POTHURU SREERAMULU CHETTI Vs. DUVVURU SUBBARAMI REDDI

JUDGEMENT

(1.) These second appeals have been placed before a Full Bench for decision because they raise a question of Hindu law of some importance and there is no textual or other authority having any bearing.

(2.) On the 7 September, 1931, Seshayya Chetti, the appellant in S. A. No. 58 of 1939 filed a suit in the Court of the District Judge of Nellore to recover an amount claimed by him to be due on a promissory note. The promissory note had been executed by the first respondent and his brother Rani Reddi, who is now dead and is represented by his sons, the second, third and fourth respondents. The defendants to the suit were the makers of the instrument and their respective sons, the family being joint. On the 26 September, 1931 the plaintiff obtained an interim order for attachment before judgment of the properties in suit and the interim order was made absolute on the 11 January, 1932. On the 7 October, 1932 the Court, passed a decree for Rs. 3,118 with interest and costs against the makers of the promissory note personally and against their sons, limited so far as the sons were concerned to their interests in the family properties. On the 16 November, 1932, the two principal defendants applied for their own adjudication in insolvency, and on the 8 March, 1933 an order of adjudication was passed. On the 2nd May, 1933, the decree-holder asked to be allowed to implead in the execution proceedings the Official Receiver as the representative of the makers of the instrument. The District Judge refused the application on the ground that execution could not be allowed against the Official Receiver. It is regrettable that an arrangement was not made that the interests of all the members in the properties should be sold in the execution proceedings. This could have been done by consent with full safeguard to the creditors of the insolvents and if such an arrangement had in fact been made the present suits would have been avoided. The result of non-cooperation was that the decree-holder was compelled to limit his application for execution to the interests of the sons in the properties attached. On the 19 October, 1933, the sons interests in some of the items of the properties were sold by the Court and purchased for Rs. 10,455 by the appellant in Appeal No. 57 of 1939. Their interests in the rest of the properties were sold on the 27 October, 1933 and were purchased by the decree-holder for Rs. 830.

(3.) It is common ground that the promissory note sued upon represented moneys borrowed in order to meet a family necessity. After the order of attachment had been passed, five other creditors who had obtained decrees against the family applied for rateable distribution of the proceeds of sale. Again, it is common ground that the debts due to them were debts which were binding on the family. When the proceeds of the sales were paid into Court, they were paid out to the decree-holder and the five other creditors rateably. On the 19 March, 1934, the purchasers of the properties obtained symbolical possession and on the 16 April, 1935, each of them filed a suit for partition of the shares of the sons in these properties. These suits were numbered as O.S. Nos. 52 of 1936 and 70 of 1936, respectively. S.A. No. 57 of 1939 arises out of the first of these suits and S.A. No. 58 of 1939, out of the second. The Subordinate Judge of Nellore, in whose Court the suits were tried, granted to the plaintiffs decrees for partition, but at the same time held that they were only entitled to take the shares of the sons in the properties in suit subject to the payment of other family debts. The total value of the properties held by the family was Rs. 25,000 and the family owed altogether Rs. 40,000. The plaintiffs appealed to the District Judge against the decision of the Subordinate Judge that they were only entitled to the shares of the sons, subject to the liability for payment of the remaining debts of the family but the District Judge concurred in the decision of the Subordinate Judge. The question which this Court is called upon to decide is whether the conditions imposed by the Courts below is sound in law.