Sankara Pattar vs Ramanatha Ayyar and Others

Govinda Menon, J.—Before we dispose of this Letters Patent Appeal, it is necessary to have clarification of certain facts connected with it. Otherwise, this interesting question of law cannot be properly discussed. It is contended for the Appellants in the Letters Patent Appeal that at the time when the final decree was passed on 4th March 1942, the joint family of which Narayana Ayyar was the manager when he filed Original Suit No. 127 of 1934, and obtained the preliminary decree on behalf of the joint family on 17th December 1936, had become disrupted by means of a partition between Narayana Ayyar and the other coparceners by a registered deed, dated 9th September 1939. If that is so, then, at the time when the final decree was passed on 4th March 1942, under the general law, Narayana. Ayyar would not have represented the other members of the family. But Mr. Swaminathan contends that in the application for the passing of final decree, one of the quondam coparceners filed an affidavit stating that the family had got dissolved by means of a partition on 9th March 1939 but, in spite of that, a request was made to the Court to pass a final decree in favour of Narayana Ayyar as the original decree-holder representing the joint family. The question, therefore, has to be decided whether the final decree, dated 4th March 1942, eo nomine in the name of Narayana Ayyar was for the joint family of which he was once the head. This can be properly decided only if the Interlocutory Application by which the Court was moved for passing of final decree is looked into and its contents ascertained. Unfortunately, that Interlocutory Application No. 432 of 1941 has not been sent up to this Court nor do we find that exhibited among the papers in these proceedings. We, therefore, direct the Subordinate Judge of Palghat, after taking such further and fresh evidence as the parties may desire, to submit a finding as to whether at the time of the passing of the final decree on 4th March 1942, the Court which passed the decree was apprised of the previous partition among the members of the joint family on 9th September 1939, and if the Court had been apprised of that fact, whether the final decree was only in favour of Narayana Ayyar in his individual capacity or in favour of Narayana Ayyar as representing all the members of the erstwhile joint family. The finding will be submitted to this Court within one month after the reopening of the Subordinate Judge''s Court, Palghat. One week thereafter for objections. On this finding, any other question of law that arises will be considered.

Mr. Kutti Krishna Menon for the Appellant contends that the equity of redemption, which he has purchased, consists of a sum of Rs. 3,000 due from Narayana Ayyar''s joint family as unpaid purchase money to the minors, who were some of the original owners of the property. The period of limitation for suing for that sum might expire soon. If it is found that the decree cannot be executed on account of the bar of limitation or other reasons, then he will have to file a separate suit probably before July this year, which cannot be done unless this Letters Patent Appeal is disposed of in the meanwhile. In the very nature of things, it is not possible to do so, in view of the fact that we have called for a finding. We, therefore, direct the contesting Respondents in this Letters Patent Appeal, who were the Appellants in Civil Miscellaneous Second Appeal No. 37 of 1948 to deposit in the Court of the Subordinate Judge of Palghat a sum of Rs. 3,000 which might be taken to be the approximate amount of the money for which the original vendors have unpaid vendors'' lien, within one week after the reopening of the Subordinate Judge''s Court in June. This amount will remain in Court subject to the result of this Letters Patent Appeal. If the Appellant here succeeds and we find that the decree in Original Suit No. 127 of 1934 has become unexecutable, it is open to the Appellant to apply to the Subordinate Judge''s Court, Palghat, for the payment of the sum due to him. If, on the other hand, it is found that the decree in Original Suit No. 127 of 1934 is executable, then the present Respondents can withdraw so much of the money as will be found necessary for satisfying their mortgage claim. The balance, if any, will be paid over to the Appellant in the Letters Patent Appeal.

In pursuance of the above order calling for a finding, the Subordinate Judge of South Malabar at Palghat submitted, after an enquiry on such material as was available, a finding which he concluded as follows:

My finding on the first question formulated would be that under the circumstances which have emerged at present, it should be deemed that the factum of partition as between the members of the erstwhile joint family would necessarily have been brought to the notice of the Court so that it should be deemed to have been apprised of the fact at the time when it passed the final decree as per Exhibit P-2.

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On an anxious and careful consideration of the materials placed before me, I am of opinion that the final decree as per Exhibit P-2 should be deemed to have been passed in favour of Narayana Iyer only in his representative capacity and not in his individual capacity. I therefore find under the second question accordingly.

Cur. adv. vult.

