JUDGMENT V.R. Krishna Iyer, J. 1. Can the karnavan of a Malabar tarwad validly represent (and thereby bind) his anandiravans in a suit and decree based on a transaction which he himself fobbed off on the family without necessity or benefit ? That is the central problem raised in this appeal and high-lighted in the debate at the bar and my hesitant answer is that he cannot. 2. The plaintiffs have appealed to the High Court from a decree of the Sub Court, Palghat, dismissing their suit for a declaration that another decree (in O.S. No. 43 of 1962 on the file of the same Court), Ext. B-18, is not binding on their tavazhi. That decree was passed in favour of defendants 1 and 2 in enforcement of a mortgage, Ext. B-1, executed in favour of deceased Chamu, their father, by the 3rd defendant on behalf of her son, the 1st plaintiff, and on her own behalf. The mortgage amount is Rs. 11,000 and is made up of sums representing two prior debts of Rs. 760-6-0 and Rs. 5,331-4-0 debts which are not seriously disputed before us and rightly so, and another borrowing, under a promissory note, Ext. B-2, for Rs. 2,000 which had accumulated to Rs. 2,031 plus a cash payment of Rs. 2,921 stated to have been received for tavazhi purposes. The plaintiffs, all of them minors and children of the 3rd defendant and her husband Nataraja Menon, contended that these debts were not binding on their thayazhi both because the purpose was not for the benefit or necessity of the family (but for spendthrift Nataraja Menon's uses) and also because the need to borrow did not exist. The defendant, inter alia, refuted both these grounds and went further to plead that the decree in O.S. No. 43 of 1962 having been passed against the plaintiffs' tavazhi, they were barred from contending that the debts were not binding, without expressly praying for the cancellation of the aforesaid decree and proving sucessfully that the said decree had been vitiated by fraud and collusion. Since there was neither pleading nor proof in this behalf the suit was liable to be dismissed. Since there was neither pleading nor proof in this behalf the suit was liable to be dismissed. On this last contention, the ground, taken by the plaintiffs is that the decree in O.S. No. 43 of 1962 does not stand in the way of the reliefs being granted in the present suit if the mortgage debt, in enforcement of which that decree was passed, is shown to be not binding on the family. For, the argument is that a decree obtained against the Kartha or karnavan of a joint family, on a loan or alienation, cannot bind it, if he is also the author of the impugned transaction. The vice of the alienation vitiates the representation in the litigation. 3. The leamed Subordinate Judge inter alia, considered the non-maintainability of the action on the score that the relief sought, was only for a bare declaration, without the consequential or further relief of injunction against the execution of the decree in O.S. No. 43 of 1962 and that therefore section 42 of the Specific Relief Act was a bar. He held, however, that the suit was maintainable and that the decree in O.S. No. 43 of 1962 was "by itself not a bar for the plaintiffs coming forward with the present suit", nevertheless dismissed it. I agree with the lower Court that the 'further relief' contemplated in the provision, understood in the background, of the policy of preventing a multiplicity of suits, covers only those reliefs which flow directly and necessarily from the declaration sought, i.e., reliefs necessarily consequent on and essential for really securing the right asserted. [Vide Munnu Chamar v. Hari Narain (A.I.R. 1947 All. 352).In this sense, the subsidiary claim for an injunction neither furthers nor is necessary to get the benefit of the declaratory, relief. [Vide Munnu Chamar v. Hari Narain (A.I.R. 1947 All. 352).In this sense, the subsidiary claim for an injunction neither furthers nor is necessary to get the benefit of the declaratory, relief. The lower Court's dismissal is based, ultimately, on the holding, which runs as follows: " So far as the question as to whether there was any legal necessity binding on the tavazhi of the 3rd defendant for any of the earlier debts and whether there was any necessity for borrowing the subsequent amounts for any legal necessity binding on the tavazhi of the 3rd defendant and which culminated in Exhibit B-1 coming into existence is concerned, taking the entire evidence adduced on both sides, both oral and documentary, and the circumstances and probabilities of the case and also the financial condition in which the tavazhi of the 3rd defendant was placed at that time, I have absolutely no hesitation in coming to the conclusion, that the debts recited in Exhibit B-1 were really incurred for binding family necessity and that the amount was advanced bona fide by D.W. 2 after making due enquiries and after being satisfied that they were for real legal necessity binding on the tavazhi of the 3rd defendant. In this view of the matter, therefore, I have no Hesitation in coming to the conclusion that the decree obtained by the plaintiff in O.S. 43/62 on the file of this Court against the 3rd defendant's tavazhi is valid and binding on the present plaintiffs' also. " Since Ext. B-1 mortgage was found to be good against the joint family, the decree in O.S. No. 43 of 1962 was held to be binding, assuming too readily, that if the mortgage was not binding neither would the decree a test I found it difficult to accept until after elaborate debate at the bar. 4. The saga of the Kizhake Natuvath tavazhi, an upper middle class family in Palghat (part of the former Malabar District where the Madras Marumakkathayam Act, 1933 applies) needs brief narration here. Lakshmi Maruvalamma, from whom the tavazhi or branch originated, had an only daughter Kalyani Kutti Maruvalamma who was married in 1942 to one Nataraja Menon, a member of another well-to-do tarwad and this fruitful wedlock accounts for the four plaintiffs. It must however be mentioned that when Ext. Lakshmi Maruvalamma, from whom the tavazhi or branch originated, had an only daughter Kalyani Kutti Maruvalamma who was married in 1942 to one Nataraja Menon, a member of another well-to-do tarwad and this fruitful wedlock accounts for the four plaintiffs. It must however be mentioned that when Ext. B-1 was executed (1950) only the 1st plaintiff had been born although by the time of the suit, O.S. No. 43 of 1962, the other plaintiffs had also been born. The economic status of the family, considering its thin membership, was good. Items 1 to 23 had all along belonged to the plaintiffs' tavazhi, yielding at least an income of 2130 to 2600 paras of paddy, considerable straw sheaves and quantities of tamarind (vide Ext. B-8 and Ext. A 4); and the price of paddy had risen during and after the second world war. The tarwad of the plaintiffs was also well off and on partition (Ext. A-6) this tavazhi got substantial items of land 24 to 31, income bearing items which had even earlier vested in the tavazhi on kanom right under the tarwad. Although Ext. A-6 division took place only in 1958, certainly, from the tarwad to the tavazhi a stream of maintenance allowance must have been flowing. Without meticulous analysis and 'making a moderate assessment of normal resources' and expenditure, we may, take the Kizhakke Natuvath tavazhi as on the mildly affluent side. The situation may, of course, vary if therental income gets blocked by legislation or an extra-ordinary outgoing like for the medical treatment of a member suddenly makes a claim on the family coffers. And a close look at the indebtedness of the family reveals that it had an ancient and admitted debt, charged on property for Rs. 700, another mortgage, dated 4th June 1948 for Rs. 5,000 (incurred without family necessity, according to the plaintiff, but the alienation took place before the birth of the plaintiffs), a promissory-note debt for Rs. 2,000, dated 18th April 1950 (Ext. B-2) and, providing for discharge of all these obligations and taking a cash loan of Rs. 2,931, a mortgage debt for Rs. 11,000, dated 13th July 1950 (Ext. B-1). It is a fact that there was some interruption in the free flow of rents around 1948-50 as is evident from Exts. B-5 to B-7 (rent suits). B-2) and, providing for discharge of all these obligations and taking a cash loan of Rs. 2,931, a mortgage debt for Rs. 11,000, dated 13th July 1950 (Ext. B-1). It is a fact that there was some interruption in the free flow of rents around 1948-50 as is evident from Exts. B-5 to B-7 (rent suits). It is also true that Lakshmi Maruvalamma was seriously ill and, despite medical attention, died in may 1950. The controversy, as will be presently seen, rages round the binding nature of Ext. B-1 mortgage. 5. Right at the forefront of his submission, counsel for the appellants pressed for our acceptance the propositions that a decree passed against the manager of a joint Hindu family or, for the matter of that, the karnavan of a tarwad or tavazhi, did not bind the oilier members who were not eo nomine parties to it, if the debt or alienation which resulted in that decree was itself a fraudulent act of the same manager or karnavan. 6. Let us consider briefly the powers of a karnavan. He maintains junior members, manages the property of the family, has powers of borrowing for family necessity or benefit, enters into bona fide compromise in respect of doubtful rights of the family and is also the guardian of the minor members of the family. In short, he represents the family. As Mr. Justice Hollowly remarked, in an oft-quoted passage, "A Malabar family speaks through its head and in all Courts of Justice, except in antagonism to its head, can speak in no other way". The karnavan's status as head is his birth-right and does not depend upon the consent of the other members. However, the junior members are also equally entitled to the family estate, even if we assume the head to be the first among equals. Therefore, it is wrong law that the members of the family have rights only out of, rather than in the property. Their rights are based on co-proprietorship. [See Cherian v. Menon (A.I.R. 1963 S.C. 128) where it has been clearly pointed out that the properties belong to all the members of the tarwad and that, apart from the right of management, the karnavan has no larger right or interest than the other members.] 7. Let me formulate the precise point that confronts us so as to avoid confusion. Let me formulate the precise point that confronts us so as to avoid confusion. It is not whether a decree obtained against the karnavan will not ordinarily bind the members of the tarwad. Such a decree will, because he represents the whole tarwad and every member of it qua member. Nor is it whether the junior members are barred from agitating issues directly and substantially involved and determined in an earlier suit against the karnavan of the tarwad. They are under the main part of section 11 and, alternatively but undoubtedly, under Explanation VI to that section. In the generality of cases, section 44 of the Evidence Act and section 11, including Explanation VI, furnish the answer, as we will see presently. The real question that demands solution here is whether a decree passed against a karnavan, in respect of a debt contracted (or alienation executed) by him and found to be in excess of his powers, is one passed against the tarwad? That is to say, can he act against the interest of the family by an imprudent or fraudulent borrowing and claim to represent the family in a litigation arising from that very injurious act? Or is it more in consonance with law and equity that even as he cannot bind the family by borrowing beyond his powers his power to bind springs from his power effectively to represent he cannot legally represent it in litigation when he cannot fairly protect its interest? His is an office of quasi-trust which cannot be exercised where there is a clear conflict between personal interest and fiduciary duty. In short, his capacity to represent the tarwad in litigation is subject to one limitation, namely, that he cannot represent where he cannot really defend owing to the very act on which the action is founded being a wrongful act of his own. To allow him to defend the family therein is to allow him to defeat its interests. His right is to represent, not to ruin and when the situation is necessarily fraught with antagonism between supporting his own act and rescuing the family from its injurious consequences, between branding himself with guilt and letting down the tarwad, his fiduciary credentials fail and the tarwad cannot be forced to speak through a hostile karnavan so as to bind it by his representation in such litigation. Misra, J. in Rajeshwar Dube v. Ram Sanmukh Misir (A.I.R. 1939 All.6) took the view that "it is elementary law that it is not open to an alienor to impeach his own alienation". A decree obtained against a Karnavan on foot of such a transaction binds only himself because the other members are not represented by him and his so-called representation cannot, in any sense, be said to be bona fide. Thus neither the main provision nor Explanation VI of section 11 C.P.C. can apply and the bar of res judicata cannot operate. As at present advised, I would restrict this incapacity to the exceptional case of alienations and debts involving factual taint of fraud or collusion and consequent moral disability, and keep out cases like where the debt was good according to the law as then understood but later rulings or retrospective legislation made it, otherwise. 