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A.M.M. Srinivasan Chettiar and ors. Vs. Ar. Rm. Ar. Arunachalam Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberO.S. Appeal No. 21 of 1949
Judge
Reported inAIR1952Mad288; (1952)IIMLJ66
ActsLimitation Act, 1908 - Sections 13
AppellantA.M.M. Srinivasan Chettiar and ors.
RespondentAr. Rm. Ar. Arunachalam Chettiar and anr.
Appellant AdvocateR. Kesva Iyangar, ;V. Ramaswami Iyer and ;S.R. Krishnamachariar and ;M. Natesan, Advs.
Respondent AdvocateR. Rangachari, Adv.
DispositionAppeal dismissed
Excerpt:
- - (5) in the result, both the contentions of the appellants fail and this appeal is dismissed with costs......plaintiff is a nattukottai chettiar carrying on banking business. the defendants are members of a joint family called a. m. m. family. one meyyappa chettiar was the manager of the joint family at the relevant period. prom 1-11-1939 to 3-3-1941 he, as manager of the joint family, borrowed various amounts from the plaintiff's firm. he died on 21-10-1942. the family has thereafter continued joint and the defendants are the members of that family. the suit is to recover the amounts due on account of these borrowings. the suit was originally laid only against the first defendant on the footing that he was the manager of the family. but he pleaded that he was not the manager of the joint family and an application was thereafter made for impleading the second defendant as the manager and other.....
Judgment:

Venkatarama Ayyar, J.

1. This is an appeal against the judgment of Bell J. decreeing O. S. No. 124 of 1944. The plaintiff is a Nattukottai Chettiar carrying on banking business. The defendants are members of a joint family called A. M. M. family. One Meyyappa Chettiar was the manager of the joint family at the relevant period. Prom 1-11-1939 to 3-3-1941 he, as manager of the joint family, borrowed various amounts from the plaintiff's firm. He died on 21-10-1942. The family has thereafter continued joint and the defendants are the members of that family. The suit is to recover the amounts due on account of these borrowings. The suit was originally laid only against the first defendant on the footing that he was the manager of the family. But he pleaded that he was not the manager of the Joint family and an application was thereafter made for impleading the second defendant as the manager and other members of the family. The second defendant has appeared and has contested the suit along with the other defendants. Two of the pleas put forward in defence alone are material for the purpose of this appeal. One is that the suit is barred by limitation and the other is that the debt was not borrowed for Joint family purposes and therefore it will not be binding on the brothers of Meyyappa or his nephews.

2. Bell J. held that the suit was not barred bylimitation and that the debt was binding on thefamily and has granted a decree. The defendants1, 2 and 4 to 8 appeal.

3. The first point that has to be considered is the plea of limitation. The borrowings were from 1-11-1939 to 3-3-1941 as we nave already mentioned. The suit was filed on 28-4-1944, i.e., more than three years from even the last borrowing. If the case is treated as one purely to recover a loan, the suit would be obviously barred under Article 57 of the Limitation Act. Bell J. overruled the plea of limitation on the ground that the defendants had really an overdraft accommodation with the plaintiff up to a limit of Rs. 10,000 and that as that had not been reached, there was no cause of action until that limit was reached and until a demand was made. We are unable to agree with this view of the question. But all the same we agree that the suit is not barred by limitation for a different reason. The second defendant is the manager of the joint family. He was away from British India from at least 1942 and it was only during the pendency of the suit that he came to India: Then he entered appearance and contested the suit. Section 13 of the Limitation Act provides that where the defendant has gone out of, British India, the period during which he was so absent might be excluded in computing the period of limitation. It is not denied that if this section applies the suit will be in time so far as the second defendant is concerned. But what is contended is that other members of the family were residing in British India and there was no legal impediment to the plaintiff filing the suit against them. But under the law, the manager is the person who has got authority to represent the Joint family in all its transactions arid the plaintiff is entitled to file a suit against the manager of the family and obtain a decree against the entire assets of the joint family in his hands. In our opinion, it is sufficient that the suit against the second defendant as manager is in time because that will enable the plaintiff to obtain a decree against the entire joint family property through its manager, the second defendant. In this view, we hold that the suit is in time and the plea of limitation ought to be accordingly overruled.

4. The next point that is urged is that the plaintiff has not established that the debt was borrowed for a purpose binding on the other members of the family. The fourth defendant is the son of Meyyappa who borrowed the amount arid the eighth defendant is the grandson; but the other defendants are the brothers of Meyyappa and his nephews. The argument on behalf of the appellants is that there is no satisfactory proof that the amounts were borrowed by Meyappa on behalf of the Joint family. But the family of the defendants is a banking family. They are doing banking business in Saigon, Malaya and other places. P. W. 1 speaks to an adathi agreement between the plaintiff and the defendants' family and further deposes that Meyyappa represented that amounts were borrowed for the purpose of this business. The defendants have not produced their account books to show that these amounts have not been brought into their business. The learned Judge has accepted the evidence on the side of the plaintiff and we agree that it has been sufficiently established that the debt is binding on all the members of the family. (5) In the result, both the contentions of the appellants fail and this appeal is dismissed with costs.


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