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Judgment
K. Sampath, J.—The plaintiffs in O.S.No.407/76 on the file of the District Munsif, Vellore, are the appellants in the second appeal. They
filed the suit for partition and separate possession of their 34/96 share in suit items 1 to 7, for a declaration of their right to their share of Rs.270.19
in the sale proceeds lying in deposit in O.S.No.612/64 on the file of the same Court and directing them to draw the same from Court deposit.
It will be easier to narrate the facts leading to the second appeal with a genealogy.
GENEALORY
THOTTI SAPPANI
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Thotti Chinna Foreman Lakshmanan Govindasamy
Periasamy Babu Periasamy D-2 = DW1 (P.W.5)
D-1 = DW2 |
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L. Sundaram L. Sadagopan Ravichandran
D-1 = PW1 D-3 P-2
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The case in the plaint is as follows:
The plaintiffs and the third defendant are the sons of the second defendant. The second defendant had four brothers. They were all the sons of one
Thotti Sappani. Plaint Schedule items 1 to 3 and a house belonged ancestrally to the family. Thotti Sappani and his sons Thotti Periasamy and
Chinnababu were employed as Government Thottis and were also carrying on cultivation of the family lands. From out of the income from the joint
family properties, items 4 to 6 were acquired in the name of Thotti Periasamy, the eldest son on 5-11-1940. Foreman Periasamy, Lakshmanan
and Govindasamy left the suit village in search of employment, while Sappani and the two elder sons lived in the suit village and continued to enjoy
the properties. After the death of Sappani, his sons Thotti Periasamy and Chinnababu were in possession and enjoyment of the properties. In or
about 1954 Foreman Periasamy, the first defendant in the suit, retired from service and returned to the suit village and took over the management
of the family properties. He wanted his brothers to give him authority in writing for the management of the suit properties. He got a document
purporting to be a deed of release executed from Thotti Periasamy, Chinnababu and Lakshmanan, father of the plaintiffs. The brothers executed
the document thinking that it was a document empowering the first defendant to have effective management of the family. The first defendant sold
the properties to one Ramachandra Reddi, Natesa Goundar (the ninth defendant herein) and Thuthipattu Munusamy. The sales are invalid and will
not create any title in them. Govindasamy, the youngest son of Sappani, came to the suit village, filed a suit for partition of his 1/5th share in the suit
properties in O.S.No.612/64 impleading his four brothers and the alienees from the first defendant as parties to the suit. The suit ended in a
compromise and a final decree for partition and allotment of 1/5th share to the said Govindasamy in the suit properties was passed. As the first
defendant had sold the suit properties to Ramachandra Reddi and defendants 9 and 10 without any binding purpose the four brothers and the first
defendant became each entitled to 1/5th share in the suit properties. The plaintiffs and defendants 2 and 3 constitute one of the branches of the
joint family and each entitled to 1/4th of 4/5th share. Thotti Periasamy and his heirs released their 1/4th share in favour of the second defendant
under a release deed dated 30-9-1975. The second defendant also got a release deed dated 11-1-1975 executed from the daughters of
Chinnababu. Thus the plaintiffs and defendants 2 and 3 became entitled to the share of Thotti Periasamy and Chinnababu, excepting the share of
the fourth defendant, who is one of the heirs of Chinnababu. The fourth defendant has also assigned his share in Court deposit in favour of the
second defendant under a deed dated 6-12-1975. The plaintiffs and defendants 2 and 3 have become entitled to the amounts so assigned by the
fourth defendant. Thus the plaintiffs and defendants 2 and 3 are together entitled to 6/24 share of Thotti Periasamy and 5/25 share of Chinnababu
in the suit properties, in addition to their share, viz., 6/24 share. Thus in items 1 to 7 of the plaint Schedule immovable properties, the plaintiffs and
defendants 2 and 3 are together entitled to 7/24 share, while the first defendant and his alienees are entitled to 6/24 share and the fourth defendant
to 1/24 share. In the eighth item in Court deposit, the plaintiffs are entitled to Rs.270.19, the first defendant to Rs.190.31 and defendants 2 and 3
together to Rs.270.19, while the fourth defendant is entitled to Rs.31.71. One of the purchasers from the first defendant died pending suit leaving
behind defendants 5 to 8 as his heirs. The ninth defendant, another purchaser, died pending suit leaving behind defendants 11 to 15 as his heirs.