Govinda Menon J.- The Subordinate Judge has now submitted a finding that the final decree as per Exhibit P-2 was passed in favour of Narayana Ayyar only in his representative capacity and not in his individual capacity. Mr. K. Kuttikrishna Menon attacks the finding and contends that the evidence does not justify the conclusion reached by the Subordinate Judge. As this is a Letters Patent Appeal arising out of the decision in a second appeal, it is not competent for this Court to canvass the correctness or otherwise of the finding which is on a question of fact. There can be no doubt that the preliminary decree evidenced by Exhibit P-4 was passed in favour of Narayana Ayyar in his capacity as manager of the joint family and for the benefit of the joint family. But before the final decree came to be passed, the joint family had become disrupted by means of a partition between Narayana Ayyar and the other coparceners by a registered deed, dated 9th September 1939. The partition deed produced shows that this mortgage bond has not been made specifically the subject of partition but there is a recital there in paragraph 9 that, if after excluding the properties partitioned before orally and those kept in common for charities as also the properties allotted to the fifth executant in lieu of the amount payable to his son and thus divided under that document, any assets are discovered as belonging to the common family, those are also to be partitioned in the manner in which the other properties are partitioned. It is claimed that this mortgage debt is one such property which has been discovered subsequently. There can be no doubt whatever that on 4th March 1942, when the final decree was passed in favour of Narayana Ayyar as the manager of the joint Hindu family, there had already been an outright partition and Narayana Ayyar''s capacity as kartha of the family had ceased to exist on 9th September 1939. But despite that fact an affidavit Exhibit P-5, dated 8th September 1941, by one of the co-parceners, Lakshminaraya Ayyar, was filed in Court requesting that the final decree may be passed in favour of Narayana Ayyar as manager of the joint family. This Lakshminarayana Ayyar was the tenth Respondent in the execution petition and is the third Appellant in the Letters Patent Appeal. That most of the other members of the erstwhile joint family agreed to the request made by Lakshminarayana Ayyar for passing the decree in favour of Narayana Ayyar as manager of the joint Hindu family is clear from the fact that they made common cause with the Petitioner in Execution Petition No. 57 of 1945 and joined as Appellants in Civil Miscellaneous Second Appeal No. 37 of 1948 out of which the Letters Patent Appeal arises. In these circumstances there can now be no doubt that the other members of the joint family which got disrupted are supporting the claim of Lakshminarayana so far as the final decree is concerned. The position therefore is this: After a joint Hindu family had become divided outright and most of the properties distributed among the members, on a preliminary decree which had been passed in favour of the manager before partition, a final decree was passed in favour of the manager after partition, at a time when he had no right or status to represent the other members of the family and it is such a decree that is now sought to be executed by one of the erstwhile co-parceners, not only for his benefit but for the others entitled to the benefit under it. The argument of Mr. Kuttikrishna Menon is that the affidavit filed by one of the quondam members of the joint family to have a final decree passed in favour of the previous manager without the specific consent and concurrence of the other members would not justify the Court in passing a final decree in favour of a person representing a joint family, since he has no right to do so. From the evidence and the reasoning of the learned Subordinate Judge it is clear that at the time the final decree was passed, the present Appellant who was an assignee of the equity of redemption and as such a judgment-debtor did not object to the passing of such a decree. The situation therefore is that a decree in a representative capacity has been passed in favour of one who has no locus standi to get a decree of that sort without objection by the Defendant-judgment-debtor. Is it open thereafter for the judgment-debtor-Defendant to object that such a decree should not have been passed? In our opinion he is not entitled to take such an objection. An executing Court cannot go behind the decree which was passed by a competent Court on a matter which, was perfectly within its jurisdiction and purview. It may be that, if the contesting Defendant had objected at the time of passing the final decree, that no such decree could be passed in favour of the Plaintiff in his representative capacity, the Court would not have passed a decree and if the Court, despite the objection passed a decree, it was open to the Defendant to have taken up the matter on appeal. Not having done so and having allowed the decree to become final, it is not open to the judgment-debtor to raise the objection in execution that the decree is not in favour of the joint family. On these grounds the first objection that the decree in favour of Narayana Ayyar cannot enure in favour of the erstwhile joint family has to be discountenanced. Another way of looking at the question is that at the time of the passing of the preliminary decree, Narayana Ayyar was perfectly competent to represent the family and since the proceedings for passing a final decree were in continuation of the proceedings in the suit, it cannot be said that even though Narayana Ayyar had ceased to have a representative capacity, still so far as the Court was concerned, unless an application was made by the other members, the Court would not be justified in refusing to recognise Narayana Ayyar''s capacity. If at the time of passing the final decree, the divided members of the family came on record and objected to the passing of a final decree then we have to take it that there was a disclaimer of Narayana Ayyar''s representative status. Not only was there no such disclaimer but there was an affirmation of the continuance of Narayana Ayyar''s position by at least one member of the family and the others acquiesced in it. On this ground also it has to be held that the decree must be deemed to have been passed on behalf of the joint family.

