Budaraju Venkatarathna Rao and Others vs Budaraju Venkata Subbaiah and Others

Subba Rao, J.—This is an appeal against the order of the Subordinate Judge, Bapatla, directing the sale of the properties that fell to the

share of the appellants in a partition. The material facts may be briefly stated.

One Buddaraju Venkata Subbayya and his sons instituted O. S. No. 106 of 1924 on the file of the Subordinate Judge''s Court, Bapatla, against

defendant 1 and his sons for partition and possession of their half share in the family properties and also for an amount and recovery of the amounts

pertaining to their share. Deferdant 1 to that suit is Budaraju Hanumantha Rao, defendant 2 is his son, Ramakoteswararao and the other

defendants are the other sons of Hanumantha Rao. The suit was decreed as prayed for. Under the decree, a sum of Rs. 4635 7-9 was directed to

be paid by defendants 1 and 2 to the plaintiffs. The plaintiffs also obtained a charge on the shares of defendants 1 and 2. The appellants are the

sons of defendant 2, Ramakoteswararao. They were born subsequent to the filing of the aforesaid suit. Pending the suit, defendants 7 and 8 filed a

suit against their father, grand father and his sons, O. S. No. 34 of 1931, Sub Court, Tenali, for partition and for possession of their two-third

share out of their father''s one-fourth share of the family properties and obtained a decree on 5th September 1935. In execution of the decree in O.

S. No. 106 of 1924, the plaintiffs field an application for sale of the immovable properties that were allotted to the shares of the appellants and

their grand-father Hanumantha Rao. The appellants contested that application mainly on the ground that the decree obtained in O. S. No. 106 of

1924 against their father and grand-father could not be executed against them as they were not parties to that suit and as they obtained a decree in

O. S. No. 34 of 1931 for partition prior to the passing of the decree in O. S. No. 106 of 1924. The learned Subordinate Judge rejected their

contention and directed the properties to be sold. The respondents have preferred the above appeal against that order. Respondent 7 in the

appeal, that is, the grand-father of the appellants, has filed a memorandum of cross-objections mainly raising the plea of discharge of the decree

and also that he was not given notice of rehearing of the execution application.

The learned counsel for the appellants contended that the decree against the father could not be executed against the properties that were

allotted to the share of the sons as the sons obtained a decree for partition prior to the decree sought to be executed. Decided cases lay down two

propositions apparently conflicting but really reconcilable: (i) In execution of a decree obtained against the father after partition of the joint family

properties between the father and the son, the decree cannot be executed against the properties that fell to the share of the son even though the

said decree was obtained on the basis of a preparation debt, (ii) If the father or the manager represented the family in the litigation and the

members of the family were substantially parties to the suit through the manager though not eo nomine parties on the record, the decree so

obtained can be executed against those who were either actually or constructively parties to the suit.

The first proposition is illustrated by a decision reported in Kuppan Chettiar v. Masa Goundan, I. L. R. (1937) Mad. 1004 : A. I. R. 1937

Mad. 424. In that case the creditor obtained a money decree against the father and in execution of that decree proceeded to attach certain

properties in the hands of the sons. They claimed that the said properties fell to their share under a partition effected between them and their father

and that they were not liable to be proceeded against in execution of the decree obtained against the father alone. The learned Judges held that as a

Hindu father bas no power of disposing of property allotted at a genuine partition to the share of the sons, such property is not liable to be

proceeded against in execution of a money decree obtained subsequently against the father alone. At p. 1006 Varadachari J. observes :

In order that properties may be liable to attachment in execution, it must be shown that they either belong to the judgment debtor or that the

judgment debtor has a disposing power over the properties or their profits which power he may exercise for his own benefit,....

It would therefore follow that after a division in status the father''s creditor cannot, any more than the Official Assignee, claim that the property is

saleable by the father and therefore attachable by himself.

