1. The plaintiffs in a partition suit whose claim to a major portion of the properties that belonged to the joint family was rejected by the trial Court and which was affirmed in appeal by the learned District Judge of Tinnevelly, are the appellants in this second appeal. There were four brothers Sankaralingam, Muthiah, Subbiah and Kandasami who constituted a joint family of which Sankaralingam was the managing member. Subbiah had died some years ago leaving behind a son Isakimuthu. For the purpose of this second appeal, the existence of Isakimuthu is not of special concern. The managing member had subscribed to a chit fund of which one Ramachandra Iyer, father of the third respondent and brother of the second respondent, was the stake-holder. The manager had executed a receipt in favour of the stake-holder on 30th June, 1919, in acknowledgment of the receipt of the prize amount and; agreeing to pay future subscriptions properly. Since he committed default, the stake-holder filed O.S. No. 103 of 1928 on the file of the Sub-Court, Tinnevelly, in which the manager, the executant of the receipt was the first defendant and the two brothers Muthiah and Kandasami were defendants 2 and 3. The claim was that a decree should be passed against the family properties of the defendants and against the first defendant as the executant of the receipt. The decree in the suit, Ex. P 3(d), was in the following terms:
This Court doth order and decree that the first defendant personally and the defendants 2 and 3 out of their family properties do pay to the plaintiff, Rs. 5,44.0, etc.
In execution of that decree properties belonging to the joint family were attached and sold and purchased by the decree-holder himself.
2. The present suit out of which the second appeal arises was for partition of all the joint family properties including those sold in execution of the decree in O.S. No. 103 of 1928. The plaintiffs are the two sons of the second defendant Muthiah. Their main allegation is that the decree in O.S. No. 103 of 1928 was not binding on them as they were not eo nomine parties to the suit and that neither the first defendant, the manager of the family, nor the other two defendants represented the plaintiffs' interests and therefore the auction sale and the purchase by Ramachandra Iyer were not binding on themselves or their shares in the family properties. There were various other allegations contained in the plaint with which we are not concerned at this stage. Both the lower Courts on a construction of the decree have held that as the plaintiffs are bound by the decree, the execution sale and the purchase by Ramachandra Iyer are binding on them and dismissed the suit so far as those properties are concerned ; and the question that has been raised in this second appeal is as to the binding nature of the decree on the plaintiffs.
3. Unfortunately, neither the plaint, in O.S. No. 103 of 1928 nor the judgment therein is available but the certified copy of the decree, Ex. P3(d), as well as the extract from the suit register, Ex. P3, have been filed. We have also the written statement of the first defendant Sankaralingam, Ex. P3(a) and that of the second defendant Muthiah, Ex. P3(b), exhibited. A copy of the issues framed is marked as Ex. P3(c). It is seen from paragraph 5 of Ex P3 that in the body of the plaint the claim was against the first defendant Sankaralingam as the managing member of the joint family consisting of himself and his brothers defendants 2 and 3, Muthiah and Kandaswami, and as it can be presumed that the suit register extract contains a correct summary of the allegations in the plaint it can be taken as proved that the claim was against the joint family as such. Both the first defendant Sankaralingam and the second defendant Muthiah disputed the joint family liability, Sankaralingam pleading that as the other two defendants have not jointly put their signature in the receipt, it is not valid and binding on the joint family. Muthiah's defence was that the chit was being subscribed not for the benefit of the joint family but for Sankaralingam's personal advantage Issue No. 8 as seen from Ex. P3(c) raised the question as to whether defendants 2 and 3 were liable for the claim or any portion thereof. From what has been said above it is clear that the suit was laid againsf the joint family represented by its managing member and in addition the plaintiff, ex abundanti cautela, made the two other senior members parties to the suit in order to make assurance doubly sure that the joint family was properly represented. The defendants raised the question of the liability of the joint family and contested the suit and, as already stated the decree was that the first defendant, the executant of the receipt, personally and defendants 2 and 3 out of their family properties should pay the plaintiff a sum of money, etc., etc. This being so, ordinarily there should be no doubt that the family properties can be validly attached and sold in execution of such a decree.