The second line of attack is centred round the manner of execution and that is that even if there is a decree in favour of the head of the joint family, still at the time when execution was taken, the person who applied for execution could not initiate the steps because he had neither a representative capacity nor any right in himself to execute the decree. Reliance is very strongly placed on a decision reported in Ramanathan Chettiar v. Ragavendra Row (1912) 16 I.C. 807 where, after the passing of a decree in favour of the kartha of a joint family, there was a division of the joint family properties. It was alleged that at an oral partition that decree was allotted to one of the members who applied for execution on the strength of the oral allotment in his favour. Sundara Ayyar and Sadasiva Ayyar, JJ. held that as there was no assignment of the decree in writing, the person to whom it was orally allotted could not execute it in view of Order XXI, Rule 16, of the Code of Civil Procedure. They held that under Order XXI, Rule 16, Code of Civil Procedure, an assignee of a decree can apply to execute it only when the assignment is in writing. An oral transferee is not entitled to execute it. Therefore where a decree obtained by one of the members of a Hindu joint family is allotted at a family partition to another co-parcener, the person to whom it is allotted cannot be treated as an assignee of the decree by operation of any law and he cannot, by reason of such allocation alone, execute the decree unless he was so empowered by an instrument in writing. On the strength of this decision the learned Counsel for the Appellant contends that since, in the partition deed there was no allotment of this decree specifically to the applicant for execution, he should be deemed to be applying without an assignment in his favour, so that the provisions of Order XXI, Rule 16, Code of Civil Procedure, cannot be invoked in favour of such an applicant. The position in the present case is as if a decree is passed for the benefit of a number of tenants-in-common in the name of one of them. Can it be said then that a tenant-in-common who is one of the beneficiaries in whose name eo nomine:a decree is not passed can execute the decree at least so far as he himself is concerned? No authority has been placed before us to that effect. Mr. Kuttikrishna Menon next relies upon a recent decision of this Court in C.T. Ramanathan Chettiar Vs. A.R.L.N.L.N. Ramanathan Chettiar, . In that case a decree was passed against the manager of a joint Hindu family as representing the family after a partition, and the learned Judges held that such a decree cannot be executed against the divided members of the family who were not actually parties on any theory of representation that they should be deemed to have been parties to the suit or decree. They further held that a junior member of a joint family, after partition, is not in the same position as a partner of a dissolved firm and the power of the erstwhile manager to incur liabilities so as to bind the other members is a limited power to be exercised for the preservation of the business as an asset of the family pending a final partition. That case is converse to the facts of the case before us. In that case the liability was imposed upon the erstwhile members of the joint family by passing a decree against the quondam manager allegedly representing the joint family. But this is not authority for holding that the erstwhile manager cannot act for the benefit of the persons who once constituted the joint family. The distinction is real but how far the principle of law applicable is different has to be considered. Great reliance was placed upon the observations contained in Kirtilal Jivabhai Vs. Chunilal Manilal, to the effect that it is not open to a coparcener to execute a decree which is not passed specifically in his name, but only in the name of another coparcener as representing the family. At page 29 Chagla, J. observes as follows:

But if the decision of Shah, J. is sought to be read as meaning that a coparcener of the decree-holder can apply for an execution of the decree under Order XXI, Rule 15, as a decree-holder, with great respect to the learned Judge we are unable to agree with that view. A coparcener in whose favour a decree is not passed can never be a decree-holder. He may become a transferee of the decree by operation of law; and if there are other coparceners in whose favour also the decree becomes transferred, then he may apply as one of the assignees under Order XXI, Rule 16, read with Order XXI, Rule 15 of the Code. The same view of the law has been taken by Burn and Stodart, JJ. in Narayanan v. Panchanathan ILR [1940] Mad. 79 and they have expressly dissented from the contrary view taken in Akhori Ramsewak Prasad Vs. Saran Singh and Others,

