PAPANASAM CHETTIAR Vs. MUTHAYYA CHETTIAR (DEAD)

JUDGEMENT

(1.) The plaintiffs in a partition suit whose claim to a major portion of the properties that belonged to the joint family was rejected by the trial Court and which was affirmed in appeal by the learned District Judge of Tinnevelly, are the appellants in this second appeal. There were four brothers Sankaralingam, Muthiah, Subbiah and Kandasami who constituted a joint family of which Sankaralingam was the managing member. Subbiah had died some years ago leaving behind a son Isakimuthu. For the purpose of this second appeal, the existence of Isakimuthu is not of special concern. The managing member had subscribed to a chit fund of which one Ramachandra Iyer, father of the third respondent and brother of the second respondent, was the stake-holder. The manager had executed a receipt in favour of the stake-holder on 30 June, 1919, in acknowledgment of the receipt of the prize amount and; agreeing to pay future subscriptions properly. Since he committed default, the stake-holder filed O.S. No. 103 of 1928 on the file of the Sub-Court, Tinnevelly, in which the manager, the executant of the receipt was the first defendant and the two brothers Muthiah and Kandasami were defendants 2 and 3. The claim was that a decree should be passed against the family properties of the defendants and against the first defendant as the executant of the receipt. The decree in the suit, Ex. P 3(d), was in the following terms: This Court doth order and decree that the first defendant personally and the defendants 2 and 3 out of their family properties do pay to the plaintiff, Rs. 5,44.0, etc. In execution of that decree properties belonging to the joint family were attached and sold and purchased by the decree-holder himself.

(2.) The present suit out of which the second appeal arises was for partition of all the joint family properties including those sold in execution of the decree in O.S. No. 103 of 1928. The plaintiffs are the two sons of the second defendant Muthiah. Their main allegation is that the decree in O.S. No. 103 of 1928 was not binding on them as they were not eo nomine parties to the suit and that neither the first defendant, the manager of the family, nor the other two defendants represented the plaintiffs interests and therefore the auction sale and the purchase by Ramachandra Iyer were not binding on themselves or their shares in the family properties. There were various other allegations contained in the plaint with which we are not concerned at this stage. Both the lower Courts on a construction of the decree have held that as the plaintiffs are bound by the decree, the execution sale and the purchase by Ramachandra Iyer are binding on them and dismissed the suit so far as those properties are concerned ; and the question that has been raised in this second appeal is as to the binding nature of the decree on the plaintiffs.

(3.) Unfortunately, neither the plaint, in O.S. No. 103 of 1928 nor the judgment therein is available but the certified copy of the decree, Ex. P3(d), as well as the extract from the suit register, Ex. P3, have been filed. We have also the written statement of the first defendant Sankaralingam, Ex. P3(a) and that of the second defendant Muthiah, Ex. P3(b), exhibited. A copy of the issues framed is marked as Ex. P3(c). It is seen from paragraph 5 of Ex P3 that in the body of the plaint the claim was against the first defendant Sankaralingam as the managing member of the joint family consisting of himself and his brothers defendants 2 and 3, Muthiah and Kandaswami, and as it can be presumed that the suit register extract contains a correct summary of the allegations in the plaint it can be taken as proved that the claim was against the joint family as such. Both the first defendant Sankaralingam and the second defendant Muthiah disputed the joint family liability, Sankaralingam pleading that as the other two defendants have not jointly put their signature in the receipt, it is not valid and binding on the joint family. Muthiah's defence was that the chit was being subscribed not for the benefit of the joint family but for Sankaralingam's personal advantage Issue No. 8 as seen from Ex. P3(c) raised the question as to whether defendants 2 and 3 were liable for the claim or any portion thereof. From what has been said above it is clear that the suit was laid againsf the joint family represented by its managing member and in addition the plaintiff, ex abundanti cautela, made the two other senior members parties to the suit in order to make assurance doubly sure that the joint family was properly represented. The defendants raised the question of the liability of the joint family and contested the suit and, as already stated the decree was that the first defendant, the executant of the receipt, personally and defendants 2 and 3 out of their family properties should pay the plaintiff a sum of money, etc., etc. This being so, ordinarily there should be no doubt that the family properties can be validly attached and sold in execution of such a decree.