1. The lessees of the Sivaganga Zamindari brought O.S. No. 68 of 1901, against a number of defendants, for possession of about 13 and odd Kurrukkams of land, lying within the limits of Sekkalakkottai, Sivaganga Zamin. The Zamindar was subsequently added as the fourth plaintiff and one Karuthan Ambalam was also added as fifth plaintiff. The suit which was originally instituted in the Court of the Subordinate Judge of Madura East, was decreed, in plaintiff's favour, by the Temporary Sub-Court of Madura, on 22nd February, 1908. The High Court confirmed the decision of the Temporary Sub-Court in A. Section No. 77 of 1901, on 4th February, 1914. One Meyyappan Servai is the transferee of the decree and is the appellant herein. Defendants 129 and 130 are the sons of the 61st defendant. They were brought on record after their father's death, in E.P. No. 734 of 1918. The appellant applied for execution of the decree, against the defendants 129 and 130, in E.P. No. 555 of 1919, in respect of two plots, one rectangular plot on which there is a house and another a traingular plot which is vacant and which is situate to the south of the former. They both form part of the extensive plot decreed to the plaintiff. The defendants 129 and 130 opposed the application for execution on the ground that they were not the legal representatives of the 61st defendant, that the plots in question fell to their share on partition with their father some years before 1901, when the suit was instituted; that the 61st defendant had no right or title to it, and the building was put up by them out of their own earnings; and that the father was never in possession of the house. The Subordinate Judge of Sivaganga held that the partition arrangement set up by the defendant was not proved: that they were not the legal representatives of the 61st defendant, and that they acquired a title to the property by prescription and dismissed the application for execution. Against this order, Meyyappan Servai has preferred this appeal and defendants 129 and 130 are respondents 1 and 2. The appeal was fully argued, on both sides, and there is no reason to doubt the correctness of the finding of the Subordinate Judge, on the question of the partition arrangement. Mr. Section Srinivasa Iyengar stated that he did not rely on the partition set up by his clients. His contention is that the defendants 129 and 130 ar8 not the legal representatives of the 61st defendant and they being members of an undivided Hindu family, the decree against the 61st defendant could not be executed against them. Before considering the question of law raised, it is necessary to consider what facts are established by the evidence.
2. The appellant's contention is that the rectangular plot was acquired by the 6 lab defendant, from defendants 40 and 50 and the triangular plot was never the property of the 61sb defendant and has always belonged to the 50th defendant.
3. [His Lordship then discussed the evidence and held that the rectangular plot was purchased by the 61st defendant, from defendants 40 and 50, under Ex. B, during the pendency of the suit, and the triangular plot never belonged to the 61st defendant, or his sons. His Lordship then proceeded as follows.]
4. It is contended that the defendants 129 and 130 have acquired a title to the plots in question, by prescription. It is difficult to see how they could have acquired a title by prescription. The finding in the case is that, the trespass by the defendants was within ten years before the suit. So they could not have acquired by prescription a title against the Zamindar, before the date of suit. They could acquire a title by prescription, only if the plots were not included in the suit, or the persons in real occupation of the plots were not made parties to it. There is nothing to show that the father was not in possession of this rectangular plot. There is nothing to warrant the supposition that the plaintiffs omitted to make the defendants 129 and 130, parties to the suit, when they were in exclusive possession of that plot, and that they made 61st defendant, a party, who was not in actual possession. The defendants never pleaded that their title was traceable to trespass by them and that the father was not in occupation of the plot. The plots in question are admittedly parts of the extensive piece of land, claimed by the plaintiffs and decreed to them, as the plan attached to the decree shows. The onus is very heavily on the defendants to show that they were in exclusive occupation of the plots, before the suit, and that the plaintiffs failed to make them parties. They have not been able to discharge the onus; and I have no hesitation in holding that they were not in exclusive possession of the plots in dispute. On the other hand, the evidence on record supports the contention that the father was in occupation and that he claimed title to them under Ex. B. A number of union receipts are produced, for the purpose of showing that defendant No. 129 was in occupation to the exclusion of the father. Union receipts are not in the first place evidence of title and the payment of Union tax does not show that the person who pays it must necessarily be in occupation. It is next contended that defendants 129 and 130 are not the legal representatives of the 6lst defendant and the decree against the father cannot be executed against the sons. Mr. Srinivasa Iyengar fairly admitted that if it be held that the 61st defendant was sued in a representative charaoter, his clients would be bound by the decree and they could not resist execution. But his contention is that there is no evidence to show that the father was sued in a representative capacity, and that the defendants 129 and 130, being undivided members of a joint Hindu family, the decree against their father alone cannot bind the sons and cannot be