BHAGWAN Vs. RAMDAYAL

JUDGEMENT

(1.) THE appellants, who are the sons of one Rambagas, brought a suit for a declaration that their share in certain property was not liable to be attached and sold in execution of the decree of the first two defendants-respondents against Baliram, the father of the other defendants, respondents, who is now dead. The suit was dismissed and an appeal preferred by the plaintiffs was also dismissed by the Additional District Judge. They have now preferred this second appeal.

(2.) THE appellants' father Rambagas and Baliram were brothers. The appellants originally contended that there was a partition between Rambagas and Baliram and, secondly; that there was no legal necessity for the debts incurred by Baliram. Those contentions however have not now been put forward in the appeal, and it is admitted that for the purposes of the appeal, the findings of the lower Courts that the partition was not proved and that there was legal necessity for the debts must stand, The only position taken up was that in the suit against Baliram in which the decree was passed and which was a Small Cause Suit, Baliram was not sued as a manager or as representing the joint family, and that the decree against him was only a personal one. It was therefore contended that the decree would only bind Baliram and that the appellants, who are only nephews of Baliram, would not be bound nor would their share in the property be liable. It is unfortunate that this matter was not considered more fully by the lower appellate Court, and the only reference to it that I can find in the judgment is the following sentence in para. 6: The fact that Baliram was not expressly sued as manager of the joint family is immaterial.

(3.) IN Lalchand Thakur v. Sheogobind Thakur AIR 1929 Pat 741 it has no doubt been held that the karta, or manager, may represent the other members of the family, even though he is not described as such in the record, but at any rate it must, I think, be shown that, as a matter of fact, he was really sued as manager. This would appear from the passage cited at p. 791 of the decision from Hori Lal v. Niman Kunwar (1912) 34 All 549. In the present case however I do not think that it can be held that Baliram was sued in his representative capacity. All that we have on record is a copy of a plaint in a Small Cause Suit against Baliram (Ex. D.9), and there is nothing in that plaint to show that Baliram was sued as manager. No doubt, it might have been open to the respondents Bamdayal and Babulal to show that the suit was against Baliram in his representative capacity by filing copies of the pleadings in the suit or the judgment, but they have not done so, and, as the case stands, I must find that Baliram was not sued in his representative capacity as manager of the family and that the decree obtained against him is not binding against the appellants. As a general proposition I would hold that a decree against a manager of a joint family is binding on other members of the family, who are not parties to the suit, in respect of debts incurred by the manager if the manager is sued in his representative capacity as manager of the family, but that there must be something on the record to show that he is sued as manager and not merely in his personal capacity, and that a decree against the manager in his personal capapity will not bind the other members of family, who are not parties to the suit, even in respect of debts incurred for family purposes.