1. The lower Courts have dismissed the plaintiff's suit for a declaration that the property described in the schedule to the plaint belongs to the plaintiff and for a permanent injunction restraining the first defendant from interfering with their possession. They held that the plaintiffs were precluded from agitating this claim because it had been found against their father in a prior litigation, O.S. No. 165 of 1935, on the file of the District Munsiff's Court, Trichinopoly. Of the two plaintiffs who were minors, the second plaintiff died in the trial Court itself. The first plaintiff was the appellant in the lower appellate Court and is the appellant here. According to the first plaintiff he was born on the 16th April, 1935. The prior suit was instituted on the 18th March, 1935, that is to say, on the date of the institution of the prior suit the first plaintiff was in the womb.
2. Mr. K.V. Srinivasa Aiyar, the learned advocate for the appellant, contended that the decision in the prior suit O.S. No. 165 of 1935 which was admittedly in respect of the suit property would not preclude him from agitating his claim in this suit because as the property in dispute is joint family property his claim to it was not derived from and through his father but was in his own independent right by birth. He also contended that as the first plaintiff was actually not born on the date of the institution of the prior suit, there could be no question of his father representing his interests.
3. It is quite true that under Hindu law a son does not claim his right to joint family property through his father. But it is well established that a decree obtained against a father or a manager of a joint family in respect of a claim to immoveable property would bind all the members of the joint family represented by the father or by the managing member. It is not necessary that the other members of the family should eo nomine be parties. This is because of the general rule of Hindu law that in transactions affecting property all the members of the family-must be deemed to have been impliedly represented by the managing member unless it was clear that the right sought to be litigated was a right in which the-managing member was claiming a right adverse to the interests of the joint family. The managing member, and a fortiori the father, has the right to represent the entire family in all transactions relating to the family, whether they are in connection with immoveable properties or otherwise. The managing member represents the family in a suit on mortgage, as well as in a suit for recovery of possession, of immoveable property (see Mayne Hindu Law, 10th edition, pages 385 and 386), The family is therefore bound by a decree properly passed against the manager of a joint family in respect of family property. This is so in spite of the fact that the other members of the family do not claim under or through the managing member or the father.
4. The second contention of Mr. Srinivasa Aiyar will, I am afraid, lead him into a dilemma if it is logically pursued. The appellant must either be taken as in existence or not in existence. It has been held that even if a person is in the womb he must for certain purposes be deemed to have been in existence. If so, the father certainly must be deemed to have represented his interests also. This is not because a father or a manager consciously or by any overt act or by express statement makes it clear that he is representing the interests of other persons, but because the law presumes that he is representing the interests of all persons who have on the date of the litigation an interest in the property. If, therefore, the first plaintiff had an interest in the suit property on the date of the prior suit such interest was sufficiently represented by his father. If, on the other hand, reliance is placed on the fact that the first plaintiff was not physically born on the date of the suit and therefore should be treated as a person not in existence on the date of the suit, the position is worse for the appellant because when he was born his right by birth would be affected by the decision of a competent Court, which must date back to the institution of the suit.
5. Mr. Srinivasa Aiyar cited to me the Full Bench decision of the Lahore High Court in Mahadeo v. Rambir Singh I.L.R.(1944) Lah. 67. It was held in that case, one of the learned Judges dissenting, that a Hindu son in a suit to avoid the liability of the joint family property in his hands in execution of a mortgage or simple money decree obtained against his father, can go behind the decree so as to challenge the existence of the debt on which the decree is based. The point itself is a debatable one but it does not arise in this case. The learned advocate however referred me to certain observations at page 91. The passage on which the learned advocate relied deals with a contention based on explanation 6 to Section 11 of the Code of Civil Procedure. The learned Judge, Din Mohamed, J., repelling the contention of the appellant observed as follows:
I am disposed to think that inasmuch as in a suit like the present the interests of a son clash with those of his father, the latter cannot be said to have represented his son in a suit against him. The son founds his claim on a different basis and on that basis his existence cannot be said to have merged in his father the the earlier suit.
But it is interesting to note that the same learned Judge in other parts of his judgment did refer to the proposition to which I have already adverted to above. At page 91 itself the learned. Judge said as follows:
In my view, therefore, even if it be conceded that for certain purposes a Hindu son is deemed to be represented by his father in suits brought against the father alone as the head of the family as envisaged in the Bombay and Allahabad judgments relied by the appellants, Explanation 6 cannot be stretched so far as to apply in terms to the case of a Hindu son whose own property stands in jeopardy and who consequently seeks to impugn a decree against his father on the ground that the debt on the basis of which the decree' was secured did not in fact exist.
Again at page 90 the learned Judge referred to the ruling of the Judicial Committee in Lingangowda v. Basangowda (1927) 52 M.L.J. 472 : 1927 L.R. 54 IndAp 122 : I.L.R. 5 Bom. 450 (P.C.) and to the Full Bench ruling of the Allahabad High Court in Thakur Din v. Sitaram I.L.R. (1939) All. 602 . It is sufficient to refer to a passage from the judgment of the Judicial Committee in the former case:
In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again and each infant to wait till he becomes of age, and then bring an action or bring an action by his guardian before ; and in each of these cases therefore the Court looks to the Explanation 6 of Section 11 of the Code of Civil Procedure to see whether or not the leading member of the family has been acting either on behalf of minors in their interests or if they are majors with the assent of the majors. 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 enured for the benefit of the children, and as he has failed, they must take the consequences.
Applying the last observation to this case, if the first plaintiff's father had succeeded in the prior litigation that success would have enured for the benefit of the appellant and as his father has failed, the plaintiff must take the consequences.
6. The second appeal is dismissed with costs. Leave refused.