executed against them, after the father's death. Considering the array of the defendants in the case and considering the fact that in no case were the father and son made parties to the suit, the inference can safely be drawn that the plaintiffs made the managing member of each family, party to the suit, and they did not implead the defendants in their individual capacity. When a suit is brought, in respect of the family property, impleading the father as a defendant, the decree passed against the father binds the sons The case of a managing member, other than the father, may perhaps stand on a different footing. But where there is a dispute about property, which is admittedly family property, and when the father is made a party to the suit, it cannot be said that the father is made a party, in his individual capacity, and not as the manager of the family. In Trevelyan on Hindu Law, at p. 278, there is the following passage:
The members of a family ate ail bound by a decree, obtained bona fide against the father, or other manager, as such manager, for a debt duly incurred in the management of the property, whether it were or were not charged upon the family property, and by a sale of the family property in pursuance of such decree, or in a suit brought against the manager of a joint family business, in respect of such business, or in any suit brought in respect of the family property, although they were not patties to the suit.5. In Minakshi Achi v. Chinnappa Udayan (1901) 24 Mad. 689 it was held that the decree for maintenance against the father, which gave a charge in favour of the plaintiff, could be executed against the son, after the death of the father, even though the son was not made a party to the suit. In Kamal Kutti v. Ibrayi (1901) 24 Mad. 658, it was held that a decree, obtained against the Karnavan of a Malabar Tarwad, could be executed against the tarwad property. The question in all these cases is, what was the nature of the suit and what was the relief claimed? The mere form should not be held to decide the question one way or the other. The contentions of the parties to the relief claimed and the relief decreed should be considered, in arriving at a decision, as to whether a person was made a party in his individual capacity, or as representing the family. In Sheo Shankar Ram v. Jaddo Kunwar (1914) 36 All. 383 (P.C.), their Lordships of the Privy Council held:
There are occasions, including foreclosure actions, when the manager of a joint Hindu family so effectively represents all the members of the family, that the family as a whole is bound.6. Vide also Marivittil Mathu Ammo. v. Pathram Kunnot Cherukot (1907) 30 Mad. 215. In this case, there is no allegation that the father was negligent, or acted against the interests of the family. He no doubt remained ex parte. But that does not necessarily mean that he was oareless of the interests of the family. All the defendants had one common purpose, namely, that of claiming the property in the suit as the property of the Kottayyur Vallambars and that the Zamindar had no title to it. The defendants did not put up separate defences and they bad only a common defence. The mere fact therefore of the 61st defendant remaining ex parte does not lead to the inference that he was either careless or indifferent to the interests of the family. When a number of defendants have a common interest, and when the contest is carried on by some of them against the claim of the plaintiff bona fide, the defendants who were ex parte areas much bound by the decision in the case, as those who are not ex parte. In Gopalacharyulu v. Subbamma (1920) 43 Mad. 487, it was held:
A decision in a suit instituted and conducted bona fide, by some only of the Agraharamdars of a village against the Zamindar and the other Agraharamdars, for a declaration as to the Kattubadi payable by them to the Zamindar, is res judicata, against the representative of an Agraharamdar, who was a defendant, but died pending the appeal, whose legal representative was accidentally not brought on record, either in the appeal, or the second appeal.7. This case and the case in Sheo Shankar Ram v. Jaddo Kunwar (1914) 36 All. 383are clear authorities for the position, that if by mistake or oversight persons who have an interest in the property in dispute are not joined as parties, but a person or persons who could represent the interest of such persons are made parties, the decision would bind all those who have an interest in the property. It must be so, in the case of an undivided joint Hindu family. Can it be reasonably contended that if children are born to the members of the joint Hindu family, during the pendency of a suit extending over several years, the shares of the after-born children are not bound, inasmuch as they are not parties to the suit? It is very strongly urged that Section 53 of the Civil Procedure Code applies only to money decrees and that if a decree is passed in respect of family property against the father it cannot be executed against the sons. It is very difficult to see, how if the decree binds the members of the joint family, it cannot be executed against them. Mr. Srinivasa Iyengar's contention is that a separate suit should be brought for enforcing the decree. Under Order 21, Rule 35, possession can be taken from all persons who are bound by the decree. But it is urged that Section 53 should be read as applying only to money decrees, passed against the father, which could be executed against the sons or other descendants. Section 53 is a new section, whioh explains the expression legal representative, contained in Section 50. It was intended to reconcile the conflict of views, that existed between the Bombay and Madras High Courts. It is in these terms:
