H.H.M. Jijamba Bai Sahib by her authorised Agent K. Ramachandra Rao vs Sagniram Jathai Row Sahib and Others

The first point on which the judgment of the District Judge is assailed is that although the present plaintiff was not made a party to the previous

suit instituted by the predecessor in title of the appellant m the present appeal who was aware of the plaintiff''s existence and interest in the property

yet the mortgage-debt having been incurred by the father of the plaintiff, and as such binding on him and his brothers, the sale in execution of the

decree obtained by the predecessor in title of the appellant against the three brothers other than the plaintiff would be binding on the plaintiff. It has

been settled that if a suit is brought against a managing member of a Hindu family to enforce a debt binding on the family property and a decree is

passed, that decree will bind the other members of the family who are not parties to the suit if it appears that by the suit relief was sought to be, and

was in fact, obtained against the defendant as representing the family and not merely in his individual capacity. There can be no doubt that the

decree in O.S. No. 35 of 1898 was intended to bind the family property and in pursuance of that decree the plaintiff''s interest in the property was

sold and not merely the interest of the three brothers impleaded in the suit. It does not appear, however, on the record, as it stands, that any of the

three defendants impleaded in that suit was in fact the managing member of the family. The family, however, consisted only of four brothers of

whom the plaintiff was the youngest, and of others who were also minors but were represented in the suit by the mother as guardian ad litem and of

the eldest brother who was adult being about 30 years of age at the time. The eldest brother who was the first defendant in the former suit would in

the ordinary course of events be the managing member but it might be that in fact he was not the manager, of the family affairs. The mere fact that

the first defendant in that suit was not described as the managing member does not necessarily show that he was not so in fact. We think, therefore,

that before deciding the other questions raised in this second appeal we should have a finding on the question whether the first defendant in O.S.

No 35 of 1898 was the manager of the family. We must ask the District Court to return a finding on this question. The parties will be at liberty to

adduce any fresh evidence on the point. The finding will be submitted within three months, and seven days will be allowed for filing objections.