MEYAPPAN SEEVAI Vs. MEYAPPAN AMBALAM

JUDGEMENT

(1.) The lessees of the Sivaganga zemindari brought O.S. No. 68 of 1901 against a number of defendants for possession of about 13 and odd Kurukkams of land lying within the limits of Sekkalakkottai, Sivaganga zemin. The zemindar was subsequently added as the 4 plaintiff and one Karuthan Ambalam was also added as 5 plaintiff. The suit which was originally instituted in the Court of the Subordinate Judge of Madura East was decreed in plaintiff's favour by the Temporary Sub-Court of Madura on 22 February, 1908. The High Court confirmed the decision of the Temporary Sub-Court in A.S. No. 77 of 1909 on 4 February 1914. One Meyyappan Servai is the transferee of the decree and is the appellant herein. Defendants Nos. 129 and 130 are the sons of the 61 defendant. They were brought on record after their fathers death in E. P. No. 734 of 1918. The appellant applied for execution of the decree against the defendants Nos. 129 and 130 in E. P. No. 555 of 1919 in respect of two plots, one rectangular plot on which there is a house and another a triangular plot which is vacant and which is situate to the south of the former. They both form part of the extensive plot decreed to the plaintiffs. The derendants Nos. 129 and 130 opposed the application for execution on the ground that they were not the legal representatives of the 61 defendant, that the plots in question fell to their share on partition with their father some years before 1901 when the suit was instituted that the 61 defendant had no right or title to it and the building was put up by them out of their own earnings and that the father was never in possession of the house. The Subordinate Judge of Sivaganga held that the partition arrangement set up by the defendants was not proved, that they were not the legal representatives of the 61 defendant and that they acquired a title to the property by prescription and dismissed the application for executor Against this order Miyappan Servai has preferred this appeal and defendants Nos. 129 and 130 are respondents Nos. 1 and 2. The appeal was fully argued on both sides and there is no reason to doubt the correctness of the finding of the Subordinate Judge on the question of the partition arrangement. Mr. S. Srinivasa Iyengar stated that he did not rely on the partition set up by his clients. His contention is that the defendants Nos. 129 and 130 are not the legal representatives of the 61 defendant and they being members of an undivided Hindu family the decree against the 61 defendant could not be executed against them. Before considering the question of law raised, it is necessary to consider what facts are established by the evidence.

(2.) The appellant's contention is that the rectangular plot was acquired by the 61 defendant from defendants Nos. 40 and 50 and the triangular plot was never the property of the 61st defendant and has always belonged to the 50 defendant. Exhibit B. is a sale-deed executed on 16 August 1901 in favour of Anna-malai, 61 defendant, and one Poosalan by defendants Nos. 40 and 50 in respect of the rectangular plot. It was attested by Udayappa Chetty, Ramanadhan Chetty and one Seshayya. P. W. No. 2 Chinniyan Ambalam, one of the execution of the document, and Ramanadhan Chetty P. W. No. 8 one of the attestors have been examined as witnesses and they speak to the execution of the document and sale by defendants Nos. 40 and 50 to the 61 defendant. Ramanadhan Chetty P. W. No. 8 was a mortgagee of the whole plot prior to the sale. He also purchased a plot from defendants Nos. 40 and 50 under Exhibit XVII which was executed on the same date as Exhibit B. Ramanadhan Chetty P. W. No. 8 is a respectable witness, and. there is no reason why he should perjure himself in favour of Meyappan Servai. His evidence explains a number of circumstances which otherwise could not be explained and there is no reason why his evidence should not be accepted as true. The Subordinate Judge's remarks about his evidence are not warranted by the facts on record. It is difficult to see how Exhibit B could be treated as a sham transaction. That it is a real transaction receives support from Exhibit I, sale-deed, dated 10 April 1901 in favour of the 61 defendant executed by the 50 defendant only. Evidently the 61st defendant was not satisfied with the sale from one of the co-owners of the Plot. The whole plot of 13 Kurukkams and odd was purchased by three persons 40 and 50 defendants