1. This appeal arises out of a suit by defeated claimants in execution of a decree on a mortgage. The property in question originally belonged to a family consisting of two branches, Karuppaya's branch and Arunagiri's branch. The mortgagors against whom the decree was passed under which the defendant purchased, represented Arunagiri's branch. The plaintiffs claim title under Karuppaya's branch by a series of sale deeds and by the devolution of title to themselves on the death of their father which occurred about five years before these proceedings began. The plaintiffs are brothers. The eldest brother, P.W. 1 is not a party to the suit. After the defendant had purchased the property under the mortgage decree, he applied for delivery and was obstructed by the eldest brother of the plaintiffs, P.W. 1. He then applied to the Court for the removal of their obstruction and the result was an order, Ex. II dated 24th November 1930, whereby it was held that the plaintiffs' brother and his tenant were not in possession and the removal of their obstruction was directed. No suit was filed to contest this decision. But shortly afterwards there was a further obstruction, this time by the second brother (plaintiff 1 here) and again there was an application by the present defendant for the removal of the obstruction, resulting in an order dated 11th April 1931, which is Ex. A. This order merely says that the counter-petitioner relied upon the same documents -which had been found to be inconclusive in the former claim petition and that a prima facie case for possession was therefore made out in favour of the present defendant. The present suit was filed on 11th April 1932, that is to say, exactly one year after the order in Ex. A, for a declaration that this order was not operative upon the plaintiffs' 5/12ths share of the property, for partition and profits. The 5/12ths share is arrived at by excluding the eldest brother and assuming that Karuppaya's branch was entitled to a half of the whole property. The plaint in the present suit ignores altogether the proceedings in the claim petition which ended with the order Ex. II.
2. The only contention which has been argued in Second Appeal is that the present suit is barred by limitation, having been preferred more than a year after the adverse order on the eldest brother's claim petition Ex. II, the eldest brother being the managing member of the family litigating with reference to joint family properties and therefore assumed to represent the joint family in that litigation. I must however observe that there were other contentions taken by the appellant, but as I am deciding in his favour on this main contention, it has been unnecessary to go into these other contentions.
3. Now, the actual affidavit filed by the eldest brother in the earlier claim proceedings has not been put into evidence and the appellant can only succeed on the basis that it has been established that the eldest brother was the managing member of the family litigating in respect of joint family properties and that from these facts a presumption must be drawn that he represented the family, the presumption being one which the plaintiffs should have rebutted by adducing actual evidence that the eldest brother was litigating only in his personal capacity. Now the eldest brother, P.W. 1, in his evidence admits that he was managing the family property for some time after his father's death. He goes on to qualify this admission by stating that he and his brothers 'join together and manage the family affairs jointly,' and that he alone does not manage. If however P.W. 1 was the manager of the joint family property after his father's death, that event having preceded his claim petition by about four years only and there being no evidence that he ever ceased to be the manager, to my mind it may be taken that he was in fact the managing member of the family at the time of the first obstruction. There is no question that the property with which we are concerned was joint family property and admittedly there was no partition between the brothers. We are therefore concerned only with the presumption which is to be drawn from these simple facts. The judgments of the Courts below give no assistance, for, although this plea of limitation based on the earlier claim order was expressly taken in the written statement and also in the appeal petition to the lower Court, neither Court has really dealt with it as raised. The law on the subject is summarized as' follows in the latest edition of Mayne's Hindu Law, page 387:
Where the suit relates to joint family property and the person sued or suing is the manager, he need not be described as such in the plaint, though it is advisable to do so. If it appears that in fact he was the manager and the suit related to the joint family property or its rights or liabilities, it must be presumed that he was suing or being sued in his representative capacity.
4. Sir Dinshaw Mulla in his principles of Hindu Law, Edn. 8, p. 286, observes:
It seems that the manager of a joint Hindu family may sue or be sued as representing the family in respect of the transaction entered into by him as manager of the family or in respect of the joint family property and that a decree passed against him in such a suit would bind all other members of the family, if, as regards minors, he acted in the litigation in their interest and as regards adults, with their consent. The consent need not be express; it will be implied if they do not come and apply to be joined as parties to the suit.