4. But the appellants' contention is that the first defendant was divested of his representative capacity because firstly he is not described as a family manager in the cause title to the plaint or in the decree and therefore he was not sued qua family manager. Secondly the joinder of defendants 2 and 3 would have been unnecessary if the first defendant was impleaded as joint family manager and since defendants 2 and 3 were on the record, it should be inferred that the first defendant did not represent the interests of the other members of the family but did defend the suit only in his individual capacity; so is the case of the other two defendants. On this reasoning, according to the appellants, the joint family not being party' to the suit and the present plaintiffs, admittedly members of the joint family, not being impleaded eo nomine, the decree does not bind the joint family and the attachment and sale in execution did not pass the share of the appellants.
5. As I have already indicated, according to the proper construction of the decree, the joint family as an entity was the party to the suit. It was represented by the managing member, the first defendant. The other two defendants, the senior most male members, were also impleaded lest they should later on question the joint family liability. In these circumstances, it is impossible to hold that the decree is not against the joint family. Mr. Raghava Rao contends that the decree should be interpreted as laying down that the first defendant's liability was personal only and that the second part of the sentence directs that defendants 2 and 3 should pay out of their family properties. There was no family consisting of defendants 2 and 3 alone. They were members of a joint family and such being the case, the decree against a non-existent joint family of defendants 2 and 3 alone, cannot bind the joint family properties of the members. In my event, the utmost that could be said was that the share of defendants 2 and 3 in the joint family alone can be made liable for the decree amount. It seems to me that this reasoning is erroneous and the contention cannot be accepted. The word ' their ' refers to all the defendants and not defendants 2 and 3 alone. The payment, according to the decree, should be out of the joint family properties belonging to all the defendants and since the first defendant represented the other members of the family as well, the decree directed that the amount decreed has to be paid from the properties belonging to the entire joint Hindu family.
6. That a family is bound by a decree properly passed against the manager either in respect of family property or for a debt contracted by the manager is well settled and where the suit relates to a joint family property or a debt payable by the joint family and the person sued is the manager, he need not be described as such in the plaint though it may be advisable to do so. If it appears that in fact he was the manager and the suit related to joint family liability, it must be presumed that he was suing or being sued in his representative capacity and even the omission to state in the decree that it was passed against him in such capacity does not prevent the decree from being against the entire family--vide pages 386 and 387 of Mayne's Hindu Law, 10th edition. In this connection it is useful to refer to a Full Bench decision of this Court in Venkatanarayana v. Somaraju : (1937)2MLJ251 of the report Venkataramana Rao, J., observes as follows:
Therefore, where a father or other manager is sued as a representative of the 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 eo nomine will not render them any the less parties to the suit. It was on this principle held that, where a manager dies during the pendency of the suit or after decree, the person who succeeds him as manager can be brought on the record and the other members of the family need not be made parties. A judgment against a person sued in a representative character is a judgment against every individual member covered by the representation and therefore the bar of res judicata is held to apply to a member of a family not a party eo nomine to the litigation represented by its manager.
Mr. Ch. Raghava Rao contends that the proposition above stated has been to some extent departed from in later decisions of this Court, more particularly in Rangaswami Goundan v. Kandaswami Goundan : AIR1942Mad335 in which King, J., observes that Venkatanarayana v. Somaraju : (1937)2MLJ251 cannot be read,
as establishing the universal proposition that whenever the manager of a joint Hindu family is sued the members of the family must be deemed to be represented by him. Whether they are or not so represented is a question of fact depending upon many things, the nature of the claim, the language of the plaint, the subject-matter of the suit, and the issues which require decision before a decree can be given.
I do not think that the statement of the law as enunciated by Venkataramana Rao, J., runs counter to the principle enunciated by King, J. On a close reading of the decision in Venkatanarayana v. Somaraju : (1937)2MLJ251 it does not appear that it was intended to lay down that in every case where a person who happens to be the manager of a joint family is sued, he must for all purposes represent every other member of the family. Cases can be conceived where the manager's interests are adverse to those of the family or where he has been in active collusion with the plaintiff in the suit It may also be that in order to escape personal liability he abstains from putting forward the necessary defences to the suit. He may, even be grossly negligent in the conduct of the suit. In such cases it cannot be said that the manager represented the joint family. In my opinion, the proper way of looking at the question is, as stated by a Full Bench of our High Court in Vasudevan v. Sankaran : (1897)7MLJ102 relating to a family of Nambudiris who are generally governed by the principles of Hindu law except in so far as such principles are modified by customary usage having the force of law. Where a manager in such a family is joined as a defendant as representing the family and which he honestly defends, the decree is binding on the other members of the family not actually made parties to the suit. This principle has been further elaborated in Rayarappan Nambiar v. Kotayan Chalile Veetil Kamaran : (1918)35MLJ51 where Ayling and Seshagiri Iyer, JJ., held that:
It is not the form of the suit that is essential; but the question in each case will be whether in substance the person suing or sued conducted the litigation for his own benefit or as representing the family of which he was the head.