8. While a karnavan is not an agent, his powers partake of the character of an agency. The area of such an agency has been statutorily sketched in section 38 of the Transfer of Property Act. His authority to represent exists (in alienation and litigation alike) not merely where there is actual necessity or benefit to the family; it shall be deemed to exist in all situations where the lendor-suitor has been made to believe in the existence of such circumstances, after using reasonable care and acting in good faith. By legal fiction, as it were, law extends the area of the karnavan's agency to these 'para-necessity' situations, as a matter of public policy and as a measure of protection to bonafide creditors. 9. Mayne in his Treatise on Hindu Law and Usage (page 437) has observed: "As long as the family remains undivided, his (manager's) authority cannot be revoked or controlled except with his own consent. The authority to incur expenditure and contract loans and enter into transactions is one which is determined by family necessity or family benefit......... If a decree is passed against him in respect of amiability properly contracted for the necessities of the family, the binding character of this decree upon the interests of the other members depends not upon their having or not having been parties to the suit, but upon the authority of the manager to Contruct a liability.''' Thus, where the authority to contract the liability exists, the power to represent in a suit extends. And, conversely, where the former does not exist, the latter does not extend. Strictly speaking, when a junior member sues to 'set aside' a decree passed against the manager of a joint Hindu family no decree is sought to be cancelled or declared not binding. The power of the Kartha to represent the family in litigation is a conditional one; he can borrow or alienate only for benefit or necessity and can represent in litigation when the alienation or debtof his as Kartha, is binding on the family. In the second suit at the instance of a junior member the Court merely determines whether the condition for the exercise of the power was present. If it is found to exist, the Kartha did represent the family and its members. If the condition is shown to be absent, the family was not duly represented at all and no decree against it was passed. 10. It is interesting to observe the approach made by Judges in the case of guardians representing minors in litigation. When the interest of the former is adverse to that of the latter, there is a case of non-representation of the minor because of the incompetence of the so-called guardian to represent the minor and the decree, so far as the latter is concerned, is a nullity. Rashid Unnisa v. Muhammed Ismail Khan (I.L.R. 31 All. 572) and Sallappa Goundan v. Maso Naiken I.L.R. 47 Mad. 79 . Of course, the adverseness of interest must relate to the subject matter of the suit. [See Neelamma Pillai Lakskmi Pillai v.Kesava Pillai(A.I.R. 1961 Mad. 345).] 11. I am inclined to think that the karnavan's original sin attaching to the improper transaction cannot be washed off by his discreet submission to a decree. The danger is greater when, as in this case, all junior members are minors. It is true that, on this view, a creditor who lends to a manager of a joint family runs serious risks even after obtaining a decree. But this cannot be helped if the law must protect the members of the joint family also. A law, it, may be critcised, that allows recovery of a loan to a joint family to be clogged by the expense and anxiety of an additional litigation is a powerful disincentive to dealings with these quasi-corporations. But this cannot be helped if the law must protect the members of the joint family also. A law, it, may be critcised, that allows recovery of a loan to a joint family to be clogged by the expense and anxiety of an additional litigation is a powerful disincentive to dealings with these quasi-corporations. But it must be remembered that the cares of the law are many and its protective mantle is not meant only for the creditor. Moreover, only in a small class of cases does the risk exist and so we need not exaggerate the peril to the lender and even here the bogey of a second suit can be largely laid by the creditor prudently impleading senior anandiravans or all the members in the first suit. These strands of judicial thought fortify my conclusion that the law will not countenance counterfeit representation in suits by a karnavan with adverse interest in the very subject matter. To borrow a metaphor from modern biology, the genetic code of a joint family manager contains this deficiency in representative capacity (in suits as in other matters). 12. The principle that I have in mind probably prompted certain legislations like the Nayar Act and the Ezhava Act to provide expressly that a decree, to be binding on a tarwad, should be one where not only the karnavan but also the senior anandiravan or anandiravans of the branches are made parties. Ultimately, one is left with the thought that the joint family system fitted well in a feudal set-up but hampers economic progress in a modern society geared to fluent industrial and commercial activity. May be, the movement must be from joint family to individual ownership and from then on to a new pattern of collective organisation of proprietary enjoyment which will suit the genius of the times and the country. We are not concerned about it all here, though. 13. May be, the movement must be from joint family to individual ownership and from then on to a new pattern of collective organisation of proprietary enjoyment which will suit the genius of the times and the country. We are not concerned about it all here, though. 13. The relevant facets of the principle of res judicata applicable to situation where a decree obtained against the manager of a Hindu family is pleaded in bar of the trial of an issue in a later suit challenging the , validity of a debt or alienation which was the subject matter of the earlier decree have been lucidly and concisely presented if I may say so with great deference in a recent ruling of a Division Bench of the Kerala High Court to which my brother was party [Vide Krishna Pillai Raghavan Pillai v. Karthiayani Amma Sarasmma (A.I.R. 1969 Kerala 26)]. Since almost all the decisions on the subject may, upon a careful and close reading in the light of the facts of each case, be found to be in conformity with the observations of Their Lordships in the aforesaid decision, I content myself, for the present, with extracting excerpts therefrom and then lead on to the real point that arises in the appeal under consideration. My brother, Raman Nayar, J., peaking for the Court, observed: "There can therefore be little doubt that the 18th defendant was sued as representing her tavazhee, being the manager thereof the averment that the 18th defendant claiming as a member of Velayudhan's joint family necessarily implied the averment that the tavazhee of which she was the manager was claiming likewise and that she defended the suit in that capacity. And even if it be that the 18th defendant did not actually represent the other members of her tavazhee, Explanation VI to section 11 of the Code would, provided the conditions set out therein are satisfied, serve to make the other members, namely, the present plaintiffs, persons claiming under her. When a person if, either by operation of law, or by act of parties duly authorised to represent another in a litigation, that other is, we should think, in truth a party to the litigation even if not eo nomine so. When a person if, either by operation of law, or by act of parties duly authorised to represent another in a litigation, that other is, we should think, in truth a party to the litigation even if not eo nomine so. The case of a manager litigating on behalf of his joint family, which under their personal law he is competent to represent, would, we think, satisfy the requirement of identity of parties in the body of section 11 of the Code with regard to members of the family claiming as such in a subsequent litigations-All the members of the joint family being represented by the manager are, in truth, parties to the suit. The case would, of course, fall within Explanation VI, but we do not think it really needs the aid of the explanation to satisfy the requirement of identity. The difference, from a practical point of view, is that, if the parties were really parties to the former suit (although only through a person competent to represent them) then, as indicated by section 44 of the Evidence Act, they would have to show that the former decision was obtained by fraud or collusion to escape the bar of res judicata. But, if they were not, in truth, represented in the former suit and that suit is what is generally called a representative suit only because of the fiction in Explanation VI, then, on the wording of the explanation, they would not be required to show that the former decision was obtained by fraud or collusion. On the contrary, it would appear to be for the person pleading the bar of res judicata to show that the fictional representative litigated bona fide although bona fides being very much in the nature of a negative quality, would probably be presumed in the absence of at least suspicion to the contrary. In the present case it makes no difference whatsoever whether the plaintiffs were parties to the former suit through the 18th defendant, the manager of their tavazhee, or whether the bar at res judicata can be attracted only by resort to Explanation VI to section 11 of the Code. For, we are satisfied that, not merely was there no fraud or collusion, but that the 18th defendant litigated bona fide in the former suit. For, we are satisfied that, not merely was there no fraud or collusion, but that the 18th defendant litigated bona fide in the former suit. We have been referred to section 31 of the Nayar Act which says that 'no decree shall bind a tarwad unless it is obtained against the karnavan as such and the senior anandiravan of his tavazhee and of every tavazhee collateral to the same if any.' This section, it would appear, is concerned only with what decree shall bind the tarwad, (with the direct impact of the decree, not with the indirect consequences of the decision resulting in the decree) and not with the question of who is competent to represent a tarwad in a litigation. On that, latter, matter it does not seem to trench on the customary Marumakkathayam Law by which the karnavan is competent to represent the tarwad. (It is to be noted that the section has nothing to say as to who can obtain a decree in favour of a tarwad.) And if it did, it would mean that even a decision obtained in favour of the tarwad (for example by a karnavan suing on its behalf as he is indisputably entitled to) cannot operate as res judicata (except perhaps by resort to Explanation VI to section 11 of the Code with the attendant requirement of bona fides) unless, not merely the karnavan, but the senior anandiravans as well, were parties to the suit. However, the question does not really arise in this case since, at the time of O.S. No. 276 of 1106, there was no senior anandiravan in the 18th defendant's tavazhee which, by reason of the partition under Ext. IV, was a tarwad by itself. Nor can the question arise in a case where the representation is a fictional representation under Explanation VI to section 11 of the Code." 14. An allied point of legal semantics, already noticed, may be mentioned here. A decree binds a party in one of two ways. If he is a party, actual or constructive, i.e. through a competent representative, or when he comes within the '' constructiv '' category of section 11, Explanation VI C.P.C. The practical difference, of course, is vital. In the former case, such a decree can be executed straightway against him. A decree binds a party in one of two ways. If he is a party, actual or constructive, i.e. through a competent representative, or when he comes within the '' constructiv '' category of section 11, Explanation VI C.P.C. The practical difference, of course, is vital. In the former case, such a decree can be executed straightway against him. But in the latter case, he is merely barred from re-agitating the issues by the rule of res judicata; the decree, as such, cannot be executed against him, but a fresh decree will have to be obtained wherein, of course, the parties will not be heard to contest over again. We must remember one peculiar exception. Under the Hindu Law where the theory of pious obligation prevails, a decree obtained on a debt (not immoral nor illegal) against the father as such (and not qua manager) can be executed even against the interests of the sons in the joint family, although they may not be parties (actual or constructive) to the suit. 15. I shall advert to some important rulings pertinent to the point under discussion. 