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Balasundarachari Vs. A.V. Kanniappachari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad1165
AppellantBalasundarachari
RespondentA.V. Kanniappachari and ors.
Cases ReferredRamanathan v. Rangammal
Excerpt:
- - if i accept this argument the plaintiff is bound to fail. the best evidence has been withheld by the plaintiff and the other members of his family. the evidence of defendant 8 and of loganatha mudaliar is clearly to the effect that subsequent to this deed, defendant 1 was not living in the family house but at 5, bungalow street. it must then be remembered that kanniappa was not in 1912 a young man who had just come of age, but was an experienced and elderly man of the age of 43. the onus is upon the plaintiff to show that the release was intended to be inoperative and he has signally failed to do so......case is that kanniappa, the father of the plaintiff, separated from the family after executing a release-deed dated 12th february 1912 and that the result of that transaction was that the entire branch of kanniappa, including his sons, became severed from the rest of the family which continued to be joint. it follows from this contention that the plaintiff had no interest in the property mortgaged or subsequently sold. if i accept this argument the plaintiff is bound to fail. it is urged for the plaintiff that the release- deed was a sham and that his father nevertheless continued to be a member of the joint family. in the alternative, it is contended for him that in any event the release did not and could not affect the sons of kanniappa and that the latter continued to be members of.....
Judgment:

Venkatasubba Rao, J.

1. (After setting out the pedigree the judgment continued). In this suit the plaintiff asks that a sale held in pursuance of a decree passed by this Court should be set aside so far as his interest in the property sold is concerned. The decree was obtained by defendant 8 on the footing of a mortgage executed in his favour by Munuswami Achari, Arunagiri Achari ( defendant 4) and Vedagiri Achari (defendant 5). At the sale held defendant 9 purchased the property in question. I must preface my judgment by saying that the only question which I am asked to try is, whether this sale is binding upon the plaintiff. Defendant 9, supported by defendant 8, is contesting the suit. The other defendants either do not appear to defend the action or side with the plaintiff.

2. The principal point raised in the case is that Kanniappa, the father of the plaintiff, separated from the family after executing a release-deed dated 12th February 1912 and that the result of that transaction was that the entire branch of Kanniappa, including his sons, became severed from the rest of the family which continued to be joint. It follows from this contention that the plaintiff had no interest in the property mortgaged or subsequently sold. If I accept this argument the plaintiff is bound to fail. It is urged for the plaintiff that the release- deed was a sham and that his father nevertheless continued to be a member of the joint family. In the alternative, it is contended for him that in any event the release did not and could not affect the sons of Kanniappa and that the latter continued to be members of the joint family although their father severed his connexion with it.

3. One of the questions raised, as I have said, is, Was the release-deed intended to be an effective document or was it a mere sham? I shall assume in favour of the plaintiff that it was a sham and shall first proceed to deal with the case on that footing. The case of the plaintiff is put in this way. Kanniappa was incurring debts and it was considered necessary to take a release from him only with the object of preventing third parties from lending him moneys. The purpose of the deed was to deceive the public and not to separate Kanniappa. Whether this be a fact or not, let us look at the state of things as they existed in 1921. Kanniappa would, in the usual course, have been the manager, but he must be deemed to have renounced that right in favour of the next eldest member. Let me state the rule which I wish to apply in the form of an illustration. If A. has two younger brothers B and C, A certainly can renounce his right to manage. in favour of B and A's minor sons will be bound by that act and they cannot be heard to say that B is not thereafter the manager. The purpose of the deed, on the plaintiff's showing, was to deceive the public into thinking that Kanniappa did not continue a member of the coparcenary. He could not, consistent with the deed, profess to act as manager, for that would be to defeat the very object of the transaction. It, therefore, seems to me that the management in 1921 devolved upon the junior member Arunagiri and, as I have shown, he was one of the executants of the mortgage, which cannot, therefore, be impeached on the ground that the executant had no authority.

4. Then remains the question: Was the mortgage executed for a purpose binding on the family? There can be no doubt on the evidence that the moneys were borrowed for family necessity and benefit. (The judgment then examined the' facts and evidence and continued). The persons within whose knowledge these facts are, are defendants 4 and 5 and they have not been examined on the plaintiff's side. The books of the concern have been withheld. From these facts I must infer that the business really required the money and that it was even utilized for it. Defendants 8 and 9 are strangers to the family and they have placed before the Court such evidence as is available. The best evidence has been withheld by the plaintiff and the other members of his family.