and another from the Kottayur Vallambars and that is the reason why Exhibit I was superseded by a later document executed four months after, by the two people who had a title to convey. In this connection a few documents which are opposed to the present contention of the defendants may be noticed. Exhibit E is a deposition of defendant No. 130 made so far back as 4 February 1902 in which he says: "I have a house at the place which is the subject-matter of the civil suit. It was purchased by my father. Poosalan is my next-door neighbour. He and I together built a new house." Here is a distinct admission that the site was purchased by the father, and that statement could only refer to Exhibit B by which the 61 defendant bought the site. Exhibit IV is a hypothecation bond executed on 28 January 1915 by defendant No. 130 in favour of his own son-in-law in which he says that the house etc., was purchased by him out of his self-acquisition. The present case is that defendants Nos. 129 and 130 built the house out of their own earnings in 1898. It is difficult to reconcile their present contention with the statement in Exhibit IV. It is significant that defendant No. 130 has not ventured into the box to explain the various statements in these documents. Defend-ant No. 129 who is the younger brother of defendant No. 130 has been examined as a witness. His evidence is that he was away for some years and that he did not know what happened during that time and that he built the house before 1901. Exhibit II is a kararnama dated 13 October 1900 entered into between him and his partner which shows that the trade he was. carrying on resulted in loss. He must have been quite a young man before 1900 and very strong evidence is needed in order to make out that he built the house out of his earnings. His evidence is not satisfactory and cannot be accepted. Reliance is placed on the recital in Exhibit I that there was a building on the site sold. It is argued from this, that the building must have existed before the date of Exhibit I and that that could only have been put up by the defendants Nos. 129 and 130. In the first place there is no satisfactory evidence as to the nature of the building on the plot conveyed under Exhibit I. The word is Gettikattadam which may mean a small shed or a house and even if there was a building on it, it does not follow that defendants Nos. 129 and 130 must have built it. It is urged that inasmuch as the value of the building was not taken into consideration at the time of the sale, Exhibit I, and Exhibit B were never intended to take effect. No doubt what was sold under Exhibit I and Exhibit B was the site and it is very probable that when there was a dispute between the zemindar and the villagers, a number of people in order to make out title put up small buildings to show possession and enjoyment. But that would not confer any right against the zemindar. The distinct finding in the suit is that the trespass was within ten years before suit. Exhibit XII under which the defendants Nos. 40 and 50 claim title to the plot was executed by the Kottayur Vallambars on 18 January 1893. So no inference can be drawn against the bona fides or the binding nature of Exhibit B from the mere fact that the villagers put up small buildings on the land in dispute in the suit and agreed to have it parceled out among themselves. It is a significant fact that the 61 defendant took two documents, Exhibit I and Exhibit B, from the persons who claimed title to the land under the Kottayur Vallambars. Exhibit D is an award made by some arbitrators in consequence of a dispute between the 50 defendant and the 61 defendant as regards the triangular plot in. which, there is a statement that Annamalai Ambalam and his son Vellayan Ambalam, defendants Nos. 61 and 130, admitted that their land on which they built the house was sold to them by Chinnayyan Ambalam, 50 defendant. The story now told that the father lived away from the family is inconsistent with the recitals in these documents and the present contention that the defendants Nos. 129 and 130 got the plots on partition or that they acquired it independently of their father was never put forward before. Taking all the circumstances into consideration I hold that the rectangular plot was purchased by the 61st defendant from the defendants Nos. 40 and 50 under Exhibit B during the pendency of the suit and the triangular plot never belonged to the 61 defendant or his sons.

