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Radha Pershad Singh Bahadur Vs. Ramkhelawan Singh and ors. and Shamlal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal302
AppellantRadha Pershad Singh Bahadur
RespondentRamkhelawan Singh and ors. and Shamlal Singh and ors.
Cases Referred and Nobin Chandra Boy v. Magantara Dassya I.L.R.
Excerpt:
hindu law - joint family--mitalcshara law--joint property, liability of, to nale in execution of decree against one member of a family--civil procedure code (act xiv of 1882), sections 278, 280 and 283--suit for declaration of liability to sale in execution--limitation--res judicata. - prinsep, j.1. the plaintiff granted a lease of samuria purana for ten years to nowrong behari and ramanand singh, and on 30th december 1887 obtained a decree against them for arrears of rent for 1291-1294f. (1884-1887).2. in execution he attached certain properties. objection was raised by various members of the family of ramanand singh, the judgment-debtor, who claimed a portion of these properties, alleging, also, that they had separated from ramanand singh. the objection was allowed. the subordinate judge observed that the decree was a personal decree against ramanand, which the decree-holder cannot extend in execution. he also found on the evidence before him that it was not proved that the objectors were separate from the judgment-debtor, ramanand singh, and he accordingly declared.....
Judgment:

Prinsep, J.

1. The plaintiff granted a lease of Samuria Purana for ten years to Nowrong Behari and Ramanand Singh, and on 30th December 1887 obtained a decree against them for arrears of rent for 1291-1294F. (1884-1887).

2. In execution he attached certain properties. Objection was raised by various members of the family of Ramanand Singh, the judgment-debtor, who claimed a portion of these properties, alleging, also, that they had separated from Ramanand Singh. The objection was allowed. The Subordinate Judge observed that the decree was a personal decree against Ramanand, which the decree-holder cannot extend in execution. He also found on the evidence before him that it was not proved that the objectors were separate from the judgment-debtor, Ramanand Singh, and he accordingly declared that only the participable rights or the right to partition of the joint-property held by Ramanand could be sold.

3. The landlord-plaintiff has now sued to get this order set aside so as to bring to sale the right, title and interest of the objectors, who are defendants, together with the judgment-debtor Ramanand Singh, in execution of the decree obtained against Ramanand alone. He asks that 'it may be held that all the defendants as members of a joint family were benefited from the leasehold property; that therefore the shares of all the defendants are liable for payment of the decretal money; that the attached properties are fit to be sold by auction; and that orders may be passed for their sale.'

4. The Subordinate Judge has found that of the defendants 'Shamlal was directly interested in, nay benefited by, the ticca in question,' and that therefore his properties released are liable to sale under the decree obtained by the plaintiff for ticca rent. He has not found whether the family was joint or separate, but apparently his opinion is against the plaintiff's allegation that the defendants form a joint family, for he describes the evidence as 'vague conflicting, and unsatisfactory,' and he has accordingly declared that the shares of Shamlal Roy's sons in the property released shall be liable to sale under the rent decree. The suit as against the other defendants has been dismissed.

5. Against this decree the plaintiff and Shamlal with his sons have preferred separate appeals, so that the entire case is before us, and it is convenient, therefore, that both these appeals should be tried together.

6. I may first of all state that the evidence in regard to the state of the family has been rightly described by the Subordinate Judge.

7. It is first objected that any claim on account of rent is now barred by limitation. That, however, is not the object of the present suit, which is to have it declared that the decree against Ramanand was not a personal decree against him only, but a decree under which all the defendants are liable, not because they joined with him in the lease, for there is no evidence of this, and that is not the plaintiff's case as tried in the lower Court, or placed before us in appeal, but because they have participated with him in the enjoyment of the village leased. It is, in other words, sought to make them liable for a decree in a suit to which they were no parties, and which the Subordinate Judge, who passed the decree, describes as a personal decree against Ramanand only.

8. This case is very different from the cases in which members of a joint family have been made liable under a mortgage executed by only one of them on which a decree has been given against the mortgagor in a suit against him alone, the debt being proved to be one for which they are all equally liable. Here it is not shown that the defendants took the lease with Ramanand. Indeed, from the nature of the first suit, and the evidence before us in these appeals, it seems clear that the lease was given to Ramanand, and Nowrong Behari, who is not concerned in this case, and the plaintiff's lessor had no idea of associating others in it. It seems to me, therefore, that he can look to the lessees alone for payment of the rent, and he acknowledged this by the form of his former suit against the lessees only.

