Skip to content


Maya Kone Vs. Periasami Kone and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1937Mad942; (1937)2MLJ622
AppellantMaya Kone
RespondentPeriasami Kone and ors.
Cases ReferredBurayya v. Ramayya
Excerpt:
- - to found a decision on the doctrine of ratification, it must have been clearly alleged and proved that the defendants affirmed the transactions with full knowledge of all the circumstances attending the same......brothers on the ground that the debt was contracted by the first defendant as the manager of the joint family for family purposes and for the benefit of the family of the defendants. the fourth defendant is the son of the first defendant and as such he is sought to be made liable in addition to his being a member of the joint family. the suit was filed on 3rd october, 1929. to get over the bar of limitation an endorsement of payment by the first defendant dated 10th january, 1927, was relied on. defendants 2 and 3 pleaded that there was no family necessity to incur the said debt, that they became separate from the first defendant in 1925, and that any payment or acknowledgment of liability thereafter by the first defendant would not save limitation. both the courts have concurrently.....
Judgment:

Venkataramana Rao, J.

1. This second appeal arises out of a suit instituted by the plaintiff to recover a sum of Rs. 1,300 and interest thereon on a promissory note dated 16th January, 1924, executed in his favour by the first defendant. Defendants 2 and 3 were impleaded as his undivided brothers on the ground that the debt was contracted by the first defendant as the manager of the joint family for family purposes and for the benefit of the family of the defendants. The fourth defendant is the son of the first defendant and as such he is sought to be made liable in addition to his being a member of the joint family. The suit was filed on 3rd October, 1929. To get over the bar of limitation an endorsement of payment by the first defendant dated 10th January, 1927, was relied on. Defendants 2 and 3 pleaded that there was no family necessity to incur the said debt, that they became separate from the first defendant in 1925, and that any payment or acknowledgment of liability thereafter by the first defendant would not save limitation. Both the Courts have concurrently negatived the plea based on division.

2. The only question therefore that remains for decision is whether the debt was incurred for family necessity or benefit which would render the defendants liable in respect thereof. The material facts necessary for the disposal of the said question are these. On the 5th October, 1919 (Ex. A-1) the first defendant and one Thirumala Nadar became indebted to the plaintiff in the sum of Rs. 580 on a promissory note bearing the said date. The said liability was incurred by the first defendant to accommodate the said Thirumala Nadar and therefore it was in no sense incurred for and on behalf of the joint family of the defendants. The first defendant was also indebted in respect of another sum of Rs. 300 on a promissory note (Ex. A-2) executed by him in favour of the plaintiff which liability was incurred to accommodate his brother-in-law. Therefore this debt also was one which was not incurred for the benefit of the family. On the 21st December, 1921 (Ex. F) Thirumala Nadar executed a mortgage in favour of the first defendant for a sum of Rs. 3,000 in and by which he mortgaged certain immovable property belonging to him. The document recites that Rs. 1,550 was paid in cash and the balance of the consideration was stipulated to be paid for by the first defendant undertaking to discharge the debt due under Ex. 1 in favour of the plaintiff and the other debts of Thirumala Nadar. On the 16th August, 1923, Thirumala Nadar executed two sale-deeds (Exs. G and H) bearing the same date in and by which he conveyed the property mortgaged under Ex. F and other property to the first defendant. Ex. H was for a sum of Rs. 2,500 and it was stipulated therein that the property conveyed thereunder was subject to a mortgage in favour of one Nageswara Ayyar for Rs. 1,400 and the balance was to be in partial discharge of Ex. F. The other sale-deed Ex. G was for Rs. 1,000 in discharge of the balance due under Ex. F. Subsequent to the execution of these two sale-deeds the first defendant executed in favour of the plaintiff Ex. A the suit note for Rs. 1,300 part thereof being Rs. 840 the amount due under Ex. A-1 and part thereof Rs. 460 being the amount due under Ex. A-3. The recital in the said promissory note is to this effect:

Regarding the promissory note executed by me and Thirumala Nadar on 5th October, 1919 (Ex. A-l), the amount due from me alone under the said pronote upon my purchasing the said Thirumala Nadar's land is Rs. 840.

