S. Ganesan, J.
1. Sri T. A. Sankaralingam, the plaintiff-decree holder has preferred this appeal against the order of the learned Additional District Judge of Salem in C.M.A. No. 119 of 1967 reversing the order passed by the learned Additional District Munsif of Sankari at Salem in R.E.A. No. 1152 of 1966 in R.E.P. No. 131 of 1965 in O.S. No. 888 of 1960.
2. Sri Nallusami Poosari, Sri Arumugham, Sri Gandhi and Sri Natanasabapathy Poosari, the father of Sri T. N. Mani, the first respondent herein who were brothers executed a deed of mortgage on 1st December, 1948 in favour of the appellant herein Sri Sankaralingam comprising the property involved in execution in question. Gandhi who was then a minor was represented by Arumugham. In that document the mortgagors had recited that the properties mentioned in the mortgage schedule belonged to them ancestrally, that they had borrowed in all a sum of Rs. 3,000 under the mortgage and that they had agreed to pay interest at the rate of 12 annas per hundred per month.
3. As the mortgagors did not pay up the mortgage amount in time, the appellant herein instituted a suit in O.S. No. 888 of 1960 for realising the mortgage money; and apart from Nallusami Poosari, Arumugam and Gandhi, Mariyayee (the wife of Nadanasabapathy) and the first respondent herein T. N. Mani, son of Nadanasabapathy were impleaded in the suit as defendants 2 and 3 respectively. T. N. Mani was described as a minor aged 16 and was represented in that suit by the second defendant Mariyayee, his mother acting as guardian. It was also stated that Gandhi who was a minor at the time of the mortgage had attained majority and was a major on the date of the suit; and it was further alleged that Mariyayee and T. N. Mani were in possession and enjoyment of the assets of Nadanasabapathy, one of the executants of the mortgage, since the latter's death. There was a further averment that, as the suit mortgage debt was borrowed for business and family expenses and as T. N. Mani and Gandhi had derived the benefits of the suit debt, they were bound to pay the suit mortgage money.
4. Nallusami Poosari, Arumugam and Gandhi as well as Mariyayee who was acting as the guardian of T. N. Mani remained absent and were set ex parte in the suit; and it was decreed that the defendants should deposit into the Court a sum of Rs. 4,477.83 with interest on Rs. 3,454 at 51/2% per annum from the date of the decree on or before 23rd February, 1961.
5. In execution of the said mortgage decree, the appellant herein filed R.E.P. No. 131 of 1965 for bringing the mortgage property to sale. Thereupon T. N. Mani, the first respondent herein who had been impleaded as the third defendant in the suit and was described therein as a minor represented by his guardian and mother Mariyayee filed R.E.A. No. 1152 of 1966 for releasing the properties from execution proceedings. The execution application was opposed on two grounds: (1) that the properties had fallen to his share in a family partition which took place in or about the year 1950 and that the other respondents had no manner of right in or title to the same, and (2) that, as he had attained majority six months before the mortgage suit was instituted, the mortgage decree and the execution proceedings, in which he was shown as still a minor, are null and void.
6. The first ground has been rejected by the Courts below on the finding that the partition set up by the first respondent herein is not true and this finding is not now challenged in appeal.
7. The only question which is seriously urged now relates to the validity of the mortgage decree and the execution proceedings. It is fairly well established and is not now disputed that the first respondent herein had attained majority some months before the mortgage suit was filed; and it is seen that, on his application R.C.A. No. 939 of 1966 in R.E.P. No. 131 of 1965, he was declared a major by the Court of the Additional District Munsiff on 3rd October, 1966. It is contended in the first place that the mortgage decree is invalid, as the first respondent who was already a major had been shown as a minor in the suit. In the second place it is contended that the mortgage executed by the first respondent's father Nadanasabapathy is not for family benefit or necessity and that his father Nadanasabapathy did not receive any pie at all out of the mortgage amount. Nadanasabapathy's 1/4th share in the properties in question cannot therefore be affected by the mortgage decree. Both the Courts below have concurrently found that the mortgage was for family benefit or necessity and that it would bind the first defendant's father Nadanasabapathy; and it appears from the order of the learned Additional District Judge that the only question which was then argued on behalf of the first respondent herein was whether the mortgage decree and the execution proceedings would bind him inasmuch, as he was admittedly a major before the mortgage suit was instituted. I do not find any material to differ from the concurrent finding of the Courts below on the question of family necessity and benefit.
