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Timmappaya Vs. Lakshminarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1883)ILR6Mad284
AppellantTimmappaya
RespondentLakshminarayana and ors.
Cases ReferredGirdharee Lall v. Kantoo Lall
Excerpt:
hindu law - decree for partition and mesne profits against father--son's liability. - - no decree could be properly arrived at in such a suit without joining all the co-parceners, and it would be obviously inconvenient and unjust to the co-parceners who were not joined to treat an irregular decree in a suit of this nature passed against the father alone and declaring a certain obligation on the father to make over a certain portion of the joint family property to the plaintiff, as a judgment debt due by the father and enforceable against the sons in accordance with the exceptional rule of law declared in the case of girdharee lall v......the case of a decree obtained against a father alone for a debt due by him that an attachment of joint family property including that of the sons in execution of such a decree may be binding upon the sons, but we cannot regard the case before us as on the same footing with a decree for an antecedent debt against the father.3. the suit in which the decree was passed was a suit for partition. no decree could be properly arrived at in such a suit without joining all the co-parceners, and it would be obviously inconvenient and unjust to the co-parceners who were not joined to treat an irregular decree in a suit of this nature passed against the father alone and declaring a certain obligation on the father to make over a certain portion of the joint family property to the plaintiff, as a.....
Judgment:

Innes, J.

1. We concur with the District Munsif and Subordinate Judge that the suit does not properly lie against first, second, and third defendants to enforce against them a decree for partition obtained against their father to which they were not parties.

2. In the first place, that decree was obtained by the submission of the father to abide by the oath of the therein plaintiff' and, under the Oaths Act, such evidence is to affect only the person who offered to be bound thereby--(see also as to this the judgment in Keshava v. Rudran) I.L.R. 5 Mad. 259. It has been held in the case of a decree obtained against a father alone for a debt due by him that an attachment of joint family property including that of the sons in execution of such a decree may be binding upon the sons, but we cannot regard the case before us as on the same footing with a decree for an antecedent debt against the father.

3. The suit in which the decree was passed was a suit for partition. No decree could be properly arrived at in such a suit without joining all the co-parceners, and it would be obviously inconvenient and unjust to the co-parceners who were not joined to treat an irregular decree in a suit of this nature passed against the father alone and declaring a certain obligation on the father to make over a certain portion of the joint family property to the plaintiff, as a judgment debt due by the father and enforceable against the sons in accordance with the exceptional rule of law declared in the case of Girdharee Lall v. Kantoo Lall 14 B.L.R. 187 : 1 I.A. 321.

4. We must dismiss the appeal with costs.


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