Sheik Ibrahim Tharagan and Another vs K.R. Rama Iyer and Others

The suit from which this appeal was preferred was instituted by the plaintiff as the manager of an undivided Hindu family to enforce payment of

the amount due on a mortgage bond executed by defendants Nos. 1 to 15. The 16th defendant in whose name the bond stood is the eldest of the

three sons of the plaintiff, and was brought in as a party on account of the plea of defendants Nos. 1 to 15 that the debt was due to him alone and

not to his family. They also pleaded that they had paid to the 16th defendant, prior to the suit, a sum of Rs. 650 towards the interest due on the

bond, and that, subsequent to the suit, they deposited the total amount due on the bond with the South Indian Bank, which amount the 16th

defendant was at liberty to draw on executing a bond to indemnify them against any claims that might be made by the other members of his family.

The 16th defendant also claimed the debt as his own and set up that the family became divided on the 17th December 1904. The Subordinate

Judge held that no division took place as alleged by the 16th defendant; that, although the bond was executed in the 16th defendant''s name, it was

really taken by the plaintiff for the benefit of the family; that the payment of Rs. 650 was not made prior to the suit, and that both the payment and

the deposit were not bona fide acts but the result of collusion between the defendants Nos. 1 to 15 and the 16th defendant with a view to defraud

the other members of thei6th defendant''s family, and he accordingly decreed the whole of the claim made in the plaint.

This appeal has been preferred by the debtors. It is confined to the Subordinate Judge''s disallowance of credit for the Rs. 650 alleged to have

been paid to the 16th defendant prior to the suit and to the award of interest on the principal amount subsequent to the deposit made by the

debtors in the South Indian Bank and of the plaintiff''s costs against the debtors; but the points involved in appeal relate to all the questions decided

by the Subordinate Judge.

We have no hesitation in concurring with the Subordinate Judge that the partition set up by the 16th defendant is not proved. There is no formal

instrument of partition and the only oral evidence adduced to prove it is the testimony of the 16th defendant himself. He relies on Exhibit III, a

yadast executed in his favor by his father, the plaintiff, authorising him to conduct the trade of the family at Cochin and Kottayam, and containing

certain other provisions with respect to that trade as well as with respect to his right in the rest of the property belonging to the family. But the

language of the instrument and the 16th defendant''s deposition both show that though some negotiations went on for effecting a division they were

never completed and that the family continued undivided. It is not contended by the 16th defendant that the debt belonged to himself if the family

did not become divided.

The next question for decision is whether the payment and the deposit pleaded were made bona fide by the debtors and are binding on the

family. On this question also we confirm the findings of the Subordinate Judge. The 4th defendant, when examined, as a witness, swore that he was

not aware of the existence of the plaintiff at all till shortly before the suit, but this is an absolute falsehood. Defendants Nos. 1 to 15 had dealings

with the plaintiff''s family for a considerable time before the execution of the bond Exhibit A. Exhibit C shows that some months before the date of

Exhibit A the plaintiff demanded payment of the amount due by the defendants but they were unable to pay. The bond itself was taken from the

defendants by the plaintiff himself in the absence of the 16th defendant and it was produced in court by the plaintiff. The correspondence between

the debtors and the 16th defendant which culminated in the payment and deposit in question began with an attempt on the part of the debtors to

take advantage of the differences in the creditor''s family. They gave the 16th defendant notice on the 4th of June 1906 (Exhibit XI) that they were

ready to pay the amount of the debt, and the 16th defendant had failed to go to them as promised with the mortgage bond for the purpose of

receiving the money and making an endorsement of discharge thereon. The subsequent correspondence, fully set out in the judgment of the lower

Court, shows that they were apprised of the fact that the 16th defendant was not in possession of the bond; that in consequence they demanded of

him, and he agreed to give them, a bond of indemnity instead, and that the 16th defendant, discovering their device, charged them with making a

mere make-believe assertion of readiness to pay without being in possession of the money required for payment. This correspondence ended on

the 30th June 1906. The plaintiff launched his suit on the 2nd of July 1906. Summonses in the suit were taken to the residence of the defendants on

the 15th July 1906, but were not served on them on that date. They then deposited most of the amount due on the 18th of July 1906 in the South

