PANDYAPPA ARASU BINNANI Vs. CHENNAPPA HEGDE

JUDGEMENT

(1.) A suit on the basis of a mortgage was filed against 22 persons who were members of a Malabar tarwad. The managers of the family, both de facto and de jure, were impleaded as defendants. The suit was decreed and it was held that the mortgage was effected for the family benefit. After the mortgaged properties were sold in execution, the decree-holder applied for a personal decree against the defendants and wished to proceed against the other family property, (R.I.A. No. 694 of 1924). The first Court dismissed the petition but the order was reversed by the District Judge of South Kanara on 18 December 1930. While accepting the appeal, he happened to make the following remark in his judgment: I am not at all deciding now, nor is this a proper stage to decide, whether this personal decree against some of the mortgagors will operate not merely against themselves individually but also against the family assets in their hands. This is a matter in execution with which I have nothing whatever to do now. (Ex. E).:

(2.) It was therefore not surprising to find that when an application was made on behalf of the decree-holder to proceed against the properties of the family, he was permitted by the executing Court to do so. This order was passed on 12th February 1935 and an appeal was preferred against it. Adverting to the order passed by his predecessor, which has been quoted above, the learned District Judge stated in his order, now under appeal, that it was not clear why his predecessor had not decided the point but had left it to the executing Court. Applying the principle that an executing Court could not go behind a decree or enlarge its scope, he came to the conclusion that the executing Court's decision to attach the family properties was incorrect. The appeal was therefore accepted and the order of the executing Court vacated. This has led to the present appeal. The result of the order passed by the learned District Judge is that while his predecessor had held that the question relating to the liability of the family property would be gone into in execution and this order had become final, he has refused to go into the matter at this stage and has held that it should have been decided by his predecessor. The matter thus remains undecided altogether and an impasse has been created. This should have been avoided.

(3.) It is unnecessary for me to rest my decision on this ground although in view of the order passed on 18 December 1930, the present order cannot possibly be sustained. It is unfortunate that the learned District Judge was led by the words of the decree and did not bestow more attention upon the matter. Had he done so, he would have found that the decree-holder's contention was supported by a number of cases decided both in regard to decrees passed against managers of joint Hindu families and karnavans of Malabar tar wads. In a case of this kind the substance of the claim has to be looked at and a decree cannot be held to be unenforceable against the family property of a tarwad or not binding on the other members of the family if the debt, in regard to which the suit has been filed against the karnavan or the manager was incurred for a family benefit. After all it was open to the manager to dispose of the family property for the family benefit and there seems to be no reason to hold that the family property would not be liable if the suit were filed against him for a debt similar to the one for which the property could have been sold by him. It would be immaterial if the other members of the family were not impleaded as parties to the suit. The manager holds a representative capacity and when he is sued for such a debt, it may be taken that the whole of the tarwad has been sued, although all the members of the tarwad may not have been specifically named. It is also unnecessary that the karnavan or the manager should have been described to be such either in the plaint or even in the decree if it were found for a fact that the karnavan or the manager was conducting litigation not merely on his own behalf but on behalf of the family. He should have been presumed to be doing so on behalf of the family of which he was the head, if the liabilities incurred by him were for family benefit or necessity. A number of cases of this Court have affirmed this principle. See Manakat Velama V/s. Ibrahim Lebee (1904) 27 Mad. 375; Vasu V/s. Kannamma (1926) 13 A.I.R. Mad. 991; Narayani V/s. Sankunni Mannadiar (1936) 23 A.I.R. Mad. 861; Pappi Amma Iyar and Venkatanarayana Rao V/s. Venkatasomaraju (1937) 24 A.I.R. Mad. 610. The learned Counsel for the respondent has however urged that the question relating to the liability of persons against whom a decree has not been passed, cannot be determined by an executing Court. He contends that an execution Court cannot be permitted to go behind the decree and would be doing so if it held an enquiry with the object of making other persons, whose names do not appear in the decree, liable. Reliance has been placed by him in this connexion on Muttia V/s. Virammal (1887) 10 Mad. 283 (F.B.) where it was held that a son would not be liable to pay for his mother's maintenance when the decree was passed against his father and he was impleaded for the first time in execution proceedings. It is unnecessary to go into this case or other cases which followed it as they gave effect to the principle of Hindu law that a son in a joint Hindu family did not inherit any property from his father but took it by survivorship, or in other words, the father's interest in the property lapsed on his death. The application of this principle led to considerable hardship and the Civil P. C. had to be amended in this respect. Section 53 of the present Code now makes the property in the hands of a son or other descendants liable for the payment of a deceased ancestor's debt and the plea that he took his father's property by survivorship would no longer be of any avail to him. These cases have therefore no application to the facts of the present case and are not relevant to the question which has to be decided here. There is no force in the objection that an executing Court would be going behind the decree, if it proceeds to determine the decree- holder's right to execute his decree against the other family property. The manager or karnavan had a right, as stated above, to alienate the whole of the property for the family benefit or necessity. In doing so, he must be held to be dealing not only with his own shares but the shares of all the other members. Similarly, if a decree for a debt which is incurred on behalf of the family is passed against the manager, it would necessarily follow that the whole of the family property would be liable and not only his own share. Having been sued in his capacity as manager, the whole of the tarwad consisting of all its members whether major or minor, should be held to have been sued and the decree consequently passed against all of them. New persons who were not parties to the decree are now being attempted to be brought in but their names which must be taken to have been included in or covered by the manager's name from the very beginning are being asked to be specified and the family property of the tarwad which was represented by the manager is being asked to be declared liable. This is really a matter of execution and falls within the purview of Section 47, Civil P.C.