The tenth defendant, who is one of the purchasers, also died pending suit leaving behind him defendants 16 to 20 as heirs. Since the alienations
made by the first defendant in favour of Ramachandra Reddi, Natesa Gounder and Thuthipattu Munusamy are invalid, the plaintiffs are entitled to
34/96 share in item Nos.1 to 7 of the plaint Schedule and defendants 2 and 3 are entitled to 17/96 share each. Defendants 1 and 5 to 10 are
together entitled to 4/96 share in the suit properties. The plaintiffs are also entitled to the sale proceeds of the joint family house, which is lying in
Court deposit.
Defendants 1 and 4 remained ex parte.
Defendants 2 and 3 filed a written statement supporting the case of the plaintiffs, contending that the alleged release deed dated 25-5-1956 is
invalid and consequently the sales of the suit properties by the first defendant in favour of third parties are invalid and will not create any title in
them. Since the first defendant had represented that he would settle the matter pertaining to the suit in O.S.No.612/64, the second defendant kept
quiet and therefore, the decision in O.S.No.612/64 will not bind the second defendant.
The seventh defendant filed a written statement, which was adopted by defendants 5, 6 and 8, contending inter alia as follows:
The alienation by the first defendant in favour of Ramachandra Reddi on the basis of his absolute right derived under the registered release deed
dated 25-5-1956 is valid and fully supported by consideration and is for binding purposes. The said release deed dated 25-5-1956 has been
confirmed as per the decision in O.S.No.612/64 on the file of the Additional District Munsif''s Court, Vellore. The second defendant was a party
in that suit and the decision will bind the plaintiffs and the third defendant. The decision will operate as res judicata. The release deeds respectively
dated 30-9-1975 and 11-11-1975 are not true. In any event, defendants 5 to 8 and their predecessors in title have perfected title to the suit
properties by adverse possession also. Items 4 to 6 were sold by the first defendant in favour of Ramachandra Reddi, the predecessor in interest
of defendants 5 to 8 for valid consideration. The first defendant also delivered possession pursuant to the sale deed dated 24-3-1962. Ever since
the date of purchase, Ramachandra Reddi was in possession and enjoyment of the suit properties and after his death, defendants 5 to 8 have been
in possession and they have prescribed for title by adverse possession. The fifth defendant has put up a rice and flour mill in item No.4 of the suit
property with due approval. The suit is liable to be dismissed.
The fifteenth defendant filed a written statement adopted by defendants 11 to 14, stating that his father, the ninth defendant, purchased item
No.7 of the plaint Schedule from the first defendant under a sale deed dated 22-5-1961 for Rs.1700/-. The sale was effected by the first
defendant for the purpose of discharging antecedent debts and therefore, the sale in favour of the ninth defendant is valid and binding upon the
plaintiffs and defendants 1 to 4. The sale deed was attested by Thotti Periasamy, the eldest son of Thotti Sappani and one of the creditors by name
Salla Ganga Reddi. The ninth defendant was in possession and enjoyment till he died and thereafter, defendants 11 to 15 are in possession and
enjoyment and have prescribed for title by adverse possession. They also effected improvements. The ninth defendant was a party in
O.S.No.612/64. He was a bona fide purchaser for value in good faith. He is entitled to protection u/s 41 of the Transfer of Property Act. Since
the plaintiffs'' father was a party to the release deed dated 25-5-1956, the plaintiffs cannot claim any right over the suit properties.
The nineteenth defendant filed a written statement, adopted by defendants 16, 18 and 20, stating that his father Thuthipattu Munusamy
purchased items 1 to 3 of the plaint Schedule from the first defendant for valuable consideration under a registered sale deed dated 23-1-1964.
Munusamy was in possession and enjoyment till his death and after him, defendants 16 to 20 are in possession and enjoyment and have prescribed
for title by adverse possession. The predecessors in interest of the plaintiffs were parties to the suit O.S.No.612/64. The plaintiffs are estopped
from disputing the title of the defendants to the suit properties. The suit is barred by the principles of res juudicata. Since Thuthipattu Munusamy
was a bona fide purchaser for value, defendants 16 to 20 are entitled to the protection u/s 41 of the Transfer of Property Act.
