Chippagiri Nagireddi vs Venkadari Somappa

One Linga Reddi and his nephew, the plaintiff in this case, were joint in estate. On the 24th July, 1930, Linga Reddi executed a promissory note

for Rs. 400, in favour of one Bhimakka, who in 1932 instituted a suit to enforce payment. The payee obtained a decree and in execution

proceedings attached immovable property belonging to the family. The property was sold by the Court and was purchased by the defendant, to

whom a sale certificate was granted on the 27th November, 1933. When the defendant attempted to enter into possession he was obstructed by

the plaintiff. Consequently the defendant applied to the Court for an order directing the removal of obstruction and on the 6th February, 1936, his

application was granted. Thereupon the plaintiff filed the suit which has given rise to this appeal. He contended that as he was not a party to

Bhimakka''s suit his share in the property attached by the decree-holder was not liable to be sold. Although Linga Reddi was the manager of the

family the suit had been filed against him personally and there was no suggestion in the pleadings or in the decree that the debt had been incurred

for a family necessity. The defendant''s reply was that as Linga Reddi was in fact the manager of the family, as the debt had been incurred by him

for a family necessity and as the property had been sold without any reservation the interests both of Linga Reddi and his nephew therein had

passed to him. It is common ground that the property was attached as the property of Linga Reddi and not as property belonging to the joint

family.

The District Munsiff held that the plaintiff''s claim was well founded and declared that he was entitled to be restored to possession of the

property, subject to the defendant''s right to obtain possession of Linga Reddi''s share in a separate suit for partition. The District Judge concurred

in the judgment of the District Munsiff and in doing so relied on the decision of this Court in Lakshmanan Chettiar v. Muthu Chelliah Goundan

(1934) 68 M.L.J. 104. The defendant appealed to this Court and Abdur Rahman, J., held that the interests of Linga Reddi and his nephew in the

property in suit had passed to the defendant. The learned Judge considered that the case fell within the decision of the Pull Bench which decided

Vadlamannati Venkatanarayana Rao Vs. Gottumukkula Venkata Somaraju, , where the opinion was expressed that earlier decisions of this Court

which were in the plaintiff''s favour had been overruled by the Privy Council. The present appeal is under the Letters Patent from the judgment of

Abdur Rahman, J.

The decisions of this Court which preceded Vadlamannati Venkatanarayana Rao Vs. Gottumukkula Venkata Somaraju, and in the first place

call for examination are Veeraraghavamma v. Samiudrala ILR (1885) Mad. 208, Guruvappa v. Thimma ILR (1887) Mad. 316, Sethuvayyan v.

Muthuswami ILR (1888) Mad. 325, Subramanian Chettiar v. Sivaswami Chettiar (1927) 54 M.L.J. 278 and Lakshmanan Chettiar v. Muthu

Chelliah Goundan (1934) 68 M.L.J. 104.

Veeraraghavamma v. Samudrala ILR (1885) Mad. 208 was decided by Turner, C. J. and Muttuswami Aiyar, J. There a joint family consisted

of two brothers, the younger of whom was a minor. A creditor brought a suit against the elder brother on a promissory note executed by him, and

having obtained judgment attached property belonging to the family. The promissory note was executed by the elder brother in renewal of one

executed by the father. The elder brother was not sued as the manager of the family and the decree was not drawn up as a decree to be executed

against him in that character or to be satisfied out of family property. In the words of Turner, C.J., for ought that appeared on the face of the

decree, the relief was awarded to the plaintiff against the defendant as for a purely personal liability. The younger brother brought a suit to set aside

the attachment and the Court held that he was entitled under the circumstances to have it removed. The Court considered the decision of the Privy

Council in (1879) L.R. 6 I.A. 233 (Privy Council) but held that it did not apply.

In Guruvappa v. Thimma ILR (1887) Mad. 316 an undivided family consisted of three brothers. The eldest brother mortgaged part of the family

property by way of conditional sale to secure a loan. The mortgagee sued the mortgagor personally for the amount due. The mortgagor admitted

the mortgage and said that he would surrender the property in discharge of the decree. Accordingly a decree was passed against him on this basis.

