KAMATCHI AMMAL v. S. KARUNAKARAN — 1998 DIGILAW 1342 (MAD)

Judgment : K. GOVINDARAJAN, J. ( 1 ) THE legal representatives of the decree holder in O. S. No. 234 of 1971 have filed the above revision, aggrieved against the order passed by the learned District Judge, Cuddalore in C. M. A. No. 48 of 1990, dated 24. 9. 1991, setting aside the order passed by the Sub-Court, Cuddalore in E. A, No. 880 of 1986 in E. P. No. 64 of 1984 in O. S. No. 234 of 1971, filed under Order 21, Rule 90 of the Code of Civil procedure, by the second defendant to set aside the sale. ( 2 ) ONE Kamatchi Ammal filed the suit on mortgage in O. S. No. 234 of 1971 on the file of the Sub-Court, Cuddalore and obtained a decree on 28. 2. 1973. The auction sale was held on 25,8. 1986. To set aside the said sale, the second defendant filed the application in e. A. No. 880 of 1986, under Order 21, Rule 90 of the Code on the ground that no notice was served on him in the Execution Petition and so the further proceedings cannot be sustained and the same has to be set aside. According to the second defendant, his date of birth is 7. 6. 1957 and he became major as early as on 7. 6. 1975. It is the case of the second defendant that having impleaded him as a party in the suit and in the execution petition, Since no notice was served on him, the proceedings in the execution petition cannot be sustained in law and the same has to be set aside. The executing Court rejected the application on the ground that notice was served on the first defendant who is his father and so the sale need not be set aside for the reason that notice was not served on the second defendant separately. ( 3 ) AGGRIEVED against the same, the second defendant who is the first respondent herein filed appeal in C. M. A. No. 48 of 1990. The lower Appellate Court accepting the case of the first respondent herein allowed the appeal and set aside the sale. Still aggrieved, the legal representatives of the decree holder have filed the above revision. ( 3 ) AGGRIEVED against the same, the second defendant who is the first respondent herein filed appeal in C. M. A. No. 48 of 1990. The lower Appellate Court accepting the case of the first respondent herein allowed the appeal and set aside the sale. Still aggrieved, the legal representatives of the decree holder have filed the above revision. ( 4 ) THE learned Counsel appearing for the petitioners has submitted that since the property in question is the joint family property, the father of the first respondent, namely, the second respondent herein had been impleaded both in the suit and in the execution petition, and notice was served on him by affixture which was not under challenge. Since the father has been impleaded as party, even if the first respondent herein is not impleaded, the mortgage decree can be executed against the property in question. So the Appellate Court is not correct in setting aside the sale on the ground that notice was not served on the first respondent. But the learned Counsel appearing for the first respondent has submitted that having impleaded the first respondent as a party of the proceedings, the proceedings in the Execution petition cannot be sustained for want of notice to the first respondent. ( 5 ) ADMITTEDLY, the first respondent is having half share in the mortgaged property. It is not in dispute that the debt is joint family debt. Under these circumstances, it has to be decided whether the non-serving of notice on the first respondent would vitiate the execution proceedings. ( 6 ) THE Full Bench of this Court in venkatanarayana v. V, Somaraju while dealing with a suit against the father to recover joint family debt from the joint family property, has held as follows : "this decision clearly lays down that where a decree has been obtained against the manager as representative of the joint family in respect of a joint family liability it will be binding on his undivided brothers and the entire joint family property can be taken in execution though the undivided brother was not made a party to the suit. This principle would a fortiori apply to the case of a father and son. I think it is necessary to refer to the other. This principle would a fortiori apply to the case of a father and son. I think it is necessary to refer to the other. Privy Council decision as they have been already dealt with at length by my learned brother venkatasubbarao, J. , in his judgment. Therefore, where a father or other manager is sued as a representative of a family, the other members of the family must be held to be substantially parties to the suit through such manager. The fact that they are not parties co-nominee will not render them any of the parties to the suit. " ( 7 ) FOLLOWING the abovesaid Full Bench decision, in T. A. Sankaralingam v. T. N. Mani, this Court has further held as follows : "no doubt, where the other members of a coparcenary are not impleaded as parties to the suit, it would be open to them in execution to impeach the debt on the ground that it is tainted with illegality or immorality but certainly not on the ground that the decree is not binding upon them because they have not been made co-nominee parties to the suit. If procurement of a decree against the manager of the joint family has this effect, the objection of T. N. Mani, that he had been wrongly impleaded as a minor, when, in fact, he was a major, would have no significance in law whatsoever. It is noteworthy, that he was living with his mother Mariyayee, and mariyayee was impleaded as the third defendant to the action and was appointed as guardian ad idem of T. N. Mani. In these circumstances, despite the misdescription of T. N. Mani as