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Kandula Ramayya Vs. Bangaru Rangaraju and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1938)1MLJ325
AppellantKandula Ramayya
RespondentBangaru Rangaraju and ors.
Cases ReferredVide Muthiah Chetty v. Alagappa Chetty
Excerpt:
- - a claim to have a liability satisfied out of the general estate of a person is not enough; ram jibun obtained a decree against the heirs in their representative capacity as heirs of the testator which by its terms was to be satisfied out of the assets left by him. it is a decree which is known to english lawyers as de bonis testatoris, a decree which by its terms is to be satisfied out of the assets left by the deceased person. a claim which can be satisfied out of the general estate of a person is nevertheless a claim in personam. 815 of 1934, 816 of 1934 and 818 of 1934 fail and are dismissed......declaration is obtained by the creditor he would be entitled to proceed against the entire joint family property in the hands of the father. hindu law annexes the liability in consequence of the declaration made by the decree that the sons are liable for the debt. in fact the decree does not determine whether joint family property exists or not and if any property is joint family property or not. in narayanan chetti v. veerappa chetti : (1916)31mlj386 , ayling and srinivasa aiyangar, jj., thus explain the principle underlying the joinder of the son:the joinder of the son with the father in a suit to enforce payment of the father's debt is for the purpose of enabling the court to exercise the power which the father had of selling family property including his son's share, to pay his own.....
Judgment:

Venkataramana Rao, J.

1. This batch of revision petitions arises out of an order for rateable distribution of the sale proceeds of property realised in execution of a decree in O.S. No. 23 of 1931 passed by the Subordinate Judge of Narasapur. This order is impeached by the petitioner the decree-holder in the said suit, on the ground that the sale proceeds are not liable to be distributed. To appreciate the contentions raised on his behalf by his learned Counsel Mr. Suryanarayana, a few facts may be necessary. The petitioner filed the said O.S. No. 23 of 1931 against one Chunduri Panakala Rao and his three sons to recover a sum of Rs. 9,192-9-0 on foot of a promissory note executed by the said Chunduri Panakala Rao in his favour. It is admitted that the said Chunduri Panakala Rao and his three sons who are defendants 2 to 4 in that suit form members of an undivided Hindu family. The allegation in the plaint is that the debt was contracted by the father for a necessary purpose and therefore the debt is binding on the sons. The prayer in the plaint is that a decree may be passed against the first defendant, the father personally and against the joint family properties in the hands of the other defendants. This suit was compromised and a decree was passed in terms of the said compromise on the 5th February, 1932. In and by the said decree the defendants were directed to pay the amount decreed in two instalments and as security for the due re-payment of the said sum a charge was created oh two items of immovable property specified in the schedule thereto, namely, a house in Palakole and 2 acres and 4 cents of land in the same place. On the 5th July, 1933, the said property was attached and brought to sale and one-fourth of the sale proceeds were deposited on the 5th July and the remaining sale proceeds were deposited on the 17th July, 1933. Several decree-holders, some of whom obtained decrees against the father alone and some of whom obtained decrees against the father and the sons, filed applications for rateable distribution of the said sale proceeds. The petitioner contended that no question of rateable distribution arose in view of the fact that a charge was created in his favour in and by virtue of the said decree in O.S. No. 23 of 1931. This contention is pressed before me by his learned Counsel. This contention was negatived by the Subordinate Judge on the ground that the said decree not having been registered as required by Section 17, Clause 2(6) of the Registration Act, the charge cannot prevail. The question is whether this view is sound. Section 17, Clause 2(6) of the Registration Act exempts some documents from registration among others decrees and orders of Court and the clause relating to the same runs thus:

Any decree or order of a Court (except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding).

2. It will be seen that while the clause exempts decrees and orders of Court from registration it provides an exception so far as decrees or orders passed on a compromise and comprising immovable property which is not the subject-matter of the suit or proceeding which has been compromised. This exception, it may be noticed, was introduced in 1929 by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929. Before the amendment, the Privy Council in Hemanta Kumari Debi v. Midnapur Zamindari Co. (1919) 37 M.L.J. 525 : L.R. 46 IndAp 240 : I.L.R. 47 Cal. 485 (P.C.) observed that where an agreement of compromise comprised lands not included in the suit and a decree was passed in accordance therewith incorporating the whole agreement, the decree will be admissible in evidence in regard to lands outside the purview of suit without the bar of registration. The effect of the amendment is to supersede the decision in the said case. The question therefore is whether the two items of immovable property which have been charged by the compromise decree in O.S. No. 23 of 1931 can be said to be the subject-matter of the said suit. The expression 'subject-matter of the suit' is not defined in the Registration Act. It seems to me that what the clause contemplates is that specific immovable property must be the subject-matter of litigation. There must be a claim or right in or to the specific immovable property asserted in the litigation and relief sought in respect thereof in order to make the said property the subject-matter of a suit. A claim to have a liability satisfied out of the general estate of a person is not enough; in such a case it cannot be said that all the movable and immovable property belonging to him forms the subject of litigation and therefore the subject-matter of a suit. In Ram Dhun Dhur v. Mohesh Chunder Chowdhary I.L.R.(1882) Cal. 406 a testator by his will directed payment of all his debts, and subject thereto devised his property to his heirs. One of the debts specified in the will was due to one Ram Jibun. Ram Jibun obtained a decree against the heirs in their representative capacity as heirs of the testator which by its terms was to be satisfied out of the assets left by him. One of the heirs subsequent to the decree executed a mortgage of his share of property. The question was whether the mortgage was subject to the decree. Wilson, J., holding it was not, thus explains the nature of the decree:

