LAKSHUMI ACHI Vs. NARAYANASWAMI NAICKER

JUDGEMENT

(1.) The suit out of which this appeal arises was filed on the basis of a mortgage bond, dated the 5 March, 1914, executed by the 1 defendant in favour of one Subramaniam Chettiar, who was the son of the 1 plaintiff and the husband of the 2nd plaintiff. At the time of the mortgage the 1 defendant had a brother Natarajulu and they were undivided. The plaintiffs claim that the 1 defendant Narayanaswami was the manager of the family and the mortgage deed was executed for purposes binding on the family. The defendants denied these allegations and contended that the debt is not binding on Natarajulu's share. This point was found by the Subordinate Judge against the plaintiffs and the plaintiffs. who are the appellants before us do not attack this finding so far as the state of things existing at the date of the mortgage is concerned. A few months after the execution of Ex. A, a suit was filed by Natarajulu for specific performance of an agreement to sell Narayanaswami's share of the family properties with certain other reliefs which it is unnecessary to mention. Ex. C (1), dated the 2nd November, 1914, is the plaint and Ex. C is the compromise decree passed in that suit, dated, the 23 November, 1915. According to the said compromise decree, two of the items included in that suit were settled upon the 1 defendant's wife for life and all the other properties were to be sold to Natarajulu. In execution of this decree, a sale-deed was obtained by Natarajulu through the Court. This is Ex. C (2), dated the 30 November, 1916. The consideration for the sale-deed was Rs. 35,000 and the consideration was to be paid by the vendee undertaking to discharge various, debts of the vendor. Sixteen debts were enumerated in the sale-deed. It is necessary to make particular mention of some of these items. The first item is Narayanaswami's half share of the debt due on a mortgage bond, dated the 11th August, 1909 executed by both the brothers (Ex. V). The fourth item is a sum of Rs. 356-4-0 due wholly by Narayanaswami on a mortgage bond, dated the 10 March, 1913 (Ex. XVI). The fifth item is a sum of Rs. 821-4-0 due wholly by Narayanaswami on a mortgage bond executed by him on the 18 November, 1913 (Ex. XVI-a). The sixth item is a sum of Rs. 1,100 due wholly by Narayanaswami on a mortgage bond executed by him on 1 November, 1913 (Ex. XIV). The tenth item is a sum of Rs. 2,675 due wholly by Narayanaswami in respect of Ex. A. It is unnecessary to refer to the other items. The plaintiffs now claim that Natarajulu's share of the properties also is liable to their debt first on the ground that after the death of Nata-rajulu in 1919, these properties survived to Narayanaswami and the mortgage, Ex. A, is at least now binding on the whole of the properties and secondly on the ground that Natarajulu having undertaken to pay off Narayanaswami's debts by the sale-deed, Ex. C (2), it has become a personal obligation and he is liable to pay off the debts due to the plaintiffs out of the properties of the family and not merely Narayanaswami's properties. This is the first point argued in appeal, the point having been decided by the Subordinate Judge against the plaintiffs. The second point argued by the appellants is that certain alienees from Natarajulu or his mother, the 2nd defendant, are not entitled to priority over the plaintiffs mortgage on account of their having paid off certain mortgages of the 1 defendant earlier in date than the plaintiffs mortgage. The last point argued in appeal relates to the rate of interest. The 2nd defendant, the mother of the two brothers, claims to be interested in Natarajulu's half share of the properties not sold to the alienees.

(2.) Taking up the first point, one subordinate question that arises is whether after the sale- deed, Ex. C(2), the two brothers should be considered as divided or still undivided. Mr. Varadachariar, the learned Advocate for the appellants, relied on certain observations of Bhashyam Aiyangar, J., in Aiyyagari Venkataramayya V/s. Aiyyagari Ramayya (1902) I.L.R. 25 M. 690 (F.B.)The alienation in that case was by a member of a joint family in favour of a stranger and the point referred to the Full Bench was what fraction of the family property passed to the alienee by the sale-deed. The observation relied on is at page 717. I do not think this observation helps the appellants. If a member of an undivided family sells the whole of his share in some of the family properties or part of his share in such properties but not in other properties, it may be that he continues undivided with the other members in respect of the properties other than those in which the whole or part of his share has been transferred and this is all that the observation at page 717 amounts to. It almost implies that so far as the properties in which the whole or part of the member's share is sold are concerned, he must be regarded as divided from the other members. But where the sale is not to a stranger but to the remaining members of the family the matter becomes much stronger. The observations at page 268 of Maharaja of Bobbili V/s. Venkataramanjulu Naidu (1914) I.L.R. 39 M. 265: 27 M.L.J. 409 do not go beyond what I have stated above and even if there are any observations in those two cases in favour of the appellants their value must be discounted on the ground that these observations were made long before the decision of the Privy Council in Girja Bai V/s. Sadashiv Dhundiraj (1916) L.R. 43 I.A. 151: I.L.R. 43 C. 1031: 31 M.L.J. 455 (P.C). In the present case, a careful examination of the terms of the compromise and the provisions therein that certain items should go to the heirs of Narayanaswami and the terms of the sale-deed, Ex. C (2), showing that some debts were taken as binding on both the brothers and others on Narayanaswami alone--all show the unmistakable intention that the brothers should thereafter be separate. So early as Balkrishna Trimbak Tendulkar V/s. Savitribai (1878) I.L.R. 3 B. 54 such a conclusion was reached. We are of opinion that the finding of the Subordinate Judge on the second issue is unsustainable. On the facts of this case the presumption of jointness is overwhelmingly rebutted. Therefore there is no survivorship of the properties of Natarajulu to the 1 defendant.

(3.) It is next suggested that the effect of Ex. C (2) is to make Natarajulu liable to pay the plaintiffs debt out of the whole of the properties. In the first place the sale-deed is only of Narayanaswami's share of the properties. They are transferred to Natarajulu in consideration of his paying off Narayanaswami's debts. The only effect of the covenant in the sale-deed is that Natarajulu is liable as betveen himself and the vendor to pay off all the debts of the vendor out of all the properties which were the subject of the sale, that is, Narayanaswami's share of the properties, and personally out of the other properties of his own but such a covenant cannot be taken advantage of by the creditors who are no parties to the sale-deed and so far as creditors like the plaintiffs are concerned their remedies are confined to the rights under their documents. The plaintiffs rights are to sell the mortgaged properties under Ex. A. It may be that if, by non-payment of plaintiffs debt by Natarajulu, Narayanaswami was put to trouble of some kind, he can sue Natarajulu for damages by reason of the breach of the covenant, but apart from this we cannot see how creditors like the plaintiffs can take advantage of the covenant. Nor can we read anything in the terms of the sale-deed to show an undertaking by Natarajulu that he will pay off all the vendor's debts out of the whole of the family properties. On the other hand, portions of the sale-deed imply that some of the debts are not binding on Natarajulu at all and he is in no way liable for them and, in the case of other debts, he is liable only to the extent of his half share. It is impossible to spell out of these terms an undertaking of Natarajulu in respect of his own share of the properties for Narayanaswami's share of the debts enuring to the benefit of creditors. The analogy of universal donee is invoked by the learned Advocate for the appellants but we are not able to say that this analogy helps him. We are therefore of opinion that the plaintiffs can recover their debts only out of the half share of Narayanaswami in the mortgaged properties.