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2006 DIGILAW 38 (MAD)

Krishnamoorthy Padayachi (died) & Others v. Vadivel Chettiar (died) & Others

2006-01-06

P.JYOTHIMANI

body2006
Judgment :- The unsuccessful defendant Nos.2 and 7 in the suit in both the Courts below are the appellants in this second appeal. The plaintiff filed the suit for declaration and for possession of the suit property apart from mesne profits. 2. Case of the plaintiff was that defendants 1 to 7 belong to Hindu undivided family. Among them, the first defendant is the Kartha and conducting the family. Defendants 1 and 2 are brothers. The brother-in-law of the first and second defendants viz., Ramalinga Padayachi and the first defendant have borrowed in a finance, institution called Annamalai Finance an institution conducted by defendants 9 and 10, in which the ninth defendant is the Managing Partner, a sum of Rs.3,500 under a pro-note on 10.11.1964. Since the said amount was not paid, the ninth defendant filed a suit in 0. S.No.489 of 1966 for recovery of the amount and there was a decree passed in his favour on 1.9.1966. In execution of the said decree the ninth defendant has purchased the suit property in the present suit as well as two other properties in E.P.No.560 of 1970 and the said auction was conducted on 23.12.1970, which was confirmed on 29.1.1971. 3. It is also stated that the ninth defendant has taken possession in March, 1971. The ninth defendant, who has purchased the suit property by Court auction, has sold the same to the plaintiff by a sale deed dated 19.11.1978 marked as Ex.A-4. The case of the plaintiff is that the amount received by the first defendant along with his brother-in-law was for the benefit of the family consisting of defendants 1 to 7 and therefore, the same is binding upon the joint family. After the purchase, the plaintiff has been paying all the taxes including kist, etc., In respect of the suit property and enjoying the same. In 1979, when the plaintiff proceeded to his a cultural operations in the lands, defends; 1 to 7 have obstructed resulting in the plaintiff's inability to enjoy the property. The plaintiff has issued a legal notice and filed the sent suit for declaration and permanent in junction against defendants 1 to 7 in getting the property without obstruction. 4. In 1979, when the plaintiff proceeded to his a cultural operations in the lands, defends; 1 to 7 have obstructed resulting in the plaintiff's inability to enjoy the property. The plaintiff has issued a legal notice and filed the sent suit for declaration and permanent in junction against defendants 1 to 7 in getting the property without obstruction. 4. The first defendant along with defendants 3 to 6 has contended that the first defendant was not the Kartha of the family and therefore the borrowal of the first defendant along with one Ramalinga Padayachi in receiving money under a pro-note, is not binding on the family members, since the same was not executed by him as Kartha of the joint family. The defendants not obtained any benefit out of the amount said to have been received by the first defendant under the pro-note. Even though it is admitted by the said defendants that there was a suit filed in O.S.No.489 of 1996 under a pro-note and. execution proceedings were conducted, it is denied that the plaintiff has got any right over the suit property. 5. It is also the case of the first defendant that he only stood as a surety for the pro-note and he was not the principal debtor and there was also no family necessity at that time for him to borrow the money for the benefit of the family. It is also stated that the ninth defendant has not taken possession pursuant to the Court auction sale. In addition to that it is stated that admittedly the ninth defendant has not taken pos­ session of the two more properties and there is no specialty for him to say that he has taken ion in respect of the suit property alone. After an elaborate trial, the trial Court has the suit, declaring that the plaintiff is led for the ownership of the property and so directed defendants 1 to 7 to hand over session of the suit property without any obstruction. It was as against the said judgment; defendants 2 and 7 have filed the first appeal in A.S.No.62 of 1991. 7. It was as against the said judgment; defendants 2 and 7 have filed the first appeal in A.S.No.62 of 1991. 