16. In a ruling reported in Jaikishen v. Ram Chand (A.I.R. 1935 Lah. 1) Tek Chand, J. has made certain observations pertinent to the point under discussion. " The consensus of judicial opinion is overwhelmingly in favour of the view that a decree passed against the managing member of an undivided Hindu family in respect of a liability incurred within the scope of his authority is enforceable against the interest of the junior members in the family property, even though they had not been made parties to the suit, but such members are not precluded from contesting the authority of the manager or the nature of the debt, and this they may do either in the course of execution proceedings or in a suit of their own (Gour's Hindu Code, Edn. 3 section 147, P. 793 and Mayne Law and Usage Edn. 9, P. 451-2)... .It is not the frame of the suit or the form of the decree which is conclusive of the matter: the essential point is whether in fact the debt, which is the basis of the decree, had been raised by the pudgment debtor within the scope of his authority as the manager and for purposes of the family. .It is not the frame of the suit or the form of the decree which is conclusive of the matter: the essential point is whether in fact the debt, which is the basis of the decree, had been raised by the pudgment debtor within the scope of his authority as the manager and for purposes of the family. This question of fact can be determined finally only after the junior members have had proper opportunity of being heard, either in the execution proceedings, or in a separate suit specially brought for the purpose. But if after hearing the junior members, the finding is that the debt satisfies the touchstone of necessity and is therefore binding on them, their interest in the property will be held to have passed at the sale, as effectively as if they had been made parties to the original suit. This conclusion is in accordance with the fundamental rule of Hindu Law that the Kartha of an undivided family is ex-officio the accredited agent of the family and as such authorised to bind all the co-parceners, for all proper and necessary purposes within the scope of his agency (Mayne on Hindu Law and Usage, Edn. 9, para 333, P. 451 and 452)." On the same principle, if his authority has been restricted by a karar in the tarwad and he borrows in transgression of such restriction, his agency is non est and any decree obtained against him as Karnavan on the basis of that very debt is also one where his agency does not run. In Poolakkath Achuthan Nair v. Pangi Achan, 1937 M.W.N. 435 Varadhachariyar, J., as he then was, had occasion to consider the case of a Karnavan upon whom restriction had been placed in the matter of management. He had borrowed in defiance of the terms of the karar and a decree had been obtained against him based on that borrowing and the validity of such decree against the other members fell for decision. He had borrowed in defiance of the terms of the karar and a decree had been obtained against him based on that borrowing and the validity of such decree against the other members fell for decision. The following observations are useful in this context: "Nor am I prepared to accept the view that when Chathu Achan had borrowed in defiance of the terms of the karar he can himself be regarded as having represented the tarwad in a suit brought for the recovery of the very amount thus borrowed and that by his own representation the decree could be made binding on the tavazhi, notwithstanding the circumstance that the loan was in defiance of the karar. The parties may have had the best of reasons for imposing such restriction on the powers of the karnavan and as pointed out in Ram Vadyar v. Krishnan Nair, (23 L.W. 186) the Court should cot by the application of the doctrine of the representative capacity of the karnavan practically enable him to defeat the provisions of the karar" 17. Sri Sri Raja Varadaraja Appa Row Bahadur v. Sankara Vencatadri, 17 M.L.J. 197 = 2 M.l.T. 86 A Division Bench of the Madras High Court dealt with a case of a suit where a Hindu father, in a particular suit in which he alone was a party and his wrongful act had an impact on the decision, represented the coparceners. The suit was one for eviction on the ground that the father-manager had forfeited the right to occupy the land by erecting a building upon it which was not suitable to an agricultural holding. The junior member-son brought a suit to set aside the previous decree and a plea of res judicata was raised on the basis that the father-manager represented the coparceners in the earlier decree. The junior member-son brought a suit to set aside the previous decree and a plea of res judicata was raised on the basis that the father-manager represented the coparceners in the earlier decree. Their Lordships observed: "Prima facie the person making such improper use could not be allowed to represent a minor interested in the property does not responsible for the wrong, and had the plaintiff been made a party to the suit, it would have been the duty of the Court to appoint a proper person as his guardian-ad-item to protect his interests." The passage is ambiguous since there is some reference to the plaintiff being a minor although a minor co-parcener is in no better position than a major coparcener in regard to the binding nature of a decree obtained against the manager. But so far it goes, the decision suggests that the wrong doer manager cannot be allowed to represent the other coparceners. Similarly, in Shankar Rao v. Kamtaprasad Govind prasad Agrawal, A.I.R. 1947 Nag. 129 a Division Bench considered the question of the binding nature of a decree passed against a father-manager in a family made up of father and sons and the further question as to whether it was open to the sons,(junior members) to challenge the decree on the score that the debt which formed the basis of the decree was not contracted for valid necessity. The Court observed: "Rule 2 enunciated above has been construed in Nandlal v Umrai, I.L.R. 1 Luck 360 and Jogindar Singh v. The Punjab and Sindh Bank Ltd. Amritsar, I.L.R. 21 Lah. 96 as precluding the sons who are bound by the decree passed against the father from raising any contention other than the illegal or immoral nature of the debt. A contrary view is taken in Bharamappa Murdeppa v. Hanmantappa Tippanna, I.L.R (1943) Bom. 568 and Puttappa Kuriyappa v. Bannappa Fakirappa, A.I.R 1955 Bom. 344 at pp. 346, 347 where it is laid down that the plea of legal necessity or want of bana fide inquiry is also open as of personal ground to such sons and that they are not barred from raising these pleas by the rule of res judicata. 568 and Puttappa Kuriyappa v. Bannappa Fakirappa, A.I.R 1955 Bom. 344 at pp. 346, 347 where it is laid down that the plea of legal necessity or want of bana fide inquiry is also open as of personal ground to such sons and that they are not barred from raising these pleas by the rule of res judicata. In Motiram v. Ramgopal, 16 N.L.R. 64 which followed Gore v. Kashiram, 9 N.L.R. 1 at p.67 laid down that the sons could re-open the decree only on grounds personal to themselves, for example, that the debt for which the mortgage was given was not binding on them under Hindu law. "Later on, the Judges seem to indicate that the plea of want of legal necessity is also open to be raised as in such a case it would not be an alienation binding on a son under Hindu law. That is based on Nanomi Babusin v. Modhun Mohun, I.L.R. 13 Cal. 21. We are not aware of any decision of this Court wherein after a decree passed against the father as manager the sons as plaintiffs were debarred from having it decided whether the mortgage was for legal necessity or not. Though a decree is passed on the basis of the mortgage what the plaintiffs are trying to agitate against the decree on the basis of the mortgage is that the mortgage, which is an alienation by a managing co-parcener, was not within his rights inasmuch as it was not for necessity or for discharging an antecedent debt. In this view of the case the matter would fall under rules (1) and (3) laid down by their Lordships of the Privy Council and not under rule (2). That appears to be the reason for the decision in Bharamappa Murdeppa v. HanmaytappaTippanna, I.L.R. (1943) Bom. 568. " In this state of the law, for purposes of this case we hold that the plaintiffs are bound by the rule of res judicata only with respect to a plea which was open to the father equally with the sons, that is, a plea available to the joint family, whether expressly or constructively decided. 568. " In this state of the law, for purposes of this case we hold that the plaintiffs are bound by the rule of res judicata only with respect to a plea which was open to the father equally with the sons, that is, a plea available to the joint family, whether expressly or constructively decided. "..in view of the principles laid down by us governing such cases and in view of the fact that Malharrao was manager of the family in those days the decree passed in that case is binding on the sons except to the extent of illegality or immorality of the debt or want of legal necessity or absence of proof that the defendant made inquiries that he was bound to make before lending the money." I take these observations to mean that it is open to a junior member to challenge the mortgage decree as son on the ground of illegality or immorality of the debt and as coparcener on the ground of want of legal necessity or absence of proof that the mortgagee made enquiries that he was bound to make before lending the money. 18. In Vasudevan v. Sankaran, I.L.R. 20 Mad. 129 F.B. it was held that a decree may, in a suit in which a Karnavan is sued in his representative capacity and which he honestly defends, be binding on the other members of the family not actually made parties. "The word 'honestly' implies according to Chief Justice Collins that the karnavan acted in good faith and what he believed to be in the interests of the tarwad. According to Mr. Justice Subramonia Iyer the decree would be binding unless it was shown that theft was fraud or collusion or anything of that sort, or that the Court was cheated into believing that the case was fairly fought or fairly represented whereas in point of fact it was not One thing is clear that the word fraud is used in a wider sense than that in which it is used in connection with ordinal judgments. The fraud need not be the fraud of the other side but may be of the karnavan himself. The fraud need not be the fraud of the other side but may be of the karnavan himself. In cases where the action is brought to enforce an obligation incurred by the karnavan or to enforce the consequences of a default of his, the dividing line between fraud and failure to plead would generally be hard to delineate." It would certainly be advisable in such cases for the stranger to make the senior anandiravan or anandiravans parties to the suit. The failure to raise which appropriate defence Would make the case, a case of non-representation of the family is not a question capable of a comprehensive answer, as it would largely depend on the facts of each case. (Sundara Aiyar Malabar and Aliyasanthana Law, Page 89-90.) 