On the above pleadings, the trial Court framed the necessary issues and on the oral and the documentary evidence, held that the release deed
marked as Ex.B-1 was not obtained by fraud and misrepresentation, that the alienations under Exs.A-9 to A-11 are true, but not binding on the
plaintiffs, that the suit is barred by res judicata in view of the decision in O.S.No.612/64, that the defendants have perfected title by adverse
possession and that the suit is barred by limitation.
The plaintiffs filed appeal in A.S.No.143/80. The learned First Additional Subordinate Judge, Vellore, by judgment and decree dated 29-1-
1981 concurred with the findings of the trial Court and further held that Ex.B-1 and the alienations are binding on the plaintiffs and dismissed the
appeal.
It is as against that, the present second appeal has been filed. At the time of admission, the following substantial questions of law were framed
for decision in the second appeal:
(1) Whether the release deed Ex.B-1 dated 25-5-1956, i.e., registration copy of Ex.A-32 in favour of the first defendant by three out of the five
brothers is valid and effective to confer absolute title in favour of the first defendant alone to the exclusion of Govindasamy, son of Sappani?
(2) Whether the Courts below erred in holding that the claim of the plaintiffs is barred by the principle of res judicata by reason of the decision in
O.S.No.612/64 on the file of the Additional District Munsif, Vellore, to which the plaintiffs are not parties?
(3) Whether the Court below erred in applying the principle of ostensible ownership embodied in Section 41 of the Transfer of Property Act to bar
the claim of the plaintiffs'' share who are members of the joint family in the suit properties?
Mr. S.P. Subramaniam, learned Counsel for the appellants, made the following submissions:
Ex.B-1 is not in favour of the remaining coparceners; it is not valid; it would enure for the benefit of all others including the plaintiffs; Ex.B-1 cannot
be taken to have been executed in a representative capacity; the presumption is the other way; it is for the defendants to prove that it would bind
the plaintiffs; as a result of Ex.B-1 there was no disruption of joint family; if this position is accepted, then there would not be any limitation for the
filing of the suit. Further, the first defendant has dealt with the properties as independent absolute owner and the plaintiffs need not set aside the
sale deeds. So far as the earlier suit is concerned, the second defendant remained ex parte. There was no adjudication and that the decision in that
suit would not operate as res judicata.
The last submission is that the Courts below have grievously erred in holding that in view of Section 41 of the Transfer of Property Act, the
contesting defendants are protected.
The learned Counsel relied on several passages from the treatises of Mulla, Mayne, Raghavachari and S.V. Gupte on Hindu Law and the following
decisions in support of his submissions:
(1) KARAM SINGH VS. SURENDAR SINGH AND OTHERS AIR 1931 Lah 289
(2) AIR 1936 264 (Privy Council);
(3) Chella Subbanna and Another Vs. Chella Balasubbareddi and Others, ;
(4) KRISHAN CHANDER AND OTHERS VS. THE BOARD OF REVENUE FOR RAJASTHAN AND OTHERS AIR 1973 Raj 17 and
(5) STATE OF MAHARASHTRA AND ANOTHER VS. M/S NATIONAL CONSTRUCTION CO., BOMBAY AND ANOTHER 1996
(2) SCJ 58.
Per contra, Mr. Manokaran, learned Counsel for the contesting respondents, submitted that the release by Lakshmanan in favour of Foreman
Periasamy would bind the plaintiffs as also the third defendant. Once the release came into effect, whatever rights the second defendant had as
member of the joint family ceased. Further, the release had been executed in favour of the first defendant for the purpose of discharging antecedent
debts and it should be treated as a valid document. Again, the second defendant was a party to the earlier suit. Though he remained ex parte, the
decree would be a valid decree and binding on Lakshmanan and consequently, his sons, the plaintiffs and the third defendant. So far as the
contesting defendants are concerned, they are in possession pursuant to valid sale deeds in their favour or in favour of their predecessors in title.
They are bona fide purchasers for value, without notice of the alleged right of the plaintiffs in the suit property. In any event, they have prescribed
for title by adverse possession. The release deed is dated 25-5-1956 and the sale deeds were in 1961, 1962 and 1964 and the suit filed in 1976 is
clearly barred by limitation.
