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Samudrula Venkatakishnayya Chetty and ors. Vs. Venkadari Rangayya Chetty and ors. - Court Judgment

LegalCrystal Citation
Subject Family
CourtChennai
Decided On
Reported inAIR1928Mad865; 117Ind.Cas.720
AppellantSamudrula Venkatakishnayya Chetty and ors.
RespondentVenkadari Rangayya Chetty and ors.
Cases ReferredPeda Venkanna v. Srinivasa Deekshatalu
Excerpt:
- - 297 are clear authorities for the view that a list like the present one is admissible in evidence to show a division of status. in these circumstances it requires very strong evidence to show that in spite of all this they were members of a joint family......it requires very strong evidence to show that in spite of all this they were members of a joint family. the question in this case is not what particular properties remained joint or what particular properties fell to the shares of the parties. the question is whether the members of the family were joint in status so as to give defendant 1 the right to execute the promissory note in his name and to go on renewing them from time to time and make defendants 2 and 3 liable under such renewals as if they had authorized the execution of the promissory notes or as if they were bound by the acts of the karta of an alleged joint family.' the oral evidence in this case, had it stood alone, would not be quite satisfactory on either side. defendants 1 and 2 and some of the witnesses do.....
Judgment:

Kumaraswami Sastri, J.

1. This appeal arises out of a suit on a promissory note executed by defendant 1. Defendants 2 and 3 are brothers of defendant 1 and are the appellants before us. The plaintiff's case is that the defendants were members of an undivided family and that defendant 1 executed the note as managing member of the family for family purposes. Defendants 2 and 3 denied that they are members of the undivided family and pleaded a partition in 1910 and also pleaded that the debt was not contracted for family necessity. The Subordinate Judge disbelieved their partition and passed a decree for the amount claimed against the three defendants. To prove the partition the defendants allege that they have put in a list which purports to be a list of the properties which fell to the share of defendants 2 and 3 and that list is signed by all the parties and also by the attesting witnesses. The Subordinate Judge rejected the list as inadmissible for want of registration and on the other evidence held against the partition. It is argued in appeal that the list was wrongly rejected as inadmissible for want of registration, and before we can satisfactorily dispose of the appeal it is necessary to decide this question. So far as the present suit is concerned it does not relate to any immovable property and the only question is whether between defendant 1 on the one hand and defendants 2 and 3 on the other there was a division in status, or whether they were joint as the note sued on is a renewal of several previous promissory notes. The first is A-l dated 2nd of May 1896, the second is A-2 dated 30th of April 1899, the third is A-3 dated 26th of April 1902, the fourth is A-4 dated 15th June 1905, the fifth is A-5 dated 30th of June 1908, the sixth is A-7 dated 20th June 1911, the seventh is A-10, dated 24th June 1911, and the eighth is A-14 dated 22nd June 1914. The contention is that there was a division in status in 1910 and that defendant 1 then ceased to be the manager and that the notes executed by him, viz,. Exs. A. 7 A-10, and A-14, consequently would not bind others. It is clear that where there is a division of status the person, who was the managing member before there was such a division, ceased to represent the family afterwards and the notes renewed by him would not bind the persons who are already divided in status. The only relevant document that is sought to be put in here is a list of partition to show whether there was a division in status or not. On this point Gnanamuthu Nadan v. Vailukanda Nadathi A.I.R. 1924 Mad. 542 and Saraswatamma v. Paddayya A.I.R. 1923 Mad. 297 are clear authorities for the view that a list like the present one is admissible in evidence to show a division of status.

2. Their Lordships of the Privy Council in Varada Pillai v. Jeevarathanammal A.I.R. 1919 P.C. 44 held that though the document is inadmissible for want of registration as a deed of gift, it is admissible to prove the nature of the possession taken under the gift. This decision has in effect overruled the previous decisions of this Court which held that you should not look into the document even for the collateral purpose of showing the nature of possession. Section 49, Registration Act, only says that it cannot be used to affect the immovable property. If there was any immovable :property in the present case the title to which was sought to be affected by reason of this list, it might be argued with some force that this list would be inadmissible in evidence, but, as pointed out before, no immovable property is involved and the question of division of status alone is sought to be decided, and the fact that such a decision may ultimately have some effect upon immovable property would not attract the provisions of the Registration Act. If an unregistered document can be used in evidence to show the nature of the possession acquired by the parties and also to prove that they have acquired a title by adverse possession [and that is the effect of the ruling of the Privy Council in Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44] it is difficult to see how we can reject a document which is used to show that there was a division of status and is not used to support any claim to immovable property.

