KANDULA RAMAYYA Vs. BANGARU RANGARAJU

JUDGEMENT

(1.) This batch of revision petitions arises out of an order for rateable distribution of the sale proceeds of property realised in execution of a decree in O.S. No. 23 of 1931 passed by the Subordinate Judge of Narasapur. This order is impeached by the petitioner the decree-holder in the said suit, on the ground that the sale proceeds are not liable to be distributed. To appreciate the contentions raised on his behalf by his learned Counsel Mr. Suryanarayana, a few facts may be necessary. The petitioner filed the said O.S. No. 23 of 1931 against one Chunduri Panakala Rao and his three sons to recover a sum of Rs. 9,192-9-0 on foot of a promissory note executed by the said Chunduri Panakala Rao in his favour. It is admitted that the said Chunduri Panakala Rao and his three sons who are defendants 2 to 4 in that suit form members of an undivided Hindu family. The allegation in the plaint is that the debt was contracted by the father for a necessary purpose and therefore the debt is binding on the sons. The prayer in the plaint is that a decree may be passed against the first defendant, the father personally and against the joint family properties in the hands of the other defendants. This suit was compromised and a decree was passed in terms of the said compromise on the 5 February, 1932. In and by the said decree the defendants were directed to pay the amount decreed in two instalments and as security for the due re-payment of the said sum a charge was created oh two items of immovable property specified in the schedule thereto, namely, a house in Palakole and 2 acres and 4 cents of land in the same place. On the 5 July, 1933, the said property was attached and brought to sale and one-fourth of the sale proceeds were deposited on the 5 July and the remaining sale proceeds were deposited on the 17 July, 1933. Several decree-holders, some of whom obtained decrees against the father alone and some of whom obtained decrees against the father and the sons, filed applications for rateable distribution of the said sale proceeds. The petitioner contended that no question of rateable distribution arose in view of the fact that a charge was created in his favour in and by virtue of the said decree in O.S. No. 23 of 1931. This contention is pressed before me by his learned Counsel. This contention was negatived by the Subordinate Judge on the ground that the said decree not having been registered as required by Section 17, Clause 2(6) of the Registration Act, the charge cannot prevail. The question is whether this view is sound. Section 17, Clause 2(6) of the Registration Act exempts some documents from registration among others decrees and orders of Court and the clause relating to the same runs thus: Any decree or order of a Court (except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding).

(2.) It will be seen that while the clause exempts decrees and orders of Court from registration it provides an exception so far as decrees or orders passed on a compromise and comprising immovable property which is not the subject-matter of the suit or proceeding which has been compromised. This exception, it may be noticed, was introduced in 1929 by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929. Before the amendment, the Privy Council in Hemanta Kumari Debi V/s. Midnapur Zamindari Co. (1919) 37 M.L.J. 525 : L.R. 46 I.A. 240 : I.L.R. 47 Cal. 485 (P.C.) observed that where an agreement of compromise comprised lands not included in the suit and a decree was passed in accordance therewith incorporating the whole agreement, the decree will be admissible in evidence in regard to lands outside the purview of suit without the bar of registration. The effect of the amendment is to supersede the decision in the said case. The question therefore is whether the two items of immovable property which have been charged by the compromise decree in O.S. No. 23 of 1931 can be said to be the subject-matter of the said suit. The expression subject-matter of the suit is not defined in the Registration Act. It seems to me that what the clause contemplates is that specific immovable property must be the subject-matter of litigation. There must be a claim or right in or to the specific immovable property asserted in the litigation and relief sought in respect thereof in order to make the said property the subject- matter of a suit. A claim to have a liability satisfied out of the general estate of a person is not enough; in such a case it cannot be said that all the movable and immovable property belonging to him forms the subject of litigation and therefore the subject-matter of a suit. In Ram Dhun Dhur V/s. Mohesh Chunder Chowdhary (1882) I.L.RR. 9 Cal. 406 a testator by his will directed payment of all his debts, and subject thereto devised his property to his heirs. One of the debts specified in the will was due to one Ram Jibun. Ram Jibun obtained a decree against the heirs in their representative capacity as heirs of the testator which by its terms was to be satisfied out of the assets left by him. One of the heirs subsequent to the decree executed a mortgage of his share of property. The question was whether the mortgage was subject to the decree. Wilson, J., holding it was not, thus explains the nature of the decree: The decree which was against the representatives of the original owner of the property in question declares that the property of the original owner is liable. But the decree is in the ordinary form of a decree made in a suit against the representative of a deceased person. It is a decree which is known to English lawyers as de bonis testatoris, a decree which by its terms is to be satisfied out of the assets left by the deceased person. It appears thus that it has no other effect than as a mere money decree, and has not the effect of creating a charge upon the property.

(3.) Where a claim is made against a legal representative of a deceased on a promissory note executed by him the claim is really one in personam though the decree is sought against the assets left by the deceased. It is really a personal decree against the legal representatives but the extent of his liability is defined by the decree directing that it is limited to the assets of the deceased person and recoverable only from such assets. A claim in personam does not necessarily mean that the claim should be enforced by the arrest of the person. A claim which can be satisfied out of the general estate of a person is nevertheless a claim in personam. Where therefore a claim is made on a pronote executed by the father and the sons are impleaded as parties the character of the claim is not changed. The object of impleading the sons is to have it declared that in respect of the claim sued on they are under a pious obligation to discharge the same. If that declaration is obtained by the creditor he would be entitled to proceed against the entire joint family property in the hands of the father. Hindu law annexes the liability in consequence of the declaration made by the decree that the sons are liable for the debt. In fact the decree does not determine whether joint family property exists or not and if any property is joint family property or not. In Narayanan Chetti v. Veerappa Chetti , Ayling and Srinivasa Aiyangar, JJ., thus explain the principle underlying the joinder of the son: The joinder of the son with the father in a suit to enforce payment of the father's debt is for the purpose of enabling the Court to exercise the power which the father had of selling family property including his son's share, to pay his own private debts provided they were not illegal or immoral, and to prevent the son from questioning the nature of the debt, in execution, in the event of the decree against the father being executed by attachment and sale of the family property including the son's share.