N PARAMASIVAN PILLAI Vs. THIRUVUDAYA MUDALIAR

JUDGEMENT

(1.) This appeal arises out of a suit by defeated claimants in execution of a decree on a mortgage. The property in question originally belonged to a family consisting of two branches, Karuppaya's branch and Arunagiri's branch. The mortgagors against whom the decree was passed under which the defendant purchased, represented Arunagiri's branch. The plaintiffs claim title under Karuppaya's branch by a series of sale deeds and by the devolution of title to themselves on the death of their father which occurred about five years before these proceedings began. The plaintiffs are brothers. The eldest brother, P.W. 1 is not a party to the suit. After the defendant had purchased the property under the mortgage decree, he applied for delivery and was obstructed by the eldest brother of the plaintiffs, P.W. 1. He then applied to the Court for the removal of their obstruction and the result was an order, Ex. II dated 24th November 1930, whereby it was held that the plaintiffs brother and his tenant were not in possession and the removal of their obstruction was directed. No suit was filed to contest this decision. But shortly afterwards there was a further obstruction, this time by the second brother (plaintiff 1 here) and again there was an application by the present defendant for the removal of the obstruction, resulting in an order dated 11 April 1931, which is Ex. A. This order merely says that the counter-petitioner relied upon the same documents -which had been found to be inconclusive in the former claim petition and that a prima facie case for possession was therefore made out in favour of the present defendant. The present suit was filed on 11 April 1932, that is to say, exactly one year after the order in Ex. A, for a declaration that this order was not operative upon the plaintiffs 5/12ths share of the property, for partition and profits. The 5/12ths share is arrived at by excluding the eldest brother and assuming that Karuppaya's branch was entitled to a half of the whole property. The plaint in the present suit ignores altogether the proceedings in the claim petition which ended with the order Ex. II.

(2.) The only contention which has been argued in Second Appeal is that the present suit is barred by limitation, having been preferred more than a year after the adverse order on the eldest brother's claim petition Ex. II, the eldest brother being the managing member of the family litigating with reference to joint family properties and therefore assumed to represent the joint family in that litigation. I must however observe that there were other contentions taken by the appellant, but as I am deciding in his favour on this main contention, it has been unnecessary to go into these other contentions.

(3.) Now, the actual affidavit filed by the eldest brother in the earlier claim proceedings has not been put into evidence and the appellant can only succeed on the basis that it has been established that the eldest brother was the managing member of the family litigating in respect of joint family properties and that from these facts a presumption must be drawn that he represented the family, the presumption being one which the plaintiffs should have rebutted by adducing actual evidence that the eldest brother was litigating only in his personal capacity. Now the eldest brother, P.W. 1, in his evidence admits that he was managing the family property for some time after his father's death. He goes on to qualify this admission by stating that he and his brothers "join together and manage the family affairs jointly," and that he alone does not manage. If however P.W. 1 was the manager of the joint family property after his father's death, that event having preceded his claim petition by about four years only and there being no evidence that he ever ceased to be the manager, to my mind it may be taken that he was in fact the managing member of the family at the time of the first obstruction. There is no question that the property with which we are concerned was joint family property and admittedly there was no partition between the brothers. We are therefore concerned only with the presumption which is to be drawn from these simple facts. The judgments of the Courts below give no assistance, for, although this plea of limitation based on the earlier claim order was expressly taken in the written statement and also in the appeal petition to the lower Court, neither Court has really dealt with it as raised. The law on the subject is summarized as follows in the latest edition of Mayne's Hindu Law, page 387: Where the suit relates to joint family property and the person sued or suing is the manager, he need not be described as such in the plaint, though it is advisable to do so. If it appears that in fact he was the manager and the suit related to the joint family property or its rights or liabilities, it must be presumed that he was suing or being sued in his representative capacity.