ADAIKALAM CHETTI Vs. SUBBAN CHETTY

JUDGEMENT

(1.) I have had the advantage of reading the judgment of my learned brother and shall only deal with the right of the plaintiff a member of a joint family to maintain a suit to recover money belonging to the joint family advanced by him on mortgage to the defendants without joining the other members of his family interested in the money.

(2.) According to the view we take of the facts and for reasons given in the judgment of my learned brother we hold that the money was advanced to the mortgagees without disclosing that it belonged to the joint family, and at a time when the plaintiff was not the managing member of the family. It was held in Adaikhalam Chetti v. Marimuthu (1899) I.L.R. 22 M. 326 and other cases that in the cases of a joint family where the contract was in the name of the plaintiff he was entitled as the agent of an undisclosed principal to sue on it himself without joining the other members of the family. This decision, it is true, was not approved of in Seshan Pattar v. Veeraraghavan Patter (1909) I.L.R. 32 M. 284. S.C. 19 M.L.J. 372 but appears to me to be supported by the recent ruling of the Privy Council in Kishen Preshad v. Har Narayan Singh (1911) I.L.R 33 A. 272 S.C. 21 M.L.J. 378, where the fact that the contract was properly entered into by the plaintiff, was, it seems to me, treated as one of the grounds entitling him to sue. I do not find anything inconsistent, with the proposition in the judgment of Benson and Sundara Aiyar, JJ. in Sheik Ibrahim Tharagan v. Rama Aiyar (1911) I.I.R. 35 M. 685. S.C. 21 M.L.J. 508. The bond in that case had not been taken in the name of the managing member, who brought the suit, but in the name of another member who was joined as the 16th defendant. Certain payments to 16th defendant were held bad on the ground that they were fraudulent but there is no suggestion that in the absence of fraud he could not have sued himself. He had not done so, and the managing member sued as such making him a defendant. The second question in the appeal was whether the managing member could maintain the suit without joining all the members of the joint family in addition to the member who had taken the bond. It was held that he could, and the learned Judges referred to the decision of the Privy Council in Kishen Pershad v. Har Narayan Singh (1911) I.L.R. 33 A. 272. S.C. 21 M.L.J. 378 in support of their view that in such a suit the managing member was entitled to represent the family. The observation at the "bottom of p. 690, as I read it, means no more than that their Lordships did not rest their decision solely on the ground that the contract sued on was in the name of the managing member. In any case this point was not before the learned Judges for decision. I agree that the appeal must be allowed with costs and on the other terms in the order of my learned brother. Kumaraswami Sastri, J.

(3.) The plaintiff, who is the appellant, sues to recover Rs. 13,000 alleged to be due on a mortgage in his favour, dated 13th August 1895, and Rs. 4000 due to him and 2nd defendant on a subsequent mortgage dated 21st June 1888 executed by the 1st defendant in favour of the 2nd defendant and two others and in respect of which the plaintiff got assigned to him two of the shares of the other two persons.