The learned Counsel relied on the following decisions:
(1) Vadlamanati Venkatanarayana Rao Vs. Gottumukkule Venkata Somaraju,
(2) Shankar Sitaram Sontakke and Another Vs. Balkrishna Sitaram Sontakke and Others,
(3) Habibur Rahman Vs. Vijay Charan Abhay Charan Dubey and Bros.,
(4) S. Cenniappa Mudaliar, Madurai Vs. The Commissioner of Income Tax, Madras,
(5) Amritsagar Gupta and Others Vs. Sudesh Beharilal and Others,
(6) The Commissioner, Hindu Religious and Charitable Endowments, Madras Vs. V. Krishnaswami and Another, and
(7) RAMASAMY AND OTHERS VS. K.C. DORAISAMY 2000 (3) MLJ 288
There is absolutely no quarrel over the proposition that any release by a coparcener could be in favour of the other coparceners as a body and
not in favour of one or more of them.
In Mulla''s Principles of Hindu Law, Section 264(1) runs as follows:
A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more
of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for the sole
benefit of the coparcener or coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing
coparcener makes it a condition that he would be paid something towards maintenance. The renunciation or relinquishment must, of course, be
genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed. Reference may be made to
Section 328(6) infra. In case of relinquishment by an unmarried coparcener his after-born son cannot claim partition.
Section 264(2): However wide and general the words in a deed of renunciation or relinquishment may be, the operation of the document must be
restricted to the rights which are in contemplation or in controversy between the parties and would not cover or comprehend rights which were not
in their minds when it was executed.
Section 328(6) runs as follows:
A renunciation or relinquishment by a member of his interest in the family property stands on a different footing altogether from the case where one
member receives his share in the property and separates from the other members. In the former case, the other members continue to be joint as
before. The effect of renunciation is to reduce the number of persons to whom shares would be allotted if and when a division of the estate takes
place,
In Mayne''s Hindu Law, Thirteenth Edition, paragraph 407 runs as follows:
A gift by a coparcener of his entire undivided interest in favour of the other coparcener or coparceners will be valid whether it is regarded as one
made with the consent of the other or others or as a renunciation of his interest in favour of all. Renunciation with a condition to pay maintenance to
him is also valid. Such a renunciation can be effected by an expression of an intention to that effect, and no formality is necessary. Mere
relinquishment of interest in the coparcenary property unless there is an intention to separate from the family does not mean that such coparcener
ceases to be a member of the family. But a gift or renunciation of his interest by one coparcener in favour of one of several coparceners can be
valid neither as a gift nor as a renunciation. In AIR 1936 264 (Privy Council) the Privy Council held that a coparcener''s renunciation of his interest
merely extinguishes his interest in the joint estate and its only effect is to reduce the number of the persons to whom shares will be allotted if and
when a division of the estate takes place. Such a renunciation makes him a divided member from the rest. If on the date of renunciation there are
no joint family properties, the renunciation will not operate to bring about a division in the status. Relinquishment does not amount to partition of the
joint family and it only operates as separation of that member from the family. So the son begotten afterwards acquires no interest in the original
coparcenary property. A renunciation by a coparcener is not an alienation of his interest in favour of the others. Regarding separate properties
conveyance deed is required. The relinquishment of his interest by a coparcener in favour of his wife or minor son does not effect a severance of
status. Relinquishment by coparcener in favour of persons not in existence is not a transfer of property within the meaning of the Transfer of
Property Act. A relinquishment has to be strictly construed. A relinquishment by a son of his interest in the father''s self-acquired property will not
have the effect of a relinquishment of his interest in the joint family property when the separate property of the father is subsequently thrown into the
joint stock.
Paragraph 481 is as follows:
Renunciation: Separation of a coparcener may be effected by renunciation of his interest in the family property. Yajna Valkya says:
The separation of one, who is able to support himself and is not desirous of partition may be compelled by giving him some trifle."" The Mitakshara
adds: ""The male issue of a coparcener who renounces also loses his claim."" But this can apply only to after born sons unless at the time of
renunciation, his sons and grandsons are adults and gave consent to it. The giving of a trifle is only as a token and is not essential. ........ But the
relinquishment by one coparcener must be in favour of all the others and not in favour of some only, nor confined to part only of the joint estate.
Even if the joint family owns an impartible estate a member can on behalf of himself and his heirs, renounce his right of succession, but the
renunciation must be made in favour of all the branches of the joint family or to the head of the family as representing all its members. A
relinquishment, if valid, it is immaterial if it is termed as a gift, surrender or release. The true test is the intention of the executant.