9. Two cases have been especially relied upon by the appellants : the case of Nobin Chandra Roy v. Magantara Dassya I.L.R. 10 Cal. 924 and Sitanath Koer v. Land Mortgage Bank of India I.L.R. 9 Cal. 888.

10. In my opinion the cases of Nuthoo Lall Choedhry v. Shoukee Lall 10 B.L.R. 200 : 18 W.R. 458 and Sitanath Koer v. Land Mortgage Bank of India I.L.R. 9 Cal. 888 cannot properly be distinguished. In both cases there was an adverse order under Section 280 of the Code in execution of the decree passed releasing the right, title and interest of the defendants from liability to that decree, and both the suits were brought to avoid that order by making the defendants liable to the decree under execution. COUCH, C.J., in delivering the judgment of the Court in the first case, argues from the conduct of the plaintiff' in suing only certain persons on the contract, and obtaining a decree against them alone, whereas if he intended to make them all liable, he should have framed his suit differently, and he dismissed the second suit as brought on the same cause of action as in the former suit. Still this suit was brought in consequence of the release of the right, title and interest of the defendants in the property under attachment in which admittedly the two judgment-debtors as members of a joint Hindu family had shares. These facts were exactly those of the second case in which the father and son, &c;, had joined in a mortgage by which certain property had been hypothecated, and in execution of the decree obtained against those two persons certain property had been attached but released from attachment so far as the right, title and interest of five other persons who had not joined in the mortgage and were no parties to that decree.

11. As I understand Section 283, and Sections 280, 281 and 282 to which it refers, the suit contemplated by it is a suit to establish a right which the plaintiff claims to the property in dispute by reason of an order passed under either of those sections. Section 278 describes the procedure on a claim preferred or objection made to the attachment of any property in execution of a decree on the ground that such property is not liable to such attachment. Section 279 declares that the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. Section 280 requires the Court to release, either wholly or in part, the property under attachment, if it finds that that property was not in the possession of the judgment-debtor, &c; and Section 281, which is the converse of Section 280, directs the Court to disallow the claim if it finds such possession with the judgment-debtor. Section 282 does not concern the matter before us, as it relates to the right of a mortgagee to the property under attachment. Section 283 gives the right of suit to avoid an order passed under any of the sections just mentioned, by establishing the right claimed to the property in dispute.

12. Now it seems to me that all these sections contemplate the liability or non-liability of the property attached to the decree under execution, because it is the property of the judgment-debtor or liable to the decree passed against him as sued in a representative capacity so as to bind the parties who have objected to the execution. They do not contemplate a suit to establish liability of third persons to satisfy the decree by the sale of their right, title and interest in that property. That is a suit of another description. As I understand the judgment of Couch, C.J., in the case of Nuthoo Lall Chowdhry v. Shoukee Lall 10 B.L.R. 200 : 18 W.R. 458, he adopts the same view of the law, for he regards the suit as one to make the defendants liable under the contract which formed the subject of the former suit, and he holds that such a suit will not lie. Mitter, J., in the case of Sitanath Koer v. Land Mortgage Bank of India I.L.R. 9 Cal. 888 gets over the difficulty by regarding it as a suit within the terms of Section 283 of the Code to set aside an order under one of the previous sections releasing the property of the defendants for attachment, and by doing so he distinguishes between that case and Nuthoo Lall Chowdhry's case; but the facts in that case were precisely one and the same as in the case decided by Mitter, J.