(3.) It is contended that the defendants Nos. 129 and 130 have acquired a title to the plots in question by prescription. It is difficult to see how they could have acquired a title by prescription. The finding in the case is that the trespass by the defendants was within ten years before the suit. So they could not have acquired by prescription a title against the zemindar before the date of suit. They could acquire a title by prescription only if the plots were not included in the suit or the persons in real occupation of the plots were not made parties to it. There is nothing to show that the father was not in possession of this rectangular plot. There is nothing to warrant the supposition that the plaintiffs omitted to make the defendants Nos. 129 and 130 parties to the suit when they were in exclusive possession of that plot and that they made 61 defendant a party who was not in actual possession. The defendants never pleaded that their title was traceable to trespass by them and that the father was not in occupation of the plot. The plots in question are admittedly parts of the extensive piece of land claimed by the plaintiffs and decreed to them as the plan attached to the decree shows. The onus is very heavily on the defendants to show that they were in exclusive occupation of the plots before the suit and that the plaintiffs failed to make them parties. They have not been able to discharge the onus, and I have no hesitation in holding that they were not in exclusive possession of the plots in dispute. On the other hand, the evidence on record supports the contention that the father was in occupation and that he claimed title to them under Exhibit B. A number of union receipts are produced for the purpose of showing that defendant No. 129 was in occupation to the exclusion of the father. Union receipts are not in the first place evidence of title and the payment of union tax does not show that the person who pays it must necessarily be in occupation. It is next contended that defendants Nos. 129 and 130 are not the legal representatives of the 61 defendant and the decree against the father cannot be executed against the sons. Mr. Srinivasa Iyengar fairly admitted that if it be held that the 61 defendant was sued in a representative character, his clients would be bound by the decree and they could not resist execution. But his contention is that there is no evidence to show that the father was sued in a representative capacity, and that the defendants Nos. 129 and 130 being undivided members of a joint Hindu family, the decree against their father alone cannot bind the sons and cannot be executed against them after the father's death. Considering the array of the defendants in the case and considering the fact that in no case were the father and sons made parties to the suit, the inference can surely be drawn that the plaintiffs made the managing member of each family, party to the suit and they did not implead the defendants in their individual capacity. When a suit is brought in respect of the family property impleading the father as a defendant, the decree passed against the father binds the sons. The case of a managing member other than the father may perhaps stand on a different footing. But where there is a dispute about property which is admittedly family property and when the father is made a party to the suit, it cannot be said that the father is made a party in his individual capacity ami not as the manager of the family. In Trevelyan on Hindu Law at page 278 there is the following passage: "The members of a family are all bound by a decree obtained bona fide against the father, or other manager, as such manager, for a debt duly incurred in the management of the property, whether it were or were not charged upon the family property, and by a sale of the family property in. pursuance of such decree, or in a suit brought against the manager of a joint family business in respect of such business, or in any suit brought in respect of the family property although they were not parties to the suit." In Minakshi Achi V/s. Chinnappa Udayan 24 M. 689, it was held that the decree for maintenance against the father which gave a charge in favour of the plaintiff could be executed against the son after the death of the father even though the son was not made a party to the suit. In Kamal Kutti V/s. Ibrayi 24 M. 689, it was held that a decree obtained against the Karnavan of a Malabar tarwad could be executed against the tarwad property. The question in all these cases is, what was the nature of the suit and what was the relief claimed? The mere form should not be held to decide the question one way or the other. The contentions of the parties to the relief claimed and the relief decreed should be considered in arriving at a decision as to whether a person was made a party in his individual capacity or as representing the family. In Sheo Shankar Ram V/s. Jaddo Kunwar 24 Ind. Cas. 504 : 36 A. 383 : 18 C.W.N. 968 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 1 L.W. 615 : 20 C.L.J. 282 : 12 A.L.J. 1173 : 16 Bom.L.R. 810 : 41 I.A. 216 (P.C.), their Lordships of the Privy Council held: "There are occasions, including foreclosure actions, when the manager of a joint Hindu family so effectively represents all other