C. Ramaswami Chettiar vs K. Ankappa Mudali and Another

Curgenven, J.—This appeal raises the question of the effect of a mortgage decree passed against two brothers. The mortgagee sued upon a

deed executed by defendant 1 for himself and as guardian of his minor brother, defendant 2, and obtained an ordinary mortgage decree. It so

happened that the mortgaged property was sold under a decree obtained on a prior mortgage, and the decree-holder accordingly applied to

proceed against the other property of the brothers. He was granted a personal decree against defendant 1, but not against defendant 2, being a

minor. He then applied to proceed against what he described as the remaining family property of the judgment-debtors and this has been allowed

by the District Munsif upon the ground that the decree was in substance and in effect against defendant 1 as family manager and accordingly that a

personal decree passed against him in that capacity would enable the decree-holder to get access to the whole family property. On appeal the

learned Subordinate Judge has reversed this decision and the transferee-decree-holder accordingly now presents this second appeal. An attempt

has been made to contend that even in his capacity as a guardian a personal decree against defendant 1 would enable the minor''s property to be

proceeded against. That I think is clearly an unarguable position. Order 34, Rule 6, Civil P.C., enables a supplementary personal decree to be

passed if it is found that the mortgage security is insufficient to discharge the debt, and it is impossible to hold that if no such personal decree, which

is in effect a decree for money, has been passed against a minor such a decree passed against his guardian in his individual capacity can have any

effect in rendering the minor''s property liable.

It can only be on the footing adopted by the learned District Munsif, that the suit was in substance and in effect a suit against defendant 1 as

family manager upon a document which he executed in that capacity that such a consequence might ensue. I have been referred to a series of cases

which relate in point of fact to families governed by Marumakkathayam law although no doubt the principles enunciated in them extend equally to

cases of an ordinary Hindu joint family, Manakat Velamma v. Ibrahim Lebba (1904)27Mad375, Rayarappan Nambiar v. K.C.V. Kannaran

(1918)15IC489 and Vesu alias Lakshmi Amma and Another Vs. Thekkedath Veetil Kannamma alias Kathyayani Amma and Others, ; and those

cases decide I think that if in substance and in effect the suit and the decree is, in the case of a Mitakshara family, against a father or managing

member as such, although it may not be expressly so stated, such a decree will bind the interests of the remaining members of the family. I cannot

extract any more extensive principle than that from those decisions. It may of course be said that in order to ascertain whether the defendant was in

fact the father or the managing member evidence was needed supplementary to the materials supplied by the decree. But I do not think that those

cases go to the length of saying that where a suit leaves the matter in doubt as to the capacity which the defendant occupied against whom the

claim was made the omission may be supplied by adducing evidence in execution which ought more properly to have formed part of the record of

the suit; still less where the capacity-that of a guardian-is expressly stated.

In the present case, it would be necessary to show that defendant 1 was the family manager that the property in respect of which the decree was

obtained was the family property and that the purpose for which the mortgage was executed was one binding upon the family. It may perhaps be

held that the records of the suit may be looked into in order to ascertain whether it was in substance a suit of that character, intended to bind the

family property in the hands of the manager, and therefrom to construe the decree. But in the present case, as the learned Subordinate Judge has

pointed out, there is no material whatever prior to the decree upon which such conclusions can be formed. We have neither the mortgage deed,

nor the plaint nor the depositions in the case or other evidence, nor the judgment, and all that appears is that in the execution proceeding defendant

1 was put into the witness-box, evidently for an entirely different purpose on behalf of defendant 2, and an admission was extracted from him in

cross-examination that he executed the mortgage deed as family manager and that he thought that it was in the family interest although he could not

specify the precise purpose. In these circumstances, and the claim being perfectly intelligible, upon an entirely different aspect of the relationship

between the two defendants, namely, that of guardian and ward, I think it would be going far beyond the reported cases to hold that it is open now

to the decree-holder or his transferee to prove in execution that the property mortgaged was in fact family property and defendant 1 was in fact

manager of the family when he mortgaged it. I can see no grounds accordingly for holding that the lower appellate Court has adopted an erroneous

view of the law and I accordingly dismiss the appeal with costs.