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Sethurama Ayyar Vs. T.B. Varadaraja Ayyar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1932Mad185; 136Ind.Cas.773
AppellantSethurama Ayyar
RespondentT.B. Varadaraja Ayyar
Cases ReferredVeerabadra Aiyar v. Marudaga Nachiar
Excerpt:
.....judgment debtor, a woman named vedathammal the respondent is the decree-holder and he obtained a money decree against vedathammal and attached a house in which she enjoyed a limited estate. it was perfectly reasonable therefore that he should only buy it on the condition that so much of the purchase-money as was necessary should be reserved for payment of the debt in case of need, and it is clear that a stipulation to this effect involved no acknowledgment that the debt was binding not only upon the limited owner's interest, but also upon the reversionary interest. 3. the next question is whether the suit was so framed as to enable the decree-holder to proceed against the absolute interest now enjoyed by the appellant as the reversioner's representative. this has been clearly and as a..........of the whole property and so the necessary condition was fulfilled. i am unable to agree. in a suit framed on the supposition that the estate was not limited it was not even necessary to assert the binding character of the debt and the suit was purely one for a personal decree for the money against the debtor. when the suit was so indisputably of this character it is certainly idle to look for any indications of the creditor's intention to frame it in such a way as would be appropriate in the case of a debt contracted by a limited owner and binding on the whole estate. and i think it would be going beyond any reported decision to hold that a suit brought in such circumstances may be deemed to be so framed as to enable the reversionary interest to be proceeded against. i cannot.....
Judgment:

Curgenven, J.

1. This appeal is against an order bringing the appellant on record in O. S. No. 313 of 1923 on the file of the District Munsif's Court of Mannargudi as the legal representative of the judgment debtor, a woman named Vedathammal The respondent is the decree-holder and he obtained a money decree against Vedathammal and attached a house in which she enjoyed a limited estate. While it was under attachment she and her father as next reversioner joined in selling it under Ex. D to the appellant. The latter filed a claim petition during the pendency of which the judgment-debtor died. Subsequently the appellant obtained another sale-deed from the same reversioner. The question is whether as purchaser of the property he can be brought on as her legal representative.

2. The learned District Munsif considers that the decree in O. S. No. 343 of 1923 may be construed as against Vedathammal in her representative capacity and not merely against her personally. The lower-appellate Court has differed from this view, but considers that the appellant is estopped by certain conduct from contesting his liability for the decree. I will deal with this latter point first. The learned Judge of the Court of Small Causes has disposed of it very briefly in para. 13 of his judgment and has not given with any clearness the reasons which support the view he takes. But the fact he apparently relies upon is that under Ex. D a sum of money was served to pay the decree-holder if the decree was eventually confirmed on appeal. The inference drawn from this argument, that the reversioner thereby acknowledged that the debt was of such a character as to be binding upon the reversion, appears to me wholly to misconceive the position. Whether or not the debt was so binding, during the life-time of the limited owner the decree-holder could proceed against her interest in the property, and so long as she lived the purchaser held it subject to this risk. It was perfectly reasonable therefore that he should only buy it on the condition that so much of the purchase-money as was necessary should be reserved for payment of the debt in case of need, and it is clear that a stipulation to this effect involved no acknowledgment that the debt was binding not only upon the limited owner's interest, but also upon the reversionary interest. No question of estoppel therefore arises.

3. The next question is whether the suit was so framed as to enable the decree-holder to proceed against the absolute interest now enjoyed by the appellant as the reversioner's representative. The suit was against the limited owner only; it was a simple money claim upon a debt, and no issue was raised as to whether the debt was binding on the estate. Can the decree-holder show in execution of such a decree that the debt was in fact binding so that he may bring on the appellant as representative of the reversionary interest and proceed against the property in his hands? There is no doubt that the answer to this question depends upon the view taken of the frame of the suit, whether it may be construed as aimed at the whole estate by virtue of the binding character of the debt or whether the plaintiffs did not look beyond the interest of the limited owner. There is a quantity of case-law upon this subject. In one line of cases, of which Nugender Chander Ghose v. Kaminee Dossee [1866] 11M.I.A.241, Bai Jun Doobey v. Brii Bhookun Lall Anusti [1875] 1Cal.133, Deendyal Lal v. Jugdeep Narain Singh [1877] 3 Cal. 198 and Lalita Mohan Pal v. Dayamoyi Roy may be cited as examples, the principle is stressed that it is incumbent upon the plaintiff so to frame his suit as to make it clear that he asks for a decree against the whole interest. In the case last cited above the Privy Council quote with approval a passage in the judgment of the High Cour of Calcutta to the effect that in order to make the estate liable a creditor must frame his suit in the proper manner, whereas in the instance then under consideration all that he asked and the Court granted was a personal decree against the debtor. There was no indication that the debtor was a party to the suit as representative of the estate. Another line of cases, while conceding that the actual frame of the suit is an important factor in the decision, take also other facts into consideration in attempting to arrive at the plaintiff's intention.