In Narayanan v. Panchanathan ILR [1940] Mad. 79, Burn and Stpdart, JJ. held that a decree passed solely in favour of a Hindu father cannot, after his death, be executed by his sons without recognition by the Court which passed the decree of the devolution upon them of the decree, even though the sons may be entitled along with their father to the benefits of the decree. They further held that the sons are not decree-holders as defined in Section 2 of the CPC and the decree having been transferred to them by operation of law on the death of their father, Order XXI, Rule 16, of the Code is applicable. If therefore even in cases, where the decree is presumably in favour of the joint family cannot be executed after the death of the decree-holder by other coparceners without having a recognition under Order XXI, Rule 16, of the Code, then Mr. Kuttikrishna Menon pertinently asks how a decree in favour of a person, who could not have been a coparcener when it was passed, can be executed by another person who did not have the status of a coparcener with the decree-holder. In our opinion there is some substance in this contention.

But it is contended for the Respondent by Mr. C.S. Swaminathan that since the decree has been passed in favour of Narayana Ayyar as the Kartha and as it is for the benefit of all the coparceners the principles enunciated in Venkatanarayana v. Somaraju ILR [1937] Mad. 880 (F.B.) have to be applied so that the application for permission to execute the decree must be deemed to be one under Order XXI, Rules 15 and 16, of the Code of Civil Procedure; and if that is so, the application for execution is maintainable. In that Full Bench case, two of the learned Judges, Venkatasubba, Rao and Venkataramana Rao, JJ., laid down that where a suit is instituted as against a joint family represented by the manager and where during the course of the suit such a manager loses his representative capacity, even then a decree passed in such a suit would bind every one of the coparceners if they have not come on record to dispute the liability after the partition. Venkataramana Rao, J., at page 904, says that the representation does not cease by virtue of partition before the date of the decree since the suit having been properly constituted, any severance of status among the several members of the family would not divest the representative character of the manager therein till the other members choose to disaffirm it. He was therefore entitled to carry on the litigation for and on behalf of the other members of the family. This decision has been the subject of comment and of restrained dissent in a subsequent Full Bench decision, but it is unnecessary for the present purpose to ascertain how far the majority view has been sustained. But it is difficult to apply the principles laid down therein to the instant case. We have already held that the final decree is in favour of the joint family and that it is not open to the judgment-debtor to question its nature. But the question still remains whether a decree obtained in the name of the kartha of a joint family can be executed by any other member of the family without there being an assignment or devolution under Order XXI, Rule 16, Code of Civil Procedure. As stated in Ramanathan Chettiar v. Ragavendra Row (1912) 16 I.C. 807, unless there is such an assignment or devolution and a recognition by Court, the decree cannot be executed. It is the manner and method of execution that is in question here. After the preliminary decree in favour of Narayana Ayyar was passed, there has been no devolution of it in favour of the Petitioner in the Court of first instance. Nor is there an assignment in writing. If, after the final decree, there has been a fresh partition of this decree and other properties among the members and it is allotted to one of them, or it is stated in the partition that any one of them can execute it, then there would be an assignment in favour of that individual in writing. But nothing like that has happened and therefore the principles enunciated in Venkatanarayana v. Somaraju ILR [1937] Mad. 880 (F.B.) can have no application here.

Mr. Swaminathan then invited our attention to various other cases, viz., Modi Chimanlal v. Shaikh Gulam Nabi ILR [1946] Bom. 276 (F.B.), Kangati Mahanandi Reddi Vs. Panikalapati Venkatappa and Another, , Chakrapani v. Ammalu ILR [1949] Mad. 763 and an unreported decision of Raghava Rao, J., in Krishnan Nair v. Kunhappu Second Appeal No. 319 of 1948. All that was decided in Modi Chimanlal v. Shaikh Gulam Nabi ILR [1946] Bom. 276 (F.B.) was that it is possible to assign a decree which is to come into existence in futuro and which has no life at the time of transfer. An award passed by arbitrators in a partition suit which had not fructified into a decree passed by Court had directed that a certain individual should have a share in property and that share was assigned by him to another. Thereafter a decree was passed on the award and when the assignee of the share of the property sought to execute the decree he was met by the plea that the decree had not been assigned. The Full Bench held that even though there had been no assignment subsequent to the decree, the assignment of the award would be sufficient to satisfy the provisions of Order XXI, Rule 16, Code of Civil Procedure, and therefore the assignee could execute the decree. Practically to the same effect is the expression of opinion by Pandrang Row and King, JJ.- in Kangati Mahanandi Reddi Vs. Panikalapati Venkatappa and Another, where they held that a transferee to whom a future decree (and nothing else) has been expressly assigned can execute the decree which is subsequently passed. The raison d''etre of that expression of opinion is that execution may be made by the transferee u/s 146, Code of Civil Procedure, though not under Order XXI, Rule 16, Code of Civil Procedure, as one who claims under the deed of assignment. The other case on which Mr. Swaminathan relied is Chakrapani v. Ammalu ILR [1949] Mad. 763. The decision, there is to the effect that a person in whose favour a transfer is made during the pendency of the suit is bound by the ultimate/decision in the suit if he does not choose to come on record at the stage of the appeal or second appeal or at any future time. This decision is based on the principle of lis pendens and. we find it difficult to apply it to the present case.