19. In Thenju v. Ckimmu I.L.R. 7 Mad.413 it was observed, dealing with a karnavan position : "His position like that of a Hindu father is fiduciary, though his acts are binding on the anandiravans as those of the head of the family until they show that such acts are in excess of his authority, or negligent or fraudulent. A decree against hire is binding on the tarwad, because it is a decree against the head or representative of the family, but his power as the head of the family is a qualified power, qualified by his fiduciary position and the duties which............. attach to such position........... It is enough to say that when, a fraud or breach of duty as karnavan is shown, his act must be treated, as a fraud upon his power."t It must be mentioned that the essential point made is that the karnavan power is a qualified power, qualified by his fiduciary position and the duties attaching to such position. It is enough to say that when, a fraud or breach of duty as karnavan is shown, his act must be treated, as a fraud upon his power."t It must be mentioned that the essential point made is that the karnavan power is a qualified power, qualified by his fiduciary position and the duties attaching to such position. (Other observations in the above ruling suggesting that his negligence is sufficient to make a decision against him not binding on the tarwad does not appear to be good law in the light of the later decisions.)" The following remarks of Sundara Aiyar in his book on Malabar Law and Usage at page 92, para 48 are significant: "The course of decisions In the Travancore High Court as stated by Sadasiva Iyer, C. J. (as he then was) in Munjan Raman v. Ramasubba Aiyan Kulalhoor Aiyan 21 T.L.R 41 is to allow a separate suit by the anandiravans not only to set aside a decree on the ground of fraud and collusion, but also on the ground (a) that there was no consideration for the debt sued on and (b) that the debt was not contracted for tarwad purposes and was a personal debt of the karnavan. In cases of the last description the conflict between interest and duty on the part of the karnavan is so great that the rule stated by the Travancore High Court is likely to prove more just in the working than the narrower rule which the Madras decisions seem to suggest." 20. A Full Bench of the Travancore High Court in Mahmmed Rowther v. Kunjappan Kochucherukkan 26 T.L.J. 188 again considered this question i.e., whether a decree obtained against the karnavan of the tarwad based on a transaction to which he was a party, is liable to challenge at the instance of a junior member on the ground that the transaction was not binding on the joint family. Of course, other questions were also considered in the case, with which we are not directly concerned. Of course, other questions were also considered in the case, with which we are not directly concerned. Raman Thampi, J. quoted, with approval, the following passage from an earlier Full Bench decision reported in Mundan Raman v. Ramasubba Aiyan Fulathoor Aiyan 21 T.L.R. 41: "On the whole, it appears to us that notwithstanding the general observations in some cases to the effect that the anandiravans are as much parties a suit against the karnavan as if their names also appeared on the record and that the decree against the karnavan is res judicata against the anandaravars also and can be set aside only by proving fraud or collusion, this High Court has all along allowed a separate suit by the anandaravars not only to set aside the decree on the ground of fraud or collusion but also on the grounds (a) that there was no consideration for the debt sued on and (b) that the debt was not contracted for Tarwad purposes and was a personal debt of the karnavan. Where once such an opportunity has been bona fide exercised on behalf of the tarwad, either by a suit (or other proceeding) by the karnavan himself or by a suit (or other proceeding) taken by some of the members Explanation V to section 9 would, in our opinion, preclude a fresh suit. If again the karnavan had himself bona fide contested on behalf of the tarwad the suit brought against him, the other members cannot bring a fresh suit on the ground that they would have defended it better (see 13 M.L.J. page 68). Thus, the practical test would be to see if the, tarwad had been allowed or had not been allowed in the first suit a reasonable opportunity of showing that the debt was not binding upon it." The learned Judge formulated his conclusions in the following words: "(i) The junior members of a Marumakkathayam tarwad, cannot if they are not impleaded as legal representatives of the karnavan intervene on their own initiative and question the validity of the decree in execution proceedings. (ii) If they are impleaded as representatives in execution they can raise the question of validity of the decree and they should be allowed to do so only in the course of execution. (iii) A fresh suit is permitted only if the junior members havenot been impleaded in execution proceedings. (ii) If they are impleaded as representatives in execution they can raise the question of validity of the decree and they should be allowed to do so only in the course of execution. (iii) A fresh suit is permitted only if the junior members havenot been impleaded in execution proceedings. In such a suit even apart from the question of fraud or collusion, the junior members can question the reality of the debt contracted by the karnavan and the absence or otherwise of tarwad necessity for the loan. If it is not contracting a loan, the binding nature of the transaction so far as the tarwad is concerned may be questioned; and (iv) If either by a fresh suit or in the course of Execution proceedings an attempt has been made to protect the interests of the tarwad, a further suit or contention in execution is not to be allowed, except where the prior proceedings was tainted with fraud or collusion. In the latter case, the first question that can be considered is whether the prior proceeding was fraudulent and collusive and a consideration of the merits of the transaction should be taken up only on establishing fraud or collusion." The other four Judges adopted the same view and thus it may be taken that the Travancore Highs Court definitely recognised the right of a junior member to question a decree passed against the karnavan or the tarwad as such on the ground, apart from others, that the debt which was the foundation of the decree was itself not binding on the family. Whether such a contention should be put forward at the execution stage or by separate suit is a controversial matter on which we need not dwell at length here. While on this part of the discussion it is proper to mention that an opposite view point has held away in the Madras High Court which has been adopted in a decision of the Kerala High Court also. Mr. Justice Vaidialingam (as he then was) in a ruling reported in Sreenivasan v. Cheerootty 1966 K.L.T. 1114 was concerned with the same question as the one under consideration, but in that case, however, even on the facts the Court took the view that the debt was binding on the tavazhi and so, strictly speaking, the decree was unassailable even on that ground. Nevertheless, his Lordship observed: "........here again the position has been made difficult for the appellants, because once I have held that there has been a judgment passed on the basis of Ext. A2, the position in law is that the mortgage Ext. A2 has merged in the decree Ext. B1. No grounds of attack, that the mortgage is not supported by consideration or tarwad necessity are any longer available to the appellants. That this is the petition, is also laid down in the Division Bench decision of the Madras High Court in Krishnamurthy v. Chidambaram Chettiar A.I.R. 1946 Mad 643 referred to above."t With great deference to the learned Judge the ruling relied upon turned on the question whether a minor member of a joint family could challenge a decree obtained against the Kartha on the ground of his gross negligence in the conduct of the suit, a position feebly taken by counsel before us also. Their Lordships held that a member could not do so, be he minor or major, and this proposition has again been upheld by the Madras High Court in a later ruling reported in Nagamma Shedthi v. Korathu Hengsu A.I.R. 1950 Mad. 546. In that decision, however, another aspect with which we are concerned directly was touched upon. While holding that an ex parte decree or a decree in which the karnavan was guilty of gross negligence in the conduct of the suit was nevertheless binding on the joint family, their Lordships considered an earlier ruling of a Ramesam, J. reported in Durgamma v. Kechamayya A.I.R. 1925 Mad. 792 wherein the learned Single Judge had mixed up gross negligence with fraud, and animadverted upon that approach. Their Lordships pointed out that negligence, however gross, was consistent with honesty, with which fraud and collusion were totally inconsistent. 792 wherein the learned Single Judge had mixed up gross negligence with fraud, and animadverted upon that approach. Their Lordships pointed out that negligence, however gross, was consistent with honesty, with which fraud and collusion were totally inconsistent. Incidentally, however, their Lordships dealt with an aspect of law relied upon by the Subordinate Judge that a breach of duty on the part of a karnavan amounts to a fraud on his power and held that that was not a live doctrine Ramesam, J. in the aforesaid ruling had held that if the transaction which formed the basis of the action was itself an act of fraud on the part of the karnavan, the failure of the karnavan to defend the suit was a continuation of the fraud and this the decree itself could be deemed to be vitiated by fraud, a view which appeals to me. On this approach there is no criticism in Vadlamudi Venkateswarlu v. Ravipati Ramamma A.I.R. 1950 Mad 379. It is generally true that a decree passed against the manager will bind the family and every member of it unless set aside on grounds of fraud or collusion as indicated in Talluri Venkitasessayya v. Tadikonda Kotiswara Rao A.I.R. 1937 P.C. 1 and if some member other than manager has bona fide fought and lost, section 11 Explanation VI C.P.C. forbids a second battle on the same issues. Bona fides, in this context, does not involve due care but only honesty. As observed by Lord Phillimore in Lingangowda v. Basangoda I.L.R. 51 Bom. 450. "In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring and action by his guardian before; and in each of these cases, therefore, the Court looks to Explanation VI of section 11 of the Code of Civil Procedure to see whether or not the eading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors." 21. However, it has been argued before us that whatever might have been the conflict between the various decisions on the point, the decision of the Supreme Court in Faqir Chand v. Sardarni Harnam Kaur A.I.R. 1967S.C. 727 settles it in favour of the appellant. The lower court also has taken that view. A decision of the Full Bench of the Punjab High Court reported in Faqir Chand v. Sardarni Harnam Kaur A.I.R. 1961 Punj. 138 was challenged in the Supreme Court and it is in that decision that the Supreme Court is claimed by the appellant to have held that, notwithstanding the passing of a decree against the Kartha of a family it was open to the Junior members to canvass the binding ilature of the debt subsequently. One M who formed a Hindu joint family along with his son F, mortgaged certain property to, H who sued on the basis of the mortgage and obtained a preliminary decree. A little before the decree was passed, F instituted a declaratory suit challenging the mortgage by his father M on the grounds that the mortgaged property was joint family property, that the mortgage was without legal necessity and that in fact the debt was incurred for illegal and immoral purposes. When the mortgage decree was passed, the plaint was amended and the relief of declaration that the decree obtained by the mortgagee was not binding on the plaintiff and for a consequential relief of injunction against execution of the decree was also added. The trial Court dismissed the suit on the ground that there was no evidence of the mortgage being for illegal or immoral purposes and on the finding that once a decree had been obtained on the basis of the mortgage, the plaintiff could not challenge, it merely on the ground that it was not for legal necessity. When the plaintiffs appealed to the High Court, a question of some importance was referred, by the Bench which heard it, to a Full Bench. When the plaintiffs appealed to the High Court, a question of some importance was referred, by the Bench which heard it, to a Full Bench. This question was formulated as follows: "Whether when a Mortgage has been created on joint family property by a father who constitutes a joint Hindu family along with a son or sons, and a decree has been obtained by the mortgagee on the basis of the mortgage, it is open to a son to challenge the mortgage and the decree merely on the ground that the debt was incurred without legal necessity, or whether he must prove that the debt was incurred for illegal or immoral purposes." Their Lordships referred to the leading case or Brij Narain v. Mangla Prasad 51 I.A. 129. The facts in the Punjab case were largely dominated by the structure of the family being of a father and sons only and the pious obligation of the sons becoming an important factor in deciding whether their interest could not be proceeded against in execution of the decree against the father. According to the Full Bench, where the borrowing by the father took the shape of a mortgage, the only ground on which the sons could challenge the mortgage and the decree was that the debt was incurred for illegal and immoral purposes. Since the appeal was dismissed by the Punjab High Court, F, the son, moved the Supreme Court under a certificate granted by the High Court. In Brij Narain case the Privy Council had laid down five propositions which the Supreme Court was concerned only with three. The second proposition and its applicability to mortgages was the bone of contention in the Punjab High Court. We are not, in this case, concerned with that question directly. 