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Gan Savant Bal Savant and anr. Vs. Narayan Dhond Savant - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom467
AppellantGan Savant Bal Savant and anr.
RespondentNarayan Dhond Savant
Excerpt:
.....to direct foreclosure--neglect to redeem--second suit to redeem--res judicata--hindu family--suit by manager in his own name--representative character--practice--parties--civil procedure code act xiv of 1882, section 50. - - the decree declared the mortgagor entitled to obtain possession of the mortgaged property on payment of a particular sum, and if he failed to discharge that debt, he cannot be allowed to harass the mortgagee by another suit for the same purpose. .528.the existence of a decree in a plaintiff's favour may seem not to be, a good reason for depriving him of a right to sue, and under, the roman law the plea of res judicata could be met by a replication of res secundum se judicata (dig. be defeated by allowing a decree-holder to abstain from putting his..........in 1858 for redemption of certain property, but the decree was not executed. subsequently the present suit for redemption in respect of the very came property was brought by another member of the joint family who was a minor when the former suit was instituted, and the question is, this second suit maintainable? the district judge found, as a fact, that the present plaintiff was duly represented in the former suit, but was of opinion that a new cause of action had arisen, as the decree in the former suit did not direct foreclosure; and the decree never having been executed, the status of mortgagor and mortgagee continued between the parties.2. but i think the district judge was wrong: see full-bench ruling--sheikh golam, hossein v. alla rukhee beebee n.w.p.h.c. r. 1871 62 referred.....
Judgment:

Kemball, J.

1. It appears that a suit was brought, and decree obtained, by the manager of a joint family in 1858 for redemption of certain property, but the decree was not executed. Subsequently the present suit for redemption in respect of the very came property was brought by another member of the joint family who was a minor when the former suit was instituted, and the question is, this second suit maintainable? The District Judge found, as a fact, that the present plaintiff was duly represented in the former suit, but was of opinion that a new cause of action had arisen, as the decree in the former suit did not direct foreclosure; and the decree never having been executed, the status of mortgagor and mortgagee continued between the parties.

2. But I think the District Judge was wrong: see Full-Bench ruling--Sheikh Golam, Hossein v. Alla Rukhee Beebee N.W.P.H.C. R. 1871 62 referred to in Anrudh Sing v. Sheo Prasad I.L.R. 4 All. 481. By reason of the default in payment of the money declared to be due within the time prescribed by law for the execution of decrees (no time having been fixed in the decree), the order for redemption must be taken to have operated as, a judgment of foreclosure. The decree declared the mortgagor entitled to obtain possession of the mortgaged property on payment of a particular sum, and if he failed to discharge that debt, he cannot be allowed to harass the mortgagee by another suit for the same purpose.

3. I would, therefore, reverse the decrees of the Courts below, and reject the claim with costs throughout.

Pinhey, J.

4. I am of opinion that the decree of the District Court is right, and should be confirmed. The present plaintiff was not a party to the former suit, and could not have executed the decree passed therein. The omission of the plaintiff in the former suit to execute the decree, which he obtained for himself and not for the present plaintiff, cannot, affect the right of plaintiff to redeem the property.

5. The case was subsequently argued before West, J.

August 6.--Judgment was now delivered by

West, J.

6. In this case two questions arise for decision: the first is as to the effect of the judgment of 1856 on those subject to it; the second is, as to whether the plaintiff in this case is subject to it.

7. On the former question I agree with the view stated by Kemball, J. It follows from the leading principle of res judicata that the same matter shall not be agitated again on the original ground so as to imperil the stability of the decision formerly given. 'Where there is res judicata the original cause, of action is gone, and can only be restored by getting rid of the res judicata'--(per Lord Selborne in Lockyer v. Ferryman L.R. 2 Ap. Ca. . 528.The existence of a decree in a plaintiff's favour may seem not to be, a good reason for depriving him of a right to sue, and under, the Roman law the plea of res judicata could be met by a replication of res secundum se judicata (Dig. Lib. 44, Ti. 2, Fr. 9., S. 1.) Under the English law also a judgment, it is said, is a bar only when it has negatived the right--per Bramwell; L.J., in Poyser v. Minors L.R. 7 Q.B.D. 338; but this holds generally only when the cause of action in the second suit has arisen on the same original right at a different time from, the first, or the first action went off on a mere technical defect. Under the Anglo-Indian law it has long been recognized that a decree-holder must obtain satisfaction of his decree by execution, not by another suit--Kisan Nandram v. Anandram Bachaji 10 Bom. H.V.C. R 433; Fakirapa v. Pandurangapa I.L.R. 6 Bom. 7. A new suit cannot be brought either on the original cause of action, or, save in special cases, on the decree in which that cause has become merged. The object of the Legislature has been to prevent continued litigation on the same grounds, and this would obviously.be defeated by allowing a decree-holder to abstain from putting his decree in force, and proceed again on the same cause as before.

