BETHANASAMI NAIDU Vs. MINOR KANNAN ALIAS SANJEEVI NAIDU

JUDGEMENT

(1.) The respondent was the nearest agnate of one Muthukrishna. The deceased man left two sisters who, soon after his death, purported to lease the property of their brother to certain persons who were the third and fourth defendants in a suit brought by the respondent. Defendants 3 and 4 were not members of the same family; but were impleaded as persons who had trespassed on the property under colour of a lease which the lessors had no power to grant. A decree was obtained against the third and fourth defendants. The present appellant is the son of the third defendant, who. died in 1936 after the decree had been passed. Prior to the passing of the decree, however, the third defendant divided from his son, the appellant. The respondent now seeks to execute his decree against the appellant, although he was not a party to the original decree. The respondent contends that the appellant's father was sued in a representative capacity as the manager and father of the family. He also pleads that in any event, Section 53, Civil Procedure Code would apply and so the property that came into the hands of the appellant upon partition is liable for his father's debt. The first Court found as a fact that the father of the appellant was sued in a representative capacity and held that the case was directly covered by the Full Bench decision of this Court in Venkatanarayana v. Somaraju . The Subordinate Judge in appeal did not go into the question whether the father was sued in a representative capacity; but he seemed to be of opinion--relying on some remarks in the judgments of Venkatasubba Rao and Venkataramana Rao, JJ., in the above Full Bench case--that that must be presumed. lie also referred to the decision of Cornish, J., who while agreeing with Venkatasubba Rao and Venkataramana Rao, JJ. that the suit was filed against the father in a representative capacity, yet thought that even if that were not so, Section 53 would make the son's share liable.

(2.) In the case considered by the Full Bench in Venkatanarayana V/s. Somaraju , the father had purchased the suit property on behalf of the family. The learned Judges found, after considering the history of this land, that the father had behaved in a representative capacity for many years and that it was extremely unlikely that he was not sued in the same representative capacity. In the present case, however, defendants 3 and 4 took a lease of the land from two ladies who they must have known had no right to the property. They were therefore trespassers. It is difficult to see how a joint family can commit a tort. Only persons can commit a trespass and they alone are liable for the tort committed by them. If the sons were joint trespassers, they would be liable as joint tortfeasors and could be made liable only by impleading them. Moreover, the persons who obtained leases from the sisters of the former owner of the land were not of the same family which itself indicates that the land was not taken possession of in the name of the family. Reference has been made to a dictum of Venkataramana Rao, J., in his judgment in the Full Bench case in Venkatanarayana v. Somaraju , which is said to be incorrect in view of the later Full Bench case in Nagireddi v. Somappa , but it is not necessary to say this; for what Venkataramana Rao, J., said was, Where the suit relates to a joint family property and the person sued is either the father or the eldest member, the accredited head of the family, it must be presumed that he was sued as representing his family.... This suit, unlike in Venkatanarayana V/s. Somaraju is not with regard to the joint family property of the third defendant. It relates to property belonging to the respondent, the members of the joint family merely having trespassed on it. So that even if we accept the dictum of Venkataramana Rao, J. it would not operate in this case. I therefore conclude that Venkatanarayana V/s. Somaram , has no application to this case.

(3.) Apart from Section 53, Civil Procedure Code, I think there can be little doubt that if a decree is obtained against a father personally, it cannot be executed against somebody who is a stranger to the suit. If he is to be made liable, a separate suit must be filed. That proposition is not seriously disputed by Mr. Gopalakrishna Ayyar, for the respondent. It was laid down as early as Krishnaswami Konan V/s. Ramaswami Iyer (1899) 9 M.L.J. 127 : I.L.R. 22 Mad. 519, and has been recently affirmed by King, J. in Rangaswami Goundan V/s. Kandaswami Goundan .