When the mortgagee came to take possession of the property, the other brothers objected. It was held that as the decree had not been passed

against the joint family or its representative and did not describe the property which had been directed to be delivered to the plaintiff by way of

absolute sale to be family property, it could not be executed against such property. Here again the Court held that (1879) L.R. 6 I.A. 233 (Privy

Council) did not apply.

The same principle was applied in Sethuvayyan v. Muthuswami ILR (1888) Mad. 325. In the last mentioned case, the Court considered

whether the judgment of the Privy Council in (1887) L.R. 14 I.A. 187 (Privy Council) had bearing and it was held that it had not. We shall

consider later on the judgment in (1887) L.R. 14 I.A. 187 (Privy Council) , but in passing it may be mentioned that this was one of the cases on

which the Full Bench relied in Vadlamannati Venkatanarayana Rao Vs. Gottumukkula Venkata Somaraju, .

Veeraraghavamma v. Samudrala ILR (1885) Mad. 208, Guruvappa v. Thimma ILR (1887) Mad. 316 and Sethuvayyan v. Muthuswami ILR

(1888) Mad. 325 were all Bench decisions. Although he did not refer to them, Srinivasa Aiyangar, J., applied the same principle in Subramanian

Chettiar V. Sivaswami Chettiar (1927) 54 M.L.J. 278, where the joint family consisted of two brothers, and it was applied by Varadachariar and

Burn, JJ., in Lakshmanan Chettiar v. Muthu Chelliah Goundan (1934) 68 M.L.J. 104, where a younger brother objected to his share in the family

property being sold in execution of a decree passed against his elder brother in respect of a promissory note executed by him. In delivering the

judgment of the Court, Varadachariar, J., pointed out that where a suit is instituted on a promissory note, it is prima facie a personal claim.

This brings us to the consideration of the judgment of the Full Bench in Vadlamannati Venkatanarayana Rao Vs. Gottumukkula Venkata

Somaraju, , The Bench consisted of Venkatasubba Rao, Cornish and Venkataramana Rao, JJ. Venkatasubba Rao and Venkataramana Rao, JJ.,

held that when a suit has reference to property of the family and the defendant is either the father or the eldest member, it must be presumed that he

was sued as the representative of his family. It was not necessary to describe him as such in the pleadings, nor was it necessary for the decree to

be against him specifically as such in order to pass the whole interest in the property. Cornish, J., based his judgment on Section 50 of the Code of

Civil Procedure. An examination of the facts of that case is not called for, nor is it necessary to consider whether the decision was right on the

facts. We will assume that it was. What the Court is really concerned with is a statement in the judgment of Venkatasubba Rao, J., which says that

the decision in Krishna Prasad v. Harnarain Singh (1911) 21 M.L.J. 378 : L.R. 38 IndAp 45 : ILR 33 All. 272 (P.C.) renders obsolete the

decisions of this Court in Veeraraghavamma v. Samudrala ILR (1885) Mad. 208 and Guruvappa v. Thimma ILR (1887) Mad. 316. If it does,

then it renders obsolete the later decisions of this Court to which reference has been made. In the course of his judgment, the learned Judge also

mentioned (1887) L.R. 14 I.A. 187 (Privy Council) , Sheo Shankar Ram v. Jaddo Kunwar (1914) L.R. 41 LA. 216 : ILR 36 All. 383 (P.C.) and

Lingangowda v. Basangowda (1927) 52 M.L.J. 472 : L.R. 54 LA. 122 : ILR 51 Bom. 450 (P.C.), and it would appear that in making the

statement that Veeraraghavamma v. Samudrala ILR (1885) Mad. 208 and Guruvappa v. Thimma ILR (1887) Mad. 316 had been overruled, the

learned Judge had in mind these other decisions of the Judicial Committee as well and therefore it is necessary to examine them all. It may be

pointed out that Venkatasubba Rao, J., did not refer to any of the decisions of this Court later than that of Guruvappa v. Thimma ILR (1887)

Mad. 316.

