VANKADARI SOMAPPA Vs. CHIPPAGIRI NAGI REDDY

JUDGEMENT

(1.) This appeal raises a question of some importance. The facts are these. A promissory note was executed on the 24 July, 1930, by one Linga Reddi for Rs. 400 in favour of D. W. 1 Bhimakka. A suit was brought on the basis of the promissory note by the promisee (O.S. No. 166 of 1932) which resulted in a decree. In execution of that decree, a house and certain lands belonging to the joint family consisting of Linga Reddi and his nephew, the present plaintiff respondent, were attached and purchased on the 22nd September, 1933, by the defendant appellant who is a stranger. A sale certificate was accordingly granted to him on the 27 November, 1933, (Ex. II). The sale certificate describes that the whole of the property mentioned therein and not merely the share belonging to Linga Reddi was sold in execution of the decree. When the auction-purchaser proceeded to recover possession of the property purchased by him, he was obstructed by the other member of the joint family of which Linga Reddi was the kartha. The auction-purchaser applied for removal of the obstruction (E. A. 1276 of 1935) and it was ordered to be removed on the 6 February, 1936. The obstructor, that is, Linga Reddi's nephew brought a suit to set aside the order passed in execution on the ground that he was no party to the suit in O.S. No. 166 of 1932 and could not therefore be dispossessed of the share which he owned in the family property. The auction-purchaser contended that as Linga Reddi was the manager of the family at the time when the suit was brought against him, as the debt was incurred by him for joint family necessity and as he was entitled to alienate the whole of the property for that debt, the entire family property sold in execution of the decree and not merely Linga Reddi's share, must be held to have been purchased by the auction-purchaser. Relying on the decision in Lakshmana Chettiar V/s. Muthu Chellia Goundan (1934) 68 M.L.J. 104, the lower Courts held that the question of necessity could not be gone into in this suit and inasmuch as the decree was passed against Linga Reddi alone on the basis of the promissory note, his nephew, that is, the present plaintiff, could not be held bound by that decree with the result that his share of the property could not be held to have passed to the defendant appellant in execution of the decree. The auction- purchaser was thus prevented from establishing that the debt incurred by Linga Reddi was for family necessity and that the entire family property had passed to him in the auction sale. The question to decide in this appeal is whether the decision of the subordinate Courts is correct.

(2.) It is well settled that a sale in execution conveys the entire family property: If a decree is passed against the kartha or manager of a joint Hindu family in respect of a liability properly contracted for the necessities of the family, and that: The binding character of the decree upon the interests of the other members depends not upon their having or not having been parties to the suit, but on the authority of the manager to contract the liability. (See Kunj Behari Lal V/s. Kandh Prashad Narain Singh (1907) 6 C.L.J. 362 at 368, Hari Vithal V/s. Jairam Vithal (1890) I.L.R. 14 Bom. 597, Sakharam V/s. Devji (1898) I.L.R. 23 Bom. 372, Baldeo Sonar V/s. Mobarak Ali Khan (1902) I.L.R. 29 Cal. 583, and Mayne's Hindu Law p. 450, para 348, Clause 2). Can Linga Reddi be held then to have been sued as a kartha and represented the other member of the family although he was not described in the plaint as such? The answer to this question is furnished by several decisions of the Privy Council which have been subsequently followed in a well discussed judgment of a Division Bench of the Lahore High Court and in a Full Bench decision of this Court. The first decision of the Privy Council to which reference may be made was in Nanomi Babuasin V/s. Modhun Mohun (1885) L.R. 13 I.A. 1 : I.L.R. 13 Cal. 21 (P.C.) where their Lordships observed as follows: Their Lordships do not think that the authority of Deendyal's case (1877) L.R. 4 I.A. 247 : I.L.R. 3 Cal. 198 (P.C.) bound the Court to hold that nothing but Girdhari's co-parcenary interest passed by the sale. If his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit, or the creditor might legally procure a sale of it by suit. All that the sons can claim is that, not being parties to the sale or execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own. Assuming they have such a right, it will avail them nothing unless they can prove that the debt was not such as to justify the sale. This was undoubtedly a case where the debt was incurred by a father, but the principle of that decision was subsequently applied by their Lordships to the case in Daulat Ram V/s. Mehr Chand (1887) L.R. 14 I.A. 187 : I.L.R. 15 Cal. 70 (P.C), where the debt was incurred by a managing member of the family who did not happen to be the father. As this case was attempted to be distinguished on the ground that it was a case of a mortgage and not that of a promissory note, I would advert to and examine that distinction later; but it is clearly an authority for the proposition that even when all the members of a joint Hindu family have not been made parties to a suit, the entire family estate is, when the debt is incurred by a managing member or members, bound by the act of the latter and can pass at the sale in execution of a decree although he or they may not have been described to be such or stated to have been sued in their representative capacity. It would not be so when the mortgage is effected or a debt is incurred for a purpose not binding on the family; but in order to test the correctness of the decision of the lower Courts, it must be assumed in the present case that the debt was of a nature that would bind the family of which Linga Reddi and the respondent were members. If a debt is therefore assumed or found to have been incurred for the family necessity by a manager who was not the father (or for a purpose that was not immoral or illegal when the father happens to be the managing member) in a subsequent litigation to which the other members were parties, it would have to be held that the managing member was sued in a representative capacity in the first litigation and that the whole of the family was bound by the decree passed therein. The only thing that the other members or the sons, as the case may be, can insist, as observed by their Lordshipsin the above decision, is that an opportunity may be afforded to them tocontest their liability. If this is all, it is being given to them in the present litigation.

(3.) This and other Privy Council decisions were referred to in a judgment of the Lahore High Court and discussed by Tek Chand, J., in Jai Kishen V/s. Ram Chand A.I.R. 1935 Lah. 1. The head-note of that judgment is sufficiently clear and reads as follows: A decree passed against the managing member of an undivided Hindu family in respect of a liability incurred within the scope of his authority is enforceable against the interest of the junior members in the family property, even though they had not been made parties to the suit, but such members are not precluded from contesting the authority of the manager, of the nature of the debt, and this they may do either in the course of execution proceedings or in a suit of their own. There is no presumption that a debt contracted by the manager of a Hindu family was contracted for family purposes and this fact must be proved by evidence. The mere circumstance that it had not been disclose 1 in the course of proceedings in the original suit against the managing member that the debt had been raised for family necessity, or that the decree does not show on the face of it that the judgment-debtor had been sued in his capacity as manager is not fatal to the right of the decree-holder to proceed against the entire family property. It is not the frame of the suit or the form of the decree which is conclusive of the matter; the essential point is whether in fact the debt, which is the basis of the decree, had been raised by the judgment-debtor within the scope of his authority as the manager and for the purposes of the family. This question of fact can be determined finally only after the junior members have had proper opportunity of being heard, either in the execution proceedings or in a separate suit specially brought for the purpose. But if after hearing the junior members, the finding is that the debt satisfies the "touchstone of necessity" and is, therefore, binding on them, their interest in the property will be held to have passed at the sale, as effectively as if they had been made parties to the original suit.