13. So far, therefore, I cannot regard the case of Sitanath Koer v. Land Mortgage Bank of India I.L.R. 9 Cal. 888 as an authority which I am bound to follow. With all deference to the learned Judges 1 am of opinion that it has proceeded on a misconception of Nuthoo Lall Chowdhry's case. Then we have been referred to the case of Nobin Chandra Roy v. Magantara Dassya I.L.R. 10 Cal. 924, in regard to which I may observe that it does not appear from the report that either of those cases was cited or considered. That was a case in which a mortgage was executed by the managing member of a Hindu family for money advanced to carry on the business of that family, and a decree was passed against the debtor, and on attachment of the mortgage property in execution of that decree, an objection was made by the mother of the judgment-debtor claiming under inheritance from her deceased brother. The share so claimed was released from attachment, on the ground that the claimant was not a party to the decree. The suit was accordingly brought by the mortgagee to declare that the claimant as a member of the joint Hindu family was liable for a debt incurred on her behalf to carry on business in which she was a partner. The Court of First Instance dismissed the suit as res judicata, but on appeal Garth, C. J., and Beverley, J., set aside the order. It was held that the object of the suit was not to charge the defendant with the same liability as if she had been made a party to the former suit, but to declare that the property mortgaged which had been attached in execution was liable to satisfy that decree, and that if the mortgagee could establish his allegation that she was a partner in the business carried on by the judgment-debtor, or that not being a partner she had expressly or impliedly consented to the mortgage, she would be liable. The suit was remanded to the Court of First Instance to determine these issues.

14. There can be no doubt regarding the law thus expressed. And now to apply this law to the case before us. The decree passed was a personal decree against Ramanand. This appears from the decree itself, but in addition to this the Subordinate Judge who passed that decree has himself stated that it was a personal decree when releasing from attachment in execution of that decree the share of the property attached which was claimed by the defendants in this suit. The object of this suit is stated to be to make the defendants liable to that decree, though they were no parties to it, and though it has been declared to be a personal decree, that is a decree against Ramanand alone. He was sued for rent alone under a lease, and he was declared to be liable as lessee for that rent and not as representing others, viz., the defendants. The property attached, 1 may here state, is not the land covered by the lease, but other property. It was not until this property was attached and the defendants claimed a right, title and interest, and to have it exempted from attachment as not liable to a decree passed against Ramanand, that the lessors sought to make them liable. No doubt in this plaint he has stated that, 'though the ticca pottah and kabuliat were through cunning and a precautionary measure caused by the defendants to be executed in the name of Ramanand Singh, one of the members of the family, yet in reality all the defendants as members of a joint Hindu family were co-sharers in the leasehold property, and all the defendants benefited from the leasehold property.' As I understand from this it is intended to state that the lease was granted to the entire family. If this were so the suit for rent should have been brought against them all and not against the lessees only, and the plaintiff should not have rested satisfied with a decree against Ramanand. Then again no attempt has been made to show that they all joined in the lease, and this is not even put to us on appeal. The only point pressed on us is that contained in the last paragraph of the portion of the plaint just quoted, that as the defendants have benefited from the leasehold property they are liable for the rents. But even if the defendants do form a joint family, and this is by no means clear, they have several of them separate property. No presumption can therefore arise that Ramanand acted on their behalf. Nor is there any evidence that he is the managing member so as to have been authorized to take the lease for them all. There is no doubt some evidence that some of the defendants collected, rents from rayats apparently under the lease, but that would not be sufficient by itself to show that the lease was taken by Ramanand for them all, and to explain away the plaintiff's own conduct in suing Ramanand alone and obtaining a decree only against him.

15. For these reasons I cannot hold that the decree against Ramanand was a decree binding on the other defendants who were no parties to that decree.

16. The appeal must, therefore, be dismissed, but, under the circumstances of the case, without costs, the decree of the Subordinate Judge against Shamlal and his sons being set aside.

Ghose, J.

17. These appeals arise out of a suit instituted by the Maharaja of Doomraon. The facts are shortly these:

On the 5th Kartic 1285 F.S., the Maharaja of Doomraon executed a ticca lease of the village Sumaria Purana for a term of ten years from 1285 to 1294 F.S., in favour of Nowrong Behari and Ramanand Singh. These two persons belonged to two different families. Ramanand, however, is a member of a family composed of several individuals; and one of the matters in dispute in this case is whether the family was, during the term of the ticca, joint or separate.

18. On the 31st December 1887, the Maharaja obtained a decree for arrears of rent on account of the ticca for the years 1291 to 1294 (1884-1887) against Nowrong Behari and Ramanand, the ticcadars; and in execution of this decree he attached certain properties which belonged to Ramanand and the other members of his family. Upon this, a claim was preferred by Saligram Singh, Sugaram Singh, Radha Charan Singh, Ramkhelawan Singh, Shamlal Singh and Mussamat Mussila, widow of Rajaram Singh, on the ground that they were separate in estate from Ramanand, and that they were in separate possession of the attached properties according to their respective shares. It was however contended by the decree-holder that the objectors and Ramanand were members of a joint family, and that they jointly took the ticca in the name of Ramanand and were therefore bound to satisfy the decree. The Subordinate Judge (the execution Court) was of opinion that the decree was a personal decree against Ramanand, and it could not, therefore, be expanded in execution; and that, although the family was in joint and not in separate possession of the properties, still the decree-holder could not be entitled to sell, in execution, anything more than the participable rights of Ramanand, and that the interest of the other members of the family should be released from attachment. This order was passed on the 3rd June 1890.

19. The present suit was instituted on the 1st of June 1891, upon the ground that all the members were joint in mess and estate, and though the ticca was, through cunning and as a precautionary measure,' taken in the name of Ramanand alone, yet 'all the defendants, as members of a joint Hindu family, were co-sharers in the leasehold property,' and that they all 'benefited' from that property; and the plaint asked to have it declared that the other members of the family were joint with Ramanand and participated in the leasehold property, and were, therefore, liable to pay the amount covered by the decree, and that the properties which had been attached were liable to be sold in , satisfaction of that decree.

20. The genealogy of the family is set out in page 11 of the printed paper-book; and it will be observed that the, defendants in this suit are Shamlal Singh and Saligram Singh, two brothers, Ramkhelawan Singh, RadhaCharan Singh, Ramanand Singh (one of the parties to the lease) and Sugaram Singh, nephews of Shamlal and Saligram, and also the sons of these individuals.

21. The suit was defended by the defendants other than Ramanand, upon the ground that the family was a separated family; that they had no interest in the ticca; and that the claim for arrears of rent for 1291 to 1294 (covered by the decree), which was then sought to be enforced, was barred by limitation.

22. The Subordinate Judge has held that, so far as the plaintiff seeks to make the defendants personally liable for the decretal amount, the claim is barred by limitation, but that it is 'maintainable' only for the purpose of having it declared that the attached properties are liable to be sold for satisfaction of the decree, and then, addressing himself to the question, whether the family was joint or separate, and whether the defendants other than Ramanand were interested in the ticca, he is of opinion that the evidence as to the family being joint is 'vague, conflicting and unsatisfactory,' and that save and except Shamlal the other members of the family were not interested or participated in the ticca: He has accordingly given the plaintiff a partial decree declaring that the share of Shamlal Singh and his sons in the properties released from attachment shall be liable to be sold in execution of the rent decree obtained by the plaintiff.

23. Against this judgment, the two appeals before us have been preferred. The appeal No. 261 is by the plaintiff, and the other appeal No. 304 is by Shamlal.

24. We have had considerable discussion upon the question whether such a suit against parties who were not defendants in the previous suit, and against whom no decree was consequently obtained, is at all maintainable; it being contended by the defendants that the cause of action against the defendants Ramanand and the other members of the family was but one and the same, and that that cause of action had been exhausted in the previous suit, and that the orders of the execution Court under Section 280 of the Procedure Code would not give the plaintiff a fresh cause of action. The question, I must say, is by no means free from difficulty; it has, however, been considered by this Court in cases to which I shall presently refer.

25. In the case of Sitanath Koer v. Land Mortgage Bank of India I.L.R. 9 Cal. 888, it appears that the Land Mortgage Bank had advanced money to a Mitakshara father upon mortgage of ancestral property, one only of his six sons joining in the mortgage. A decree was obtained upon this mortgage against the father and that son; but when the Bank sought in execution to sell the mortgaged properties, the other sons objected, and the objection was allowed. Thereupon, the Bank sued all the sons to establish their right to sell the mortgaged property, upon the ground, among others, that the debt covered by the mortgage bond and the decree was a valid debt, for which the father was competent to pledge the property. This Court held that the claim of the objectors having been dealt with and allowed under Section 280 of the Civil Procedure Code, the subsequent suit was maintainable under Section 283 of the Code. They distinguished the case from the case of Nuthoo Lall Chowdry (10 B.L.R. 200 :18 W.R. 458) and another unreported case that wore quoted before them; and observed as follows:

It was not the sole object of this suit to make the appellants before us liable on the original cause of action.