members of the family that the family as a whole is bound." Vide also Marivittil Mathu Amma V/s. Pathram Kunnot Cherukot 30 M. 215 : 17 M.L.J. 377 : 2 M.L.T. 31. In this case there is no allegation that the father was negligent or acted against the interests of the family. He, no doubt, remained ex parte. But that does not necessarily mean that he was careless of the interests of the family. All the defendants had one common purpose, namely, that of claiming the property in the suit as the property of the Kot-tayur Vallambars and that the zemindar had no title to it. The defendants did not put up separate defences, and, they had only a common defence. The mere fact, therefore, of the 61st defendant re- maining ex parte, does not lead to the inference that he was either careless or indifferent to the interests of the family. When a number of defendants have a common interest, and when the contest is carried on by some of them against the claim of the plaintiff bona fide the defendants who are ex parte are as much bound by the decision in this case as those who are not ex parte. In Gopalacharulu V/s. Subbamma 55 Ind. Cas. 981 : 43 M. 487 : 38 M.L.J. 493 : (1920) M.W.N. 435 : 27 M.L.T. 219, it was held: "A decision in a suit instituted and conducted bona fide by some only of the Agraharamdars of a village against the zemindar and the other Agraharamdars for a declaration as to the Kattubadi payable by them to the zemindar, is res judicata against the representative of a Agraharamdar who was a defendant, but died pending the appeal and whose legal representative was accidentally not brought on record either in the appeal or the second appeal." This case and the case in Sheoshankar Ram V/s. Jaddo Kunwar 24 Ind. Cas. 504 : 36 A. 383 : 18 C.W.N. 968 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 1 L.W. 615 : 20 C.L.J. 282 : 12 A.L.J. 1173 : 16 Bom.L.R. 810 : 41 I.A. 216 (P.C.) are clear authorities for the position that if by mistake or oversight persons who have an interest in the property in dispute are not joined as parties but a person or persons who could represent the interest of such persons are made parties, the decision would bind all those who have an interest in the property. It must be so in the case of an undivided joint Hindu family. Can it be reasonably contended that if children are born to the members of the joint Hindu family during the pendency of a suit extending over several years, the shares of the after-born children are not bound inasmuch as they are not parties to the suit. It is_ very strongly urged that Section 53 of the Civil Procedure Code applies only to money decrees and that if a decree is passed in respect of family property against the father it cannot be executed against the sons. It is very difficult to see how if the decree binds the members of the joint family it cannot be executed against them. Mr. Srinivasa Iyengar's contention is that a separate suit should be brought for enforcing the decree. Under Order XXI, Rule 35, possession can be taken from all persons who are bound by the decree. But it is urged that Section 53 should be read as applying only to money decrees passed against the father which could be executed against the sons or other descendants. Section 53 is a new section which explains the expression legal representative contained in Section 50. It was intended to reconcile the conflict of view that existed between the Bombay and the Madras High Courts. It is in these terms: "For the purposes of Section 50 and Section 52, property in the hands of a son or other descendant which is liable under Hindu Law for the payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son-or other descendant as his legal representative." As I understand the section if the property is one which is liable under the Hindu Law for the payment of a debt of a deceased ancestor that property shall be deemed to be property which has come to the hands of the son or other descendant as his legal representative. The contention of the respondent would necessitate the addition of the words. " In respect of the decree so obtained." There is no warrant for adding these words, and it must be held that where a decree is passed against the father in respect of property which would ordinarily be liable under the Hindu Law for the payment of his debt that that property is the property of the deceased in the hands of the son or other descendant for the purposes of Secs.50 and 52. Great reliance is placed by the respondents upon a decision of the Bombay High Court in Chunilal Harilal V/s. Bai Mani 46 Ind. Cas. 745 : 42 B. 504 : 20 Bom.L.R. 660. In that case a decree far injunction was sought to be executed against the surviving coparceners who were not parties to the decree. It was held that the surviving co- parceners were not bound by the decree, for on no construction of the term "legal representative," could the members of a joint Hindu family be brought within its definition as contained in Section 2 (11) of the Civil Procedure Code. Heaton, J., in the course of his delivering the judgment observes as follows: "The decree-holder justified his right to do this on the ground, the only possible ground that he could take, that the sons were the legal representatives of the persons against whom the decree was obtained.