5. I have been referred to no case on this subject actually arising out of proceedings by way of a claim in execution. There is a decision of a Bench in Venkatasomaraju v. Varahalaraju A.I.R. (1930) Mad. 48 wherein it was held that an adverse order passed under Section 145, Civil P.C. against the father of a family with reference to family property binds the sons who were not nominally parties but had notice of the proceedings. The true basis of the decision appears to have been that stated by Wallace J., namely that the father was in possession as the manager of the family and that the real question in issue was the right of the family to possession, for which purpose the father as manager represents the family. In Lingangowda v. Basangowda here it was held that the manager in a previous suit had in fact been clearly acting on behalf of himself and his children in protecting the family property and the decree against him would, bind the minor members of the family, it was pointed out that, had the father succeeded in the former case, his sons would have got the benefit of the litigation. In Ramanathan Chettar v. S.R.M.M.C.T.M. Firm A.I.R. (1937) Mad. 345 the Court had to deal with a mortgage over the entire family property by the manager who alone was sued and was not expressly sued as the manager of the family. It was held that the decree bound the entire interest covered by the mortgage, the basis of the decision being that the mortgagor represented the family.
6. In Venkatanarayana Rao v. Venkatasomaraju A.I.R. (1937) Mad. 610, which was a case of a suit on a mortgage executed anterior to the purchase of property by the manager on behalf of the family the manager alone was impleaded in the suit and he was not expressly impleaded in that capacity. The learned Judges held that there was a presumption from the circumstances that the defendant was in fact the manager of the property and that the property concerned was family property and that he was impleaded in his capacity as the family manager, though not expressly so described, so that the decree would bind the interests of the junior coparceners in the subject-matter of the suit. The decision in Mallikarjuna Varaprasada Rao v. Venkatarathnam A.I.R. (1938) Mad. 739 was a case of a manager both of a joint family and of a joint family business who sued in his own name to recover money due to the business without stating in the plaint that he was suing on behalf of the family. It was held that the suit was not bad by reason of the omission from the plaint either of the names of the junior coparceners as parties or of any express plea that the suit was brought on behalf of the family. In Sheo Shankar Ram v. Jaddo Kunwar A.I.R. (1914) P.C. 136 there is a decision of the Privy Council in a mortgage suit brought with reference to joint family property against persons who were managers of the family, the junior coparceners not being impleaded. It was held that the latter were effectively represented and bound by the decree, even though they had no notice of the suit and the plaintiff did not know of their existence. Another decision to the same effect to which I have been referred is found in Bissesur Lall Sahoo v. Maharajah Luchmessur Singh (1881) 6 I.A. 233.
7. It is argued for the respondent that in all these cases, there were facts to justify an inference that the manager had actually brought the suit in his capacity as representative of the family even though he did not expressly claim such capacity. When one comes to study the decisions, it appears that what is described as an inference of fact is really the same thing as a presumption drawn from certain facts. No case has been cited before me either showing that when the manager sues or is sued with reference to joint family property, there is no presumption as to the capacity in which he sues, or to the effect that there is a presumption that he sues in his individual capacity. The essential point to remember seems to be this. When a person is a member of a joint family and is in management of the joint family property, he would ordinarily in the natural course of affairs be deemed to be acting on behalf of the family when he deals with the family property. It is not the usual thing for a manager of joint family property to alienate or mortgage family property without indicating in any way that he is concerning himself only with his own individual share and that he is not acting in that capacity which he usually enjoys. Similarly he would not ordinarily enter upon a litigation in respect of joint family property in any capacity other than the full capacity which he has as the manager in charge of the affairs of the family. The presumption that the manager suing in respect of joint family property is acting on behalf of the other members of the family, is really a presumption of the same class as those dealt with in Section 114, Evidence Act. That is to say, it is a presumption of a fact likely to have happened having regard to the common course of human conduct and public and private business. Normally the conduct of the manager of a Hindu family bringing a suit with reference to joint family property is not to sue in respect only of his own personal interest, but to sue as representing the family as a whole.
8. In the present case when the eldest brother of the plaintiffs filed his claim petition it would appear that one or more of the plaintiffs were minors. I am of opinion that the action of the manager in contesting the right of the court auction-purchaser claiming under the rival branch was intended to be and was in fact for the benefit of the minors. So far as the adult coparceners are concerned, they took no action either to support or dissent from the manager's litigation. It is therefore to be inferred that they were represented by the manager and I have no doubt whatever that, had the eldest brother succeeded in his claim they would have strenuously contended that the victory enured for their benefit. It is moreover not in accordance with the policy of the law when a right in joint property has been litigated by the managing member of the family, to permit subsequent litigation by a succession of junior coparceners who have not chosen to get themselves impleaded in the action brought by the managing member. I hold therefore that the order in Ex. II was an order passed against the managing member of the plaintiffs' family agitating a title claimed in common by the family as a whole and that he represented the junior coparceners and that, a suit not having been brought by these junior coparceners within one year from the date of the order, the order is conclusive as against them. The appeal is therefore allowed and the plaintiffs' suit is dismissed with costs throughout. Leave to appeal is refused.