Indian Bank. They state that on the 1st July 1906, that is, on the day previous to the institution of the suit, they had paid Rs. 650 to the 16th

defendant and produce a receipt bearing that date for the amount. We agree with the Subordinate Judge that the circumstances of the case are in

favour of the conclusion that the payment was not really made on that date and that the receipt was antedated so as to secure evidence of payment

before the institution of the suit. We concur with him also in the reasons given for his finding. We may add that the defendants have not produced

their day-books which must presumably have been written up from day to day and would, therefore, be strong evidence of the actual date of

payment.

Mr. Seshagiri Aiyar has argued two questions of law arising on these findings. He contends that whenever the payment may have been made it

was binding on the plaintiff, as payment to one of several joint creditors must in law be deemed a valid payment to all, and he relies on the decision

in Barbar Maran v. Ramanna Gounden ILR (1897) M. 461. That decision may be taken to support his contention, but the'' authority of that

decision has been considerably shaken by subsequent rulings of this court. See Veerasawmi Naicker v. Ibramsa Rowthen (1909) 19 M.L.J. 221

and Ramasamy, by his Next Friend, Mookkayi alias Karuppayi and Others Vs. Muniyandi Servai, . See also Husaimunissa Begum v. Rahimunissa

Begum (1910) 13 C.L.J. 3. The cases of Ramaswami Chetti v. Manicka Mudali (1899) 9 M.L.J. 155 and Adaikkalam Chetti v. Marimuthu ILR

(1899) M. 326 do not really support the appellant''s contention as they proceed on the ground that as the bond stood in the name of one member

only of the family, payment to him would operate as a valid discharge. We do not, however, consider it necessary to decide the point in this case

as the evidence shows clearly that the payment to the 16th defendant and the deposit were not made for the benefit of the plaintiff''s family but was

tendered to defraud its members other than the 16th defendant and in collusion with him to support his undivided claim to the amount due under the

bond. Assuming that the payment to one of several joint creditors will in law operate as payment to them all, there can be no doubt that the rule will

not apply where the payment is fraudulently made to one of the creditors and not for the benefit of them all. That question has recently been fully

discussed by Mukerjee J. in Baikunth Nath Chakrabarti v. Har Lal Pal Chowdhry (1911) 13 C.L.J. 234 where the authorities on the point have

been fully considered. This Court has held the same view in Veerasami Naicker v. Ibramsa Rowthen (1909) 19 M.L.J. 221 See also Halsbury''s

Laws of England, Vol. 7, p. 456, para 930 and Piercy v. Fynny (1871) L.R. 12 Eq. 69. In Barbar Maran v. Ramanna Gounden ILR (1897) M.

461, it was observed that the payment in the case was unaffected by fraud. We are, therefore, of opinion that the payment and deposit in this case

could not bind the plaintiff or his family.

The other contention of law argued is that as the debt belongs to all the members of the family and as two of the plaintiff''s sons are not parties to

this suit either as plaintiffs or as defendants, the suit is not maintainable. It is not denied that the suit was instituted by the plaintiff in his capacity as

manager of the family; but this, it is argued, is insufficient. There has been considerable conflict of authority in the Indian courts on the point raised,

but we are of opinion that the decision of the Privy Council in Kishen Prasad v. Har Narain Singh (1911) 21 M.L.J. 378 has practically settled the

point. Before referring to their Lordships'' judgment and considering its effect, it may be desirable to refer very briefly to the state of the case-law in

this High Court. In K.P. Kanna Pishardoy v. V.M. Narayana Somayajipad ILR (1881) M. 234 it was held, with reference'' to a sabhayogam or

assembly of religious Brahmins in Malabar, that some amongst their members appointed as agents for the management of the property of the

assembly could not maintain a suit in their own names for ejectment of a person in unlawful possession of its property. It will be observed that the

sabhayogam was merely an artificial combination of persons and that its agents possessed no powers under the law of the country, but derived

them solely from their appointment as agents by the ''sabhayogam. It is, no doubt, well-established law that a mere agent cannot maintain a suit in

his own name with respect to property belonging to his principal, whatever powers of management he may have in regard to it. In Arunachala v.