3. It will be seen from these transactions that all the loans incurred up to the date of Ex. F by the first defendant were for the benefit of Thirumala Nadar and Ex. F itself was to accommodate Thirumala Nadar. It was for a sum of Rs. 3,000 and a part thereof was advanced out of the joint family funds. The remaining consideration was the liability undertaken by the first defendant for discharging the indebtedness of Thirumala Nadar. It cannot therefore be said that the transaction Ex. F was for the benefit of the joint family. Further, on 16th August, 1923, when the sale-deeds Exs. G and H were taken, Rs. 2,100 only remained due under the mortgage and apparently Rs. 900 was paid by Thirumala Nadar. From the evidence it does not appear how and when that sum of Rs. 900 was paid and why the said sum of Rs. 900 was not utilised in the discharge of the liability undertaken under Ex. F by the first defendant. So far as the sale covered by Ex. H is con cerned, the property conveyed thereunder was admittedly subject to a prior mortgage. As pointed out by the learned Subordinate Judge, taking the most favourable view of the transactions a sum of Rs. 820 due and payable under Ex. A-1 must be deemed to represent a portion of the sale price payable under Exs. G and H and Ex. A must be deemed to be a borrowing for the said purpose. But it has not been establish ed in this case that the mortgage or the sales were transactions entered into for the benefit of the family. The manager of a joint Hindu family cannot render the family estate liable by borrowing money for the purchase of other lands for the family in the absence of a justifying necessity or benefit.

4. In Subramania Chetty v. Chidambara Mudali : (1921)41MLJ459 a mortgage of the joint family property was executed by the managing member of the joint Hindu family for the purpose of purchasing other lands for the family; out of Rs. 10,000 paid for the purchase of the property, Rs. 4,000 was borrowed on a mortgage of the joint family property. In a suit on the mortgage, the minor members of the family disputed their liability to pay the debt. Their Lordships Sadasiva Aiyar and Spencer following an earlier decision in Subramania Nadan v. Ramaswami Nadan : (1913)25MLJ563 held that it was not compe tent for the managing member to mortgage the family lands so as to bind the junior member's share therein and exonerated the minor's interests in spite of the fact that the purchased lands became an accretion to the joint family property. If the principle of these decisions is to be followed, there can be no question that defendants 2 and 3 are not liable for the suit claim. But Mr. Rajah Aiyar contends that defendants 2 and 3 must be deemed to have ratified the act of the first defendant in incurring the suit liability. How he puts this contention is this: The first defendant was adjudicated insolvent in 1927; in insolvency proceedings the defendants 2 and 3 successfully asserted their right to a share in the property purchased under Exs. G and H as joint family properties; and therefore even though the transactions under Exs. G and H may not have been for any family necessity or benefit, they must be deemed to have affirmed the same and all the liability incurred in connection therewith. But what they stated was that certain properties were purchased in the name of the insolvent and in his capacity as manager of the joint family from and out of the joint family funds and the insolvent had no exclusive right to the properties. So far as the properties purchased under Exs. G and H are concerned, the statement is partly true, as a major portion of the purchase money came out of the joint family funds. I do not see how a claim advanced under such circumstances can be said to amount to ratification. To found a decision on the doctrine of ratification, it must have been clearly alleged and proved that the defendants affirmed the transactions with full knowledge of all the circumstances attending the same. As pointed out by the learned Subordinate Judge in paragraph 6 of his judgment, on the evidence on record it is not possible to find a case of ratification. Mr. Rajah Aiyar asked me to raise an issue on this point and remand the case to the lower Court for a finding thereon. But, as no definite plea of ratification was raised in the pleadings and no evidence specifically directed in regard thereto and as the remand would necessitate fresh evidence, I am not inclined to accede to his request.

5. In these circumstances, the plaintiff is not entitled to a decree against the joint family properties in the hands of defendants 2 and 3. In my opinion, the decree passed by the learned Subordinate Judge was proper and is similar to the one passed in Burayya v. Ramayya (1923) 46 M.L.J. 49 : I.L.R. 47 Mad. 449. In the result the second appeal fails and is dismissed with costs.

6. Leave to appeal refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //