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Krishna Hande Vs. Padmanabha Hande and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Reported in(1913)25MLJ442
AppellantKrishna Hande
RespondentPadmanabha Hande and ors.
Cases ReferredDoraisami v. Venkatarama Aiyar
Excerpt:
- - there is clearly a distinction between such a case and the present one. the conduct of every guardian ad litem of a minor litigant is subject to the control of the court and there is good reason for holding that he is not entitled to enter into a compromise so as to aftect any minor party, without the sanction of the court......no security need be taken where execution is allowed in favour of the managing member of a family on behalf of himself and the other members thereof.4. the next question relates to the payments pleaded by the 1st defendant. it is clear that the 1st defendant had no right to make any payment to the defendants nos. 28 to 31 who are junior members of the family. a payment to the 27th defendant out of court would be valid according to the decision of this court in doraisami v. venkatarama aiyer : (1911)21mlj1088 . we see no reason for departing from the view taken in that case. mr. anantakrishna aiyar states that one of the cases relied on there viz., ganesh row v. tuljaram row (1908) 19 m.l.j. 4 has been subsequently reversed by the privy council. but the question in that case was.....
Judgment:

1. These appeals are against orders passed on applications made to execute a decree for partition. The plaintiff who obtained the decree died after it was passed: He left 5 sons. The eldest of them was the 27th defendant in the suit. His minor brother was the 32nd defendant. The other sons were the defendants Nos. 28 to 31. Two application were put in for execution owing to dissensions between the sons,-one by the 27th defendant on behalf of himself and his brother, and the other by the defendants Nos, 28 to 31. The Subordinate Judge allowed execution to issue in favour of the defendants Nos. 28 to 31 on behalf of themselves and the defendants Nos. 27 and 32, whose application was rejected; but directed that the money realized in execution' 1. should be paid to all the sons of the plaintiff in shares if they could not agree to act together. The 1st defendant who was directed by the decree to pay until partition and delivery of possession, a certain quantity of paddy every year on account of the proportionate share of the income due to the plaintiff on the family lands, set up that he had made certain payments to the 27th defendant. The defendants Nos. 28 to 31, in their application for execution, admitted some of these payments as having been made to them, but denied the other payments pleaded by the 1st defendant. The 27th defendant denied any payment to himself and contended that payments made to the defendants Nos. 28 to 31, even if true were not valid as against him and that he was entitled to execute the whole decree. The Subordinate Judge did not record evidence with respect to the payments pleaded on appeal. The Subordinate Judge's order was in the main upheld by the District Court, but it was of opinion that the payments even if true, were invalid. There was also a question raised as to the proper price of the rice which the 1st defendant was bound to deliver. No evidence was taken on the point, but the prices notified in the Government Gazette were awarded by the Lower Courts.

2. The first question argued is whether the Lower Courts were right in granting execution to the defendants Nos. 28 to 31 instead of to the 27th defendant. We are of the opinion that the 27th defendant as the manager of the decree-holder's branch of the family is prima facie the proper person entitled to take out execution. The reason given for preferring the defendants Nos. 28 to 31 viz., that they formed the majority of the sons of the deceased plaintiff, cannot be accepted as valid. We shall therefore direct that execution should issue in pursuance of the 27th defendant's petition on behalf of himself and the other members of the family, viz., the defendants Nos. 28 to 32.

3. It was contended in the Lower Court by the defendants Nos. 28 to 31 that the 27th defendant was in collusion with the 1st defendant. No inquiry was made about this- plea. If there are reasonable grounds to support it, it would be proper to take security from the 27th defendant for the protection of the interests of the defendants Nos. 28 to 31, although ordinarily, no security need be taken where execution is allowed in favour of the managing member of a family on behalf of himself and the other members thereof.

4. The next question relates to the payments pleaded by the 1st defendant. It is clear that the 1st defendant had no right to make any payment to the defendants Nos. 28 to 31 who are junior members of the family. A payment to the 27th defendant out of Court would be valid according to the decision of this Court in Doraisami v. Venkatarama Aiyer : (1911)21MLJ1088 . We see no reason for departing from the view taken in that case. Mr. Anantakrishna Aiyar states that one of the cases relied on there viz., Ganesh Row v. Tuljaram Row (1908) 19 M.L.J. 4 has been subsequently reversed by the Privy Council. But the question in that case was whether the managing member of a family can compromise a suit on behalf of himself and the other members parties to the suit-who , are minors, without the consent of the court. There is clearly a distinction between such a case and the present one. The conduct of every guardian ad litem of a minor litigant is subject to the control of the Court and there is good reason for holding that he is not entitled to enter into a compromise so as to aftect any minor party, without the sanction of the Court. We do not think that the reversal of that decision by the Privy Council would affect the correctness of the judgment in Doraisami v. Venkatarama Aiyar : (1911)21MLJ1088 . We are of opinion that any payment made by the 1st defendant towards the amount due under the decree must be taken to be valid. But it is contended that as the payments were not certified to the Court, they cannot be recognized in execution proceedings. Mr. Anantakrishna Aiyar urges in answer to this argument that Order XXI Rule 2 requiring the certifying of payments applies only to monies payable under a decree and is not applicable when the decree is for the delivery of rice and rice is delivered accordingly. We must accept this contention. Order XXI Rule 2 restricts the right of a person obeying a decree to prove his performance of the directions contained therein. There is no reason for not construing the words of the Rule strictly. No authority justifying a broad construction has been cited. There must be an inquiry into the question whether any payments were made to the 27th defendant.

5. We must also uphold the 1st defendant's contention that he was entitled to adduce evidence regarding the price of rice. The Subordinate Judge was not right in accepting the rates mentioned in the Government Gazette as correct without giving an opportunity to the 1st defendant to give evidence on the point.

6. The first defendant also contends that after the decree was passed, the assessment payable on the plaintiff's share of the lands which had been fixed at Rs. 230 in the decree was enhanced, and that he is entitled to a deduction of the additional amount paid by him. But according to the terms of the decree, he cannot claim to deduct more than Rs. 200 on account of the payments made by him on behalf of the plaintiff and any further claim which he may have must be conferred by a fresh suit.

7. In the result, the 28th to 31st defendants application for execution must be dismissed and the 27th and 32nd defendants' application must be remanded for fresh disposal according to law, with reference to the observations made above. The defendants Nos. 28 to' 31 must pay the costs of the 27th and 32nd defendants in both the cases throughout. We make no order about costs in this Court as between the 1st defendant and the 27th and 32nd defendants in this Court.


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