8. The main question which arises for consideration now in this appeal is whether the mortgage decree and execution proceedings will bind the first respondent herein who is admittedly proved to have been a major on the date of the mortgage suit. The learned Additional District Munsif relying upon a Full Bench decisions of this Court in Venkatanarayand Rao v. Venkatasamy Raju : (1937)2MLJ251 , has held that the mortgage decree and the execution proceedings will bind the first respondent herein. The learned Additional District Judge, on the other hand, relying upon two Bench decisions of this Court in Jagannadham v. Seshagiri Rao A.I.R. 1917 Mad. 42, and Murugappa Mudaliar v. Dasappa Nayanim Varu I.L.R. (1950) Mad. 779 : (1950) 1 M.LJ. 1, has taken the view that the mortgage decree and the execution proceedings were null and void and cannot bind the first respondent, as he was wrongly described as a minor and had no notice of the proceedings as a major.
9. The learned Counsel for the appellant-decree-holder concedes that normally a decree against a person who was really a major at that time but had been wrongly sued as a minor will be null and void; but he stoutly contends that Nallusami Poosari was the manager of the joint family after the demise of Nadanasabapathi and that, as he was impleaded as the first defendant, would completely change the position. His contention is that the mortgage suit had been filed against Sri Nallusami Poosari as the manager of the joint family in a representative capacity for realisation of the debt which would bind the entire family, that the mortgage decree would therefore bind the other coparceners including the first respondent herein even if they were not impleaded eo nomine as parties to the mortgage suit and that the misdescription of the first respondent as a minor would be of no consequence in this case.
10. Reliance is placed upon the judgment of a Full Bench of this Court reported in Venkatanarayana Rao v. Venkatasamy Raju : (1937)2MLJ251 , cited above, and the observations of Venkataramana Rao, J., are to the following effect:
Where a decree has been obtained against a manager as representative of the joint Hindu family liabilities, it will be binding on his undivided brothers and the fact that they are not parties eo nomine will not any the less render them parties to the suit.
It is also pointed out that, in Papamma v. Narayana : AIR1948Mad54 , this Court has observed that a decree in a suit against the manager of a Hindu family binds the other members as res judicata and that, merely because the other members were not parties to the suit by name, it does not follow that they are not bound by the decree in the suit. Reference is also made to the decision of a Full Bench of the My sore High Court in Channabasavegowda v. Rangegowda A.I.R. 1951 Mys. 38, wherein Venkataramaiya, J., has observed that a suit filed against the manager qua manager of a Hindu joint family in a representative character will bind all the members of the family, even though they may not actually be made parties to the proceedings when the debt is one due by the whole family.
11. Reference is also made to other judgments in Jai Kishan v. Ramchand A.I.R. 1935 Lah. 1, Madhgouda v. Halappa : AIR1934Bom178 , Ram Kishan v. Ganga Rao A.I.R. 1931. Lab. 559, and these cases lay down that a manager can sue and he sued on behalf of the joint family and can effectively represent all the other members of the family, that hence a decree passed against the manager in respect of a liability incurred within the scope of his authority is executable against the interests of the other members in the family property, even though they had not been made parties to the suit and the decree does not show on the face of it that the defendant had been sued in his capacity as manager and that it is not the frame of the suit or the form of the decree which is conclusive of the matter, but whether the liability which is the basis of the decree was in fact incurred by the defendant within the scope of his authority as the family manager.
