T.A. Sankaralingam vs T.N. Mani and Others

Maharajan, J.—This appeal is preferred against the judgment of Ganesan, J, dismissing the appellant''s C. M. S. A. No. 132 of 1969,

reported in T.A. Sankaralingam Vs. T.N. Mani and Others, . Nallusami Poosari, Natanasabapathi Poosari, Arumugham and Gandhi were

members of an undivided Hindu coparcenary. On 1-12-1949, they executed a mortgage for Rs. 3,000 in favour of the appellant''s father,

Ardhanari Gounder. After the death of the mortgagee, the appellant, his son, instituted O. S. No. 888 of 1960 on the file of the District Munsif

Court, Sankari at Salem, for the recovery of moneys due under the said mortgage. At the time of the institution of the suit. Natanasabapatbi had

died leaving him surviving Mariyayee, his widow, and T. N. Mani, his only son (first respondent). It appears that on the date of the institution of the

suit, T. N. Mani had attained majority. However, in ignorance of that fad, the appellant instituted the suit against Natanasabapathi as the first

defendant, Mariyayee as the second defendant, minor T. N. Mani, as the 3rd defendant and Arumugham and Gandhi as the 4th and 5th

defendants, [t transpires that the description of Mani as a minor was erroneous because it has been established that Mani had attained majority on

the dale of the suit. However, all the defendants remained ex parte and a decree was granted in enforcement of the mortgage on 23-1-1961. A

final decree was also granted. R. E. P. 131 of 1965 was filed to execute the final decree. While the execution petition was pending T. N. Mani

filed E. A. 1152 of 1966 in which he prayed that the properties described by him in his execution application be released from execution

proceedings inasmuch as the entire proceedings in O. S. 888 of 1960 were null and void. His case was that in or about the year 1950, the petition-

mentioned properties fell to his share at an oral partition between him and the second defendant Nalluswami Poosari, that he attained majority on

15-6-60, that the suit was filed after that date misdescribing him as a minor instead of as a major and consequently, the decree obtained against

him had become unenforceable. The executing court held that the mortgage suit had been filed against the head of the joint family of which T. N.

Mani was a member, that consequently, it was binding upon him whether he was co nomine party to the suit or not and that it was not open to him

in execution to attack the decree on the ground relied on by him. On this basis, the executing Court dismissed E. A. 1152 of 1966 with costs.

Against this, Mani preferred an appeal and the appellate court reversed the order of the executing Court and held that the judgment and decree

were not binding upon the l/4th share of T. N. Mani. Against the judgment allowing the appeal, the appellant preferred C. M. S. A. No. 132 of

1960 and Ganesan, J. agreeing with the first appellants Court, dismissed that civil miscellaneous second appeal. It is against the dismissal of the

civil miscellaneous second appeal that the present Letters Patent appeal has been filed.

Admittedly, on 1-12-1940, when the mortgage in dispute was executed. Nallusami Poosari, Natanasabapathi Poosari (the father of T. N.

Mani), Arumugham and Gandhi were undivided members of a Hindu coparcenary. It has been held by all the three Courts that the amount of Rs.

3000 was borrowed under the mortgage for purposes binding upon the joint family of these four executants. The mortgage itself shows that the

amount had been borrowed for ''our business and family necessities."" At the time the suit was filed by Sankaralingam, Natanasabapathi Poosari,

the father of T. N. Mani, had died. He, therefore, impleaded the widow and the son of Natanasabapathi as parties to his action. Nallusami

Poosari, who was admittedly, the eldest of the four brothers, was impleaded in this action as the first defendant. At the time of the suit, Nallusami

Poosari was the manager of the joint family consisting of all the four brothers. The oral partition alleged to have been effected, according to T. N.

Mani in 1950, has been found against by all the courts. The resulting position is that the executants of the mortgage dated 1-12-1949 and their

heirs remained undivided members of the joint family on the date of the institution of O. S. 888 of I960 and Nathisami Poosari was, the de jure

manager of the joint family. It is true that the plaint in O. S. 888 of 1960 does not, expressly, describe Nallusami Poosari as the manager of the

joint family, nor does it purport to sue him in his representative capacity. But, as has been held by a Full Bench of this court in Vadlamanati

Venkatanarayana Rao Vs. Gottumukkule Venkata Somaraju, the Privy Council ruling in Doulatram v. Mehr Chand, (1886) 14 Ind App 187 (PC)

establishes two principles; firstly, the managing member could effectively represent the entire family and a decree passed against him would be

binding upon all the members, and secondly, it is not necessary that it should be stated in the pleadings in express terms that he is sued or is being

sued as such manager; the suit will be deemed to have been brought by or against him in his representative character if the circumstances of the

case show that he is the manager of the family and the property involved is the family property. Having regard to the circumstances established in

this case, we think it right to hold that O. S. 888 of 1960 must be deemed to have been brought against Natlusami poosari, in his representative

character, as manager of the joint family consisting of himself, Arumugha, Gandhi and T. N. Mani, the son of the predeceased Natanasabapathi. If

the suit was brought in a representative capacity and a decree granted in pursuance thereof, it goes without saying that the other members of the

family must be held to be substantial parties to the suit through the manager of the joint family. The fact that they are not co nomine parties to the

suit will not render the decree in the suit any the less binding on them, A decree obtained against the manager in such a suit will be binding on the

undivided coparceners and the entire joint family properties can be taken in execution of such a decree even if the junior coparcener is not a party

to the suit Vadlamanati Venkatanarayana Rao Vs. Gottumukkule Venkata Somaraju, . No doubt, where the other members of a coparcenary are

not impleaded as parties to the suit, it would be open to them in execution to impeach the debt on the ground that it is tainted with illegality or

immorality but certainly not on the ground that the decree is not binding upon them because they have not been made co nomine parties to the suit.

If procurement of a decree against the manager of the joint family has this effect, he objection of T. N. Mani, that he had been wrongly impleaded

as a minor, when, in act, he was a major, would have no significance in law whatsoever. It is noteworthy, that he was living with his mother

Mariyayce, and Mariyayee was impleaded as the third defendant to the action and was appointed as guardian ad litem of T. N. Mani. In these

circumstances, despite the misdescription of T. N. Mani as a minor, T. N. Mani must have been aware of this litigation through his mother but he

took no steps to rectify the misdescription. Even assuming that he was not aware of the proceedings, the decree would be still binding upon him

because it has been granted against the manager of the joint family of which T. N. Mani was an undivided coparcener. In this view, we disagree

with the second appellate judge and hold that the decree granted in O. S. 888 of 1960 would be binding upon T. N. Mani and that it is not open to

him to contend that because he was a major and he had been misdescribed as a minor, the decree would not be effective against him. We,

consequently, reverse the finding of the first appellate court and the second appellate court, allow this appeal and restore the order of the executing

court and direct that the execution application filed by the first respondent, T. N. Mani, be dismissed with costs'' throughout.