8. The second question is one of some difficulty. As the law stands now, a plaintiff suing in a representative character must set it forth, and show that he is qualified to fill it (Civil Procedure Code, Section 50). When a right is claimed in common for the plaintiff and others, all persons interested may be deemed to be claimants, and thus bound by the result of the suit (Civil Procedure Code, Section 13); but here there was no allegation of, a representative character; Visram was the eldest brother and manager for the family, of which the present plaintiff, was an infant member, but he sued simply in his own name along with a representative of another branch. On the other hand, the present strictness and elaboration of procedure did not prevail in 1856. It was a generally received doctrine that the acts of a manager bound a Hindu family so long as they were honestly intended for its benefit, or were such as might reasonably be deemed to have that character. The name of a single member of a Hindu family recorded in the land register of the Government might stand for all--Jowala Buksh v. Dharum Singh 10 Moc. I.A. 530 without affecting their rights inter se--Mussumut Cheetha v. Baboo Miheen Lall 11 Moo. I.A. 369; Umrithnath Chowdhry v. Goureenath Chowdhry 13 M I.A. 542. A lessee from a managing member was obliged to account to him for the rent--Dada valad Ravji v. Bhau valad Ganu Printed Judgments for 1870 p. 11--and conversely must be maintained in possession against other individual members, A purchase made under Act I of 1845 by a manager in his own name enabled the other members to sue to enforce their rights notwithstanding the provision in Section 21 that no purchaser shall be ousted on the ground that the purchase was made on behalf of another--Toondun Singh v. Baboo Bokhnarain Singh. 22 cal. W.R. Civ. Rul. 199 The Hindu family was, in fact, considered as a corporation whose interests were necessarily centered in the manager; while the manager, as the chief member of the family, was understood to represent the common interests whenever these were subject to be affected by transactions in which he engaged, even in his own sole name. Union and undivided interests being the rule, the presumption was that a manager was acting for the family, unless it were made out that he acted, and professed to act, for himself alone.

9. This was the case equally with regard to litigation as to other transactions. In a suit filed by, or against, a Hindu as manager it was seldom, or never, according to the former practice, set forth 'specifically that he sued, or was sued, both on his own behalf and on behalf of the family. The intimacy of union was such that this was taken for granted. The practice is recognised, and not condemned, in Jogendra Deb Roy's case 14 M I. A 376 and many decisions, like those in Mayaram Sevaram v. Jayvantrav Pandurang Printed Judgments for 1874 p. 41 and Narayan v. Pandurang 1 L.R. 5 Bom. 685 have proceeded on an identification of the other members of a Hindu family with the one who has conducted a suit on their behalf. Where the other members are infants at the time of the suit, that, no doubt, is a reason for scrutinizing the matter with more than usual care in order to protect them against fraud, but here fraud is not suggested; the, suit for redemption was, no doubt, brought by Visram in perfectly good faith, his own interests being concerned equally with that of his infant brother. His capacity to represent the family was not impaired by any collusive artifice to its prejudice, and the practice having been such as it was in 1856, the mere omission to specify the present plaintiff as a party did not prevent his being bound by the suit in which he was effectively represented by Visram. At present Visram would have to set forth the minor brother's name--Vyankatrav v. Mahadev printed Judgments for 1882 p. 226 but the law of 1856 was less exacting in particulars.

10. It was contended that as Visram might sue alone to redeem the mortgage in 1856, it should not be assumed that he sued as a manager so as to make his infant brother a virtual plaintiff. But as a member and manager his acts in relation to the common estate should be presumed to be on behalf of 'the family rather than for the purpose of creating a distinct adverse interest for himself without partition. As part owner of the equity of redemption and manager for the co-owners, he would have an interest adverse to that which he would acquire by becoming quasi assignee of the mortgage. It does not appear that he desired this latter position, or had any funds with which to realize it otherwise he would have redeemed in accordance with the decree. It is his omission to redeem which now stands in his and his brother's way,

11. Under the English law the co-owners must all usually join in a suit Co. Litt., 1806, 195b; Story Eq PI 159 with respect to their joint property. One joint tenant may recover the whole mortgaged property by paying the whole debt, but not his own share, and the same general principle must now be regarded as the law in India See L.R., 3 IndAp, 26. This is so even in the case of assignees of a mortgagor suing to redeem (Story Eq. Pl, 183). Visram before partition could not sue for his own part alone. He was bound to sue for redemption of the whole, and the whole Having thus been put into litigation it does not seem that in the absence of collusion, the mortgagee should not be protected against another joint tenant suing on the same cause of action; Even after a partition it may be doubted whether on principle, a mortgagee should be exposed to repeated suits by the individual separated co-sharers. The right to redeem is an indivisible jural object fisher on Mortgages, 1166.-Palk v. Clinton 12.Ves. 59. Jur Ch. VIII see. 5--on which any one of the family may proceed against the mortgagee; and as the whole can be sought in one suit, the mortgagee creditor Would, according |to Roman law, be protected by one suit against any other Ev.'Poth. Vol. I 561; Sav. the English law prescribes generally that one having but a partial interest cannot redeem without making the others interested parties to the suit--Henley v. Stone 3 Beav- 355; II Spence Eq, and if an exception was allowed in the case of a member of a joint Hindu family, that must have been either after the analogy of the English cases of joint tenants of the equity of redemption, or else (which is almost the same thing) on account of the assumed identity of interest amongst the several members of the united family See Co. Litt. 1860 Sections 19, 35. From neither point of view can a justification be seen for subjecting the mortgagee to repeated litigation on the same cause of action. However the matter be approached) it aloes not seem that while Visram was allowed to sue alone (allowed, that is, by the established practice, not by mere error or through fraud on his part); the other members of the family could sue afterwards on the same ground It does not appear how there could be a different cause of action in the present suit from the one previously sued on the right was in each case a right to recover the property on paying off the mortgage-debt. This became a judgment in favour of the family by the former suit, and the present plaintiff must needs have profited by the execution of the decree in that suit Conversely, he is barred when he sues again; though the former decree has, through neglect, now become incapable of execution. The decrees of the Courts below are, therefore reversed. Costs respondent throughout.


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