For the purpose of Section 60, and Section 52, property in the hands of a son, or other descendant, which is liable under Hindu Law, for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased, which has come to the hands of the son or other descendant, as his legal representative.8. As I understand the section, if the property is one, which is liable under the Hindu Law, or the payment of a debt of a deceased ancestor, that property shall be deemed to be property, which has come to the hands of the eon, or other descendant, as his legal representative. The contention of the respondent would necessitate the addition of the words, 'in respect of the decree so obtained.' There is no warrant for adding these words, and it must be held that where a decree is passed against the father, in respect of property which would ordinarily be liable, under the Hindu Law, for the payment of his debt, that that property is the property of the deceased in the hands of the son or other descendant, for the purposes of Sections 50 and Sections 52. Great reliance is placed by the respondents upon a decision of the Bombay High Court in Chunilal Hirilal v. Bai Mani (1918) 42 Bom. 504. In that case, a decree for injunction was sought to be executed against the surviving coparceners, who were not parties to the decree. It was held that the surviving coparceners were not bound by the decree; for, on no construction of the term 'legal representatives,' could the members of a joint Hindu family be brought, within its definition, as contained in Section 2(11) of the Civil Procedure Code. Heaton, J., in the course of his delivering the judgment, observes as follows:
The decree-holder justified his rights to do this, on the ground, the only posssible ground, that he could take, that the sons were the legal representatives of the persons, against whom the decree was obtained. There is a definition of the expression 'legal representative' in the Code of Civil Procedure. The sons here certainly do not fall within the meaning of that definition. They do not in law represent the estate of a deceased person and they are not persons on whom has devolved the estate of a person, sued in a representative character. So long as they do not come within the definition of 'legal representative,' then of course it is futile for the decree-holder to refer to Section 50, or Section 52 of the Code. But it is argued that Section 53 gives to the decree-holder in this case a legal right to enforce the injunction against the sons of the brother; and that might be so, if Section 53 were purely descriptive of the kind of property, which was deemed to be property of the deceased, which has come to the bands of the sons, or other descendants, as their legal representatives. If that section were purely descriptive and not limitative, then there would be force in the contention I am considering. But I think it is limitative as well as descriptive.9. With all respect to the learned Judges, I am unable to agree with their view that Sections 53, Civil Procedure Code, is limitative and not descriptive. The judgment can, however, be supported, on the ground, that an injunction, is purely a personal remedy and a decree for injunction, obtained against the father's apprehended interference with the plaintiffs' property, cannot bind the sons, who are not parties to the suit. This decision has been followed in Dwarka Das v. Krishna Kishore (1921) 2 Lah. 114. There, the brother of a deceased member of a joint Hindu family, was sought to be brought within the definition of the expression 'legal representative.' It was held that he was not his legal representative. The case has no application to the facts of the present case. It is well settled, that a decree against a member of a joint Hindu family cannot be executed, after his death, against the family property, in the hands of the other members, unless he was sued in a representative capacity; but where the dispute is about property, which is liable to be sold for payment of the debt of a deceased ancestor, a decree against him in respect of that property is binding upon the son, or other descendant, of the deceased ancestor. If the property could be made liable for the debt of a deceased ancestor, it is difficult to see, why a decision, in respect of such property, should not be held, to be binding upon persons, who are the descendants of such ancestor. The position of a father is different in several respects from that of an ordinary manager of a Hindu family; and in view of that, the law allows execution of a decree passed against the father, against joint family property, in the bands of the sons, the limitation being that the property should be such as would be liable for the payment of his debt. In Sahib Thambi Marakayar v. Hamid Marakayar (1911) 36 Mad. 414 it was held: 'The general Rule of law undoubtedly, is that in suits where one person is allowed to represent others, as defendant in a representative capacity, any decree passed one bind those others, only with respect to the property of those others, which he can in law represent and no personal decree can be passed against them, although the parties on record co-nominee may be made personally liable. This is the principle applied in suits against a Hindu family, as represented by its managing member, and in suits to which Order 1, Rule 8 of the Civil Procedure Code, 1908, is applicable. In this case, taking all the circumstances into consideration, I have no hesitation in holding that the father, 61st defendant, represented the family. The defendants 129 and 130 cannot object to the execution of the decree, on the ground that they were not parties to the suit. The decree was passed, in respect of the family property, which the father could sell and which is liable to be sold for his debts. In this view also, I hold that the contention of the respondents must fail. In the result, the appeal is allowed with costs in both Courts.