Vythilinga ILR (1882) M. 27 this Court decided that a suit for possession of family property could be maintained by the managing member alone in

his capacity as managing member. The same principle was applied in several subsequent cases where the question was whether a decree against a

managing member in his representative capacity would be binding on the family. See Viraragavamma v. Samudrala ILR (1885) M. 208;

Ramakrishna v. Namasivaya ILR (1884) M. 295; Muthia v. Virammal ILR (1886) M. 283; Guruvappa v. Thimmanna ILR (1887) M. 16. In

Ramayya v. Venkataratnam ILR (1893) M. 122 it was held that when a suit is instituted by the managing member as such, the omission to include

the other members of the family as plaintiffs would be regarded only as an error error or misdescription, and the suit would be considered as

properly laid. In Alagappa Chetti v. Vellian Chetti ILR (1894) M. 33, on the other hand, a suit was held to be bad on the ground that all the

members of the family, to whom the money sued to be recovered belonged had not been made plaintiffs before the period of limitation to the

institution had expired. But the decision seems to be based on the ground that all the members of the family were carrying on a partnership trade

and that in such a case all the partners should join as plaintiffs. And reliance was placed on Romsebuk v. Randall ILR (1881) C. 815 which was

also a case of partnership business carried on by the members of a family. See also Imamudin v. Liladhar ILR (1892) A. 524. In Adaikkalam

Chetti v. Marimuthu ILR (1899) M. 326 a suit by the managing members alone was sustained. But this decision may perhaps be regarded as

proceeding on the special ground that the bond sued on was in the name of the managing member only. In Angamuthu Pillai v. Kolandavelu Pillai

ILR (1899) M. 190 a suit for the recovery of land was held to be not maintainable by the managing member alone even if it appeared that he was

suing to enforce the right of the whole family. The question arose again in Seshan Pattar v. Veer a Raghavan Pattar ILR (1909) M. 284 with

respect to the manager''s right to sue for money on behalf of the whole family. In that case the rule laid down in Alagappa Chetti v. Vellian Chetti

ILR (1894) M. 33 was preferred to the proposition laid down in Arunachala Pillai v. Vythelinga Mudaliar ILR (1882) M. 27, but several of the

other Madras cases referred to above were apparently not brought to the notice of the court. The rule laid down in Arunachala Pillai v. Vythilinga

Mudaliar ILR (1882) M. 27 was upheld in Vadilal v. Shah Kushal ILR (1902) B. 157 although in two previous cases - Kali das Kevid Das v.

Nathu Bhagavan ILR (1883) B. 217 and Balakrishna Moreshwar Kunte v. The Municipality of Mahad ILR (1885) B. 32 - a contrary view had

been held, and the latter case had expressly followed K.P. Kanna Pisharody v. V.M. Narayanan Somayajipad ILR (1881) M. 234. The ruling in

Radho Proshad Wasti v. Esuf ILR 7 C. 414 was not accordance with Arunachala Pillai v. Vythelinga Mudaliar ILR (1882) M. 27. The Alahabad

Court in Pateshri Partap Naran Singh v Rudra Narain Singh ILR (1904) A. 528 supported the manager''s right to sue on behalf of the family; but

in. Shamrathi Singh v. Kishen Prasad ILR (1907) A. 311 that court held that the managing member of a family carrying on a trade on its behalf

could not maintain a suit to recover moneys due from third persons in connection with the trade without making all the members as plaintiffs. The

decision of the Privy Council referred to above was passed on appeal from the decision of the Allahabad High Court in the last case. The Judicial

Committee upheld the manager''s right to sue. Their Lordships appproved of the decision in Arunachala Pillai v. Vythilinga Mudaliar ILR (1882)

M. 27 and observed that the rule laid down in K.P. Kanna Pisharodi v. Narayanan Somayajipad ILR (1881) M. 234 was not applicable ""to the

members of a business carried on for an undivided Hindu joint family"" and distinguished the case from that of mere co-owners as K.P. Kanna

