Skip to content


Swaminatha Ayyar Vs. Saivu Rowthan and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Reported inAIR1936Mad123; 160Ind.Cas.559
AppellantSwaminatha Ayyar
RespondentSaivu Rowthan and anr.
Cases ReferredVenkatramier v. South Indian Bank
Excerpt:
- - 'and that in my opinion is not a good foundation for its order. sheo prasad (1880) 5 cal 148 an undivided hindu family consisting of a father and son does not differ from a like family consisting of undivided brethren except so far as they are affected by the peculiar obligation of paying their father's debts......by the plaintiff against the said gopalkrishnier as family manager both personally and against the family properties in his hands. the date of the decree in o.s. no. 26 of 1926 is 14th september 1926. the date of the decree in o.s. no. 79 of 1925 is 11th january 1926. subsequent to the passing of these two decrees defendant 1 instituted a suit o.s. no. 46 of 1927 impleading both gopalakrishnier and rangier and also the official receiver, south malabar. the claim was to recover the suit amount from gopalakrishnier personally and from the family properties of both gopalakrishnier and rangier. the official receiver was added as a party because by that time defendant 1 became an insolvent and his share became vested in the official receiver.2. the cause of action alleged was in respect of.....
Judgment:

Venkataramana Rao, J.

1. The facts necessary for the disposal of this second appeal may be briefly stated. One Gopalakrishnier and Rangier were members of a joint Hindu family, the said Gopalakrishna Ayyar being the elder and managing member thereof. In respect of debts incurred for the joint family, creditors obtained decrees, among them plaintiff in suits O.S. No. 79 of 1925 and O.S. No. 26 of 1926 on the file of the Subordinate Judge's Court of Palghat. The two decrees were obtained by the plaintiff against the said Gopalkrishnier as family manager both personally and against the family properties in his hands. The date of the decree in O.S. No. 26 of 1926 is 14th September 1926. The date of the decree in O.S. No. 79 of 1925 is 11th January 1926. Subsequent to the passing of these two decrees defendant 1 instituted a suit O.S. No. 46 of 1927 impleading both Gopalakrishnier and Rangier and also the Official Receiver, South Malabar. The claim was to recover the suit amount from Gopalakrishnier personally and from the family properties of both Gopalakrishnier and Rangier. The Official Receiver was added as a party because by that time defendant 1 became an insolvent and his share became vested in the Official Receiver.

2. The cause of action alleged was in respect of dealings had by Gopalakrishnier as family manager and the plaint was laid on the basis that both Gopalakrishnier and Rangier were members of a joint family. The defence of Rangier was that he became divided from Gopalkrishnier in or about 1924 and in support thereof relied upon a document dated 16th March 1924 (Ex. l) in and by which certain properties were set apart for the share of Rangier. It was found in that case that the said deed was a sham and nominal transaction and they never became divided. The decree ultimately passed in that suit was that defendant 1 was entitled to recover the decree amount from Gopalakrishnier personally and from the family properties of Gopalakrishnier in the hands of the Official Receiver. In execution of the said decree, properties which were set apart as and for Rangier's share were attached and sold as the property of Gopalakrishnier and Rangier and a considerable sum of money was realised and deposited into Court. Before realization of the said assets, the plaintiff in this case had attached the said properties and the said attachment was pending. He therefore applied for rateable distribution of the said assets, as also other creditors who had obtained similar decrees. The claim for rateable distribution of the plaintiff was negatived and he thereupon filed the present suit against defendant 1 and other creditors for a decree declaring that the order disallowing his claim for rateable distribution is wrong and for an order directing such of the defendants as have already drawn from Court or are hereafter paid any portion of the said assets to refund therefrom that portion of the amount which represent such excess together with interest thereon.

3. The defence of defendant 1 as also other creditors was that the decrees in O.S. No. 79 of 1925, O.S. No. 26 of 1926 and in O.S. No. 46 of 1927 and others mentioned in the plaint were not passed against the same judgment-debtor and Section 73, Civil P.C., has no application, that on the date on which the plaintiff obtained his decrees Gopalakrishnier and Rangier were members of a divided family and Gopalakrishnier could not have represented Rangier in the suits in which the said decrees were obtained. The Subordinate Judge of South Malabar who tried the present suit was of opinion that the decrees were passed against the same judgment-debtor, that the deed dated 16th March 1924 on which division in status was alleged was not a real transaction and that the brothers were never divided, at any rate no fraud or collusion having been alleged it was not open to defendant 1 or any of the decree-holders to impeach the decrees obtained by the plaintiff and that in any event the decree-holder in O.S. No. 46 of 1927 and other creditors having proceeded on the basis that the properties are joint family properties it does not lie in their mouth to oppose the decrees of the plaintiff and decreed the plaintiff's claim. The learned District Judge reversed the said decision holding that the decrees were not obtained against the same judgment-debtor and further without giving a definite finding as to whether the deed dated 16th March 1924 was a sham or nominal transaction he was of opinion that Gopalakrishnier must be deemed to have divided from Rangier on the dates of the institution of the suits wherein the plaintiff obtained his two decrees. He observes:

