Skip to content


Subrahman Iyer Vs. Siva Subrahmanya Iyer and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in52Ind.Cas.931
AppellantSubrahman Iyer
RespondentSiva Subrahmanya Iyer and anr.
Cases ReferredAdaihulam Chetti v. Subban Chetti
Excerpt:
hindu law - joint family--manager, whether can sue in his own name as representing family--mortgage by manager and junior member of family--redemption, suit for, by manager alone, maintainability of--civil procedure code (act v of 1908), order xxxiv, rule 1. - .....to 6 per cent. on the balance of rs. 401.40 (then remaining due) for the subsequent period till date of suit; calculating at such reduced rate, the amount due to plaintiff on date of suit is diminished by rs. 108-5-0.3. i would modify the lower appellate court's decree accordingly. i would also in the matter of costs allow only two-thirds of the costs incurred in all courts to the plaintiff, the defendant bearing his own costs throughout. three months' time from this date is granted for redemption.napier, j.4. i am quite clear that where a father executes a mortgage in circumstances that will bind his minor sons and would entitle him to bring a suit to redeem in his own name, the fact that he chooses to execute also qua guardian does not disentitle him to bring such suit by himself.....
Judgment:

Sadasiva Aiyar, J.

1. I am unable to agree with the contention of Mr. Govindaraghava Aiyar that the father or managing member of a Hindu family loses his capacity to solely represent the family in a suit, if the transaction out of which the litigation arose was embodied in a deed in which a junior member of the undivided family had joined with the managing member as obligor or obligee. The addition of the name of a junior member is sometimes made in a document for the avoidance of dispute in future with the person whose name is so added where the added name is that of an adult, and for the perpetuation of testimony that the act is done by the manager as such where the added name is that of a minor represented by the manager as guardian. Such addition does not make the document legally more valid than if it had been executed by the managing member alone for purposes binding on the family, whether he describes himself as manager or not in the document. I am unable to see how an unnecessary addition of a name by the manager of his own accord or at the instance of the other party to the document, and which does not affect the legal validity of the document, can result in creating a legal disability in the manager to represent thereafter the family in litigations- connected with that transaction, while retaining his full capacity so to represent the family by his sole name in all other litigation's and transactions. Section 85 of Act IV of 1882 was not, in my opinion, intended to affect the right of a managing member to bring a suit in his sole name on behalf of the family, and from Sedheshuri Pershad Narain Singh v. Dharamjit Narain Singh 22 Ind. Cas. 570 : 41 C.P 727 : 19 C.L.J. 437 which seems to lay down a different rule, I respectfully dissent. The contention as to limitation based on such alleged disability, therefore, fails.

2. The only other question is whether the award of interest to plaintiff at 9 per cent per annum throughout is appropriate. I think that while the award of such interest on the purchase money (Its. 2,700,) till the date of payment of the Rs. 3,000 by the defendant is not excessive, interest might be safely reduced to 6 per cent. on the balance of Rs. 401.40 (then remaining due) for the subsequent period till date of suit; calculating at such reduced rate, the amount due to plaintiff on date of suit is diminished by Rs. 108-5-0.

3. I would modify the lower Appellate Court's decree accordingly. I would also in the matter of costs allow only two-thirds of the costs incurred in all Courts to the plaintiff, the defendant bearing his own costs throughout. Three months' time from this date is granted for redemption.

Napier, J.

4. I am quite clear that where a father executes a mortgage in circumstances that will bind his minor sons and would entitle him to bring a suit to redeem in his own name, the fact that he chooses to execute also qua guardian does not disentitle him to bring such suit by himself after the minor has come of age, vide Adaihulam Chetti v. Subban Chetti 26 Ind. Cas. 35 : 27 M.L.J. 621 : 16 M.L.T. 279 : (1914) M.W.N. 684 but I express no opinion on the question whether if a major son had joined in the mortgage he would not have been a necessary party. I agree in the decree proposed by my learned brother.


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