In (1887) L.R. 14 I.A. 187 (Privy Council) the essential facts were these. The managing members of a joint trading family mortgaged the family

estate in order to discharge a debt due by the business. The mortgagee sued the mortgagors upon the mortgage and having obtained a decree he

purchased the property at the Court auction. When he applied for possession the other members of the family objected. This resulted in the

mortgagee bringing a suit for a declaration that the interests of the other members of the family had also been validly mortgaged to him and that as

the result of his purchase he had obtained an absolute right to the whole of the property. On this basis he asked for a decree for possession. The

defendants were the other members of the family and they averred that as they were not parties to the mortgage suit the decree passed therein did

not affect their interests. At the trial the defendants rested their defence solely on the ground that they had not been made parties to the mortgage

suit. The Privy Council agreed with the Courts below that the mortgagors were the managers of an ancestral business belonging to a family of

which the defendants, who were minors when the mortgage was effected, were members, and that the mortgage was necessarily entered into in

order to pay the debts of the business. Consequently there was a valid mortgage of the entire property and it might also be assumed that the

property brought to sale was the whole of the mortgaged property, and not merely the rights of the judgment-debtors therein. These assumptions

were drawn because the plaintiff had proposed to lead the necessary evidence, but he was not allowed to do so because the defendants were

content to rely on the fact that they had not been made parties to the suit. Before the Privy Council the defendants sought a remand of the case on

the question whether the mortgage had in fact been executed for the purpose of meeting debts due by the family business, but the Judicial

Committee refused a remand because the defendants had stood upon the ground that they had not been made parties to the previous suit and

objected to have the evidence gone into at the proper time.

In the first of the two Allahabad cases decided by the Privy Council, Krishna Prasad v. Harnarain Singh (1911) 21 M.L.J. 378 : L.R. 38

IndAp 45 : ILR 33 All. 272 (P.C.) a joint family carried on a money-lending business. There were three managing members who were entrusted

with, and regularly exercised, powers to do everything necessary to carry on the business. The managing members lent money to the defendants

for the purpose of the family business and there was a settlement of accounts. The managing members instituted a suit to recover from the

defendants the money which they owed, and the objection was taken by the defendants that the suit was not properly constituted, because the

other members of the family had not been joined as parties. In order to remove this objection, although not agreeing with its validity, the managing

members asked leave to add the other members of the family as plaintiffs. Leave was accordingly granted and the other members of the family

were added as plaintiffs,. but after the period of limitation for the suit had expired. The consequence was that the defendants contended that the

whole suit was time barred. The Privy Council held that the suit as originally brought was properly constituted because the non-managing members

of the family were not necessary parties and therefore the law of limitation did not apply.

The decision in the second of the appeals from the Allahabad High Court, AIR 1914 136 (Privy Council) was also given in a mortgage suit.

The plaintiffs sued to redeem a mortgage after foreclosure on the ground that they had not been made parties to the mortgage suit. It was held that

in the mortgage suit they were properly and effectively represented by the managing members of the joint family of which the plaintiffs were

members. Their Lordships saw no reason to dissent from the Indian decisions that there were occasions, including foreclosure actions, when the

manager of a joint Hindu family so effectively represented all the other members of the family that the whole family was bound.

In Lingangowda v. Basangowda (1927) 52 M.L.J. 472 : L.R. 54 LA. 122 : ILR 51 Bom. 450 (P.C.), the decision of the Privy Council was

based on the doctrine of res judicata. It was held that a decree obtained against the managing member of a joint family was binding upon minor

members of the family u/s 11, Expl. 6, Civil Procedure Code, 1908, if it appeared to the Court that the manager was acting in the first suit on

behalf of the minors in their interests. There the plaintiff in the previous suit was acting on behalf of himself and his minor children and was

attempting to exclude a collateral branch from a share of the family property. If he had succeeded, the judgment would have enured to the benefit

of the children, but as he had failed they had to take the consequences.

