Sarangapani vs K.V. Parthiban and others

The second appeal has been filed by the 7th defendant in the suit which was one for partition of paints A and B Schedule items into 16 shares

and for allotment of five shares to the plaintiff.

The Short facts are these;

One Veararaghava Gounder,the father of the plaintiff, second defendant and third defendant, and the husband of the first defendant was the head

of the joint family consisting of himself and his sons.Veeraraghava Gounder has four songs.The eldest son by name Ramabiran who was examined

as P.W.3 in the suit had relinquished his interest in the family properties.The second defendant was the second son.The plaintiff and third defendant

are younger to him.Veeraraghava Gounder died sometime in 1961.The second defendant was admittedly managing the properties after the father''s

death.The case set out in the plaint is that the second defendant was a drunkard and he was leading a wayward life with concubines.According to

the plaint, the debts incurred by the second defendant are not binding on the plaintiff or the other members of the family.It is also case of the

plaintiff that decrees passed against the second defendant and further proceedings taken inexecution of such decrees will not bind the plaintiff and

the other members of the family.

The suit was contested mainly by the alienees and the court-auction purchasers.In this second appeal,I am concerned only with the sixth

defendant and the 7th defendant.The sixth defendant was a usufructuary mortgagee under Ex. B-10 dt. 14-10-1963.The mortgage was executed

by defendants 1 and 2.As per the recitals of the mortgage deed,the debt was for family purposes.The sixth defendant also lent money under

promissory note to the second defendant and filed Small Cause Suit No.759 of 1968,on the file of the District Munsiff''s Court, Arni.The suit was

decreed, and in execution of the decree,Item 1 and 2 of the B Schedule property were brought to sale.They were purchased by the sixth

defendant himself and the sale certificate is marked as Ex.B11 dated 30-1-1971.By a sale deed dated 10-12-1973 (Ex.B13), the sixth defendant

sold item 1 and 2 of the B Schedule property to the appellant/7th defendant.On the footing of the said purchase, the 7th defendant contested the

suit.According to the 7th defendant, the mortgage in favour of the sixth defendant as well as the Court auction sale are binding on the plaintiff and

the other members of the family of the plaintiff and they will not be entitled to claim any right in items 1 and 2 of the B Schedule property.

The trial Court granted a decree for partition of the properties mentioned in A Schedule of the plaint only and dismissed the suit on other

respects.On appeal by the plaintiff, the Subordinate Judge of Vellore reversed the decree in so far as it related to B Schedule and passed a

preliminary decree with regard to both the Schedule in favour of the plaintiff and the third defendant.Aggrieved by the said decree, the 7th

defendant has preferred this second appeal.

The only question is,whether the debts incurred under Ex. B10 usufructuary mortgage and the sale held in Court auction in execution of the

decree in S.C. No.759 of 1968 are binding on the plaintiff and the other sharers. The appellate Judge had taken the view that the position of debts

incurred by a brother manager will be different from the debts incurred by a father manager under the Hindu Law.The Appellate Judge has held

that the debts have not been proved to be for benefit of the family and,therefore,the mortgage as well as the sale are not binding on the plaintiff.

Unfortunately,the lower Court has not discussed the relevant evidence on record pertaining to the debts in question.The sixth defendant has

examined himself as P.W.3.He has given evidence to the effect that the mortgage was for the purpose of family expenses.He has also deposed that

the amount lent under the promissory note to the second defendant was also for the common benefit of the members of the family.In the cross-

examination nothing has been elected from, the sixth defendant to warrant an interference that the debts were incurred for illegal or immoral

purposes.He has reiterated in the cross-examination that the debts were incurred for the purpose of purchase of cattle and family expenses.

On the side of the plaintiff, he has examined himself as P.W.1.Except his ipse dixit that his brother (2nd defendant) was addicted to drink and

was keeping concubines,there is no acceptable evidence before the Court to prove the same.No member of the locality has been examined to

establish the said facts.In fact, P.W.2 who was examined by the plaintiff,has deposed that the second defendant was managing the family in a

responsible manner, and that he performed the marriages of the plaintiff as well as the third defendant.Thus, the evidence let in by the plaintiff is

hardly sufficient to prove that the second defendant was leading on immoral life and the debts were incurred for the purpose of enabling him to lead

such a life.Nothing has been produced before the court to connect the debts and the alleged way-ward life of the second defendant.There is no

presumption in law that the second defendant was leading a wayward life.The positive evidence on record is sufficient to show that the second

defendant was managing the family as a responsible person.

The recitals in Ext. B-10 will also support the case of the appellant herein that the debt was incurred for family purposes. There is absolutely no

reason for rejecting the evidence of P.W.3 and the documents referred to earlier.Hence I hold that the debt incurred by the second defendant

under the mortgage as well as the promissory note was for family purpose and binding on the plaintiff and other members of the family.It follows,

therefore, that the usufructuary mortgage under Ex. B-10 and the court auction sale held in execution of the decree in S.C.No. 759 of 1968,on the

file of the District Munsif''s Court,Arni, are binding on the plaintiff.

Learned counsel for the appellant invites my attention to the judgment of the Supreme Court in Amritsagar Gupta and Others Vs. Sudesh

Beharilal and Others, in support of his contention that a suit filed against a manager of a Hindu Joint Family need not describe him as such and the

decree passed against him will certainly bind the other members of the joint family.The ruling will apply to the present case and the decree obtained

against the second defendant who was admittedly managing the family properties will be binding on the plaintiff and the other members of the

family.

Learned counsel for the respondents 1 and 4 placed reliance as a judgment of a Full Bench of this Court in S. Maruthamuthu Naicker Vs. P.

Kadir Badsha Rowther and Others, .The only question considered in that case was whether the endorsee of a promissory not executed by the

managing member of a joint Hindu family was limited to his remedy on the note.The question was answered by the Full Bench that unless the

endorsement was so worded as to transfer the debt as well, and the stamp law was complied with, in the case of an ordinary endorsement, the

indorsee cannot sue the non-executant coparceners on the ground of their liability under the Hindu Law.That ruling has no bearing non the proper

case.The Full Bench had to consider only the position of the indorsee vis-a-vis the members of the joint Hindu Family.

Learned counsel for the respondents 1 and 4 drew my attention to a judgment of another Full Bench in Sivagurunatha Pillai Vs. Padmavathi

Ammal and Another, .In that case, a promissory not was singed by a person without adding any words indicating the capacity in which he had

singed.In a suit filed on the promissory note against the promise and another person,it was found that the promisee had authority to execute the

promissory note on behalf of the other person also and that the suit promissory note was a renewal of a previous promissory note executed by the

promisee with the knowledge and at the instance of the other.The full Bench held that the Court cannot look beyond what was said in the

instrument and in deciding the implications of the language used in vernacular documents,the Judge should put himself in the position of the writer so

far as the language used is concerned.That has no relevancy to the present one.That was not a case of a Hindu Joint Family.Here,admittedly the

second defendant was a member of the joint family.Any legal transaction entered into by the second defendant for the benefit of the family will

certainly bind the other members of the family.On the evidence,the only conclusion possible is that usufructuary mortgage under Ex. B-10 and the

promissory note which led to the filing of the suit in S.C. No. 159 of 1968 were for the benefit of the joint family and were and were binding on the

members of the family.

12.The judgment of the Appellate Judge is clearly vitiated inasmuch as it has not referred to the relative evidence on record.The lower Appellate

court had gone on a tangent and has misunderstood the position in law.No doubt, the debts incurred by brother manager will stand on a different

plane from the debts incurred by a father manager,but only to this limited extent, namely, in the case of a brother manager, the debts have to be for

the benefit of the family before they are said to be binding on the other members of the family. In the case of a father manager, even if the debts are

not for the benefit of the family,they are binding on the members of the family if they are antecedent debts which are not tainted by illegality or

immorality.But for that, there is no other difference between the two sets of debts.In this case, on the finding that the debts were incurred for the

benefit of the family,they are certainly binding on the plaintiff and the other member of the family.

This second appeal has been filed only by the seventh defendant.The other creditors have not chosen to file any second appeal challenging the

decree passed by the lower appellate Court.Hence the Second appeal is confined to items 1 and 2 of the plaint B Schedule properties.

Consequently, the second appeal is allowed, and the judgment and decree of the Subordinate Judge, Vellore, in A.S. No. 383 of 1978 are set

aside and the suit is dismissed in so far as they relate to items 1 and 2 of the plaint B Schedule properties.In other respects, the judgment and

decree are confirmed.There will be so order as to costs.

Appeal allowed.