The learned Judges relied on Subbanna Bhatta v. Subbanna (1907) 17 M.L.J. 180 : I.L.R. Mad. 324 Baldeo v. Mobarak Ali Khan I.L.R.(1902) Cal. 583 and Sheo Shankar Ram v. Jaddo Kunwar for the above statement of the law. Somappa v. Nagi Reddi : (1941)2MLJ1050 is also instructive with respect to this question. Viewing the question in this light we have to see whether the conduct of the suit by Sankaralingam and Muthiah was for their own benefit or for that of the entire family and I have no reason to doubt that they defended the suit on behalf of the family.
7. The next contention of Mr. Raghava Rao is that since Muthiah and Kandaswami were made parties to O.S. No. 103 of 1928, Sankaralingam the manager ceased to have any representative capacity and that he should be deemed to be defending the suit in his own individual right. The answer to this argument is found in a decision of the Allahabad High Court by Mears, C.J. and Bannerjee, J., in Tulshi v. Bishnath Rai : AIR1923All284 where it was laid down that where a suit was brought against the manager and the adult members were also joined as party defendants the minor members of the joint family must be taken to have been duly represented. The learned Judges observed:
It was not necessary that he should have been described as a manager or that in the plaint it should have been stated specifically that the defendants to the suit represented not only themselves but also the minor members. It was sufficient if in reality the whole of the family was represented by the persons who were named as defendants to the suit .... It is true that it was unnecessary to make every adult member a defendant if they were represented by the managing member but if for the sake of precaution the adult members were made parties to the suit that did not affect the real nature of the suit.
Reference may also be made to a decision of Wallace, J., in Vesu v. Kannamma : AIR1926Mad991 where a similar principle is laid down as regards a Marumakatayam tarwad also. The same principle is seen enunciated in Adinarayana v. Venkatasubbayya : AIR1937Mad869 and Garibullah v. Khalak Singh I.L.R.(1903) All. 407.
8. Even if Sankaralingam the first defendant in O.S. No. 103 of 1928 did not represent the interest of the present plaintiffs who were minors then, I am of opinion that Muthiah, the father of the present plaintiffs, as the second defendant in O.S. No. 103 of 1928 did sufficiently represent the interests of his sons. When he put forward the plea that the joint family was not liable for the debt he must be presumed to have been acting not only on his own behalf but on behalf of his sons as well.
Mr. T. L. Venkatarama Aiyar for the contesting respondents contends that the written statement, Ex. P. 3 (b) sufficiently indicates that Muthiah represented his sub-branch of the family. It is possible to construe the written statement in that way. In Linganagowda v. Basangowda (1927) 52 M.L.J. 472 : I.L.R. 51 Bom. 450 (P.C.) their Lordships of the Judicial Committee in discussing a question of the representation of certain minors by their father state as follows:
It seems clear that the plaintiff in the previous suit was acting on behalf of himself and his minor children to try to exclude a collateral branch from a share of the family property. If he had succeeded, the judgment would have inured for the benefit of the children, and as he has failed, they must take the consequences.
Applying that principle here, if Muthiah had succeeded in O.S. No. 103 of 1928, the present plaintiffs would have had the benefit of it. But since he has failed the present plaintiffs must be bound by that decree.
9. The lower appellate Court has held that a previous suit, O.S. No. 50 of 1932, in which Isakimuthu, son of Subbiah successfully contended that the Court sale in a suit by another creditor did not affect his share and succeeded in establishing his contentions, operated as res judicata so far as the present suit is concerned. Mr. T.L. Venkatarama Aiyar appearing for the respondents rightly submitted that he could not justify the conclusion of the learned Judge on any legal principle. I entirely agree with him. But as I have already held that the joint family as such was party to the suit O.S. No. 103 of 1928, the decree passed therein was binding on all the members thereof; the sale in execution of that decree bound the shares of all the members including the minors and therefore the present plaintiffs' share in the properties sold in execution of that decree also passed to the purchaser. The decision of the lower Courts on this point is correct.
10. No other questions have been argued in this second appeal which is accordingly dismissed with costs. No leave.