1. The question is whether the petitioners in their suit for partition and possession of their shares have to ask for the cancellation of decrees passed against the karnavan as such.
2. This class of case is not covered by the Full Bench decision in Ramaswami v. Rangachari : AIR1940Mad118 which is now the leading authority on questions of court-fee payable in partition suits. The learned Judges there held that if the plaintiff is eo nomine a party to the decree, then the decree is binding on him unless that decree is cancelled, even though the plaintiff may have been a minor at the time represented by the manager or some other member of the family. If the decree is not against the plaintiff, then nothing more than a declaration is necessary. The distinction between the two classes of cases is, if I may respectfully say so, very clearly put by Venkata-ramana Rao, J., in Vallabhacharyulu v. Rangacharyulu : AIR1937Mad449 . He says:
There is a distinction between an obligation imposed on a party by a decree and an obligation imposed on a party by the personal law by which he is governed in pursuance of the decree,
3. If he is, e.g., eo nomine a party to the decree, then his obligation arises out of the decree itself, irrespective of any personal law by which he is made liable for the acts of the manager of his family. If, on the other hand, the decree is passed only against the person who happens to be the manager and it is proved in execution or otherwise that the debt is binding on him because it was incurred by the manager for the purposes of the family, then his liability arises out of the fact that the manager is entitled to enter into transactions on behalf of the family, but not directly out of the decree itself. Where the suit is brought against the manager as such, then the decree is one against the family represented by the manager; and it therefore seems to me that each member of the family is as much bound by that decree as if he had been specifically impleaded by name in the suit.
4. Mr. Govinda Menon for the petitioners relies principally on a decision of Ramesam, J., in Balakrishna Nair v. Vishwas Nambudiri (1930) M.W.N. 509 which has been accepted with reservations in subsequent cases. That was a case in which a decree was obtained against the karnavan and certain minors; and the persons who sought to avoid that decree debt were other minors of the family. The learned Judge held that it was not necessary for the plaintiffs to have the decree cancelled. He expressed himself in fairly wide language, which Reilly and Anantakrishna Aiyar, JJ., in Venkatasiva Rao v. Satyanarayanamurthi : AIR1932Mad605 thought necessary to restrict to the type of case actually before Ramesam, J. That case can be distinguished from the present case, in that the decree there was not against the karnavan alone as manager of the family; but against the karnavan and some other members of the family also, from which it would appear that the karnavan could not have been impleaded as the representative of the family, otherwise the other members of the family would not have been parties to the suit.
5. Since dictating the above,, I have been shown a judgment of Pandrang Row, J., in T. Krishna Menon v. Calicut Bank, Ltd. C.R.P. No. 621 of 1939 which was referred to in the judgment which is now under revision. The learned Judge was considering precisely the point that was raised here; for the plaintiff was seeking for a declaration that the decree was not binding on him and on his family. That is one of the declarations that the plaintiff is seeking here. The learned Judge says:
It had been held even before the Full Bench decision in Vasudevan v. Sankaran : (1897)7MLJ102 which settled the law on the subject, that a decree in a suit in which the karvanan of a tarwad is joined as a defendant in his representative capacity and which he honestly defends is binding on the other members of his family not actually made parties....So long as the decree is binding on all the members of the tarwad no member of the tarwad can, without seeking to set aside the decree, get a declaration that the decree is not binding on him, because, so long as the decree stands, it is by law binding on him.
6. It may perhaps be true that a member of the family could say, as the plaintiffs here say in their plaint, that the person impleaded in the former suit was not the manager of the family, in which case it may not perhaps be necessary for them to set aside the decree, in that they could ask for a declaration that as the decree was obtained against a person who did not represent the family, it would not be binding on the family. It is not however necessary for me to decide this point; for the plaintiffs are apparently not willing to confine their suit within those narrow limits. Mr. Govinda Menon suggests that the Court should first of all determine whether the person against whom the decree was obtained was the maaager, and then, if that point be found against the plaintiffs, they should be called upon to pay additional court-fee. Clearly, this cannot be done. The plaintiffs must decide at the outset what their case is and must pay court-fee accordingly. The court-fee cannot be made conditional on a decision in the suit itself.
7. Incidentally, it may be mentioned that the petitioners have not even paid court-fee for the declarations.
8. The decision of the lower Court was right. The petition is dismissed with costs (one set). The petitioners will be given one month from this date to pay the necessary court-fee.