22. In Brij Narain case the Privy Council had laid down five propositions which the Supreme Court was concerned only with three. The second proposition and its applicability to mortgages was the bone of contention in the Punjab High Court. We are not, in this case, concerned with that question directly. 22. After having held that the son had no right to interfere with the execution of a decree, obtained against the father, by sale of the property unless he could show that the debt for which the property is sold is either nonexistent or is tainted with immorality or illegality, their Lordships proceed to the next question as to "whether the son is entitled to impeach the mortgage of a joint family property made neither for legal necessity nor for payment of antecedent debt, and if so, whether the remedy is available to him after the mortgagee has obtained a decree against the father on the mortgage." Significantly, their Lordships add "we think that the answer to this question should be in the affirmative." That is to say, it is open to the son to impeach the mortgage both on the ground of absence of legal necessity and of payment of the antecedent debt. Continuing the discussion, Bachawat, J., observed: "Before the mortgagee obtained the decree on the mortgage, the appellant was therefore entitled to a declaration that such a mortgage did not bind his interest in the property. Is the position altered by the passing of the decree? We think not. The decree against the father does not of its own force create a mortgage binding on the son interest. The security of the creditor is not enlarged by the passing of the decree. In spite of the passing of the preliminary or final decree for sale against the father, the mortgage will not, as before, bind the son interest in the property, and the son will be entitled to ask for a declaration that his interest has not been alienated either by the mortgage or by the decree." Strictly speaking, the case really was one turning upon the doctrine of pious obligation. However, their Lordships proceeded to consider whether there was legal necessity for any part of the loan. Since a decree has been obtained against the father-manager, was it open to a junior member to raise the question of legal necessity later, in a second suit? However, their Lordships proceeded to consider whether there was legal necessity for any part of the loan. Since a decree has been obtained against the father-manager, was it open to a junior member to raise the question of legal necessity later, in a second suit? If it was not so open, why did the Supreme Court observe that in the absence of a finding on the question of legal necessity this appeal cannot be completely disposed of. Indeed, the Supreme Court proceeded to assess the evidence on the point and came to the conclusion that 'The loan of Rs. 75,000 was thus taken by M partly for payment of antecedent debts and partly for purposes of his family business and other legal necessities. The mortgage in its entirety bound the property including the interest of the appellant therein'. It is difficult to discern whether the earlier decree in that case was passed against the father qua manager also or only as father-cum-member. All that one can say fox certain is that some observations in the decision of the Supreme Court suggest that even after a mortgage decree has been passed, it is open to a member of a joint family to assail that decree in a subsequent suit on the sole ground that the debt is not binding on the family. Of course, the borrower Kartha was the defendant against whom the impugned decree was passed. 23. Of course, the view taken by me, logically involves the conclusion that the junior members are not represented in the decree and so, not being parties such is their contention they cannot raise the question of the binding character of the debt or decree, in execution. An executing Court can construe a decree but not consider it, can execute it as it is but cannot go behind it. It might however be plausibly argued that whether the objectors are parties to the decree constructively or not can be gone into under section 47 C.P.C., or at least as non-party objectors they can urge that the decree is inexecutable against their shares and on failure, file suits. But we are not called upon to pronounce upon the point here since the challenge is made in the present case by separate suit and in suitable cases Courts can permit conversion of one into the other. 24. But we are not called upon to pronounce upon the point here since the challenge is made in the present case by separate suit and in suitable cases Courts can permit conversion of one into the other. 24. Before proceeding to a consideration of the evidence it might well be right to dispose of an argument unsuccessfully urged in Sreenivasan v. Cheerootty 1966 K.L.T. 1114 that a woman cannot be a karnavan (Or karnavathi, rather) so long as there is a male member even though he be a minor, as in this case, and so the borrowing as well as the representation in litigation are incompetent. Even under the customary law, a female member can be manager and represent the tarwad in litigation if no male member capable of performing the duties of a karnavan exists. [Vide Subramanyan v. Gopalan 1964 K.L.J. 243]. For the present, I agree with Vaidyalingam, J. on this point, with some hesitation, although in this case a final pronouncement is unnecessary. Even so, was Ext. B-2 executed by the 3rd defendant and her husband, borrowing a sum of Rs. 2,000 from Govindan Unni Menon, binding on the family? For, the 3rd defendant mother was then alive. But she was seriously ill with some type of gangrenous diabetes. She died shortly after. Apparently, she was in a precarious state of health and could not, in any real sense, discharge the duties of management of the tarwad. The question arises whether the seniormost junior member can exercise the powers of the karnavan when the latter is really disabled but is alive. We are in the twilight of Malabar law in such a situation. What is to happen if a karnavan is senteinced to life term imprisonment or takes up a permanent job outside the country or is stricken with an invalidating and long-lived ailment? Of course, a family karar may meet such contingency by making appropriate provisions, but, in the absence of such a karar or other acceptable delegation, in whom does the power to manage reside? The Supreme Court observed in Cherian v. Menon A.I.R. 1963 S.C. 128: "By virtue of his status the Karnavan owes certain duties to the members of the tarwad and one of such duties is to manage the properties in the best interest of the members. The Supreme Court observed in Cherian v. Menon A.I.R. 1963 S.C. 128: "By virtue of his status the Karnavan owes certain duties to the members of the tarwad and one of such duties is to manage the properties in the best interest of the members. Those to whom the duties are owed may find that in their own interest the duties can be best performed by an anandiravan in particular circumstances. This would be good reasons to justify the delegation of a Karnavan power of management to an anandiravan by a family karar and to uphold such karar. Thus where for some reason the Karnavan is not able to discharge his duties in respect of management of the tarwad property such as in the case before us, that is, where the Karnavan has left the country for an indefinite period or taken up a job in another country which would keep him away for years from his mother country, there must be someone who could look after the family property and who would have the power to manage it. If delegation of the Karnavan power of management is regarded as incompetent the necessary result would be that the interests of the family would suffer. It is by no means a practical proposition to expect the family members to approach the Karnavan, when he is at some far oft corner, for his consent in regard to each and every transaction, be it sale, mortgage or lease. Again it may be too expensive for the Karnavan to come all the way back to his native place whenever an occasion arises for alienting or encumbering the tarwad property for family necessity. No recognised concept underlying the Marumakkathayam law will be violated by holding that an agreement or karar entered into by the Karnavan and the members of the family by which the power of management of the tarwad carrying with it the duty to decide during the absence of the Karnavan whether a particular alienation should be effected for meeting a family necessity is delegated to a Mukthiar so that he can exercise that power with the concurrence of the adult members during the absence of the Karnavan as and when occasion arises is a perfectly valid agreement. On the other hand to hold that this is permissible would be in consonance with the, concept of joint ownership by all the members of the tarwad properties and with the settled legal position that the powers of a Karnavan could be restricted by the consent of All, which of course, includes the consent of the Karnavan himself. The execution of a power of attorney of this kind would, in effect, be a restriction placed by family karar on the power of the Karnavan. The delegation merely of a power of management which is revocable cannot be regarded as a delegation of the office of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by the Mukthiar. After he returns he can resume the management and carry on the affairs of the tarwad. Or again, the delegation being through a power of attorney he can in a proper case put an end to it by revoking the power of attorney. Thus, despite the execution of such a power of attorney he does not fade out completely and, therefore, there is no question of its operating as renunciation."t If delegation by a document is permissible, one without any writing is also possible. If agency can be created, there can be an agency by necessity also. In grave situations where consequences would be calamitous to the family it is conceivable that a senior anandiravan may act for and on behalf of the tarwad and bind it by such act. Supposing there are only two members in a tarwad and one of them, the Karnavan, is involved in an accident and is lying unconscious in the hospital; to save his life by an emergency operation, let us assume, requires an immediate borrowing. If under pressure of such emergency the remaining junior member borrows and saves the life of the Karnavan, it would be monstrous to hold that the debt is not binding because, the hand that created it was not that of the Karnavan. The law is humane or ought to be. In the present case, perhaps, such an extreme situation had not arisen. Nevertheless, the 3rd defendant and her mother were the only major members, the latter lying prostrate with gangrenous diabetes or some such illness. The law is humane or ought to be. In the present case, perhaps, such an extreme situation had not arisen. Nevertheless, the 3rd defendant and her mother were the only major members, the latter lying prostrate with gangrenous diabetes or some such illness. To give her competent treatment, the 3rd defendant had the power to borrow provided, there was concurrence of binding purpose and pressure on the estate. We must at least concede that where a junior member incurs a debt under circumstances from which One may spell out an agency by necessity it is prudent and therefore competent for the manager to adopt that debt. On the death of the mother Lakshmi Amma it was proper for the 3rd defendant, the successor Karnavathi to adopt or ratify the legitimate loan she contracted as junior member provided, of course, the loan was otherwise necessary. We must also bear in mind that where the act takes the form of a sale, mortgage with possession or lease, the junior member cannot shake off the statutory shackles that fetter a Karnavan himself. Nor need we import into this discussion the controversy regarding de facto Karnavanship. 