In N.R. Raghavachari Hindu Law Principles and Precedents (Ninth Edition) Paragraph 273, the principle is stated as follows:
Renunciation of rights:- A coparcener can renounce his interest in the joint family estate. The renunciation does not result in a general partition of
the family. (CHOUDHURI RAGHUBANS NARAIN SINGH VS. STATE OF U.P. 1973 (1) SCJ 289 : 1972 SC 2096. Such a renunciation
merely extinguishes his interest in that estate, but does not affect the status of the remaining members quoad the family property, and they continue
to be coparceners as before, the only effect of the renunciation being to reduce the number of persons to whom shares would be allotted if, and
when, a division of the estate takes place. (VENKATAPATHI VS. VENKATANARASIMHA 44 MLW 408 : 1936 P.C. 264;
MAHALINGAYYA VS. SANGAYYA 45 Bom L.R. 773 : 1943 Bom 397; HALAPPA VS. RANGANNA 1968 (2) Mys L.J 597. A
coparcener can renounce his interest only in favour of all the other coparceners and when he renounces in favour of only one of them, the
renunciation enures for the benefit of even the others. (KARAM SINGH VS. SURENDRA 1931 L. 289; SHIVAJI VS. WASANT 33 Bom 267
: 10 Bom L.R. 778 : 21 C. 249; VASANT VS. ANAND 6 Bom L.R. 925; CHANDAR VS. DAMPAT 16 A. 369; Chella Subbanna and
Another Vs. Chella Balasubbareddi and Others, , overruling PEDDAYYA VS. RAMALINGAM 11 M. 406, upholding the validity of
renunciation in favour of some only of the coparceners. (SANVEERANGOUDA VS. BASANGOUDA 41 Bom LR 561 : 1939 Bom 313;
Sellammal Vs. Periammal, , his renunciation which enures for the benefit of all the other coparceners may take the form of a gift of the entire
interest of a coparcener in favour of another coparcener.
A renunciation by a member of a joint family having sons at the time of the renunciation cannot bind the sons or have the effect of separating them
from the other members of the joint family unless the renunciation is for consideration representing the value of the share of the branch of the
member renouncing and can be considered as a partition of his branch including the interests of his sons in the joint family property. The
renunciation does not deprive his sons, including the after born sons of a share in the joint family property when they continue to remain as
coparceners. (KISHENCHANDER VS. BOARD OF REVENUE 1972 RLW 478 : 1973 Raj. 171.
According to the learned Counsel, the first sentence in the second paragraph above is an embellishment.
In S.V. Gupte Hindu Law Third Edition, Chapter 7, Article 29, pp 227 and 228, paragraphs 22 to 26 on Renunciation run as follows:
Explanation: Renunciation:- A coparcener may renounce his interest in the joint family property in favour of his coparceners.
Although a coparcener may not dispose of his undivided interest in the joint family property - whether by Will, gift inter vivos or an alienation for
value (except in Madras and Bombay) - without the consent of his coparceners, he may renounce, that is to say, surrender or relinquish his interest
in favour of the other coparceners.
A controversy- Whilst it is well established that a coparcener may renounce his interest in favour of the coparceners (and none else), there is a
difference of opinion as to whether the surrender or relinquishment to be valid must be in favour of all the remaining coparceners or may be in
favour of some of them only. The decisions holding the view that it must be in favour of all also hold that should the renunciation be in favour of
some only, it would nevertheless enure for the benefit of all.
Basic text: The law as to renunciation is based on a text of Manu''s which reads: ""If any one of the brethren has a competence from his
occupation and desires not the property, he may be debarred from his share by giving him a trifle in lieu of maintenance.
With reference to this text, it has been held that for a surrender or relinquishment to be effective, it is not necessary that something trifling should be
given to the coparcener (renouncing) by way of consideration. The giving of a trifle is only a token and not essential.
Entire interest:- A renunciation must in the nature of things be of the whole of the undivided interest (then subsisting of the coparcener with the
possible exception, it would be seen from the text, of a provision for maintenance. The renunciation or surrender cannot be confined to a part only
of the undivided interest.
A gift by a coparcener of the whole of his undivided interest (then subsisting) in favour of a coparcener or comparceners may, therefore, operate
as a renunciation. Such a gift will be valid whether it is regarded as one made with the consent (express or implied as the case may be) of the other
coparcener or coparceners or as a renunciation of his interest in favour of all.
