KASIRAJAN Vs. RAMASAMY NAINAR

JUDGEMENT

(1.) THIS appeal arises out of a claim petition filed by the appellants herein under O. 21, R. 58 of the Code of Civil Procedure for raising the attachment over the property set out in the petition, which was item 1 of the properties attached by the respondent in execution of the decree obtained by him in O.S. 663 of 1982 on the file of District Munsif, Panruti.

(2.) THE appellants are the sons of Ramalinga Padayachi. THE said Ramalinga Padayachi his brother Muthu Padayachi and their father Thangavel Padayachi constituted a Hindu joint family owning several properties. Thangavel Padayachi and his two sons borrowed a sum of Rs. 6000/- from the respondent for family purposes on 5-11-1973 and executed a promissory note in his favour. THE respondent issued a notice on 24-7-1978 to Thangavel Padayachi and his two sons calling upon them to pay the money due under the promissory note. A reply notice was issued on 2-8-1978. On 17-11-1978 the plaintiffs represented by their mother as guardian filed O.S. 762 of 1978 for partition and separate possession of 2/9th share in the suit properties. Thangavel Padayachi was the first defendant in the suit, Muthu Padayachi was the second defendant and Ramalinga Padayachi, the father of the plaintiffs, was the third defendant. THE wife and daughters of Thangavel Padayachi were impleaded as defendants 5 to 8 in the suit on 4-9-1979. No material is available as to the fourth defendant Chinnammal, who is described as the daughter of Vadivel Padayachi.

(3.) THERE is no doubt that the debt due to the respondent was a joint family debt binding on all the members of the joint family. The respondent impleaded in his suit not only the manager of the joint family viz., Thangavel Padayachi, but also his two sons, who were the joint executants of the promissory note, one of them being the father of the appellants. At the time when the respondent filed his suit, the properties of the joint family remained undivided. THERE was only a suit for partition by the minor sons of one or the coparceners. If at all, the institution of the said suit could only effect a division in status between the plaintiffs and the other members of the family. But, as held by a Full Bench of this Court in Rangasayi v. Nagarathnamma I.L.R. 57 Madras 95 = 38 L. W. 676 (F.B.), the severance in status was conditional on the Court finding that it was for the benefit of the minors. In the words of Venkataramana Rao, J. the severance remains in a state of suspended animation fill the court ratified the act. (Vide Rama Rao v. Venkatasubbiah ) AIR 1937 Madras 274 =46 L.W. 309. Such division in status does not bring to an end the capacity of the manager of the joint family or the father of the minors to represent them in lawful transactions for the benefit or necessity of the family. In Sriranganatha Thathachariar v. Srinivasa Thathachariar AIR 1927 Mad. 801 = 26 L.W. 125, a Division Bench of this Court has held that subsequent to the date of the suit for partition, the parties become only tenants in common or co-sharers and the Kartha is strictly bound to account for all receipts and expenses and claim credit for such expenses as had been incurred for the benefit or the necessity of the estate. Even tenants in common may live jointly and one of them may manage the properties on behalf of the rest as the manager. In Adaikalam Chetti v. Subban Chetty and others 27 M.L.J. 621, a Division Bench of this Court ruled that the right of the manager to sue on contracts entered into with him cannot cease by the mere fact that there are disputes in the family or that the other members affect to revoke his authority to act on their behalf. Thus, a mere division in status does not take away the right of the manager of the Hindu family to represent the other members of the family in a suit. Hence, in the suit O.S. 663 of 1982, District Munsif's Court, Panruti, filed by the respondent for recovery of the debt due to him, the appellants were duly represented not only by their father Ramalinga Padayachi but also their grand-father Thangavel Padayachi, who was the manager of the joint family. It was not necessary for the respondent to implead the appellants herein as eo nomine parties to the suit as at the time of the institution of the suit there was only an inchoate division in status. The decree passed in the said suit could, therefore, be treated as one passed against the appellants and executed as such against them.