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H.H.M. Jijamba Bai Sahib by Her Authorised Agent K. Ramachandra Rao Vs. Sagniram Jathai Row Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1912)22MLJ45
AppellantH.H.M. Jijamba Bai Sahib by Her Authorised Agent K. Ramachandra Rao
RespondentSagniram Jathai Row Sahib and ors.
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. .....if a suit is brought against a managing member of a hindu family to enforce a debt binding on the family property and a decree is passed, that decree will bind the other members of the family who are not parties to the suit if it appears that by the suit relief was sought to be, and was in fact, obtained against the defendant as representing the family and not merely in his individual capacity. there can be no doubt that the decree in o.s. no. 35 of 1898 was intended to bind the family property and in pursuance of that decree the plaintiff's interest in the property was sold and not merely the interest of the three brothers impleaded in the suit. it does not appear, however, on the record, as it stands, that any of the three defendants impleaded in that suit was in fact the managing.....
Judgment:

1. The first point on which the judgment of the District Judge is assailed is that although the present plaintiff was not made a party to the previous suit instituted by the predecessor in title of the appellant m the present appeal who was aware of the plaintiff's existence and interest in the property yet the mortgage-debt having been incurred by the father of the plaintiff, and as such binding on him and his brothers, the sale in execution of the decree obtained by the predecessor in title of the appellant against the three brothers other than the plaintiff would be binding on the plaintiff. It has been settled that if a suit is brought against a managing member of a Hindu family to enforce a debt binding on the family property and a decree is passed, that decree will bind the other members of the family who are not parties to the suit if it appears that by the suit relief was sought to be, and was in fact, obtained against the defendant as representing the family and not merely in his individual capacity. There can be no doubt that the decree in O.S. No. 35 of 1898 was intended to bind the family property and in pursuance of that decree the plaintiff's interest in the property was sold and not merely the interest of the three brothers impleaded in the suit. It does not appear, however, on the record, as it stands, that any of the three defendants impleaded in that suit was in fact the managing member of the family. The family, however, consisted only of four brothers of whom the plaintiff was the youngest, and of others who were also minors but were represented in the suit by the mother as guardian ad litem and of the eldest brother who was adult being about 30 years of age at the time. The eldest brother who was the first defendant in the former suit would in the ordinary course of events be the managing member but it might be that in fact he was not the manager, of the family affairs. The mere fact that the first defendant in that suit was not described as the managing member does not necessarily show that he was not so in fact. We think, therefore, that before deciding the other questions raised in this second appeal we should have a finding on the question whether the first defendant in O.S. No 35 of 1898 was the manager of the family. We must ask the District Court to return a finding on this question. The parties will be at liberty to adduce any fresh evidence on the point. The finding will be submitted within three months, and seven days will be allowed for filing objections.


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