The holder of an impartible estate can on behalf of himself and his heirs renounce his right to succession but such renunciation operates for the
benefit of all other members. The surrender must be to each of the branches or to the head of each branch as representing its members.
The renunciation must be in unequivocal terms.
Renunciation by the father does not operate as relinquishment of the interest of his sons, for their rights are independent of his.
But a surrender or relinquishment by the father of the whole of the ancestral property in favour of his three sons two of whom are minors and his
wife who is a stranger to the coparcenary is not valid.
A relinquishment of the right in the joint family property in order to be effective has to be made in unequivocal terms to the receiving party or in a
formal document.
In KARAM SINGH VS. SURENDAR SINGH AND OTHERS AIR 1931 Lah 289 referred to in the Commentaries, it has been held that,
the right which the son in a joint Hindu Family takes at his birth in ancestral property is wholly independent of his father. He does not claim through
the father and a transfer by a father of his own interest in the ancestral property cannot affect the interest of the son in the property. A renunciation
of his share in the ancestral property by the father cannot therefore operate as the relinquishment of the rights of his sons, as they are wholly
independent of the right of the father.
It is further stated in that decision that,
one coparcener cannot renounce his interests except in favour of all the coparceners. If he renounces in favour of one or more of them, the
renunciation enures to the benefit of all the coparceners and not for the sole benefit of the coparceners in whose favour the renunciation is made.
In AIR 1936 264 (Privy Council) which is referred to in Mayne''s Commentaries, it has been held as follows:
When one member of a joint family separates from the other members, his separation operates as a separation of all the members of the family
from one another. In many cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the share which the other
coparceners are or would be entitled to, and in this sense, subject to the question whether these others have agreed to remain united or to reunite
the separation of one is said to be a virtual separation of all. It is settled rule that when the members of a family hold the family estate in defined
shares, they cannot be held to be joint in estate. But no definement of shares need take place, when the separating member does not receive any
share in the estate but renounces his interest therein. His renunciation merely extinguishes his interest in the estate, but does not affect the status of
the remaining members quoad the family property, and they continue to be coparceners as before. The only effect of renunciation is to reduce the
number of all the persons, to whom shares would be allotted, if and when a division of the estate takes place.
In Chella Subbanna and Another Vs. Chella Balasubbareddi and Others, a Full Bench of this Court has held as follows:
A member of a joint Hindu family governed by the Mitakshra law cannot give his interest in the family estate to one of several coparceners if they
remain joint in estate. In such circumstances, he can relinquish his interest but the relinquishment operates for the benefit of all the other members.
It has been further held that,
where one of the coparceners of a joint family relinquishes his interest in joint family property the giving of a trifle to the outgoing coparcener as
contemplated by the texts cannot be regarded as a condition precedent to the validity of the relinquishment.
In Krishan Chander and Others Vs. The Board of Revenue for Rajasthan and Others, , it has been held that,
the renunciation of his share by a coparcener who continued to be a member of the joint family after the renunciation, does not deprive his sons
including the afterborn sons of a share in the joint family property when they continued to remain coparceners.
On the basis of the above position, Mr. S.P. Subramaniam, learned Counsel for the appellants, contended that so far as the plaintiffs and the
third defendant are concerned, the relinquishment by their father, the second defendant in the suit, will not bind them, that he had no authority to
release the interest of his sons in the joint family property in favour of the first defendant.
It is specifically recited in the release deed that there were debts in the family and in as much as the first defendant had undertaken to discharge
the debts, the release deed was executed. The release deed was, no doubt, by Thotti Periasamy, Chinnababu and the second defendant of their
rights in the family properties in favour of the first defendant alone. In view of the legal position that the release would be in favour of all the
remaining members of the coparcenary, the last brother Govindasamy was also entitled to realise such a benefit. He filed the suit in O.S.No.612/64
before the Sub Court, Vellore, for partition of his 1/5th share in the family properties attacking the sales under Exs.A-9, A-10 and A-11. Final
decree was passed on 30-1-1969 marked as Ex.A-8 pursuant to a compromise decree. The last brother, who has been examined as P.W.5 in the
present suit, was given some lands. The father of the plaintiffs, the second defendant herein, was made a party as also the alienees. He however
remained ex parte, though according to him in his written statement, the first defendant promised to settle the matter and therefore he did not
contest.