25. The discussion will be complete if I briefly advert to one or two allied aspects of law. Bowstead on Agency has this to say on agency by necessity, apposite in the present context, I quote: "An authority of necessity is conferred by law in certain case where a person is faced with an emergency in which the property or interests of another are in imminent jeopardy and it becomes necessary, in order to preserve the property or interests, to act before the owners instructions can be obtained. The law assumes the consent of the owner to the creation of the relationship of principal and agent, or to the extension of an existing authority to the act done in the emergency." Mr. The law assumes the consent of the owner to the creation of the relationship of principal and agent, or to the extension of an existing authority to the act done in the emergency." Mr. Justice Mathew in Gopala Menon v. Kalyani Amma 1964 K.L.J. 243 has glanced at the problem” I give relevant excerpts of junior members rights to act for the family: "I think neither principle nor precedent would warrant the conclusion that a junior member can institute a suit for redemption, unless there are circumstances disabling the karnavan from filing the suit...." In considering the question about he capacity of a junior member to institute a suit, the learned Judges referred to some of the decisions of the Travancore High Court, and came to the conclusion that it is not an absolute rule that no member of the tarwad could institute a suit for redemption. In Soopi v. Mariamma (A.I.R. 1920 Mad. 401) already referred to, Spencer and Bakewell, JJ., said : "As a suit for redemption of a kanom granted by a karnavan amounts to an act of interference in the karnavan management of tarwad affairs, it can only be maintained by the anandaravans of the tarwad under very special circumstances and it is for them to establish the existence of such very special circumstances as would justify the suit without the concurrence of the karnavan. (See the head note). In Raja of Arakal v. Cheria Kunhi Kannan (29 M.L.J. 632), Wallis, C.J., is reported to have said: "If the karnavan for the time being is submitting to an infringement of the tarwads right of property it is competent to the next senior members to institute a suit to protect the rights of the family"t Thus given necessary circumstances, a junior member who is after all a co-proprietor, has the competence to act for the family, especially while in peril. Viewed in the correct sociological perspective and within socially useful limits, ends justify the means, in law as in life. 26. One more, point may be disposed of before dealing with the evidence in the case. Should the decree be set aside or cancelled or is it enough if there is a declaration that the decree is not binding. Viewed in the correct sociological perspective and within socially useful limits, ends justify the means, in law as in life. 26. One more, point may be disposed of before dealing with the evidence in the case. Should the decree be set aside or cancelled or is it enough if there is a declaration that the decree is not binding. This question looms large usually when ascertaining the correct court-fee; but in this case the fee paid is on the market value which is all that the plaintiff has to pay even if cancellation is claimed. And when that has been done, the Court may even treat the prayer for declaration as one for cancellation. But when there is no decree against a person he is not bound to get it cancelled because a decree binds only him who is a party, actual or constructive i.e. for example, through his representative. To the extent the Karnavan represents the member in the suit he is a party and decree passed therein is an impediment unless set aside or cancelled. Equally clearly, to the extent the Karnavan does not represent there is no decree against the junior member and no cancellation is called for. Since I have held that the Karnavan did not represent the anandiravan in this case, the decree in O.S. No. 43 of 1962 is non est vis-a-vis the plaintiff and there is no substance in the plea that the suit is not maintainable for want of a prayer for cancellation. 27. The line of argument adopted here involves the odd legal position that the Karnavan represents the family to the extent the debt is found good (in the later litigation) and does not to the extent the transaction is found improvident. Of course, a manager represents a member of a joint family to the extent of his coparcenership but does not, in relation to his individual rights. So, partial representation is not unknown or anomalous and the situation arising in cases like the present is perhaps a curious extension of the same doctrine. 28. Now to the principal issue. Is the mortgage, Ext. B-1, binding on the tavazhi? Was there a binding purpose and such pressure for funds that the purpose could not be met without borrowing? 29. 28. Now to the principal issue. Is the mortgage, Ext. B-1, binding on the tavazhi? Was there a binding purpose and such pressure for funds that the purpose could not be met without borrowing? 29. If fraud and collusion were the only grounds for setting aside the decree, the plaintiffs had lost their case even when they drafted their plaint, for there is not even a whisper about any fraud and collusion in the conduct of the suit or in the passing of the decree. But we have already held that if the debt under Ext. B-1 is found not binding, the decree based on it must also fall and so the relevant considerations of necessary purpose and need to borrow have to be considered. To support an alienation as valid there must be not merely necessary purpose but necessity for the loan. Even assuming that land revenue is in arrear and undoubtedly it is binding on the estate and if it be found that it was discharged by taking a loan, still the loan may not be binding if the manager at that time had large resources including actual cash. Of course, if reasonable enquiries have been made sufficient to satisfy a reasonable man of binding purpose and necessity for the loan he need not show actual application of the money [Vide Ganpat Rao v. Ishwar Singh A.I.R. 1938 Nag. 476]. Even here the plainfiff counsel fairly stated that two binding items making up about Rs. 6,000, out of the total of Rs. 11,000 covered by Ext. B-1, cannot be usefully canvassed. The prior debts of Rs. 760 and of Rs. 5,331.0 were respectively incurred in 1939 and 1948 when none of the plaintiffs was born and being after born members, it is beyond them to challenge the alienations in relation to these two borrowings. Mr. Chandrasekhara Menon, counsel for the plaintiffs- appellants, was only making a virtue of necessity when he stated that he was not seriously disputing the binding nature of these two mortgage deeds. He seriously challenges only two items of Rs. 2,000 and Rs. 2,921 as not justified by family necessity or benefit. 30. In tackling this question we have to take note of certain proved or admitted facts. There was no major male member during the relevant period. He seriously challenges only two items of Rs. 2,000 and Rs. 2,921 as not justified by family necessity or benefit. 30. In tackling this question we have to take note of certain proved or admitted facts. There was no major male member during the relevant period. In the decree that was passed on the basis of the mortgage no other junior member except the 1st plaintiff had been impleaded and even he was a minor at that time, represented by none other than the 1st defendant as guardian. The transaction in question was not very old in relation to the present suit (around 15 years) and so the argument that, by efflux of time, obliteration of valuable evidence had taken place and that the recitals in the deed, Ext. B-1, sanctified by its age could be relied on to make up missing links, may not apply. On the credit side, it is useful to remember that the resources of the tavazhi by way of rental income were ample at the relevant time. Items 1 to 23 belonged to the plaintiffs tavazhi for long and would normally yield 2700 paras of paddy. The members of the family were too few (two), during the relevant period, to involve the family in considerable expense and there was the tarwad with its own resources and obligation to maintain the 1st plaintiff and his mother. The normal presumption is that when rents are due by way of income, they are being paid or collected and it is for the 1st defendant to prove that such rents were in arrears and the family was finding it difficult to meet its obligations. On the debit side, if I may say so, it must also be remembered that admittedly the 3rd defendant mother a member of the tavazhiits karnavathy till her death was ailing, in the last leg of her life and did die in June 1950. It is reasonable to infer from this circumstance that she must have been given medical treatment involving the family in unusual expense, in that behalf, Legislation clogging collection of arrears of rent was round the corner in 1950 and tenants were not too eager to be prompt in paying current rents. Let us view the controversy against this background. 31. The mortgage is valid, indubitably, to the extent of around Rs. 6,000. In regard to the balance, the recitals in Ext. Let us view the controversy against this background. 31. The mortgage is valid, indubitably, to the extent of around Rs. 6,000. In regard to the balance, the recitals in Ext. B1 are set out in paragraphs 3 and 4. One of these items of debt is the promissory note executed by the 3rd defendant and her husband to his nephew Govindan Unni. Although the definite case of the plaintiffs is that their father was a spendthrift and he made his wife the 3rd defendant sign away the mortgage, Ext. B-1, and came by some money thereby, which he wasted, it is difficult to reject the case of the creditor that enquiries had been made of this Govindan Unni regarding the advance of Rs. 2,000, made by him under Ext. B-2 promissory note, particularly because D.W. 2 has sworn in support of this case and Govindan Unni has not been examined by the plaintiffs to controvert this. Whether this promissory note, Ext. B-2, was itself a collusive transaction or not, the creditor Chamu made reasonable enquiries and was satisfied that such an amount was due by the family. After all, Nataraja Menon and the 3rd defendant belong to respectable families and a stranger like Chamu has been satisfied on enquiry that Govindan Unni, a nephew of the plaintiffs father and a responsible employee in a Bank, with ostensible ability to lend, did lend the money. There is no room for suspicion, particularly because the fact remains that Lakshmi Amma had been seriously ill and had subsequently died. The old lady, Lakshmi Amma, had definitely been treated in Dr. P. N. Menons dispensary. Medical attention and nursing need immediate and sizeable sums of money and cannot await the leisurely course of rent suits and without litigation rent collection was becoming difficult as Exts. B-5 to B-7 disclose. In such a predicament if the 3rd defendant took a temporary loan from her husband nephew, it is natural and cannot be meticulously dissected or put under a legal microscope. An imaginative assessment or conspectus is the right thing to do; for injustice, as in poetry it is murder to dissect. The creditor had good grounds to go satisfied about the purpose and the pressure as things were presented to him then. I uphold the lower Courts finding that the sum of Rs.2,000 advanced under Ext. B-2, reserved in Ext. An imaginative assessment or conspectus is the right thing to do; for injustice, as in poetry it is murder to dissect. The creditor had good grounds to go satisfied about the purpose and the pressure as things were presented to him then. I uphold the lower Courts finding that the sum of Rs.2,000 advanced under Ext. B-2, reserved in Ext. B-1 to be discharged by Chamu, could not be castigated as an improvident borrowing and in any case their is no reason to discard it as wrong. The other item of consideration for Ext. B-1 is the cash payment of Rs. 2,921. Ext. B-1 explains that the loan from Govindan Unni (Ext. B-2) was taken for