The learned Judge also pointed out the well-understood distinction between the creditor''s remedy in execution and the creditor''s remedy by a

separate suit. This decision was considered and accepted as laying down the correct law in the decision in The Official Receiver Vs. Amara

Seshayya and Others, and other cases.

The second proposition is laid down in the Full Bench decision in Venkatanarayana v. Venkata Somaraju, I. L. R. (1937) Mad. 880 : AIR

1937 Mad. 610. In that case, the father purchased certain properties on behalf of the joint family which were subject to a mortgage. The

mortgagee brought a suit to enforce the mortgage and obtained a decree against the father alone. In execution of the decree, he purchased the

property and filed a suit against the father and his sons for recovery of possession of the property so purchased and for mesne profits. The sons

raised the plea that they had nothing to do with that property as in a partition that was effected between them and their father, the said property fell

to the share of their father. Indeed on that ground, they were exonerated from the suit. At the time of the alleged partition, the suit property was

allotted to the share of the father and another son, who was a minor at the time of the decree. A decree for mesne profits was ultimately passed

against the father alone. As the father died, the decree was sought to be executed against the property in the hands of the minor son. He resisted

execution on the ground that during the pendency of the previous proceedings, there was a partition between him and his father and the properties

sought to be proceeded against were allotted to his share and therefore were not liable to be proceeded against in execution. The learned Judges

held that the father represented his son throughout the litigation although he was not described as a party on the record. At p. 890, Mr. Justice

Venkatasabba Rao, after considering the decision of the Judicial Committee in Daulat Ram v. Mehr Chand, 15 Cal. 70 : 14 I. A. 187 observed,

that the managing member could effectively represent the entire family and that a decree passed against him would be binding upon all the

members, and secondly, that it Is not necessary that it should be stated in the pleadings in express terms that he is suing or is being sued as such

manager; the suit will be deemed to have been brought by or against him in his representative character if the circumstances of the case show that

he is the manager of the family.

Dealing with the question whether subsequent partition would make any difference, the learned Judge states at p. 894 that it does not and gives the

following reasons for his opinion :

The reason for holding that the members not joined should be held liable is, that they are substantially parties to the suit through the manager, in

other words,, they are sufficiently represented, though not eo nomine parties on the record. It follows from this that the decree can be executed not

only against the parties whose names appear but also against those who must be deemed to be constructive parties. In this view, it is immaterial

whether the family continues to remain joint or became divided.

Venkataramana Rao J. who agreed with Venkatsubba Rao, J. states his view in'' a different manner but to the same effect. At p. 903, the learned

Judge observed :

Therefore, where a father or other manager is sued as a representative of a family, the other members of the family must be held to be substantially

parties to the suit through such manager. The fact that they are not parties eo nomine will not render them any the less parties to the suit.

At p. 904, the learned Judge continues :

When they must be held to be parties to the suit, it is immaterial what the character of the property in their hands is, whether it is still undivided

property or has become separate property by division.

The learned Judge also lays down the presumption that

where the suit relates to a joint family property and the person sued is either the father or the eldest member, the accredited head of the family, it

must be-presumed that he was sued as representing his family, and he need not be described as such in the pleadings, nor need the decree be

specifically passed against him as such,

We are bound by the Pull Bench decision. But the learned counsel for the appellants brought to our notice that subsequent to the decision,

another Bench of this Court in Firm Schwebo Vs. Subbiah, threw some doubts on the principles laid down by the Full Bench. It is not necessary to

state the facts of that case as the decision in that case did not turn upon the view expressed by the learned Judges about the correctness of the Full

Bench decision. The observations are really in the nature of obiter, and it is enough if we read the relevant passage. The learned Judges, after

extracting relevant passages from the judgment of the Full Bench, observed as follows :

The reasoning, however, would seem to overlook the fact that the applicability of the principle of res judicata which is made applicable to such

cases by Expln. 6 of Section 11, Civil P. C., rests not on the theory that the persons represented by the party litigating in respect of the common

right are parties to the suit, but on the ground that such persons ''shall for the purpose of this section, be deemed to claim under the persons so

litigating"" which necessarily implies that these persons are themselves not parties to the suit.