The decree which was against the representatives of the original owner of the property in question declares that the property of the original owner is liable. But the decree is in the ordinary form of a decree made in a suit against the representative of a deceased person. It is a decree which is known to English lawyers as de bonis testatoris, a decree which by its terms is to be satisfied out of the assets left by the deceased person. It appears thus that it has no other effect than as a mere money decree, and has not the effect of creating a charge upon the property.

3. Where a claim is made against a legal representative of a deceased on a promissory note executed by him the claim is really one in personam though the decree is sought against the assets left by the deceased. It is really a personal decree against the legal representatives but the extent of his liability is defined by the decree directing that it is limited to the assets of the deceased person and recoverable only from such assets. A claim in personam does not necessarily mean that the claim should be enforced by the arrest of the person. A claim which can be satisfied out of the general estate of a person is nevertheless a claim in personam. Where therefore a claim is made on a pronote executed by the father and the sons are impleaded as parties the character of the claim is not changed. The object of impleading the sons is to have it declared that in respect of the claim sued on they are under a pious obligation to discharge the same. If that declaration is obtained by the creditor he would be entitled to proceed against the entire joint family property in the hands of the father. Hindu law annexes the liability in consequence of the declaration made by the decree that the sons are liable for the debt. In fact the decree does not determine whether joint family property exists or not and if any property is joint family property or not. In Narayanan Chetti v. Veerappa Chetti : (1916)31MLJ386 , Ayling and Srinivasa Aiyangar, JJ., thus explain the principle underlying the joinder of the son:

The joinder of the son with the father in a suit to enforce payment of the father's debt is for the purpose of enabling the Court to exercise the power which the father had of selling family property including his son's share, to pay his own private debts provided they were not illegal or immoral, and to prevent the son from questioning the nature of the debt, in execution, in the event of the decree against the father being executed by attachment and sale of the family property including the son's share.

4. Therefore the prayer in O.S. No. 23 of 1931 which seeks to enforce the liability of the father against the sons by a decree against the assets of the family does not make the immovable property of the joint family, the subject-matter of the suit. No title to the immovable property is claimed in the suit, nor the enforcement of any lien in regard thereto and no particular property is described in the suit and therefore can be said to have been made the subject-matter of the litigation. The subject-matter of the suit is the claim on the pronote, that is, a money claim. A number of cases have been relied on by Mr. Suryanarayana. They are mostly cases relating to maintenance claims by Hindu widows. In such cases questions have often arisen whether an alienation pendente lite will be subject to the ultimate decree in the suit charging specific immovable property. Distinction is drawn between cases where the plaint specifies all the property and prays that a charge may be created over the whole or a part thereof and where the plaint does not specify any property and simply prays that the amount fixed by the decree may be made payable from and out of the joint family property of the persons against whom the relief is claimed. Where the plaint prays to have a charge declared it has been held that alienations pending the suit will be subject to the doctrine of lis pendens. But where no such relief is sought there is no question of lis pendens. In a recent decision in Ramaswami Pillai v. T.C.C. Bank, Ltd. : AIR1935Mad867 , Ramesam and Venkatasubba Rao, JJ., put the principle thus:

If the properties are not specified or if they are enumerated merely for enabling the Court to fix the quantum of maintenance, in either case the doctrine will have no application, but if the property is sufficiently designated so as to make it directly and specifically the subject-matter of the litigation the fact that the charge is claimed over all the properties of the family; can make no difference.

5. Thus it will be seen that before immovable property can form the subject of a litigation, it must be sufficiently designated Vide Municipal Council, Karaikudi v. Thirumalai Aiyangar : (1935)69MLJ221 . Else no question of lis pendens will arise. The same view is indicated in Seetharamanujacharyulu v. Venkatasubbamma : AIR1930Mad824 .

Where no charge is claimed on any specific immovable property, but only a general claim is made against the defendant (manager) and the joint family property generally, without specifying in the plaint any property, then, in such cases, a decree creating a charge on any specific immovable property would take effect ordinarily only from the date of the decree; but the case would be different when the plaint claims a charge on specific immovable property and the decree also grants such a prayer and charges such specific property.