None of these four judgments of the Judicial Committee has bearing on the case before us. In each one of them, the facts are widely different

and we fail to understand what prompted Venkatasubba Rao, J., to say that the judgments in Veeraraghavamma v. Samudrala ILR (1885) Mad.

208, and Guruvappa v. Thimma ILR (1887) Mad. 316, must be regarded as obsolete because of these decisions. He did not adduce any reason

of his own for dissenting from them and we can see none.

In S. Maruthamuthu Naicker Vs. P. Kadir Badsha Rowther and Others, , it was pointed out that it is a fundamental principle of the law relating

to negotiable instruments that no one whose name does not appear on the instrument can be held liable on it, and there are other cases in which this

has been emphasised. We agree with the statement of Varadachariar, J., in Lakshmanan Chettiar v. Muthu Chelliah Goundan (1934) 68 M.L.J.

104 that where a suit is instituted on a promissory note it is prima facie a personal claim. Where it is a personal claim, the defendant alone is liable

to satisfy the decree, unless it directs that it is to be paid out of family property, which is not the case here. We are not concerned with the

application of the pious obligation rule in execution proceedings, because the manager of this family was not the father. We are only concerned

with a case in which the manager of a joint family, not the father, is sued on a negotiable instrument executed by him in his personal capacity and

the decree contains no direction that it shall be executed out of family property. This was the position in Veeraraghavamma v. Samudrala ILR

(1885) Mad. 208, Guruvappa v. Thimma ILR (1887) Mad. 316, Sethuvayyan v. Muthuswami ILR (1888) Mad. 325, Subramanian Chettiar v.

Sivaswami Chettiar (1927) 54 M.L.J. 278 and Lakshmanan Chettiar v. Muthu Chelliah Goundan (1934) 68 M.L.J. 104 and we consider that they

were rightly decided. Each case must depend on its own facts but where the facts are similar to the facts in those cases, as they are in the present

case, only the defendant can be called upon to satisfy the decree. A creditor has only himself to blame if he contents himself with suing on the

instrument. He can if he wishes add a claim on the debt and join the other coparceners as defendants, or he can bring a separate suit against them

on the debt.

We are aware that this question has been debated in other High Courts of India and the decisions show a conflict of opinion, but we find no

reason in the judgments which run counter to doubt the wisdom of the series of decisions of this Court which preceded the judgment of

Venkatasubba Rao, J., in the Full Bench case of 1937. It may perhaps be mentioned that in Lakshman Venkatesh v. Kasinath ILR (1886) Bom.

700, the Bombay High Court took the same view as this Court did in Veeraraghavamma v. Samudrala ILR (1885) Mad. 208 that it changed its

opinion in Hari Vittal v. Jairam Vittal ILR (1890) Bom. 597 and that in Laxman Nilkant v. Vinayak Keshav ILR (1915) Bom. 329, it gave

indication of a return to the former opinion. In the last mentioned case Scott, C. J., expressly stated that (1887) L.R. 14 I.A. 187 (Privy Council)

did not appear to him to affect in any way the authority of Lakshman Venkatetsh v. Kasinath ILR (1886) Bom. 700.

Holding as we do that there is no justification for the statement of Venkatasubba Rao, J., in Venkatanarayana v. Somaraju (1937) 3 M.L.J.

251 : ILR (1937) Mad. 880 that Veeraraghavamma v. Samudrala ILR (1885) Mad. 208 and Guruvappa v. Thimma ILR (1887) Mad. 316 have

been rendered obsolete by decisions of the Privy Council and as we consider that these two cases and Sethuvayyan v. Muthuswami ILR (1888)

Mad. 325, Subramanian Chettiar v. Sivaswami Chettiar (1927) 54 M.L.J. 278 and Lakshmanan Chettiar v. Muthu Chelliah Goundan (1934) 68

M.L.J. 104, were rightly decided, the appeal will be allowed and the decree of the District Judge restored with costs in the second appeal and in

this appeal.