However, the learned Judge, proceeded to dispose of the case on another point. With great respect, we cannot agree with these observations as

they ignore the fundamental principle on which the Full Bench decision was based. It is no doubt true that the decisions relied upon by the learned

Judges in the Full Bench case arose in connection with the plea of res judicata based upon Expln. 6 to Section 11, Civil P. C., but the principle laid

down therein is of general application. The principle was not based upon Expln. 6 of Section 11. But the principle laid down by the Full Bench is

one that is behind the explanation. If the father represented the son in the suit, the son must be deemed to be a party to the suit and the decree. It,

therefore, follows that the decree can be executed against the property that fell to the son''s share. To hold that a judgment against the father in his

representative capacity is binding on the son on the principle of res judicata but that the decree so obtained cannot be executed against the son

would lead to startling results in that the decree-holder would be compelled to file another unnecessary suit against the son to which the son would

have no real defence as he would be precluded from contesting the suit on the ground of res judicata. For the aforesaid reasons, we are not only

bound by the Full Beach decision but we also agree with the principles succinctly stated therein. In the present case, the facts are really governed

by the Full Bench decision in Venkatanarayana v. Samaraju, I. L. R, (1937) Mad. 880: A. I. R. 1937 Mad. 610. From the aforesaid narration of

facts, it would be clear that in O. S. No. 106 of 1924 Ramakoteswararao, the father, obviously represented his branch of the family. The suit was

by one collateral branch of the family against Ramakoteswara Rao and his three sons for partition of the joint family property. To that suit, all the

sons of Hanumantha Rao were made parties, and necessarily Hanumantha Rao represented the entire branch and each of his sons represented

their sub-branch. It is impossible to conceive of cases where a father does not represent the members of his family in a partition suit especially

when there were no disputes inter se between them. Ex hypothesi it would be so where the sons were not even born at the time when the suit was

filed against their father for partition of the joint family properties by another branch of the family. In the circumstances of this case, it must be

presumed that the father represented the family, and the fact that he was not described as such in the pleadings and that the decree was not

specifically passed against the family as such would not make any difference in the legal position. There is nothing on the record to rebut such a

presumption. We, therefore, hold that Ramakoteswara Rao represented the appellants in O. S. No. 106 of 1924 and that although they were not

eo nomine parties to the decree, the decree-holders are entitled to proceed against the properties that were allotted to their share in the partition

that was effected between them and their father.

The grandfather, Hanumantha Rao, who is respondent 7, has preferred a memorandum of cross-objections. His main contention was that the

decree could not be executed as the decree-holder was a party to the composition scheme in the insolvency of the appellant pursuant to which he

was discharged. A perusal of the judgment of the lower Court shows that this point was not raised or argued before the learned Subordinate

Judge; nor are there materials before us which will justify our interference on that ground. It is stated that the advocate for respondent 7 argued this

point in the lower Court on 4th September 1943 when orders were reserved and the application posted for orders on 8th September 1943, and

that without his or the advocate''s knowledge, the case was reopened and was adjourned from time to time when finally it was disposed of on 12th

April 1944. To substantiate this contention, the learned counsel for respondent 7 attempted to rely upon an affidavit alleged to have been filed by

him in this Court. A search of the record disclosed that no such affidavit was filed and indeed no copy of the alleged affidavit was served upon the

respondents or their learned counsel. We are also not satisfied that respondent 7 would not have had knowledge of the subsequent posting of the

application for rehearing as the application underwent innumerable adjournments and took about 7 months for disposal after 4th September 1943.

We are not satisfied that this is a fit case for giving respondent 7 another opportunity to raise his contentions, which he neglected to raise in the

lower Court.

In the result, the appeal is dismissed with costs of respondents l to 6 and the memorandum of cross-objections is dismissed with costs.