedings and sales are not binding on his share and he is entitled to have his share in the plaint schedule properties partitioned and recover possession of the same. The prayers in the suit were for a declaration that the decrees and execution sales were not binding on his share and for recovery of possession of his share with mesne profits after partition by metes and bounds and other allied reliefs.

(2.) Defendants 3 to 7 contested the suit. Their contentions, in short, were that the two promissory notes were fully supported by consideration and the two decrees, execution proceedings and sales were bindings upon the Joint family including the shares of the plaintiff and defendant 2 even though they were not expressly made parties to the suit, that the suit was not maintainable without a specific prayer for setting aside the decrees and execution sales, and that it was also barred by limitation under Article 12 of the Limitation Act. They admitted the partition of 1925 in the original family, but contended that some of the plaint properties were the self-acquired and separate properties of defendant 1 and were not included in that partition. In the summary, given in the lower Court's judgment, of the contentions of defendants 3 and 5 it is stated that those defendants had a contention;

(3.) Without allowing the parties to adduce any evidence and assuming that the plaintiff and defendants 1 and 2 constituted a joint Hindu family and that in execution of decrees obtained against the father for his personal debts joint family properties had been sold in execution, the lower court dismissed the plaintiff's suit in limine on the ground that once joint family properties had been sold in execution of a decree obtained against the father for his personal debts the sons could not seek a partition of the properties without praying for setting, aside the execution sale and that as, on the date of the present suit, i.e., 3rd January 1950, a suit for setting aside Exts. B1 and B2 would be barred under Article 12 of the Indian Limitation Act, the suit was not maintainable. The lower court also took the view that in the absence of a plea in the plaint that the two decree debts were tainted with illegality or immorality it was not open to the plaintiff to impeach the said debts and that therefore on account of the pious obligation of the son to discharge his father's debts the two decrees and the execution sales were binding on the plaintiff. Against the decree dismissing his suit, the plaintiff has filed this appeal.