10. Mr. Srinivasa Iyengar conceded that if the respondents were bound by the judgment in O.S. No. 68 of 1901, as they must be, if they claimed through the 61st defendant, they could not set up any title by adverse possession.
11. But he argued that there was no proof that the 61st defendant was other than a trespasser, and secondly that there was no authority for holding that any decree obtained against the manager of a joint family, other than a decree for the recovery of a debt, could be executed against members of that family, who succeeded to the family property by survivorship, unless they were parties to the decree.
12. On the facts, it seems to be clear from the admission of Meyyappan (129th respondent), at the enquiry in the lower Court, from the admission of Vellayyan (130th respondent), in prior proceedings (Exs. E and D) that the disputed site was ancestral property acquired by purchase, and partitioned between the 61st defendant (Annamalai), and his sons (129th and 130th respondents): and from the statement of Chinnayya Ambalam (50th defendant and P.W. 2), and from Exs. B. and I, it appears that the purchase was made pendente lite, from the 40th defendant and another, who themselves purchased from the Kottaiyur Vallambars, who set up rights opposed to those of the Zamindar of Sivaganga in the suits.
13. As the father of respondents 129 and 130 and the Kottaiyur Vallambars were all litigating bona fide, under the same title, all) including the 61st defendant's sons, are equally bound by the result: vide Gopala Charyulu v. Subbamma (1920) 43 Mad. 487.
14. The point of law as to execution, based upon Beaman and Heaton, JJ's judgments in Chunilal Harilal v. Bai Mani (1918) 42 Bom. 504 is a very strange and novel one to my mind. These learned Judges declare that Section 53, Civil Procedure Code, is limitative and not descriptive. With due respect, I can see no justification for limiting the word 'decree' in Section 53 to that class of decrees, which are known as money decrees. The limitation in Section 52 is express. But Section 53 refers both to Section 50 and to Section 52. Seeing that when the legislature intends to make a limitation the same is clearly expressed, as it is in Section 52, there is every reason against implying such limitation, when it is not expressed in Section 50. If the word 'decree' is to be understood, as used in that limited sense in Section 53, how is it to be understood in Sections 49 and 50? Nobody has ever hitherto thought of suggesting that no other decree except decrees for money can be transferred, or can be executed against legal representatives of judgment-debtors.
15. In Kamal Kutti v. Ibrayi (1901) 24 Mad. 658, Benson, J., observed pointedly that if members of a family are bound by a decree obtained against the manager, it was difficult to see on what principle they could be treated as strangers to the decree for the purpose of execution. If the decree could be executed against them, this implied that they were parties or representatives of parties. In Ananthanarayana v. Swaminatha Aiyar (1914) 1 L.W. 643, a decree for the recovery of immoveable properties obtained against a father of a family, governed by Mitakshara Law was held to be executable against the sons.
16. In Sahib Thambi Marakayar v. Hamid Marakayar (1911) 36 Mad. 414, it was stated that in suits against a Hindu family, as represented by its managing member, any decree passed would bind those others, with respect to their property, which he can in law represent.
17. It is unnecessary to multiply authorities. It seems too obvious a proposition to require to be supported by a series of decisions. I agree with my learned brother that the lower Court's order cannot be supported and that the appeal should be allowed with costs in both Courts.