Two decisions of Raghava Rao, J., one reported in Kannan v. Ambu Kurup (1951) 1 M.L.J. 493 and the other in Krishnan Nair v. Kunhappu Second Appeal No. 319 of 1948 were then relied upon. None on these cases related to the question of execution and we do not think that they are in any way helpful for the disposal of the present case.

On the other hand Rankin, C.J. and Pearson, J. have held in Prabashinee Debi v. Rasiklal Banerji ILR (1931) Cal. 297 that a person who was an assignee of property with all arrears of rent, when he made an application under Order XXI, Rule 16, Code of Civil Procedure, to be permitted to execute a decree passed subsequent to the assignment in respect of such arrears of rent in a suit by the assignor, should not be permitted to apply for execution under Order XXI, Rule 16, CPC and the learned Judges relied upon Mathurapore: Zamindary Co., Ltd. v. Bhasaram Mandal ILR (1924) Cal. 703 in support of that principle. As we have stated already, at the time when the final decree was passed in favour of Narayana Ayyar, the quondam members of the joint family, in so far as this decree is concerned, could, at the most, be considered only as tenants-in-common and no authority has been cited before us that another tenant-in-common can execute the decree without any kind of assignment in writing or devolution under the law. In our opinion the principles enunciated in Ramanathan Chettiar v. Ragavendra Row (1912) 16 I.C. 807 which has stood the test of time for more than forty years and still holds the field, ought to be applied. According to that decision a decree passed in favour of the kartha of a joint family cannot be executed by another member without an assignment in writing which might take the form of a partition. Following that decision we are of opinion that the execution application by the Petitioner in the subordinate Court is not maintainable. On this ground the appeal has to be allowed.

Another question regarding the application of the Madras Agriculturists Relief Act has been argued before us and it seems to us that the Appellant is entitled to succeed on that ground as well. The provisions of Section 19, Sub-Section 2, of the Act are applicable here, because the decree has been passed after the commencement of the Act and therefore even though at the time when the decree was passed, the Court was not apprised of the fact that the Madras Agriculturists Relief Act would apply, still in view of Sub-Section 2 inserted into the Act by Madras Act XXIII of 1948 we have no hesitation in holding that the Appellant is entitled to the beneficial provisions of this Act. Recent decisions on this subject, viz., Venhataratnam v. Seshamma ILR [1952] Mad. 492 (F.B.), S. PL. P. Narayana Chettiar Vs. M. AR. Annamalai Chettiar, , and Kanakammal v. Kathija Beevi (1952) 2 M.L.J. 53 were brought to our notice. It is unnecessary for us to discuss these decisions in extenso for the reason that, u/s 16, Clause (iii), of Act XXIII of 1948, it is clear that this is a suit in which the decree has not been executed or satisfied in full before the commencement of that Act. A combined application of Section 19(2) of Madras Act IV of 1938 and Section 16 of Madras Act XXIII of 1948 would make it possible for the judgment-debtor to invoke the provisions of the Act. In a recent judgment in Civil Miscellaneous Second Appeal No. 193 of 1949 to which one of us was a party, this Court held that Section 19(2) of the Act is applicable to a case where before the amendment an earlier application for scaling down had been filed and dismissed. We adhere to the views expressed therein. Therefore even if the decree is capable of being executed the Appellant is entitled to relief under the Act.

For the above reasons the decision of Rajagopalan, J. is set aside and that of the District Judge restored with costs throughout.