LAKSHMANA CHETTIAR BY RECEIVER A L V R S T VEERAPPA CHETTIAR Vs. MUTHU CHELLIA GOUNDAN (MINOR) BY GUARDIAN CHINNAPPA GOUNDAN ALIAS MUTHUSWAMI GOUNDAN

JUDGEMENT

(1.) The appellant obtained a decree against the 2nd defendant, in O.S. No. 71 of 1925 on a promissory note executed by the 2nd defendant. In execution of that decree he attached certain properties which formed the joint family properties of the plaintiff and the 2nd defendant, the plaintiff being the 2nd defendant's minor younger brother. The plaintiff intervened with a. claim petition and contended that his share of the joint family properties should not be attached in execution. As that petition was dismissed he has filed the present suit for a declaration under Order 21, Rule 63, Civil Procedure Code.

(2.) The plaintiff rested his case on several grounds. One contention of his was that he and the 2nd defendant were divided in status and that the 2nd defendant could not have represented him at all. Another contention was that the promissory note was not executed for any purposes binding upon him and therefore his share could not be proceeded against. He also relied on the fact that he was not a party to O.S. No. 71 of 1925.

(3.) The learned Subordinate Judge has held against the first two contentions of the plaintiff and he has found that the promissory note was executed for debts binding upon the plaintiff except to a small extent. He has also found that the plaintiff and the 2nd defendant were undivided and that the 2nd defendant was the manager. He has however decided in plaintiff's favour on the ground that as the decree in O.S. No. 71 of 1925 was only against the 2nd defendant on a personal claim, the plaintiff's share in the properties of the joint Hindu family are not liable to be attached in execution. In support of this view he has relied on the decisions in Viraragavamma V/s. Samudrala (1885) I.L.R. 8 Mad. 208 and Mela Mal V/s. Gori (1922) I.L.R. Lah. 288 The passage cited from Mayne's Hindu Law (p. 487) and from the judgment in Subramanian Chetty V/s. Sivaswami Chetty (1927) 54 M.L.J. 278 are also to a certain extent in favour of the view taken by him.