Decree passed for incurring debts how far binding on other members.

The second appeal has been filed by the 7th defendant in the suit which for partition of plaint A and B Schedule items into 16 shares and for allotment of five to the plaintiff.

2. The short facts are these: One Veeraraghava Gounder, the father of the plaintiff, second defendant and 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 sons. The eldest son by Ramabiran who was examined as P.W.3 in the suit had relinquished his interest in the properties. The second defendant was the second son. The plaintiff and third defendant younger to him. Veeraraghava Gounder died sometime in 1961. The second defendant admittedly managing the properties after the father ’ s death. The case set out in the plaint that the second defendant was a drunkard and he was leading a wayward life concubines. According to the plaint, the debts incurred by the second defendant are binding on the plaintiff or the other members of the family. It is also case of the plaintiff decrees passed against the second defendant and further proceedings taken in execution such decrees will not bind the plaintiff and the other members of the family.

3. The suit was contested mainly by the alienees and the court auction purchasers. In second appeal, I am concerned only with the sixth defendant and the 7th defendant sixth defendant was a usufructuary mortgagee under Ex.B-10 dated 14.10.1963 mortgage was executed by defendants 1 and 2. As per the recitals of the mortgage 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 District Munsif’s Court, Arni. The suit was decreed, and in execution of the decree, Items and 2 of the B Schedule property were brought to sale. They were purchased by the defendant himself and the sale certificate is marked as Ex.B-11 dated 30.1.1971. By a deed dated 10.12.1973 (Ex.B-13), the sixth defendant sold items 1 and 2 of the B Schedule property to the appellant/7th defendant. On the footing of the said purchase, the defendant contested the suit. According to the 7th defendant, the mortgage in favour of sixth defendant as well as the court auction sale are binding on the plaintiff and the members of the family of the plaintiff and they will not be entitled to claim any right in 1 and 2 of the B Schedule property.

4. The trial Court granted a decree for partition of the properties mentioned in A Schedule the plaint only and dismissed the suit in other respects. On appeal by the plaintiff, Subordinate Judge of Vellore reversed the decree in so far as it related to B Schedule passed a preliminary decree with regard to both the Schedules in favour of the plaintiff the third defendant. Aggrieved by the said decree, the 7th defendant has preferred second appeal.

5. The only question is, whether the debts incurred under Ex.B-10 usufructuary mortgage and the sale held in court auction in execution of the decree in S.C.No.759 of 1968 binding on the plaintiff and the other sharers. The Appellate Judge has taken the view 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 not been proved to be for the benefit of the family and, therefore, the mortgage as well the sale are not binding on the plaintiff. ]

6. Unfortunately, the lower Court has not discussed the relevant evidence on pertaining to the debts in question. The sixth defendant has examined himself as D.W.3. 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 examination nothing has been elicited from the sixth defendant to warrant an interference that