7. The first appellate Court having arrived at a conclusion that the borrowal of the money by the first defendant along with the said Ramasamy Padayachi was for family necessaries and based on the pious obligation theory, came to a conclusion that defendants 1 to 7 are also liable for the same. The first appellate Court has also found that as per Ex.A-14, delivery was given by the execution Court to the ninth defendant. Accordingly, the judgment and decree of the trial Court were confirmed by the first appellate Court. It is as against the said concurrent judgments; defendants 2 and 7 have filed the present second appeal before this Court. 8. The substantial question of law involved in the present case is, as to whether the appellants are bound by the doctrine of pious obligation, when the debt was not by the father as a manager -under a pro-note, in which he was only as a surety? The further substantial question of law raised is, whether the appellants are hit by the principles of resjudicata and estoppels, when they were not parties to the prior proceedings in O.S.No.489 of 1966? 9. I have heard the learned counsel for the appellants and also the respondents. 10. Mrs. Hema Sampath, learned counsel for the appellants would urge that the case of the plaintiff has to fail for the simple reason that the ninth defendant, from whom the plaintiff is stated to have purchased the property under a sale deed under Ex.A-4, has not been examined, for he would have been the proper person to speak as to whether he has taken possession pursuant to the Court auction sale, etc. She also contends that while admittedly the ninth defendant has not taken possession in respect of two other items, there is absolutely nothing to presume that he has taken possession of the suit property also, which is one of the three items, in the execution proceedings. Learned counsel would also contend that the reliance placed on Ex.A-14 is baseless. She also contends that while admittedly the ninth defendant has not taken possession in respect of two other items, there is absolutely nothing to presume that he has taken possession of the suit property also, which is one of the three items, in the execution proceedings. Learned counsel would also contend that the reliance placed on Ex.A-14 is baseless. It is the case of the learned counsel for the appellants that Ex.A-14 is not an authenticated Court record and it is only an office copy of the memo and the docket sheet of the Advocate in respect of E.P.No.398 of 1971, in which the clerk of the Advocate has written as if delivery was recorded on 20.3.1971. It is vehemently contended by the learned counsel that both the Courts below relied upon this unauthorised document for the purpose of arriving at a conclusion to show as if the ninth defendant has taken possession of the suit property. Learned counsel would also urge that there was absolutely no document to show that the delivery said to have been taken by the ninth defendant -has been recorded in execution Court. What is stated in Ex.A-2 is that execution petition was closed and there is absolutely no delivery record. She would also contend that when it is stated that the ninth defendant has taken delivery on 20.3.1971, the present suit was filed on 5.7.1983 and in between the period of March, 1971 and July, 1983, there is absolutely no record produced before the Court to show that the ninth defendant was in possession of the suit property. 11. Learned counsel for the appellants would rely upon the judgment of the Privy Council reported in Abdul Majid Khan v. Saraswatibai, 1966 M.L.J. 65: L.R. 60 JA. 362: A.I.R.1934 PC 4, to show that when once the Manager operates under a pro-note, it may be for individual or family business and if it is a family business, it is for the payee to prove the same. 12. Reliance is also placed on a Full Bench judgment of this Court in the case of Chippagiri Nagireddi v. Venkadarl Somappa, (1942) 2 M.L.J.691: A.I.R. (1943) 30 Mad. 12. Reliance is also placed on a Full Bench judgment of this Court in the case of Chippagiri Nagireddi v. Venkadarl Somappa, (1942) 2 M.L.J.691: A.I.R. (1943) 30 Mad. 1, to show that in case of, Hindu Law, when the Manager other than the further sued on a promissory note executed by, him in his personal capacity, this Court has held that he the Manager alone is liable to satisfy the decree. 13. Learned counsel also relied upon another Full Bench Judgment of Lahore High Court in the case of Mi. Mauli v. Lala Brij Lal, A.I.R. (1943) 30 Lahore 33, to show that in respect of a joint family business, when the manager of the family incurs loan, the proof of necessity of the family and the onus is on the lender. To substantiate her contention in respect of period of limitation, learned counsel also relied upon a judgment of this Court in the case of Nallathambi Kounder v. Gopalakrishna Kounder, (1992) 1 M.L.J.259, to show that if the suit for setting aside the alienation was filed within twelve years, the same was not barred by limitation. It is the contention of the learned counsel for the appellants that in the present case, it is after twelve years, the plaintiff has approached the Civil Court for a declaration and therefore, it is clearly barred by limitation. 