6. Considerable reliance was placed on the decision of the Privy Council in Bazayet Hossein v. Dooli Chund (1878) L.R. 5 IndAp 211 : I.L.R. 4 Cal. 402 (P.C.). In that case a widow sued for dower against one of the heirs of her husband and a decree was passed in her favour directing the same to be paid out of the estate of her husband. The Judicial Committee held in that case that a mortgage executed during the pendency of that litigation would be subject to the doctrine of lis pendens but the decision must be considered with reference to the facts of the particular case. The suit was filed by the widow against the son who claimed exclusive title to the whole estate under a mokurrari alleged to have been executed by the husband of the widow and the father of the defendant. The widow there sued to set aside the mokurrari under which the son claimed to be entitled to the whole estate from his father, to declare that he was a mere stranger and they also prayed for an order that possession of the estate should be recovered by them and that the dower which they claimed should be paid out of the estate. Though the other prayers were negatived, the last prayer was given. In such circumstances their Lordships held that the doctrine of lis pendens will apply thereby indicating that the estate of the husband was the subject-matter of the litigation and therefore there was a right to specific immovable property in question in the suit. It is also clear from their approval of the observations of Phear, J., in the lower Court in that case:

I need hardly say that a decree of this kind directing the person in whose hands the property was to account for it in order that it might be applied for the purpose of discharging the debts due from Koreshed Ali, was a decree against that property, and operative to bind it in the hands of Najmoodin, and therefore of any other person who took from Najmoodin with notice of the decree or under such circumstances as to make him affected by the doctrine of lis pendens.

7. The decision of the Judicial Committee cannot be taken as an authority for the position that whenever a decree is asked for against the assets of a deceased person or joint family property in the hands of the junior members of the family or of the sons on a personal claim against the father as manager without claiming any specific lien thereon, any alienation made during the pendency of the suit will be subject to the doctrine of lis pendens. I am therefore of the opinion that as the immovable property which was charged in O.S. No. 23 of 1931 was not the subject-matter of the suit, the decree requires registration under Section 17, Clause 2(6) and the charge therefore cannot prevail. I therefore overrule this contention of Mr. Suryanarayana on behalf of the petitioner.

8. The next contention advanced by Mr. Suryanarayana is that so far as seven decrees are concerned, they were only against the father whereas the decree of the petitioner is against the father and sons and therefore the decree-holders against the father alone cannot be treated as persons holding decrees against the same judgment-debtors within the meaning of Section 73, Civil Procedure Code. It seems to me that this contention is untenable and is concluded by authority. Where there is a decree against the father and there is also a decree against the father and sons and where it is admitted that the property from which the assets are realised by the sale was the property of the joint family of which the father and sons are undivided members, the judgment-debtors must be held to be the same for the purpose of Section 73, Civil Procedure Code. This was the view taken in Ramanathan Chettiar v. Subramania Sastrial : (1902)12MLJ276 , which has since been followed by the Full Bench in Pappu Reddiar v. Pichu Aiyar (1935) 42 L.W. 435. I have since taken the same view in a case reported in Swaminatha Aiyar v. Saivu Rowthan (1935) 43 L.W. 624 and also in C.R.P. No. 1356 of 1935 since reported in Palaniappa Chettiar v. Palani Goundan : AIR1936Mad948 . A decision of Horwill, J., in Arunachellam Chettiar v. Kalayappa Chettiar : AIR1937Mad253 C.R.P. No. 1343 of 1934 has been cited to me as indicating a contrary view. The learned Judge seems to be of the opinion that where there is a decree against the father alone it cannot be said that the decree was obtained against the father for a debt binding on the son. It may be so. But once there is a decree against the father the creditor is entitled to enforce the said decree against all the joint family property including the shares of the sons until the sons choose to take exception to it either in execution or by way of a suit that the said debt is one which they are not liable to pay under the Hindu law. So long as the decree stands and the property sold is joint family property, no question as to the binding nature of the debt arises in the consideration of the question whether the judgment-debtors are the same. I therefore hold that the contention of Mr. Suryanarayana is not tenable.

9.. Another point is raised by Mr. Suryanarayana in connection with three of the decrees, namely, that the application for rateable distribution was made after the entire sale proceeds were deposited and therefore the holder of the said decrees is not entitled to get rateable distribution. The fact is that the application for rateable distribution was made on the very same day as when the sale proceeds were deposited into Court. The learned Judge assumed that the application must have been made prior to the deposit. There is no warrant for such an assumption. It must be found as a fact whether the application was made prior or later. Vide Muthiah Chetty v. Alagappa Chetty (1918) M.W.N. 520. I have therefore to set aside the order of the learned Judge so far as the said decrees are concerned and remand the matter for disposal for the determination of the said question and giving the relief accordingly. Subject to this modification the order of the lower Court is confirmed and the revision petitions except C.R.P. Nos. 815 of 1934, 816 of 1934 and 818 of 1934 fail and are dismissed. The petitioner will pay Rs. 20 as and for advocate's fees in each of the petitions dismissed. In the C.R.P. Nos. 815 of 1934, 816 of 1934 and 818 of 1934, I make no order as to costs.


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