3. Our attention has been called to Gopayya v. Krishnayya A.I.R. 1923 Mad 160 and to Veerappan v. Mylia Udayan A.I.R. 1925 Mad. 1007. It is difficult to see how these decisions can be taken. to have overruled the decisions in. Gnanamuthu Nadan v. Vailukanda Nadathi A.I.R. 1924 Mad. 542 and Saraswatamma v. Paddayya A.I.R. 1923 Mad. 297. The former only decides that, if the parties had treated a share list as final, the document would be inadmissible without registration. The latter case (Spencer and Venkatasubba Rao, JJ.) recognized the distinction between the using of a document to prove a division of status and the use to show title to specific immovable property. We see no reason to dissent from the view in Gnanamuthu Nadan v. Vailukanda Nadathi A.I.R. 1924 Mad. 542 and Saraswatamma, v. Paddayya A.I.R. 1923 Mad. 297 and we are of opinion that the list now sought to be filed is admissible in evidence for the purposes of proving a division in status.

4. The learned vakil for the respondent does not admit the genuineness of the document and, therefore, we think it necessary to call for a finding as to whether the list which is at present produced in Court along with C. M. P. 4317 of 1925 is genuine.

5. Another point raised by the vakil for the respondent is that, even if there is a division in status, it would not affect the creditor who had no notice of such a, division of status, and we think it also desirable that there should be a finding as to whether there was notice to the plaintiff or defendants 6 and 7, either real or constructive, of this division of status.

6. On the plea that the notes renewed were subsequent to their being barred it is clear that from the facts brought to our notice that on the dates of the renewal of Exs. A-4 and A-5 the District Court was closed and as such there can be no question of the notes being renewed after they were barred by limitation. The Subordinate Judge of Cuddappah is required to submit his findings on the two points referred to above, additional evidence being taken if necessary on both sides. Time for submitting the findings is two months and objections seven days thereafter.

7. (This appeal coming on for final hearing after the return of the findings of the lower Court upon the issues referred by the High Court for trial, the Court delivered the following judgment )

Kumaraswami Sastri, J.

8. This appeal arises out of a suit filed by the plaintiff on a promissory note in his favour executed by defendant 1. The case for the plaintiff is that defendants, 1, 2 and 3 were members of an undivided family, that the promissory note was executed for purposes necessary and binding on the family and that a decree should be passed against all the members Defendants 4 and 5 are the minor sons of defendant. Defendants is the undivided uncle of the plaintiff and defendant 7 is the son of defendant 6. Defendants 6 and 7 are jointly interested in the promissory note and they were made defendants because they would not join as plaintiffs. Defendant 1 was exparte, defendants 2 and 3 are the only contesting defendants. Their case is that there' was no family business, that they had some ancestral properties which were divided in 1910, and that defendant 1 was not the managing member of the family and had no power to execute any promissory note so as to bind them. The issues were:

whether Ramiah Chetty and defendant 1 were the managing members of the family consisting of defendants 1 to 5; whether defendants 2 and 3 are liable for the debt; and whether the partition arrangement set up by defendants 2 and 3 in 1910 is valid and binding on the plaintiff and defendants 6 and 7.

9. At the trial certain partition lists which were said to have been made in 1910 at the time of the alleged partition were sought to be filed and the Sub-ordinate Judge rejected them on the ground that they were not admissible in evidence being unregistered; and on the evidence which remained he came to the conclusion that there was no partition between the members of the family and that the amount was recoverable from all the defendants. When the case first came on before us, it was argued that the Judge was wrong in rejecting the partition lists and for the reasons given by us, we sent the case down for findings on two Questions,

whether the lists were genuine; and whether the plaintiff had notice of this partition as evidenced by these lists.

10. The subordinate Judge returned the findings stating that the lists were genuine and that the plaintiff had notice.

11. As regards the genuineness of the lists, it is not shown that the Judge was wrong in his estimate of the evidence. As regards notice to the plaintiff, it is argued that the Subordinate Judge was wrong in holding that there was notice, Having regard to the relationship between the parties, we think that the reasons given by the Subordinate Judge are sound for holding that the plaintiff must have had notice of the partition in 1910.

12. The promissory note sued on relates to a transaction which took place several years ago. The first of them goes back as far as Ex-A1 which is dated 2nd May 1896 executed by Ramiah Chetty, the eldest brother of defendant 1. There were several renewals in favour of plaintiff's father and the renewal before 1910, the date of the alleged partition, is Ex A-5 dated 30th June 1908. This was executed by defendant 1 in plaintiff's favour and admittedly at that time the parties were joint. It was not disputed before the Subordinate Judge that Ex. A-5 represented a transaction which bound all the parties as having been executed for necessary purposes. In 1910 there was admittedly a partition and the question is between whom it was. It will be seen from the genealogical table annexed to the Subordinate Judge's judgment that there were three brothers: Gundoba, Subbrayalu Chetty and Nagayya. Subbarayalu Chetty had six sons. The eldest, Pedda Ramiah Chetty is dead and we need not concern ourselves about him. Chinna Ramiah Chetty died issueless in 1910 before partition Defendant 2 Venkata-krishnayya Chetty is one of the sons of Subbrayalu Chetty and defendant 3, Venktachallam, is his brother. Nagayya had a son called Balaramayya and his first wife's son is Venkataramayya. At, the time of the partition Nagayya was dead and Balaramayya was alive. The case for the plaintiff before us is that the partition evidenced by these lists was only a partition between Balaramayya on the one side and defendants 1, 2 and 3 remaining joint on the other. The case for the defendant is that the partition was. between three branches, defendant 2? representing Gundoba's branch as the adopted son, defendant's 2 and 3 representing Subbrayallu Chetty's branch and Balaramayya. representing Nagayya's branch.