Piskarodi v. Narayanan Somayajipad ILR (1881) M. 234. They also explained Ramsebuk v. Ram Lal Koondoo ILR (1881) C. 815 and

Imamudin v. Liladhar ILR (1892) A. 524 as resting on the ground that all who are trading as partners must join in a suit relating to the partnership

business and observed that the other members of the family interested in the partnership business need not be joined as plaintiffs. The case of

Alagappa Chatty v. Vellian Chetty ILR (1894) M. 33 was distinguished on the ground that the single plaintiff in that case was not shown to be the

managing member of the family or to be the only partner or proprietor of the business with which the litigation was concerned."" Their Lordships

concluded as follows : - ""In the opinion of their Lordships, the original plaintiffs in this case were entitled, as the sole managers of the family

business, to make in their own names the contracts which gave rise to the claim and that they properly sued on such contracts without joining the

other members of the family."" It is clear to us that their Lordships'' decision is not based on the ground that the contract was sued on in the name of

the actual plaintiffs only as they expressly approved of the judgment in Arunachala Pillai v. Vythilinga Mudaliar ILR (1882) M. 27 and distinguished

it from the case of mere co-owners. In fact, the Privy Council had even previously to their decision in the above case, practically upheld the right of

the managing member to represent the family in litigation. A long line of cases beginning with Ghirdhari Lal v. Kantoo Lal (1894) 14 B.L.R. 187

establish the right of a creditor of a Hindu family to proceed against the father or other managing member of the family alone and to effectively bind

the whole family property, including the sharers of those not actually parties to the litigation. It need hardly be said that a decree against a mere

agent, or guardian of an infant, or a sale in execution of such decree could not bind the principal or the minor, for a suit cannot be instituted against

the agent or the guardian as the representative of the principal or the minor. The reason why a decree against the manager of a family in his

representative capacity is binding on the whole family is, that amongst the powers which he has according to Hindu Law as manager must be

included the power of representing the family in suits, This view has for a long time been consistently held in the case of the manager of a tarwad in

Malabar whether governed by the Marumakkathayam law or Makkathayam law - Ittachan v. Valappan ILR (1885) M. 484, Barbar Maran v.

Ramana Gounden ILR (1897) M. 461. There is no reason why a difference should be made between a joint family in Malabar and one elsewhere

with respect to the right of the manager to sue or be sued on behalf of the family, the only distinction between the two being that a member of a

Malabar family has no right to compel a partition of the family property. The ordinary rule no doubt is that all persons in whom the right to any

relief exists should be joined as plaintiffs. But this rule is not of universal application. The language of Section 26 of the Civil Procedure Code,

1882, corresponding to Order I, Rule 1, of the present code, is ""that all persons may be joined in one suit as plaintiffs in whom the right to any

relief is alleged to exist, whether jointly, severally, or in the alternative."" Section 30 of the Code of 1882, corresponding to Order I, Rule 8, lays

down the general rule of procedure where one or more persons wish to sue on behalf of, or for the benefit of, themselves and other persons having

the same interest in a suit. But it cannot, in our opinion, be laid down that in no case has a person a right to sue on behalf of himself and others,

where the procedure laid down in Section 30 is either not applicable or has not been taken advantage of. There are several statutory exceptions to

the rule, and there is no reason why there should not be other exceptions based not on any legislative provision but on the substantive law

applicable to the parties. The case of the Judicial Committee already referred to shows that the case of the manager of a Hindu family is such an

exception. We must, therefore, refuge to uphold this contention also.

In the result we dismiss the appeal with costs. The 16th defendant has preferred a memorandum of objections against the direction of the

Subordinate Judge making him liable with defendants Nos. 1 to 15 for the plaintiff''s costs of the suit. On the finding that he and defendants Nos. 1

to 15 colluded with each other to put forward an exclusive right in himself to the amount of the mortgage-bond, the lower court''s order is right,

and we must dismiss the memorandum of objections also with the costs of the plaintiff.