It is pointed out that there were debts in the family as could be seen from the evidence of the second defendant himself as D.W.1, D.W.3 and
P.W.5 Govindasamy that only to discharge the said debts, the release was effected in favour of the first defendant. As rightly pointed out by the
lower Appellate Court, since Ex.B-1 was executed by Thotti Periasamy, Chinnababu and the second defendant representing each of the branches
of the joint family, the heirs of the above said persons cannot question the validity of Ex.B-1. Though the second defendant might not have stated in
Ex.B-1 that he was executing the document for himself and on behalf of his sons, the principle is well settled that where a father enters into any
transaction affecting the family, he need not expressly state that he enters into it in his representative capacity. This capacity will ordinarily be
presumed unless it can be shown that there is a conflict of interest between him and his sons. Thus, Ex.B-1 must be deemed to be binding on the
plaintiffs and the third defendant as well, subject to the renunciation being for consideration representing the value of the share of the branch of the
member renouncing. It can be considered as a partition of his branch including the interests of his sons in the joint family property.
Ex.B-1 is dated 25-5-1956 and it has been found to be a true and genuine document, under which the second defendant validly released the
rights of his joint family in the joint family properties in favour of the first defendant, who had undertaken to discharge the family debts. The learned
Counsel for the appellants fairly stated that the appellants are not challenging the finding that Ex.B-1 was not obtained by fraud and
misrepresentation. The plaintiffs have not taken steps to challenge the release under Ex.B-1. Once the release is accepted as a true and valid
document binding on the plaintiffs and defendants 2 and 3, then everything else will follow. As regards limitation, the period within which Ex.B-1
should have been questioned is 12 years from the date of its execution. That would take us to 1968. The present suit came to be filed only in
1976. There is also nothing to show that the joint family continued even after Ex.B-1, or that anybody, other than the first defendant and the
possible exception of P.W.5, had anything to do with the joint family properties. Within a week from the date of Ex.B-1, the first defendant began
exercising absolute rights of ownership by creating a mortgage under Ex.B-11. Exhibits B-12 and B-13 show that there were claims against the
quondam joint family and that they were taken care of by the first defendant. Ex.B-14 dated 30-5-1962 is a receipt issued by Ranga Reddiar to
the first defendant apparently evidencing repayment of joint family debt. This is followed by sale deeds originals of Exs.A-9 to A-11 in 1961, 1962
and 1964. The first defendant has dealt with the properties as absolute owner. Counsel''s argument that there was no disruption of joint family and
therefore Article 110 of the Limitation Act will alone apply cannot be accepted. There has been total exclusion of the second defendant and his
sons, the plaintiffs and the third defendant. The exclusion was known to the second defendant from day one. His knowledge was knowledge of his
then minor sons also. (See GAJAPATI NARASIMHA DEO GARU VS. KRISHNA CHANDRA DEO GARU 37 MLJ 256; Marudanayagam
Pillai Vs. Sola Pillai (died) and Others, . There is also authority for the position that you can impute knowledge to the minor and it can be availed of
as being knowledge even before majority for it is not as if law prohibits recognition of the knowledge of any person during his minority. Only thing
is, his incapacity to take action immediately is recognised and he is shown concession in the matter of time for taking action. The Privy Council in
KALYANDAPPA VS. CHANBASAPPA AIR 1924 PC 137 : 46 MLJ 598 : ILR 48 Bom 411 and RADHOBA VS. ABU RAO 57 MLJ 287
: ILR 53 Bom 699 has endorsed this view in the following manner:
The view that you cannot impute knowledge to a minor is certainly not in accordance with the facts of human nature.
Be that as it may, the first plaintiff was 11 years old in 1956. He must have attained majority in 1963. The suit ought to have been filed in 1975.
The suit filed in 1976 is clearly barred by limitation.
The next question is whether the ex parte decree in O.S.No.612/64 would bind the sons also. The learned Counsel, in this connection, relied
on the decision of the Supreme Court in STATE OF MAHARASHTRA AND ANOTHER VS. M/S NATIONAL CONSTRUCTION CO.,
BOMBAY AND ANOTHER 1996 (2) SCJ 58 where it has been held that,
in view of the fact that the words ""has been heard and finally decided"" in Explanation IV to Section 11 of the Code of Civil Procedure, the bar of
res judicata would apply only if the matter directly and substantially in issue in former suit has been heard and finally decided. If the former suit is
dismissed without any adjudication of the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata.
This is not a case where the former suit was dismissed without any adjudication. The second defendant, who was a party, remained ex parte.