a minor, T. N. Mani must have been aware of this litigation through his mother but he took no steps to rectify the misdescription. In these circumstances, despite the misdescription of T. N. Mani as a minor, T. N. Mani must have been aware of this litigation through his mother but he took no steps to rectify the misdescription. Even assuming that he was not aware of the proceedings, the decree would be still binding upon him because it has been granted against the manager of the joint family of which T. N. Mani was as undivided coparcener In this view, we disagree with the second appellate Judge and hold that the decree granted in O. S. No. 888 of 1960 would be binding upon T. N. Mani and that it is not open to him to contend that because he was a major and he had been misdescribed as a minor, the decree would not be effective against him. We consequently reverse the finding of the first Appellate Court and the second Appellate Court, allow this appeal and restore the order of the Executing court and direct that the execution application filed by the first respondent, t. N. Mani, be dismissed with costs throughout. " ( 8 ) IN Subramania Gothawari, S. v. K. S. G. Sivjothiammal, another Division bench of this Court took the similar view and has held as follows :"it is not possible for us to interfere with the order under appeal. It is no doubt true that after the application of the hindu Succession Act on 1st October, 1963, to the State of Pondicherry the parties are governed by the provisions of the Hindu Succession Act, whatever be their personal law before 1st October, 1963. Even assuming that the appellants have acquired a right by birth in the properties held by their father (sixth respondent) as a Kartha of the joint family still the right by birth is subject to the other rules obtaining in Hindu law. The debt due by a Kartha of a hindu joint family binds the joint family and its members cannot resist the execution of the decree as against the properties of the joint family on the ground that the individual shares of the co-parceners cannot be proceeded with. That can be done only if the debt incurred by the Kartha is tainted with illegality or immorality. That can be done only if the debt incurred by the Kartha is tainted with illegality or immorality. In this case, the appellants have not come forward with the case that the debt incurred by their father (sixth respondent) is tainted with illegality or immorality nor was there any attempt to establish the same. Therefore, even on the basis that the doctrine of right by birth is applicable to the appellants on or after 1st October, 1963, that will not enable the appellants to claim immunity from the execution of the decree obtained against their father. " in view of the above mentioned decisions, it is clear that even if any member of the joint family is not impleaded in the suit, the decree will bind on him. As held in the decision in T. A. Sankaralingam v. T. N. Mani (supra), even assuming that the son did not know of the proceedings, by not serving the notice in the execution petition, the decree would still be binding upon him because the same has been granted against his father also. ( 9 ) IN support of his submission, the learned Counsel appearing for the first respondent has relied on the decision in sinnammal v. Settiya Goundan. In the said case, the decree holder sought to execute the property of the son who had become divided and the property sought to be sold was not the joint family property. So, the said decision cannot be made applicable to the facts of the present case. The learned Counsel has also relied on the decision in Athianna Gounder and Anr. v. Kumaraswamy (Now Deceased) and r. Natarajan, wherein, the learned Judge has held that the proceedings taken without serving the notice in the execution petition as illegal. But, in the present case, the question is whether such non-service of notice against the first respondent would vitiate the proceedings in the execution petition to recover the joint family debt in which the father was impleaded and notice was served. So, the said decision cited by the learned Counsel for the first respondent will not in any way assist the first respondent to strengthen his case. So, the said decision cited by the learned Counsel for the first respondent will not in any way assist the first respondent to strengthen his case. ( 10 ) ON the basis of the abovesaid decisions, the learned Counsel for the first respondent has submitted that without serving the notice on the first respondent, the entire proceedings had become nullity, in view of Order 21, Rule 64 of the Code. I am not able to agree with the said submission. The lower appellate Court also is not correct in holding that for want of notice to the first respondent the sale held by the Court is void As held in the abovementioned decisions, any decree or proceedings against the second respondent would bind on the first respondent, as the mortgage decree is against the joint family property and to recover the family debt. The first respondent has come forward with the execution application only on the ground that no notice was served on him in the execution petition. In view of the abovesaid decisions of this Court, the objection that has been raised by the first respondent cannot be countenanced. ( 11 ) FOR the foregoing reasons, the order passed in C. M. A. No. 48 of 1990 on the file of the Additional District Judge, Cuddalore cannot be sustained and the same is set aside and the order passed in E. A. No. 880 of 1986 in E. P. No. 64 of 1984 in O. S. No. 234 of 1971 is restored. Consequently, this revision is allowed. No costs. Petition allowed.