5. In Murugesam Pillai v. Gnana Sambadha Pandara Sannadhi A. I. R. 1917 P. C. 6 the Judicial Committee made an inference in similar circumstances against the party who willfully suppressed the accounts. Then there are two other sums that were borrowed: first, Rs. 1,000 on a promissory note, dated 26th September 1921. It is not denied that two marriages were at that time performed in the family and there is nothing to suggest that the amount borrowed was excessive. Secondly, on the 5th July 1922, another sum of Rs. 200 was borrowed on a promissory note and on the evidence that borrowing also was for a family necessity as some dowry had to be given to a girl of the family. These are the three debts: (Rs. 3,000, Rs. 1,000 and Rs. 200) on which the previous suit was based which led to the passing of the mortgage decree and the sale. I am of the opinion that all the debts are wholly binding on the family. I have so far dealt with the case on the footing ( most favourable to the plaintiff ) that notwithstanding the release, Kanniappa and his sons continued to be members of the joint family. On this finding alone the plaintiff' s suit may be dismissed.

6. But was the release deed a sham? The evidence of defendant 8 and of Loganatha Mudaliar is clearly to the effect that subsequent to this deed, defendant 1 was not living in the family house but at 5, Bungalow Street. The evidence also points to the fact that defendant 1 was conducting an independent carriage factory while the old concern was being conducted by the other members of the family. It must then be remembered that Kanniappa was not in 1912 a young man who had just come of age, but was an experienced and elderly man of the age of 43. The onus is upon the plaintiff to show that the release was intended to be inoperative and he has signally failed to do so. There is no noubt, therefore, that Kanniappa ceased after this transaction to be a member of the family.

7. It is a more difficult question to decide, Did Kanniappa alone separate from the family or did he, in executing the deed, represent also his sons who were then minors? In the view I am taking of the ease, it is unnecessary to decide this question. It is true that what is termed a release deed may in effect be a partition deed: Umed Babar v. Kushalbhai [1909] 11 Bom. L. R. 396 and Ramdas v. Chabildas : (1910)12BOMLR621 If the transaction amounts to a partition, it is equally true that although the minor sons may not be parties to the deed, they will be nevertheless represented by the father; whose act is ordinarily binding upon them. Turning to facts: there are indications to show that the parties at any rate believed that the entire branch became severed. It is said for the plaintiff that neither Kanniappa nor his adult sons took any part in the transaction I have set forth above of 1919 and of 1921. The title-deeds were allowed to be in the possession of the other members and on the plaintiff's own showing no member of his branch took the slightest interest in the concerns of the family. Furthermore, the sons of Kanniappa were trained as silversmiths whereas every other member was attending to the carriage factory. But, as I have said, I do not propose to decide the question whether Kanniappa's sons became separated or not. Granting then that they continued to be joint, they were fully represented in the transactions by their uncles Arunagiri and Munuswami. The former, as I have said was constituted the manager and every member would be bound by his acts done in that capacity. What, then, is there to show that the interest of Kanniappa's sons (granting they had an interest ) was not intended to be bound by the acts of the manager. He was competent to mortgage their interest, he purported to mortgage the whole property and there is nothing in the deed to repel the natural inference that what was intended to be conveyed was the entire property. Sankaranarayana Pillai v. Rajamani A. I. R. 1924 Mad. 550 and Unamalai Ammal v. Abboy Chetti : (1926)50MLJ172 are directly in point. The recital in the mortgage deed 'there are no heirs to the aforesaid house other than ourselves ' does not show that the right of the sons of Kanniappa was denied; even if it was, the statement may be treated, in the circumstances, as surplusage. In this connexion, the question may be asked, if defendant 5 executed the mortgage, why did not the defendant 2, who was also an adult, join in its execution? The answer is twofold. In the first place, defendant 5 might be older than defendant 2 and no evidence on this point has been adduced by the plaintiff. Secondly, defendant 5 was actually conducting the carriage factory, whereas defendant 2 did not interest himself in it at all. I have, therefore, come to the conclusion that, even in the assumption that the plaintiff and his brothers continue to remain members of the family, the transactions are binding upon them.

8. On behalf of defendant 10 it is urged that she as a widow of a coparcener has a right to reside in the house in question (the same being the family house) and that I must make a declaration to that effect. The debts which led to the Court sale are family debts and they are therefore, binding upon her and I am unable to conceive how such a right can be claimed. If authority is needed, Ramanathan v. Rangammal [1889] 12 Mad. 260 (F. B.) covers the point.

9. In the result the plaintiff's suit is dismissed and I direct him to pay under Order 33, Rule 11, the costs of the Government. He shall also pay the costs of defendants 8 and 9 (one set).


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