BHARAT TRADING (INTERNATIONAL) LTD Vs. P. NACHIAR AMMAL

JUDGEMENT

(1.) THE 6th and 7th defendants who are the creditors of a quondam joint family consisting of one Palavesam Pillai, the first defendant and the plaintiffs in O.S. 17 of 1969 on the file of the Subordinate Judge, Tuticorin, are the appellants. It is common ground that defendants 6 and 7 supplied on credit senna leaves to the first defendant who continued the family business of dealing in such leaves and in the course of such dealings, the first defendant as such manager of the joint family, became indebted. The result was that the 6th defendant filed O.S. 30 of 1967, and the 7th defendant filed O.S. 29 of 1967 as is seen from Exs. B -19 and B -17 and obtained orders of attachment before judgment, attaching all the family properties which devolved on the members of the family of Palavesam Pillai. Palavesam Pillai died on 14 -9 -1958 as the father member of the joint family and left behind him the first defendant, his son, who was the surviving coparcener and who continued the joint family business and the first plaintiff, his wife and defendants 2 to 5 as his daughters. Consequent upon the attachment of the joint family properties in their entirety, the plaintiffs as class I heirs of Palavesam Pillai basing their entitlement on the rule of succession provided for in Section 6 of the Hindu Succession Act, 1956, filed the present action for partition and separate possession of their share in the suit properties which were, admittedly by then, attached in execution of the decree obtained by the appellants ignoring the attachment. The appellants' case was that the borrowing made by the first defendant as the person in management of the affairs of the joint family including the joint family business was for the benefit of the plaintiffs as well as members of such family and that therefore, they were equally liable to suffer attachment and pay the decree amount obtained by them in O.S. 29 of 1967 and O.S. 30 of 1967 on the file of the same Court. The plaintiffs' case is that they are not liable for the debts incurred by the first defendant after the death of Palavesam Pillai, and that even though he continued the joint family business as the surviving coparcener, the said debts incurred by him would not be binding upon their share of the suit properties which they obtained by reason of Section 6 of the Hindu Succession Act. It is in that sense they filed the present action. Though in the plaint, as originally filed, the plaintiffs took up the position that the properties are not joint family properties, yet, on 4 -3 -1970, they admitted that the suit properties are ancestral properties and that they were claiming only their 5/12 share on the whole, i. e. 1/12 to each of the plaintiffs. The 6th and the 7trh defendants in their joint written statement pleaded that the borrowings were made by the first defendant for the benefit of the joint family and in connection with the joint family business and that the present suit for partition by the female members of the family is only to defeat and delay the creditors and that the debt is binding upon the plaintiffs and their share of the properties, as they got a benefit under the debt and in consequence they prayed for appropriate orders in the suit. The first defendant remained ex parte. We are not referring to the statements filed by the other defendants in the action as it is not necessary for us to do so. On such relevant pleadings, the trial Court framed the following issues -

(2.) WHILE dealing with the binding nature of the debts incurred by the first defendant in favour of defendants 2 to 5, the lower Court said that the first plaintiff only is liable in respect of the debts incurred under Exs. B -2 and B -3, which were in favour of defendants 2 and 3 and he found such a liability on the ground that the 1st plaintiff attested Exs. B -2 and B -3 which were registered mortgages executed by the first defendant in favour of the creditors of the family. He has also observed that neither the first plaintiff nor the other plaintiffs objected to the mortgage deed, at any time, during the course of the trial. As regards the other debts in favour of 4th, 5th and 8th defendants, the lower Court was of the view that the debt in favour of the 4th defendant was not binding. No doubt, the 4th defendant examined his clerk. That debt related to a mortgage evidenced by Exhibit B -15. The plaintiffs did not take any active part in the borrowing nor was any evidence let in to show that they acted as such. In those circumstances, the learned trial Judge negatived the plea of the 4th defendant that the share of the plaintiffs in the family properties would be liable and equally binding for the due to him. As regards the borrowings made from the 5th defendant under Exhibits B -10 to B -12, the learned trial Judge found that it was only the first defendant who borrowed such money, though stating, ostensibly, that it was to meet family expenses and for fancily business. Here again, finding that none of the plaintiffs had anything to do with the borrowing nor did they concern themselves with it, the lower Court found that the debt cannot bind the plaintiffs' share in the properties. On the other hand, the 8th defendant's case that he lent money under Ex. B -8 on a mortgage executed both by the first defendant and the first plaintiff, was accepted by the Court below as a binding debt not only on the first plaintiff but also on plaintiffs 3 to 5 who attested the same. It is common ground that the consideration for the mortgage was to meet marriage expenses of the 4th plaintiff. Taking such documentary evidence into consideration, the lower Court found that the debt in favour of the 8th defendant would be binding on the share of all the plaintiffs 1 and 3 to 5. Obviously, he omitted the second plaintiff because she did not evince any interest nor did she concern herself with the borrowing.

(3.) IN the above context, the pleadings and the evidence let in in connection with the debts incurred by borrowing from the 6th and the 7th defendants have to be considered. No doubt, the case of the defendants 6 and 7 as the appellants before us, is that the borrowing was for the purpose of joint family business and the joint family. Neither the 6th nor the 7th defendant entered into the box to speak about the circumstances under which they lent money or supplied goods to the first defendant. It is common ground that they did not seek for an elucidation of the bargain so that further light can be thrown upon it by calling for the account books maintained by the first defendant in connection with the family business and establish therefrom or aliunde that the plaintiffs did secure some benefit in some shape from the exercise of the profession by the first defendant and by the continuance of the joint family business by him. But, on the other hand, they were content by resting their contentions on the legal position which according to them, flows from Section 6 of the Hindu Succession Act, 1956. The learned trial Judge was of the view that the plaintiffs can take advantage of the law as stated in the proviso to Section 6 and as they did not claim any share in the profits made by the first defendant in his business, it cannot be said that all the debts incurred by the first defendant, may be as Manager of the joint family, can bind them, unless they actively or passively participated in the business and the consequential borrowings made by the first defendant. The learned Judge, therefore, held that though the debts due to the appellants are true and valid, they are not binding upon the plaintiffs and the properties which they inherited as heirs to Palavesam Pillai under the proviso to Section 6 of the Hindu Succession Act are not liable to be attached in execution of the decree obtained by the appellants in O.S. Nos. 29 and 30 of 1967. The question, therefore, is whether the share of the plaintiffs which they obtained as stated by them and which are not in dispute is liable to be proceeded against in execution of the decrees obtained by the appellants as above.