12. It is however pointed out in a Full Bench of the Lahore High Court in Labhu v. Ram A.I.R. 1944 Lah. 76, that, if, however, there are circumstances pointing to the conclusion that the members of the family are fighting their cause in their individual rights, this principle of the manager's capacity to effectively represent the other members of the family can have no operation. This principle has been approved in Lilabai v. Guruprasad (1946) 224 Ind.Cas. 586. In Chandi Prasad v. Balaji : AIR1931All136 , it is pointed out by the Allahabad High Court that, if in a suit against the joint family, the plaintiff also impleads a minor member in his individual capacity and does not get a guardian appointed for him, the fact that the manager has been made a party to the suit does not make the decree binding on the minor.
13. It must, however, be pointed out that in Hazaritlal v. Champala (1961) M.P.L.J. 360, the Madhya Pradesh High Court has taken the view that the fact that, besides the manager, other members of the family were added as parties will not necessarily lead to the inference that the manager was not sued in a representative capacity.
14. The learned District Munsif has in his order stated that there was no dispute about the fact that the mortgage was executed by the first respondent's father Nadanasapabathy as the head of his branch and his brothers for family business purposes and this statement is not now challenged in appeal. I also agree on principle that the manager of a joint family can be effectively sued by a creditor in a representative capacity and that a decree obtained against him as (manager of the family will effectively bind all the other coparceners of the family, if it is found that the debt was incurred by the manager was for family benefit or necessity. The fact however, remains that the mortgage suit in this case was not filed against any of the I brothers as the manager in a representative capacity on behalf of the joint family. I have elaborately set out the particulars of the plaint in the mortgage suit earlier; and the plaint reveals that the suit was not filed in a representative capacity at all. The mortgage was not executed by the manager of the family and all the brothers were parties to the transaction. None of the brothers was set up in the plaint as the manager of the family; on the other hand, care had been taken to see that all the executants who were then alive and T. N. Mani the sole heir of the other executant (the deceased Nadanasapabathy) were individually represented in the suit. It is true that there was an averment in the plaint to the effect that the mortgage debt was borrowed for business and family expenses; but admittedly there was no averment there that the suit was filed in a representative capacity against the manager of the family. It may be contended on the strength of the decision of the Madhya Pradesh High Court in Hazarilal v. Champalal 1961 M.P.L.J. 360, cited supra that the fact that the other coparceners have been added along with the manager will not be a conclusive circumstance against the suit having been filed in a representative capacity; but I am clear the Madhya Pradesh decision can have no relevance to the facts of this case. As I have already pointed out, the suit was not filed in a representative capacity against the manager of the family; on the other hand, as I have already pointed out the suit was framed against ail the executants of the mortgage as well as the heir of one of the executants who was dead before the institution of the suit. I am therefore dear that the Cases cited by the learned Counsel for the appellant will have no application to the present case.
15. As the mortgage suit has been filed not in a representative capacity but against the first respondent herein as the heir of his father Nadanasabapathy, it is plain that the mortgage decree will not bind him, unless he was effectively represented. Admittedly he was shown in the mortgage suit as a minor while he was actually a major and it is not disputed that a decree obtained against the first respondent herein as a minor is null and void and will not bind him. The fact that the other executants who are the other members of the family were impleaded as defendants to the suit, in my view, cannot be of any consequence so far as the liability of the first respondent herein under the decree is concerned. Further, in the absence of any allegation that any of them had acted as the manager of the family of which the first respondent was a member, it is plain that they can have no authority to represent him in the mortgage suit or in the execution proceedings. The order of the learned Additional District Judge that the mortgage decree and the execution proceedings will not bind the share of the first respondent herein in the suit properties is therefore proper.
16. In the result, the appeal fails and is dismissed, but under the circumstances without costs. Leave granted.