GOTETI BAYYAPPARAJU SARMA Vs. TADANKI SUBBA LAKSHMAMMA

JUDGEMENT

(1.) The main question in this second appeal is whether the plaintiffs who are the auction- purchasers of a house in execution of a mortgage decree in O.S. No. 91 of 1923 on the file of the Sub-Court, Narasaraopet are entitled to eject the defendant who claims a right of residence in a portion of the said house. The plaintiff's father obtained a mortgage on 19th April 1911 of the said house from the son of the defendant. On 23 February 1913, the defendant appears to have obtained a document from her son in and by which among other things she was entitled to reside in the eastern portion of the said house during the period of her natural life. The suit on the mortgage was instituted long thereafter and the decree was obtained on 6 May 1924. The defendant was not a party to the said suit. When the plaintiffs sought to take possession of the house they were obstructed by the defendant. To remove the said obstruction the plaintiffs filed an application Under Order 21, Rule 97, Civil P.C., but the application was disallowed. Thereupon the plaintiffs filed the present suit to recover the property. Various defences were raised by the defendant. Both the lower Courts have negatived the plaintiffs claim on the ground that as the defendant was not a party to the suit the decree would not bind her, her right of redemption therein not having been affected thereby. On 1 November 1935 when the second appeal was argued before me, I called for findings as to whether the mortgage debt is binding on the defendant and whether it was in fraud of her claim and if the plaintiffs father had notice of the defendant's right of residence in the suit property at the time of the mortgage in his favour.

(2.) The learned Subordinate Judge has submitted his findings to the effect that the mortgage debt is not binding on the defendant not having been contracted for family necessity, that the mortgage was executed not with an intention of defeating or delaying the defendant's claim for maintenance or residence and that the plaintiffs father had no notice of the defendant's right of residence in the suit house. It is contended by Mr. V. Suryanarayana that in the mortgage suit the sons of the defendant raised a plea that the mortgage was not executed for any antecedent debts binding on them but their contention was negatived and therefore it must be taken that the debt was a binding debt of the family. He relies very strongly on Ramanadhan V/s. Rangammal, (1889) 12 Mad 260 (F B), and contends that it is an authority for the proposition that when adult members of the family incur a debt, it must be prima facie deemed to be binding on the female members of the family and any sale in execution of a decree obtained on the footing of the same would defeat their rights unless it is shown by them that such a debt is not binding on them. It seems to me that the said contention is untenable and there is nothing in Ramanadhan V/s. Rangammal, (1889) 12 Mad 260 (F B) to support this view. In that case the widow of a coparcener sued for a declaration that she was entitled to reside in the family dwelling house which had been sold in execution of a decree obtained against her sons and grandsons. A finding was called for when the matter came in second appeal to the High Court as to whether the debt was incurred for the benefit of the family and the finding was in the affirmative. Then the question was referred to the Full Bench whether in view of Venkatammal V/s. Andyappa Chetti, (1883) 6 Mad 130 the widow can resist the claim of the auction-purchaser. It was held that she was not entitled to do so on the ground that the debt was a debt binding on the family including herself. Muthuswami Ayyar, J. points out the distinction between the right to maintenance and the right to residence, that while the former is not referable to any specific property the latter is a right inherent in her incident to her status and there is no indefiniteness as to the specific property to which it is referable. He explained the principle which ought to guide a Court in dealing with the matter thus: The right of residence of Hindu females is ordinarily referable to the family house and a purchaser may be presumed to have notice of that fact. It is reasonable to hold that he is not a bona fide purchaser entitled to eject her, unless it is proved that the sale is valid as against her, either because, as in this case, it is made in liquidation of a debt binding on her or an ancestral debt, or with her consent or in circumstances which would sustain a plea of equitable estoppel against her. The consideration that a real right is not a specific charge, unless that right is referable to specific property, has no application in the case of a family dwelling.

(3.) Mr. Suryanarayana contends that the order of reference to the Full Bench was made in circumstances similar to the one in the present case and the decision of the Full Bench must be deemed to have been based on the view that the debt incurred by the other coparceners would be a binding family debt, but I think this view is negatived by the following observation of Muthuswami Ayyar, J.: It is found that the judgment debt is a family debt, and I take it that the debt, though contracted only by the male coparceners, was contracted by them, not for their exclusive benefit, but for the benefit generally of the joint family consisting of themselves and their mother.