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Vasudevan Nambudiri Vs. Unnimaya Anterjanam - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1942Mad298; (1942)1MLJ88
AppellantVasudevan Nambudiri
RespondentUnnimaya Anterjanam
Cases Referred and Ramasuibier v. Rama Aiyar
Excerpt:
- .....madras act iv of 1938, scaled down the debt under section 8 as against the 1st defendant and the joint family assets. against the 2nd defendant personally the court has given a decree based on the' suit promissory note with interest reduced under the provisions of section 9. the 2nd defendant contends that on the basis of the previous decisions of this court, he having been bound as a member of the joint family by the earlier notes is entitled under the explanation to section 8 to trace back his liability to the original principal advanced in 1924 and to scale down the debt under section 8.2. the lower court has not given any reasons for treating the liability of the 2nd defendant differently from the liability of the joint family but it has been contended by mr. govinda menon for the.....
Judgment:

1. The petitioner was the 2nd defendant in a small cause suit filed on a promissory note, dated the 25th April, 1936, executed by the 2nd defendant himself and by his father the 1st defendant. This promissory note can be traced back to four earlier notes all executed by the 1st defendant alone for himself and for the family of which he was the manager. The parties are Nambudiri Brahmins, The lower Court has under Madras Act IV of 1938, scaled down the debt under Section 8 as against the 1st defendant and the joint family assets. Against the 2nd defendant personally the Court has given a decree based on the' suit promissory note with interest reduced under the provisions of Section 9. The 2nd defendant contends that on the basis of the previous decisions of this Court, he having been bound as a member of the joint family by the earlier notes is entitled under the explanation to Section 8 to trace back his liability to the original principal advanced in 1924 and to scale down the debt under Section 8.

2. The lower Court has not given any reasons for treating the liability of the 2nd defendant differently from the liability of the joint family but it has been contended by Mr. Govinda Menon for the respondent that the decision is correct for the following reasons. Under the Act an undivided Hindu family is a person. So long as we are concerned only with the liability of the family it does not matter how that family may have been represented in the various documents succeeding each other, so long as there is a single debt and the same person, namley, the joint family, is the debtor. But it is contended that, when an individual coparcener makes himself personally liable for a joint family debt, it must be deemed that there are two liabilities due from two persons, one the liability due from the joint family person and the other the liability due from the individual person; and it is therefore con-tended that, when the individual person only becomes liable under the last note executed in 1936, he in his individual capacity is entitled to relief only under Section 9 and not under Section 8.

3. There is a certain plausibility in this reasoning but we have come to the conclusion that not only does it run counter to the view taken by implication in a considerable number of our decisions, but also it is not the correct way of looking at the matter having regard to the principles laid down, in the Act. We have of course recognised that for the purpose of a renewal under the explanation to Section 8 there must be a substantial identity of the debt and of the parties. If an individual or family is a party to a succession of documents, one renewing the other, and there is no break in, the real identity of the debt, as by partition, we have recognised that that individual or family can scale down the debt even though others may have been parties at one stage or another to the different documents. When we have a debt due from a joint family acknowledged by the execution of promissory notes by different coparceners, each is in fact on behalf of the family renewing a liability by which the family was bound under the previous documents executed by other coparceners. Although when it comes to the execution of the decree, the coparcener's personal properties may only be liable if he has personally signed the bond, he is in fact signing as a coparcener and as a coparcener he has been liable through the whole series of bonds. Looked at in this way it does not seem to be practicable to treat the coparcener who signs for the family as a different person incurring a different liability from the other co-parceners who are bound by the debt, although in fact the actual executant of the bond may suffer a decree against his personal properties in addition to the joint family properties. This is the view which we have taken in a large number of cases, although the point has not been previously argued as it has been put before us to day. Instances of such cases may be found in Periakaruppan Chettiar v. Appaji Naidu : AIR1941Mad202 and Ramasuibier v. Rama Aiyar : AIR1941Mad356 . These decisions have been followed in many more decisions which have not been reported and it Seems to us that very clear reasons would be necessary to justify us in departing from the principle underlying these decisions.

4. It has been argued that this case stands on a different footing because the defendants are Nambudiris belonging to a community in which until 1933 property was ordinarily impartible and in which a junior coparcener could not ordinarily bind the family. It does not seem to us that these considerations really affect the present case, for the manager of the family was a party to all the notes and the 2nd defendant signed in addition t6 the manager, probably as a matter of more abundant caution at the instance of the creditor.

5. In the result we must allow this civil revision petition and modify the lower Court's decree so as to make the 2nd defendant personally liable only to the same extent as the 1st defendant; The petitioner will be entitled to his costs in revision.


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