There was a compromise and pursuant to the same, a compromise decree was passed. It cannot be said that there was no adjudication. There is
an essential difference between a case dismissed for default and a case decided ex parte.
In S. Cenniappa Mudaliar, Madurai Vs. The Commissioner of Income Tax, Madras, a Full Bench of this Court has held, while dealing with a
matter which arose under the Income Tax Act that,
the dismissal of a case for default can in no sense amount to an adjudication on its merits, quite unlike a case of ex parte decision, where there is
an adjudication on merits and that the former cannot operate as res judicata, while the latter would.
See also: The Commissioner, Hindu Religious and Charitable Endowments, Madras Vs. V. Krishnaswami and Another, .
The decision of the Supreme Court relied on by the learned Counsel cannot therefore advance the case of the appellants. No doubt, the
learned counsel argued that for invoking the principles of res judicata, the pleadings as also the judgment in the previous suit should have been
produced and in the present suit, they have not been filed and that only the final decree (Ex.A-8) is before Court. The learned Counsel is well
founded in his submission. But then the earlier suit is admitted to be a suit for partition in which the present second defendant was a party. In a
partition action, the plaintiff is the defendant and the defendant is the plaintiff. If he had cared, the present second defendant could very well have
appeared and made a claim. He chose to remain ex parte though the reason given by him in the written statement now is that the first defendant
promised to give him some property. That can hardly be a good ground for remaining ex parte. Final decree came to be passed in 1969. He did
not get any property. Nor did he bother to take steps to have the ex parte order set aside. The decision was by invitum. He must be deemed to
have abandoned his claim.
In Vadlamanati Venkatanarayana Rao Vs. Gottumukkule Venkata Somaraju, a Full Bench of this Court has held as follows:
Where a father is sued as a representative of a joint Hindu family in respect of a joint family liability, the other members of the family must be held
to be substantially parties to the suit through him. The fact that they are not parties eo nomine will not render them any the less parties to the suit. A
decree obtained against him in such suit will be binding on the joint undivided son and entire joint family property can be taken in execution of such
decree even if the son is not a party to the suit. The decree in such case, even if it does not show on its face that it was passed against the
coparcenary, would yet be binding upon the whole family in as much as he can effectively represent the entire family in such suit. The decree can
be executed against the joint family property in the hands of the son on the death of the father. The son cannot plead in execution that a partition
has taken place between him and his father before such decree.
In Amritsagar Gupta and Others Vs. Sudesh Beharilal and Others, , the Madras Full Bench decision has been relied on and approved. It has
been held that,
it is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit
that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the
manager was in fact suing or being sued as representing the whole family. The suit by or against the manager will be deemed to be one brought by
him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in
the suit is family property. It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as
manager or where he is the defendant that he is being sued as manager. A Karta can represent the family effectively in a proceeding though he is
not named as such.
In the suit filed by the last brother Govindasamy against Foreman Periasamy, the second defendant was made a party as also the alienees. The
second defendant chose to remain ex parte and this ex parte decree would indeed be binding on the joint family consisting of himself and the
plaintiffs and the third defendant, though the second plaintiff was born after the date of Ex.B-1. No steps have been taken to set aside the decree
against the second defendant, in which he did not get any property. The decision is as effective an estoppel as a judgment whereby the Court
exercises its mind on the contested case. The rights, if any, the plaintiffs and the third defendant had in the properties, notwithstanding Ex.B-1,
should be deemed to have been lost to them.
Consequently, the substantial questions of law are answered as follows:
Ex.B-1 release deed dated 25-5-1956 in favour of the first defendant by three out of the five brothers is not valid and effective to confer absolute
title in favour of the first defendant alone to the exclusion of Govidnasamy, the last son of Sappani. It must be deemed that the release was in
favour of the remaining members of the coparcenary, viz., the first defendant and P.W.5 Govidnasamy. The claim of the plaintiffs is barred by the
principle of res judicata by reason of the decision in O.S.No.612/64 on the file of the Additional District Munsif, Vellore. It is further to be held
that so far as the alienees are concerned, they had acted on the basis of the release deed under Ex.B-1 and accepted that the first defendant was
the absolute owner of all the properties. They must be held to be bona fide purchasers for value without notice of the claim of the plaintiffs and the
third defendant.
The second appeal fails and the same is dismissed. There will, however, be no order as to costs.