4. Instances of cases in which the frame of the suit was not regarded as decisive are Jugul Kishore v. Jotendro Mohun Tagore (1884)10Cal.985, Nanomi Babuasin v. Modhun Mohun [886] 13 Cal. 21, Simbhunath Pande v. Golap Singh [1887] 14 Cal. 572, Radha Kissen v. Nauratan Lall [1907] 6 C.L.J. 490 and Veerabadra Aiyar v. Marudaga Nachiar [1911] 34 Mad. 188. The judgment in Devji v. Sambhu [1900] 24 Bom.135 has been cited as another decision on the same lines, but I do not think that the facts were really analogous, because the case was one of a mortgage executed by a mother who had minor sons, and the only way in which the creditor could have got any title at all was by virtue of an intention that the estate should be bound. So far as this Court is concerned it is unnecessary for me to look further than to the judgment in Veerabadra Aiyar v. Marudaga Nachiar [1911] 34 Mad.188, which passes a number of previous decisions in review. The stage at which the question arose there was after sale. But some of the tests applied will serve equally in the present circumstances.

In investigating this question,'the learned Judges say 'the Court is not confined to any one fact. The sale certificate is no doubt the most important document as the instrument conferring title, but is not conclusive. The frame of the suit, the judgment, the decree, the execution proceedings, the advertisements for sale, the adequacy or inadequacy of the purchase-money and the conduct of the parties are all circumstances which may legitimately be considered in an inquiry of this nature.

5. Of course in the present case we can only consider the frame of the suit, the judgment and the decree; and I think it is clear from the observations quoted above that in order to construe it as a representative suit some indication, however slight, must be found to show that the creditor intended so to frame it. In the case under reference, the learned Judges look for and succeed in finding such indications. No other case that I have seen goes further in placing a liberal construction upon the creditor's intentions, and I think therefore that it may safely be said that, unless such indications can be pointed to, and if the suit is in form only a simple money claim against the limited owner, although in point of fact the debt may have been contracted for necessary purposes, it would be going beyond any reported decision to hold that the reversionary interest could be bound. This has been clearly and as a summary of the case-law I think correctly, stated by May no (Edn. 9, p. 641), where speaking of a female heir, he says:

Where the suit is founded upon a purely personal debt or contract of her own, the decree can only bo against her own person and property, and a sale in execution will only convey her own interest in the property. But even though the foundation of the decree be a liability which might bind reversioners, that alone is not sufficient. The suit must be so framed as to show that it is not merely a personal demand upon the female in possession, but that it is intended to bind the entire estate, and the interests of all those who come after her. The reason of this is that, although in a suit brought to recover, or charge an estate of which a Hindu female is the proprietress she will, as defendant, represent and protect the estate, as well in respect of her own as of the reversionary interest; still and on this very account, the plaintiff is bound to give notice that he is seeking so large a remedy, in order to put those who may be ultimately affected upon their guard, to enable them to protect themselves.

6. Turning now to the facts of the present case, there is only one recital in the plaint which can by any stretch of construction be interpreted as a reference to the binding character of the debt. The promissory note upon which the suit was brought recited purposes to which the money was to be applied, which no doubt would be binding upon the reversioner; and this passage in the plaint refers to the promissory note the value of which 'as per details in cash'the defendant is alleged to have received. The learned District Munsif has accepted his reference to the contents of the promissory note as a sufficient expression of the plaintiff's intention to proceed against the absolute estate

by stating that the loan under the pro-note sued on was borrowed by the defendant as per detail set out in the pro-note.

7. The learned Judge of the Court of Small Causes is unable to follow him in this and however much the decree-holder's claim may enlist one's sympathy I think that even if we had no external help to the construction of the plaint, it would be impossible to hold that the required intention was disclosed by this passage. There is however a piece of evidence which seems to me to destroy any presumption upon this point. The respondent has admitted that at the time the money was borrowed he believed that Vadathammal enjoyed an absolute interest in the property, and so far as appears he was under this misapprehension even when he filed the plaint. That being so I do not see how it is possible to hold that he framed or intended to frame the suit in the manner required to bind ulterior interests in the property. The argument has been advanced that although he may have been under this misapprehension, the suit did in fact contemplate the liability of the whole property and so the necessary condition was fulfilled. I am unable to agree. In a suit framed on the supposition that the estate was not limited it was not even necessary to assert the binding character of the debt and the suit was purely one for a personal decree for the money against the debtor. When the suit was so indisputably of this character it is certainly idle to look for any indications of the creditor's intention to frame it in such a way as would be appropriate in the case of a debt contracted by a limited owner and binding on the whole estate. And I think it would be going beyond any reported decision to hold that a suit brought in such circumstances may be deemed to be so framed as to enable the reversionary interest to be proceeded against. I cannot accordingly find that the appellant is representative of any interest bound by the decree and I must allow the appeal, set aside the lower Court's orders and dismiss the application with costs throughout.


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