While the family manager, if the father can suffer a decree which will be binding on his undivided sons the same is not invariably the case when the family manager is only one out of several brothers. The learned vakil for the respondents contends that the two decrees in question are against the family properties. But I do not understand this notion.... It is quite evident that the lower Court has in this case assumed that respondents' decrees entitled him to proceed in execution by sale of the family property belonging to the judgment-debtor and the judgment-debtor's brother. 'And that in my opinion is not a good foundation for its order.

4. He distinguished the case of Ramanathan Chettyar v. Subramania Sastrial (1903) 26 Mad 179 as being the case of a father and; son. This view of the learned Judge is entirely wrong. It has been recently held by a Full Bench of the Madras High Court reported in Ramakrishna Chettiar v. Viswanathan Chettiar 1936 1935 MWN 960, that a literal interpretation should not be given to the word 'judgment-debtor' in Section 73, Civil P.C., Pandrang Row, J., observed:

It is obvious that a strict literal construction of the expression ' the same judgment-debtor ' cannot be adopted in the sense that the decrees must be against the same persons eo nominee;

and he approved the decision in Ramanathan Chettyar v. Subramania Sastrial (1903) 26 Mad 179 as correctly laying down the law.. In that case a decree was obtained against the father alone and another decree was obtained by another creditor against the father and son. In execution of one of the decrees the family proper-ties were ultimately sold and the assets-realised. His Lordship Sir Arnold White, C.J., held that the judgment-debtors were the same and he followed: the decision in Grant v. Subramaniam (1899) 22 Mad 241. As observed by their Lordships of the Privy Council in Suraj Bansi Koer v. Sheo Prasad (1880) 5 Cal 148 an undivided Hindu family consisting of a father and son does not differ from a like family consisting of undivided brethren

except so far as they are affected by the peculiar obligation of paying their father's debts...and the fact that the father is in all cases and in the case of infant sons necessarily the manager of the joint family estate.

5. The decree which the plaintiff obtained; in the two suits was against Gopala krishnier personally and as family manager for payment out of the family properties. When a person is sued as family manager it must be taken that he represents all the members of the family and they are also Constructively parties to the suit and they must be deemed to be judgment-debtors for the purpose of the suit. The decree obtained by defendant 1 was against both Gopalakrishnier and Rangier eo nominee as members of the family and as against the family properties and proceeds were realised by sale of the family properties. Therefore there can be no doubt that the decrees in this case were obtained against the same judgment-debtor. In regard to the contention that the decrees obtained by the plaintiff against Gopalakrishnier were not decrees which could bind Rangier, I am of opinion that it is not open to the several decree-holders to impeach the said decrees in the absence of any fraud or collusion between the plaintiff and Gopalakrishnier and when Rangier has not chosen to contest the same; Venkatramier v. South Indian Bank, Ltd. 1920 43 Mad 381. Further the respondents, decree-holders having themselves obtained their decrees on the footing that Gopalakrishnier and Rangier were members of an undivided Hindu family and that the deed dated 16th March 1924 was a sham transaction and having attached and sold the properties as joint family properties they are precluded from asserting as against the plaintiff that on the date on which he instituted the suits the said Gopalakrishnier and Rangier were not members of an undivided family.

6. A person cannot say at one time that a transaction is invalid and thereby obtain some advantage to which he could only be entitled on the footing that it is invalid and at another time say it is valid for the purpose of defeating another who is entitled to obtain an equal advantage with him on the footing that it is invalid. In this view I do not think it necessary to call for a finding whether the deed dated 16th Match 1924 was a sham or nominal transaction or whether Gopalakrishnier and Rangier were divided in status actually or not. The second appeal therefore must be allowed, the decree of the District Judge reversed and that of the Subordinate Judge restored with costs throughout.


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