the medical treatment of Lakshmi Amma. Ext. B-2 is dated 18th April 1950 and the lady herself dies in June 1950. It is therefore reasonable to think that if Lakshmi Amma, the plaintiffs grandmother, was seriously ill and to give her medical treatment a loan had been taken in April, it must have been of a sum sufficient to treat her not only up to the date of the loan but also for some time more and when we see that Lekshmi Amma died in a couple of months, it behoves us to scrutinise sceptically, though not carpingly, the story that another sum of about Rs. 3,000 was taken in July 1950 for the same purpose of medical treatment and for certain other lesser items, which are hardly impressive in the context. Anyway, from the extract of para 3 of Ext. B-1 given above, it is clear that the reasons for the additional loan are staged to be to clear the bills for purchase of medicine from the National Dispensary, Sultanpet (Palghat), to meet the expenses of the attendants who nursed Lakshmi Amma for over a year while she was lying as an in patient in the National Dispensary, to file suits for recovery of, arrears of rent due for 1125 M.E. and to discharge MALAYALAM for that year. D.W 2 would swear in chief examination regarding the cash loan of Rs. 2,921 in the following words: "The balance amount was paid in cash to D-3 as they wanted it for payment of michavaram and arrears of maintenance." This goes contrary to the recitals in Ext. B-1. D.W 2 would swear in chief examination regarding the cash loan of Rs. 2,921 in the following words: "The balance amount was paid in cash to D-3 as they wanted it for payment of michavaram and arrears of maintenance." This goes contrary to the recitals in Ext. B-1. Of course, the witness elsewhere adds: "Nataraja Menon, husband of D-3 came there one day and asked for some money from my father. He told father that he had to pay off some prior mortgage debts and that he had to file suits against his tenant for arrears of rent and that towards the litigation expenses also he warned some money."t There is no reference anywhere that this sum was borrowed in connection with payment of medical bills or for paying medical attendants while Lakshmi Amma was an in-patient. I am overlooking the minor error that according to DW.2, Nataraja Menon represented that he had to pay off and that he wanted some money and that he had to file suits and not that the tavazhi of his wife wanted a loan or was in need for binding purposes. In cross-examination the witness has spoken on the cash part of the loan like this: "The amount received as cash consideration under Exhibit B-1 was said to be required for conducting the suits for arrears of michavaram and evidenced by Exhibits B-5 and B-6. I can't say how much was the michavaram arrears at the time of Exhibit B-1 or for all years there was arrears. There was michavaram arrears from out of property of items, 1 to 23. I have not verified whether the arrears of michavaram had been paid off later. There is a stipulation in Exhibit B-1 that the michavaram has to tie paid and the receipt to be shown to us. But we did not ask for the receipt nor was it given to us by D-3." Even here, it is seen that the witness does not so much as pay lip service to the recital that medical bills had to be paid off and other payments connected with the nursing of the patient also had to be made. If the recitals by themselves are not evidence, there is no other evidence whatever to support the case of payment of medical bills and connected items. If the recitals by themselves are not evidence, there is no other evidence whatever to support the case of payment of medical bills and connected items. Assuming that Lakshmi Amma was, on some casual, occasion, staying in the dispensary it is impossible to believe, that a respectable lady living in the same town would have been taken to a mere dispensary and treated as an in-patient for a long period of one year. Palghat is a District Headquarters town with obviously good hospital facilities for medical treatment and it is inconceivable that an upstair room, where a dispensary and medical shop, along with out-patient consultations are curried on, would be a place for lying-in treatment also; and that, for a period of one year for an old lady suffering from gangrenous diabetes! It is an incredible story unsupported by any reliable evidence and has to be rejected. Even regarding the story that there were arrears of rent for which suits had to be filed and that michavaram had also to be paid there is considerable difficulty in accepting the need of the family to borrow for litigation expenses. It is seen from Ext. B-5 that rents and they were large compared to the needs of the family had been collected in to to up to 1123 and substantially for 1124. At least when there is some flow of current income them mere fact that there is delay or difficulty in collecting rents for 1125 cannot justify taking a loan to file a suit and encumbering the family property; and after all, the cost of filing a suit covered by Ext. B-6 cannot be substantial and could well be met out of the rents collected up to the previous year. The plea that michavaram for 1125 had to be paid and for that purpose also the cash loan was taken cannot be easily swallowed because there is no evidence to show that such michavaram had been paid at about the time of Ext. B-1. Not that a creditor has a duty to see to the application of the money borrowed but it is certainly a favourable probability if, close upon the borrowing, there was such a discharge of michavaram. The absence of it certainly has its impact against the lift defendant story. B-1. Not that a creditor has a duty to see to the application of the money borrowed but it is certainly a favourable probability if, close upon the borrowing, there was such a discharge of michavaram. The absence of it certainly has its impact against the lift defendant story. In the absence of any evidence of enquiries having been made of the landlord to whom michavaram was due or even of a representation having been made the karhavathy, the 3rd defendant, or of any receipt evidencing payment of michavaram shortly after Ext. B-1, it is hard to believe that a loan had been taken for meeting an obligation ordinarily met out of current resources and for which no particular urgency had been made out. It is not out of place to mention that even if Dr. P. N. Menon who ran the dispensary was no more, some attempt should and would have been made to produce evidence of dues to the medical shop, but there is nothing attempted in that direction by the 1st defendant. The only other evidence is that of D.W. 1, which I have gone through and it hardly inspires credence and is even dubious and contradictory. In fact he swears that Nataraja Menon mother was residing in the dispensary as a "bed patient". Really it was his Mother-in-law. He says elsewhere, in two places, as follows: "Then skin of the foot of D-3 mother was peeled off and it was for that treatment they were there for nearly 1 year. She not fully cured when she left the dispensary. I cant say in which year it was..D-3 mother died from the dispensary itself."t How could she have left the dispensary not fully cured and then die from the dispensary itself? On the whole, one can only say from D-1 evidence that possibly D-3 mother had been taken occasionally to Dr. P. N. Menon medical shop and not that she was a long term in patient there. The illness and death of Lakshmi Amma have been exploited” and so also the filing of Exts. B-5 and B-6”to fasten a liability on the family. Nor has the creditor been shown to have made reasonable enquiries and satisfied himself about the purposes and pressure on the estate. The illness and death of Lakshmi Amma have been exploited” and so also the filing of Exts. B-5 and B-6”to fasten a liability on the family. Nor has the creditor been shown to have made reasonable enquiries and satisfied himself about the purposes and pressure on the estate. Mere recitals of such need, without independent evidence in substantiation of it, is not enough, and the burden is on the creditor to adduce evidence aliunde. [Vide Lala Brijlal v. Mt. Inda Kunwar A.I.R. 1914 P.G. 38 and Biswanath Singh, v. Kayestha Trading and Banking Corporation Ltd. A.I.R. 1929 Pat. 422]. After all, such recitals, even in old deeds, may forge some missing links in the chain but cannot serve to fabricate the whole chain. And for the cash loan, there is no reliable evidence at all. 32. The lower Court has not really discussed the truthfulness or otherwise of the cash loan part of the creditor case and its general finding that the whole of Ext. B-1 was binding cannot shore the cash loan part of the case. I hold that to the extent of Rs. 2,921-6-0 there is no binding purpose or need to borrow and the mortgage has to be set aside- to, this extent. 33. There is a difference between a mortgage and a sale executed by a manager of the joint family. A sale is either wholly good or bad; a mortgage can be good in part, or is capable of being supported as to part; and if it should appear that a large part of the consideration is for necessity, that part would be binding. [See Ganpat Rao v. Ishwar Singh A.I.R. 1938 Nag. 476.] It follows that the decree Ext. B-18 has to be declared valid pro tanto but invalid for the rest. Since substantially the mortgage has been upheld by us the 1st defendant was justified in his suit, O.S. No. 43 of 1962, and the cost he has incurred and which has been awarded to him there must also be upheld. In short the decree Ext. B-18, will be declared to be not binding to the extent of Rs. 2,921-6-0 and interest attributable to that sum and incorporated in that decree. I do so. Parties will bear their costs here, and in the lower Court. Raman Nayar, J. 1. In short the decree Ext. B-18, will be declared to be not binding to the extent of Rs. 2,921-6-0 and interest attributable to that sum and incorporated in that decree. I do so. Parties will bear their costs here, and in the lower Court. Raman Nayar, J. 1. I agree with the conclusion reached by my learned brother whose judgment I had read and also with the Reasons he has given that lead to that conclusion. 2. In so far as the money borrowed under the mortgage, Ext. B-1, went in discharge of the earlier mortgages executed by the 3rd defendant and her mother, the only members of their tavazhi at the time, the 3rd defendant children, the plaintiffs, not having been born it is not disputed, at any rate not before us, that the borrowings under Ext. B-1 and under the earlier mortgages were real the decree obtained by defendants 1 and 2 on Ext. B-1 against the 3rd defendant and her son the 1st plaintiff, the former in her capacity as manager of the tavazhi, cannot be questioned and is, indeed, not questioned by the plaintiffs. And, in so far as it went to discharge the debt under the promissory note, Ext. B-2, as my learned brother has shown, family necessity must be deemed to have existed since the evidence of the 1st defendant discloses, that his father, the mortgagee, acted in good faith after using reasonable care to ascertain the existence of the necessity see section 38 of the Transfer of Property Act which codifies the law laid down in Hanuman Prasad's case 6 Moore Ind. App. Ca. 243. It is true that the tavazhi must be regarded as a wealthy tavazhi. At all material times it had only to members to maintain, and, apart from its share in the properties of the main tarwad from which it was undivided, the tavazhi itself owned properties capable of fetching an annual income of about 3000 paras of paddy. But, even the wealthiest of families fall upon evil days owing to mismanagement, and families composed solely of females and minors are particularly vulnerable since the actual conduct of their affairs is often in the hands of some exploiter, as often as not, as is alleged, in this case, a person who has married into the family. But, even the wealthiest of families fall upon evil days owing to mismanagement, and families composed solely of females and minors are particularly vulnerable since the actual conduct of their affairs is often in the hands of some exploiter, as often as not, as is alleged, in this case, a person who has married into the family. (And I have little doubt that, having exploited the family, the plaintiffs father, whom the plaint denounces as the villain of the piece, a reckless profligate who has ruined the family in order to pursue his own dissolute ways, is now, through his own nephew acting as next friend of the plaintiffs, turning his attentions on how best to defeat the creditor.) But, if there was, in fact, legal necessity at the particular time, even if brought about by past mismanagement, the bona fide lender or buyer is not affected by the precedent mismanagement of the estate. There is legal necessity none the less see Maharanee Shibessouree Debia v. Mothooranath Acharje 13 Moore's Ind. App. Ca. 270 and Prosunne Kumari Debya v. Golab Chand Baboo 2 Indian Appeals 145. However so for as the cash payment of Rs. 2,921 is concerned, the evidence as to the purpose for which this amount was borrowed, and as to the enquiries made by the mortgagee is, to say the least vague and perfunctory, and, as my learned brother has demonstrated, at variance with what Ext. B-1 itself says. Except, therefore, with regard to this sum of Rs. 2,921, the borrowing under Ext. B-1 by the 3rd defendant as the manager of the tavazhi”the 3rd defendant, it might be mentioned, although that makes little difference to the case, purported to execute Ext. B-1 also in her capacity as the guardian of the only other member of the tavazhi at the time her minor son the 1st plaintiff”is binding on the plaintiffs. The question then is whether the decree obtained on Ext. B-1 against the 3rd defendant and the 1st plaintiff, the former as the manager of the tavazhi, is binding on the plaintiffs in entirety unless they have it set aside on the ground that it was obtained by fraud or collusion, or whether they can assail or resist it, as they have chosen to do, on the ground that the-mortgage on which it was based was not supported by legal necessity. 