Mithu Pandey vs Suraj Kumar Lal and Another

Wort, J.—The only point in this appeal arises out of finding by the learned Judge in the Court below to this effect:

There is no evidence on the record to show that defendant 2 was the managing member of the family of the defendants or that he was sued in that capacity in the suit for the recovery of the arrears of thica rent by the plaintiff. Therefore the decree obtained by the plaintiff against defendant 2 alone for the recovery of the arrears of thica rent cannot be binding on defendant 1.

Defendant 2 had executed a thica lease on behalf of the family consisting at the time of defendant 2 himself and defendant 1, his uncle. This transaction in itself arose out of a zarpeshgi entered into by the grandfather of defendant 2 in consideration of a loan of Rs. 2,200. Under the thica lease the family got back into possession of the property. In those circumstances two actions were brought for rent, in the second of which defendant 2 alone was impleaded as defendant. Property other than the subject matter of the thica lease was put up for sale in execution of the decree. Defendant 1 entered an objection under Order 21, Rule 58. Civil P.C., which was allowed. The property being released the plaintiff brought this action. The substance of his claim is that he was entitled to execute against the property which had been thus released. The defence to the action was that defendant 2 and defendant 1 were separate and that the property, being the property of defendant 1, could not be sold in execution. If the matter rested there, on the findings of the Judge in the Court below there could be no doubt that the plaintiff would be entitled to succeed, as the Judge has found that the defendants were in fact joint and that the thica transaction was entered into by the defendant on behalf of the joint family. Now the learned Judge, by the passage I have read, has come to the conclusion that in spite of these findings of fact in the plaintiff''s favour, the decree was not binding on the family in the sense that the family property could not be taken in execution as the decree in the rent suit was against defendant 2 personally and not as representative of the family.

It is contended by Mr. Sinha, who appears on behalf of the appellant, that the learned Judge in the Court below misunderstood the case and misunderstood the principle of law which was to be applied, and as it is disclosed by the statement I have read that the Judge appears to be under the impression that unless the defendant was the karta of the family and sued as such, or to use the expression of the Judge, the managing member of the family, the decree could not be binding upon the joint family. In those circumstances I called for the judgment and decree in the rent suit for the purpose of endeavouring to understand exactly what the learned Judge meant by saying that "the defendant was not sued as the managing member of the family." It appears that the judgment of the rent suit was not in evidence before the Judge in the Court below; in other words, there was no evidence at all as, to whether defendant 2 had been sued as representing the family. Before I proceed with the matter, I would like to state the proposition of law which applies to a case of this kind. It is best stated in the words of Sir Din-shah Mullah in Edn. 7 of his Hindu law at p. 289 in Section 252:

A. decree passed against the manager of a joint family as representing the family for a debt contracted by him for family necessities, or for the family business, or in respect of family properties, operates as res judicata under the CPC ... and is binding upon all members of the family including minors.

That, if I may say so, is a principle of law which has been well established by the authorities, and as I understand the argument of Mr. Sinha, he does not seriously contend that that is not so. But his argument is that when once it is shown that defendant 2 acted as representative of the family when the thica transaction was entered into, it must be presumed in this case as a matter of law that the plaintiff sued defendant 2 as representing the family and that the family property was bound by the transaction. Now, if the principle which I have stated applies to the case of a karta or managing member of the family, it applies even with more force in a case of this kind where the transaction was entered into, not by the managing member of the family but by a junior member of the family. Although it might be sufficient to state merely that the plaintiff was suing the karta as such, but in the case of suing a member other than the karta, I should have imagined it would be necessary to prove that he was being sued as a person who represented the family in the transaction upon which the claim rested. Now, assuming that the learned Judge was wrongly under the impression that, unless the defendant was sued as the managing member, that is to say, karta of the family, there was no obligation or liability upon the family property, even so the question arises, was it necessary in this case for the plaintiff to establish the fact that the defendant in the rent action was sued in his representative capacity? In my judgment on the well established principle of law, it was. Now it is quite clear from the pleadings of the parties in this case that the plaintiff never set out to prove that fact. He stated that defendant 2 represented the family in the thica transaction and that is the reason why he was sued. The learned Judge in the Court below finds that there was no evidence that defendant 2 was in fact sued in his representative capacity and that a decree was obtained against him in that capacity. That being so, it seems to me that the onus which was clearly upon the plaintiff in this section was not discharged by him; and, if the onus was upon him, as I have said it was, and it has not been discharged, his action was bound to fail. The learned Judge in the Court below was therefore right in stating that defendant 2 was not sued as the managing member of the family. The manner of his expression might be open to some misunderstanding; but, even so, when the pleadings and the issues are noticed, it is clear that the plaintiff failed entirely to show, as he was bound to show in this case, that the decree was binding against the family property; that is to say, the family property was liable to sale in execution of that decree by reason of the fact that it was a decree against defendant 2 as representing the family.

At first I took a very strong view against that which I have just expressed as it appeared to me in the first instance that the learned Judge had misunderstood the position. But once having decided that the onus was on the plaintiff, and it being quite clear, as I have already said more than once, that there was no attempt on the part of the plaintiff to discharge that onus, the matter becomes perfectly clear. For those reasons, I think the appeal fails and must be dismissed with costs. Leave to appeal under the Letters Patent is granted.