1950 Supreme(Kar) 43

IN THE HIGH COURT OF MYSORE
Venkataramaiya, Balakrishnaiya and Mallappa, JJ.
Channabasavegowda and others —Appellant
Vs.
Rangegowda and others —Respondent
Second Appeal No. 77 of 1947-48
Decided on : 30-11-1950

The burden of proof in a subsequent suit filed by members of the joint family not impleaded in the previous suit is to show that the first suit was filed against the manager as such and that the debt for recovering which that suit was filed was a debt binding on the family.

Headnote:

The suit from which the appeal arises is of a familiar kind in which the song seek shares in certain properties alleging that these are of a joint family and the alienations thereof by their fathers are ineffective 30 far as they are concerned. The appellate judgment in this case reads to be only a brief summary of what the learned Munsiff has stated about the matters involved for consideration and does not show that there hag been any independent examination of the points at issue. Further, the findings of the learned Munsiff seem to have been coloured with an erroneous view of the nature and degree of proof reasonably expected of an alienee to support his title. He has overlooked the significance and the effect of the documents which purport to sever the joint status of the family and instead of requiring the plaintiffs who though apparently bound profess to be unaffected by the recitals to furnish reasons, called upon the defendants to adduce independent proof in support of them. It, there fore, seems that this is a case in which the conclusions reached by the Courts below are vitiated by a wrong approach to the case and influenced by the evidence being appreciated from a wrong angle and as such interference is not only justified but also necessary. That the properties in question belonged to the joint family cannot be doubted. Nor is it denied that up to the year 1932 the parties constituted a joint Hindu family. The claim as regards items 1 to 9 depends on the effect of the mortgage by defendant 1 on 9-7-1924 and the proceedings thereunder. On that date defendant 1 was, even according to the plaintiff's witnesses, the manager of the family. He borrowed Rs. 500/- from defendant 4 for purposes of cultivation of the dry lands and for domestic expenses as recited in Ex. XII, the deed of mortgage. For recovery of the mortgage debt defendant 4 sued not merely defendant I but also his brothers defendants 2 and 3 and another Nanjappa Gowda who is now dead alleging in the plaint, Ex. X, that defendant 1 is the manager of the family and that he borrowed that amount for family benefit. None of the defendants contested the suit or discharged the debt with the result that there was a decree which was followed up by a sale at which defendant 5 happened to be the purchaser. Exhibit XIV, the sale certificate, shows that the properties in entirety were sold in public auction for satisfaction of the decree. The contention of the defendants is that having regard to the character of the suit and the subject-matter of the sale, defendant 6 become the full owner of items 1 to 9 and that it is not open to the plaintiffs to question it. There cannot be any doubt that a suit filed against the manager qua manager of a joint Hindu family in a representative character binds all the members of the family even though they may not actually be made parties to the proceedings when ''the debt was one due by the whole family". (See 6 Mys. L. J. 317.) In Daulat Ram v. Mehrchand 15 Cal. 70 : (14 I. A. 167 P. C.) their Lordships of the Privy Council pointed out that where the mortgage extends to the entire interest of the family and not confined to the share of any particular member and where in the plaint the mortgagee claims not only to recover the amount of the mortgage from the individual mortgagor but asks that the "debt owed by the family as joint members of an ancestral trading firm" may be satisfied out of the mortgaged property, in short where these conditions are fulfilled, although the manager alone is impleaded, be effectively represents all the members who therefore become bound by the decree. (See also Sheo Shankar Ram v. Mt. Jaddo Kunwar 36 ALL. 363: (AIR1914 P. C. 136); Shankara Narayana v. Rajamani 47 Mad. 462 : (AIR 1924 Mad. 550) and Unnamalai Animal v. Abboychetty 50 M. L. J. 172 : (92 I. C. 524). Having regard to the definite statements contained in the plaint and the fact that besides the mortgagor all the then adult members were made parties to the suit and the claim for recovery of the debt due from joint family was made from the entire properties, I think the proceedings were meant to bind the family as a whole. Irrespective of the question whether the manager acted beyond the scope of his authority or in excess of his powers, the claim with respect to items 1 to 11 is manifestly untenable on account of the revenue sale by which the purchaser acquired an indefeasible title. The learned Munsiff was, in my opinion, in error in assuming that what was conveyed in the revenue sale was not the entire property but only the right, title and interest of defendants l to 3 as there are no materials in support of it and the presumption under Section 54, Land Revenue Code is that the entire property is sold. The mere fact that subsequent to and in spite of the revenue sale the purchaser secured sale deeds from the previous owners, does not militate against these and if at all, can only suggest that it was meant to prevent attempts being made by the defaulters to get the sale cancelled. The sale for recovery of land revenue can be questioned in the civil Court only on the ground of fraud and the party who impugns it has to furnish particulars of the fraud. Absolutely no such particulars are alleged in the plaint or disclosed in the evidence. Further the suit as regards this appears to be belated as it was filed more than six years after the purchaser got possession under the Revenue Sale. As regards the remaining items the sale deeds, Exs. I-V, recite that the debts contracted by defendant 1 for liabilities incurred by him were for the benefit of the family and that at a family settlement each of the brothers under took to discharge a portion of these from his own share of the properties. P. W. l the patel is the scribe of these documents. Though apparently interested in the plaintiffs he states that defendant l might have instructed him as to what properties had to be included in each of the documents as having fallen to the share of the executants. D. Ws. 3 and 4 have also spoken to the partition amongst the brothers. Defendants to 3 though made parties to the suit and were in a position to threw light on the question of partition, are not examined in the cage and it looks as if it is they who have engineered this litigation to deafest or impair rights of the alienees. While it is true that the burden of proof to establish the validity of an alienation in a subsequent suit filed by or against the sons lies on the transferee, the rule should not be extended too far to enable the transferors themselves to nullify the alienation through the agency of their eons. There is clear reference in Exs.II to V that the debts were divided, properties were partitioned and specific portions were held by particular members of the family. The inference that the division was real and not make believe gain a strength from a comparison of these documents with Ex. I which alone refers to the properties not divided. The probability is, if parties wanted to practice dissimulation they would have followed a uniform pattern and not made a difference between one property and another. I am therefore inclined to hold that there ia more in favour of the brothers having effected a division in 1932 than in their continuing undivided. If there was division amongst brothers, as I think there wag, the plaintiffs cannot profess to be members of a joint firmly as the severance of status amongst the brothers operates as a severance amongst the branches ag well. There is not even the faintest suggestion that defendants 1 to 3, who are fairly old, experienced in worry affairs and not addicted to any evil habits, were tricked into executing sale-deeds or that they did it with any mala fide intent. The documents exhibited in the case show that the members of the family had incurred debts prior to the sales and if at a family settlement the liability for discharging these debts wag distributed by common agreement, it cannot be said that the arrangement voluntarily entered into was imprudent or improper. Moreover, the case of the plaintiff is not that the partition was unjust or unfair but that it was unreal--a plea which cannot be sustained. Defendants 1 to 3 could have explained the reasons for the recitals in Exs.I to V suggesting partition and the apportionment of debts. They were wantonly kept back perhaps because their examination would help the other defendants. In any case these documents clearly signify a severance in status amongst the brothers. The plaintiffs who are their children cannot therefore claim to be joint and seek a share in all the properties without getting the partition thereof cancelled. It seems to me that the suit in its present form clubbing together several and different causes of action by separated members of the family against several defendants ignoring the partition is misconceived. I would, therefore, allow the appeal and dismiss the suit directing the parties to bear their own costs throughout.