3. 3. Acting within the scope of his authority and subject to any special agreement in the family, the scope is determined by the personal law, statutory or otherwise, by which the family is governed the manager of a joint family represents not merely himself but also every other member of the family in respect of the family affairs as effectively as if he were the latter duly constituted attorney. To every transaction which the manager so enters into, each member of the family is, in truth, and not by a fiction or a construction of the law, as much a party as if he had figured in it by name. And when a manager sues or is sued on behalf of the family [accompanied, if the personal law so requires by other members of the family in order to make his authority completesee for example section 31 of the (Travancore), Nayar Act] the other members are actually and not merely constructively parties to the suit. They are parties for all purposes, (of course only in so far as joint family interests are concerned, not in so far as their individual personal interests are concerned) for purposes of res judicata as well as for execution; as much parties as if they were parties eo nomine. It is as if the manager were a compendious name for all the members of the family, and a close analogy would be a suit by or against the partners of a firm in the name of the firm. The members of a joint family are equal and independent co-proprietors with the manager and in no sense claim under him so as to attract what I might call the body of section 11 of the Code as persons claiming under the manager. Nor is it necessary to resort to the fiction in Explanation VI of the section to attract the principle of res judicata since all the members are in fact parties to, the suit so as to attract the body of the section although their names do not figure as such on the record. (It is true mat, generally speaking, decisions, some of them of the Privy Council, resort to Explanation VI in such cases. But that is putting the case at the lowest, which was sufficient for the disposal of those cases, and treating a manager on no different footing from an ordinary member. (It is true mat, generally speaking, decisions, some of them of the Privy Council, resort to Explanation VI in such cases. But that is putting the case at the lowest, which was sufficient for the disposal of those cases, and treating a manager on no different footing from an ordinary member. I do not think that those cases can be regarded as laying down by implication that, when a joint family properly sues or is sued by its manager, the members thereof cannot be regarded as parties to the suit within the meaning of the body of section 11). And so far as execution is concerned, in the case of a decree where a manager properly figures as a party, the members of the family are (in so far as joint family property is concerned) parties to the suit in which the decree was passed within the meaning of section 47 of the Code, not representatives of the manager party. The decree is executable against the properties of the family, and the only objections, which the other members of the family can take, are objections which a judgment-debtor may take. 4. What then is the scope of the authority of a manager with regard to the defence of a suit brought to enforce a transaction which he himself has entered into on behalf of the family? A manager, it is true, is not a trustee. But he undoubtedly occupies a fiduciary position, and, surely, it cannot be within the scope of the authority of a fiduciary to represent the beneficiary in hostility to the latter sinterests. One view to take would be that since the manager will, generally speaking, be precluded from denying the binding, nature of the transaction,1 in any event, from making an effective denial, he cannot under any circumstances represent the remaining members of the family, being incapable of protecting their interests. That is an extreme view to take and presupposes that the interests of the other members requires the putting forward of every conceivable defence, whether true or false. That, of course, is not so, and it can never be the duty of a fiduciary, be he a trustee, a manager, or a guardian, to put forward a false defence; nor can that be regarded as in the interests of the beneficiary. That, of course, is not so, and it can never be the duty of a fiduciary, be he a trustee, a manager, or a guardian, to put forward a false defence; nor can that be regarded as in the interests of the beneficiary. This extreme view would also mean that a decree obtained against the manager (even one obtained in accordance with the provisions of section 31 of the Nayar Act) would be a perfectly useless decree since it cannot be executed against the properties of the joint family, the other members of the joint family, or, collectively, the joint family, not being party to the decree. Nor, excepting in rare cases, would the decree avail as res judicata against the joint family since the bona fides required by Explanation VI to section 11 of the Code would generally be absent. This, of course, is not the case. For, it is well-settled that a decree properly obtained against a manager is executable against the assets of the joint family. 5. Another view might be that the manager effectively represents all the members of the joint family in all circumstances it is sometimes said that this follows from the decision in Vasudevan v. Sankaran I.L.R. 20 Madras 129 (F.B.). This is going to the other extreme, for, it would mean that even if the transaction were not for a binding purpose, the other members of the family would, that notwithstanding, be bound by res judicata and would have to suffer execution unless they get the decree set aside on the ground set out in section 44 of the Evidence Act, in other words, on the ground that it was obtained by fraud or collusion. This would be to deprive the other members of the family of a defence they could legitimately have put forward had they been sued eo nomine instead of by a self-discredited representative, and unfairly place on them the onerous burden of not merely having to figure as plaintiffs in a suit to set aside the decree, but also having to establish fraud or collusion instead of requiring the other party to the transaction to show that the transaction was for a binding purpose. The injustice involved has on occasion [as in Durgamma v. Kechamayya A.I.R. 1925 Madras 792] prevailed upon judges to invoke the three-fold fiction that fraud is necessarily present whenever a manager exceeds his authority, that it pervades his defence of a suit against the joint family, and that a plea of fraud is necessarily implied in every suit to set aside a decree obtained against the manager on the ground that the transaction enforced thereby was not for a binding purpose even though no such plea is expressly taken. 6. The truth, I think, lies, as it often does, midway between these two extreme views. To the extent that the transaction was within the scope of his authority, a manager truly and effectively represents all the members of the family in a suit in enforcement of the transaction. No breach of the trust reposed in him is conceivably involved for, there is nothing to prevent him from taking all the defences which he can honestly and properly take, and, as I have already observed, it can be no part of the duty of a fiduciary to take a dishonest or improper defence. But, to the extent the transaction was outside the scope of his authority, he can represent no one but himself in the litigation. For, by the very act of entering into the transaction he disqualified himself from impugning it on behalf of the joint family, or of defending the interests of the joint family in a litigation, and the law cannot be that you can be represented by a person whose interests are in conflict with yours, or who, at any rate, cannot protect your interests. The position then is that if the transaction is beyond the scope of the manager authority, then, in a suit to which the manager alone is a party, the manager does not and cannot represent the remaining members of the family and the remaining members are in no sense parties to the suit. Any decree therein cannot be res judicata so far as the remaining members are concerned since they are not parties and are not persons claiming under the manager who is a party. Nor would Explanation VI to section 11 of the Code avail since, as I have already observed, the manager would not be litigating bona fide in respect of the common right. Nor would Explanation VI to section 11 of the Code avail since, as I have already observed, the manager would not be litigating bona fide in respect of the common right. Neither can the decree be executed against the remaining members, and, if it is sought to be executed against the joint family property, the remaining members can take the same objections that a stranger to the decree may take, either by way of claim or obstruction in the execution proceedings, or by way of a separate suit. 7. I venture to think that what I have stated above is the principle on which the decision in Jai Kishen v. Ram Chand A.I.R. 1935 Lahore 1, Faquir Chand v. Harnam Kaur A.I.R. 1967 S.C. 727 and Prosunne Kumari Debya v. Golah Chand Baboo 2 Indian Appeals 145 (the last mentioned, the analogous case of a decree obtained against the sebait of an idol) proceed. 8. The application of this principle to the present case no doubt involves what might at first sight appear to be the curious result; that, in so far as the mortgage, Ext. B-1, is for a binding purpose, the plaintiffs are parties to the suit in which the decree, Ext. B-18, was obtained, and that, in so far as the mortgage was not for a binding purpose, they are not parties to the suit. But I see nothing anomalous in this. Had the binding and non-binding debts been separately borrowed, and had there been separate suits instituted against the manager for recovery, there would be nothing strange in holding that the remaining members of the family were parties to the one suit but not to the other. What difference does it make that the borrowings are by the same transaction and there is only one suit instituted? The only conceivable difference would be that the remaining members being parties at least to a part of the suit, section 47 of the Code might possibly bar a separate suit by them to question the execution, of the decree against the joint family property. But no such objection has been taken so far as this case is concerned, and if it were, there would probably be no difficulty in treating this suit as a proceeding under section 47 of the Code. 9. But no such objection has been taken so far as this case is concerned, and if it were, there would probably be no difficulty in treating this suit as a proceeding under section 47 of the Code. 9. In the result the plaintiffs appeal is allowed in part and it is declared that to the extent of the sum of Rs. 2,921-6-0 and the interest thereon, the decree Ext. B-18 cannot be executed against the property in suit which is admittedly the joint family property of the plaintiffs and the 3rd defendant. There will be no order as to costs either here or in the court below.