SWAMINATHA AYYAR Vs. SAIVU ROWTHAN

JUDGEMENT

(1.) The facts necessary for the disposal of this second appeal may be briefly stated. One Gopalakrishnier and Rangier were members of a joint Hindu family, the said Gopalakrishna Ayyar being the elder and managing member thereof. In respect of debts incurred for the joint family, creditors obtained decrees, among them plaintiff in suits O.S. No. 79 of 1925 and O.S. No. 26 of 1926 on the file of the Subordinate Judge's Court of Palghat. The two decrees were obtained by the plaintiff against the said Gopalkrishnier as family manager both personally and against the family properties in his hands. The date of the decree in O.S. No. 26 of 1926 is 14 September 1926. The date of the decree in O.S. No. 79 of 1925 is 11 January 1926. Subsequent to the passing of these two decrees defendant 1 instituted a suit O.S. No. 46 of 1927 impleading both Gopalakrishnier and Rangier and also the Official Receiver, South Malabar. The claim was to recover the suit amount from Gopalakrishnier personally and from the family properties of both Gopalakrishnier and Rangier. The Official Receiver was added as a party because by that time defendant 1 became an insolvent and his share became vested in the Official Receiver.

(2.) The cause of action alleged was in respect of dealings had by Gopalakrishnier as family manager and the plaint was laid on the basis that both Gopalakrishnier and Rangier were members of a joint family. The defence of Rangier was that he became divided from Gopalkrishnier in or about 1924 and in support thereof relied upon a document dated 16 March 1924 (Ex. l) in and by which certain properties were set apart for the share of Rangier. It was found in that case that the said deed was a sham and nominal transaction and they never became divided. The decree ultimately passed in that suit was that defendant 1 was entitled to recover the decree amount from Gopalakrishnier personally and from the family properties of Gopalakrishnier in the hands of the Official Receiver. In execution of the said decree, properties which were set apart as and for Rangier's share were attached and sold as the property of Gopalakrishnier and Rangier and a considerable sum of money was realised and deposited into Court. Before realization of the said assets, the plaintiff in this case had attached the said properties and the said attachment was pending. He therefore applied for rateable distribution of the said assets, as also other creditors who had obtained similar decrees. The claim for rateable distribution of the plaintiff was negatived and he thereupon filed the present suit against defendant 1 and other creditors for a decree declaring that the order disallowing his claim for rateable distribution is wrong and for an order directing such of the defendants as have already drawn from Court or are hereafter paid any portion of the said assets to refund therefrom that portion of the amount which represent such excess together with interest thereon.

(3.) The defence of defendant 1 as also other creditors was that the decrees in O.S. No. 79 of 1925, O.S. No. 26 of 1926 and in O.S. No. 46 of 1927 and others mentioned in the plaint were not passed against the same judgment-debtor and Section 73, Civil P.C., has no application, that on the date on which the plaintiff obtained his decrees Gopalakrishnier and Rangier were members of a divided family and Gopalakrishnier could not have represented Rangier in the suits in which the said decrees were obtained. The Subordinate Judge of South Malabar who tried the present suit was of opinion that the decrees were passed against the same judgment-debtor, that the deed dated 16 March 1924 on which division in status was alleged was not a real transaction and that the brothers were never divided, at any rate no fraud or collusion having been alleged it was not open to defendant 1 or any of the decree- holders to impeach the decrees obtained by the plaintiff and that in any event the decree- holder in O.S. No. 46 of 1927 and other creditors having proceeded on the basis that the properties are joint family properties it does not lie in their mouth to oppose the decrees of the plaintiff and decreed the plaintiff's claim. The learned District Judge reversed the said decision holding that the decrees were not obtained against the same judgment-debtor and further without giving a definite finding as to whether the deed dated 16 March 1924 was a sham or nominal transaction he was of opinion that Gopalakrishnier must be deemed to have divided from Rangier on the dates of the institution of the suits wherein the plaintiff obtained his two decrees. He observes: While the family manager, if the father can suffer a decree which will be binding on his undivided sons the same is not invariably the case when the family manager is only one out of several brothers. The learned vakil for the respondents contends that the two decrees in question are against the family properties. But I do not understand this notion.... It is quite evident that the lower Court has in this case assumed that respondents decrees entitled him to proceed in execution by sale of the family property belonging to the judgment-debtor and the judgment-debtor's brother. And that in my opinion is not a good foundation for its order.