13. The partition lists which are found' to be genuine have been filed as Exs. 7 and 11 ' series. These lists have been printed, and as all the lists were not printed we have got typed copies which' supplement portions of the lists as are-relevant and have not been printed. It is clear from a perusal of these lists that they purport to be lists alloting properties to each of the three branches. Each list gives particulars of the properties that purported to fall to each of the three branches. The. contention now raised for the respondents is that no doubt three lists were made but as the division was by lot it was. necessary to draw the lists in the form they were drawn up so that lots could be cast and that they did not necessarily imply a division between the other branches inter se. so. It is difficult, having regard to the wording of the lists, to accept this contention. If as many lists as there were co-parceners had to be made dividing the properties with the mere object of allowing, one of them to draw the lot and get his share, there was no necessity to state in each of the lists which property fell to the share of each person. It could not be said before the lists were drawn that particular properties fell to the share of anybody and, therefore, that 'statement could not have been made before the drawing of the lots for the 'purpose of enabling one party to get his share and out himself off from the family. The wording of the lists necessarily -shows that they must have been written after lots were drawn. Then we find that the lists are signed by all the per-sons. Here again there was no necessity for each of them to sign if the object was simply to identify the property which on the drawing of the lot would fall to the person desiring to separate, as ex-hypothesi all the others would be joint and there was no necessity to mention the names of those to whom particular properties fell. But what makes the matter more clear is the statement appearing at the end of Ex. 7 It is this:

Out of these lands excluding Venkatasubba's one-half share, the remaining half-share of lands in the lands of Mulapklli village etc.

then it goes on to state:

when chits were put, the lands in the village mentioned in this fell to the share of us Venkatakrishnayya and Venkatachalamayya and we have agreed and taken in this manner

so that a distinct reference is made to sharers having been allotted to defendant 2 and 3 on the one side and defendant 1 on the other. The lists having been found to be genuine and the wording of the lists suggesting that the separation between the parties was inter se and not the mere cutting of one branch the onus is heavy on the person who desires to show that these lists were not acted upon and the parties continued to be joint in spite of these lists. We do not think on the evidence we can hold that these lists were not acted upon be-cause we find that first of all Balaramayya's branch sold properties under Exs. 5 and 5-A. In Ex. 1 it is stated that the lands sold fell to the share of Balaramayya. Exs. 5 and 5-A contain no such recitals. Ex 1 is attested by defendant. 1 Defendants 2 and 4 also sold (properties under Exs. 11 and 11-A. Under Ex .11 dated 8th July 1916 and Ex. 11-A dated 5th February 1917 they purported to sell lands which were in their enjoyment and the lands sold are lands which, according to the lists fell to their share. (After considering the evidence the judgment proceeded.) We start with the partitionlists in 1910 which allot specific share 'to these parties and we have the fact that each of the parties dealt with, properties without reference to the other on the footing that they got them on partition. In these circumstances it requires very strong evidence to show that in spite of all this they were members of a joint family. The question in this case is not what particular properties remained joint or what particular properties fell to the shares of the parties. The question is whether the members of the family were joint in status so as to give defendant 1 the right to execute the promissory note in his name and to go on renewing them from time to time and make defendants 2 and 3 liable under such renewals as if they had authorized the execution of the promissory notes or as if they were bound by the acts of the karta of an alleged joint family.' The oral evidence in this case, had it stood alone, would not be quite satisfactory on either side. Defendants 1 and 2 and some of the witnesses do prevaricate; but it cannot be said that on one side there is a body of consistent oral evidence which would entitle us to disregard the documents in the case and to hold that such documents were not genuine and were not acted upon. We think that on the issue as to the parties being joint the conclusion to be come to is that the parties were not joint at the date of execution of the promissory note and that defendant 1 had no power to bind the members of the joint family, defendants 2 and 3 by executing the promissory note in his own name. It is not suggested that when Ex. A was 'executed defendants 2 and 3, consented to the execution or agreed to be bound by it.

14. As regards the question of notice: we have already stated that we agree with the Subordinate Judge in thinking that the plaintiff must have had notice; but as pointed out in Peda Venkanna v. Srinivasa Deekshatalu [1918] 41 Mad. 136 in cases of division of joint families, where a promissory note is executed subsequent to partition by one alleging himself to be the managing member of the family, it is the duty of the person who deals with such member of the family to satisfy himself that he has subsisting authority to bind the other members. We are of opinion that the decision of the Subordinate Judge, in so far as it makes defendants 2 and 3 liable, is erroneous. We modify the decree of the Subordinate Judge by making it only against defendants 1, 4 and 5; against defendant 1 personally and against the assests of the joint family in the hands of defendants 1, 4 and 5. The plaintiff will pay the costs of defendants 2 and 3 4 and 5, here and in the Court below.

Reilly, J.

15. I agree.


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