YADAVALLI SURYANARAYANA Vs. CHALLA VISWANATHAM

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal arises out of an objection raised by the appellant to the attachment of certain property in his possession in execution of the decree obtained by the plaintiff (first respondent) against the appellant and another in O.S. No. 150 of 1928 on the file of the District Munsiff's Court, Bezwada. The appellant and one Yadavalli Venkata Narasayya were brothers and members of an undivided Hindu family. On a debt contracted by the said Venkata Narasayya as the eldest and managing member of that family on a pronote, the plaintiff instituted the said suit impleading both the brothers. In the said suit the appellant filed a written statement alleging that he went out of the family having been adopted by his paternal uncle, that by virtue of the said adoption he ceased to be a member of the joint family and therefore was not liable to the suit debt. One of the issues raised in the said case was : "whether the 2nd defendant (appellant in the appeal) is not liable?" The appellant absented himself at the trial and an ex parte decree was passed against both the brothers and so far as the appellant was concerned to the extent of the joint family property in his hands. In execution of the said decree the property in dispute was attached and the appellant preferred a claim alleging that the said property was gifted in his favour by his brother, the said Venkata Narasayya, by a deed of gift dated 12 January, 1926. The gift deed recites that the appellant was adopted by his paternal uncle but as the adoptive father had not sufficient property, in pursuance of a direction given and a request made by the father of both the brothers the said Venkata Narasayya was making a gift in favour of his brother the appellant in Order to enable him to live comfortably, and in and by the said document he transferred all his rights in the said property to be enjoyed by the appellant with full rights from the date of the gift. The objection raised by the appellant to the attachment was that from the date of gift it ceased to be joint family property and became his separate property and ever since it had been enjoyed by him as such. The learned District Munsiff upheld the objection but the learned Subordinate Judge disallowed it and allowed execution to proceed. It is contended before me by Mr. Govindarajachar that by virtue of the adoption the appellant ceased to be a member of the joint family and by virtue of the gift the property was the absolute and separate property of the appellant and not liable to be attached. He relied very strongly on the decision in Ramasami Kichilappa Naick V/s. Ramanujam Pillai and Thangavelu Pillai V/s. Doraisami Pillai . These cases no doubt establish that it is open to a member of the joint family to relinquish his share in favour of another member. Relying on the said decisions Mr. Govindarajachar contends that as it was competent to the first defendant to make a gift of this property in favour of his brother, there was thus a relinquishment or surrender of the right of the first defendant in favour of the appellant and even if the adoption is not valid so far as this property is concerned; there must be deemed to be a severance in interest and it ceased to be joint family property both on the date of the decree and on the date of the execution and therefore was not liable to be attached in execution of the decree as it was no longer joint family property in the hands of the appellant. I think it is unnecessary to express my opinion on this contention in the view I am taking of the liability of the suit property for the debt of the plaintiff-despondent. Assuming it to be separate property as contended by Mr. Govindarajachar, it may be separate property as between the brothers, but does it cease to be joint family property so far as the creditor plaintiff is concerned? As between the creditor and the second defendant it must betaken to have been decided that the adoption was untrue and that the brothers remained members of an undivided family and the debt was a binding debt so far as the second defendant was concerned having been contracted by his brother Venkata Narasayya as managing member of the family. But for the gift there can be no question that the plaintiff could have enforced his liability against the suit property. It is competent to a creditor in execution of a decree against a debt binding on the family to proceed against every item of the joint family property in the hands of any member of the family. The debt was contracted in 1925. On the date of the debt the property was admittedly liable to be proceeded against for the realization of the said debt. The property may be separate property as between the brothers but it is not possible to say how the right of the creditor to proceed against the said property can be lost. In spite of a partition the creditor can proceed against every item of the joint family property in the hands of the members. That this is the correct principle seems to be undoubted. In Subramania Aiyar V/s. Sabapathi Aiyar (1927) 54 M.L.J. 726 : I.L.R. 51 Mad. 361 at 416 (F.B.), Anantakrishna Aiyar, J., states the principle thus: On principle, it seems to me that a simple money debt incurred by a joint family manager for purposes binding on the joint family, which a creditor of a family could enforce payment of by proper proceedings against all the family properties, does not cease to be so enforceable simply because a partition has subsequently been effected among the members of the joint family.

(2.) In the said case the majority of the learned Judges held that a son is liable to be sued for the pre-partition debts incurred by his father after partition and the joint family property which he got at the partition is liable to be proceeded against for the realization of the said debt even though the said debt was not incurred for any binding purposes of the family. If it was incurred for such a binding purpose it was assumed that the liability could not be questioned in spite of the partition. Coutts-Trotter, C.J., and Srinivasa Aiyangar, J., who dissented from the majority view were prepared to accept this principle as correct. On p. 394 Srinivasa Aiyangar referred to Ramachandra Padayachi V/s. Kondayya Chetti (1901) I.L.R. 24 Mad. 555 wherein the joint family property in the hands of the son after partition was made liable for a pre-partition debt incurred by the father in the course of the family business, observed thus: The learned Judges in this case clearly held that the debt, the subject-matter of the suit, was one which arose out of a contract entered into by a father as the managing member of an undivided family. In that view the debt was of course the debt of the family itself including the son, and in respect of such a family debt the partition could not possibly affect the liability of a son to pay the family debts from and out of the property of the family.

(3.) The same view was taken by Coutts-Trotter, C.J., at p. 366. Referred to the same case Ramachandra Padayachi V/s. Kondayya Chettiz, he observed thus: Because the debt there was not a personal debt of the father, but a debt incurred by him as manager of a Hindu joint family and obviously binding on the joint family property as it stood at the date of the debt, whatever subsequent dispositions of it were made.