14. On the other hand, Mr. P. Valliappan, for M/s. Sarvabhauman Associates, learned counsel appearing for the respondents would contend that the evidence of D.Ws.2 and 3 would prove that the first defendant has borrowed the money only for the joint family purpose. It is his case that where once the first defendant is the eldest in the family, being the Kartha and DN and 3 have admitted the existence of joint family status, it should be presumed that the borrowal was also in respect of the joint family benefits. Learned counsel also relies upon Ex.Astated to have been substantiated by P.W.2 evidence to show that the ninth defendant given delivery. He also relied upon the provisions of 0.21, Rule 95, C.P.C., to show the delivery must be taken in the Court auction in one year and it is thereafter, within twelve years, the suit is maintainable. 15. I have carefully considered the rival contentions made by both parties. He also relied upon the provisions of 0.21, Rule 95, C.P.C., to show the delivery must be taken in the Court auction in one year and it is thereafter, within twelve years, the suit is maintainable. 15. I have carefully considered the rival contentions made by both parties. At the outset, one should understand that is a case, where a senior member of the joint family, either as a member or Kartha had borrowed money from a third party, as laid down by the judgments referred to above, it is for the person, from whom the amount is borrowed, to prove that the amount borrowed was for family necessities in order to implicate the at joint family members under the pious obligation­ theory. In the present case, as rightly pointed out by the learned counsel for the appellants­ the ninth defendant has not chosen to come to the witness box to at least orally state that he had taken delivery. Apart from Ex.A-14, in which, P.W.2, the clerk of the Advocate, in is office copy of a memo, has made an endorsement as if delivery was taken on 20.3.1971, there is no other authentic recode to show that in fact the ninth defendant had taken delivery of the suit property in the Court auction sale. It is unfortunate that both the Courts below have relied upon this unauthorised document - Ex.A- 14 for the pose­ of arriving at a conclusion as if the ninth defendant had taken possession of the suit property­ under the Court auction sale. 17. There is one another most important cir­cumstance, viz., when it is the case of the par­ties that for family necessaries, the first defendant had got money along with the said Ramalinga Padayachi and that a decree was obtained by the ninth defendant, apart from the evidence of the ninth defendant, the judgment pleadings in that suit viz., O.S.No.489 of 1996, would have been proper documents and appropriate evidence to show its to whether the borrowal was made was made for family necessaries. Unfortunately, both the parties have not taken any steps to produce any of the pleadings or judgment in the said suit. In such circumstance, it is not known as to how both the Courts below have not considered this vital aspect. Unfortunately, both the parties have not taken any steps to produce any of the pleadings or judgment in the said suit. In such circumstance, it is not known as to how both the Courts below have not considered this vital aspect. I am of the view that both the Courts below have lost sight of the relevant material fact, which affects the very nature of the case and decided the issue based on various other factors, which, in my opinion, are not relevant at all. In these circumstances, I am of the firm view that the borrowal by the first defendant from the ninth defendant cannot be presumed to be for family necessaries and in any event, such borrowal is not binding upon the other members of the family. If there is anyone, who can be liable under such pro-note, it is only the first defendant and for that, the joint family consisting, of defendants 1 to 7 cannot be implicated. Consequently, the Court auction sale cannot bind the joint family members and the plaintiff, who claims to be a purchaser from the Court auction purchaser, cannot have a better title. 18. For the reasons stated above, the judgment and decree of both the Courts below are set aside and the second appeal is allowed and the suit in O.S.No.643 of 1983 stands dismissed. No costs.