26. In the case of Nobin Chandra Boy v. Magantara Dassya I.L.R. 10 Cal. 924, a member of a joint Hindu family executed a mortgage for raising money for the purpose of the joint business, and the creditor obtained a decree against the obligor only. When he sought to sell the mortgaged property, he was met by an objection on the part of another member of the family, upon the ground that she was entitled to a moiety of the property, and the claim was allowed. Thereupon the creditor brought a suit for the purpose of enforcing his decree against the share of the property claimed by the objector. The Court of First Instance held that the suit was barred by the provisions of Sections 13 and 43 of the Procedure Code. This Court, however, came to a different conclusion, and, among other matters, they observed as follows:

It is true that if the only object of the suit had been to charge the defendant No. 1 with the same liability as was charged upon the defendant No. 2 by the former decree, it would have been open to the objection upon which the case of Kendall v. Hamilton L.R. 4 App. Cas. 504 and the other cases which were cited during the argument were decided. But it was by no means the only object of the suit to fix the defendant No. 1 with that liability. That undoubtedly is the subject of the first prayer in the plaint. But the second prayer is that the order of the 3rd of May 1881 (in the execution proceedings) may be set aside, and that the whole of the mortgaged property may be declared liable to be sold in execution of the former decree obtained against the defendant No. 2. This claim (except so far as it seeks to set aside the order of the 3rd of May) is a perfectly legitimate one and is not open to the objection, which is fatal to the first claim.

27. And lower down they observe:

But, as a matter of law, there seems no objection to the claim thus made by the plaintiff. It is one of a totally different nature from that which is made in the first prayer : and it is in fact the only means open to the plaintiff of correcting the error, if it is one, which has been made in the execution proceedings. It is clear that if two out of three parties are sued for a debt due from the partnership and a decree is obtained against those two and execution issues against the partnership property, if the third partner should apply successfully in the execution proceedings to have his share in the property released the plaintiff's only remedy would be a regular suit, not for the purpose of making the third partner personally liable for the debt, but for the purpose of making the share of the third partner available to satisfy the case.

28. The principle which underlies these two cases is, I think, applicable to this case, though the cases themselves may be distinguished by the fact that in both of them there was a mortgage and the decree-holder sought in the subsequent suit to have the shares of the other members of the family in: the mortgaged property declared liable. The correctness of these rulings, however, was impeached before us by the learned vakil for the defendants, and he relied on the case of Nuthoo Lall Chowdhry (10 B.L.R. 200: 18 W.R. 458), already referred to, and the case of Hemendro Coomar Mulliok v. Rajendro Lall Moonshee I.L.R. 3 Cal. 353.

29. So far as the case of Nuthoo hall Chowdhry is concerned, the report does not clearly show what was the true relief asked for in the subsequent suit, and what was the cause of action for such suit. And COUCH, C.J., seems to have regarded that suit as based upon the original contract and upon the same cause of action viz., the non-payment of the money which gave rise to the previous suit. In the case of Hemendro Coomar Mullick, it would appear that a decree had been obtained against one of several joint makers of a promissory note, but failing to obtain satisfaction from him the creditor brought a subsequent suit for recovery of the amount against the other makers of the promissory note. And it was held, upon the authority of the case of King v. Hoare 13 M. & W. 494 (505) and some other cases, that the suit would not lie because, as stated by Garth, C.J., the cause of action for the injured party in the case of either a joint contract or joint tort is but one, and that cause of action is exhausted by a judgment being obtained against any one of them. The Chief Justice also referred to the case of Nuthoo Lall Chowdhry in support of the view he adopted.

30. No doubt if the plaintiff in this case had sought to make the other members of the family personally liable for the money covered by the decree in the previous suit, there can be no doubt that this relief could not be granted, the cause of action in both the suits being but one and the same, and that cause of action having been exhausted in the previous suit. But the question is, whether the suit is not maintainable so far as it seeks for a declaration that the property released from attachment is liable to be sold for satisfaction of the decree.

31. Garth, C.J., who decided the case of Hemendro Coumar Mullick was also one of the Judges who decided the later case of Nobin Chandra Boy, and the distinction that was pointed out on that occasion between the case where a creditor seeks to make a third party personally liable for the debt, and that in which he asks that the share of his property be declared liable to satisfy the decree, would equally apply in the present case.

32. The principle which ought to determine the question we have been called upon to decide may perhaps be well deduced from certain other cases to which I shall presently refer.

33. In the case of Bissessur Lull Sahoo v. Luchmessur Singh L.R. 6 I.A. 233 : 5 C.L.R. 477 it would appear that one Nath Dass had a son Ramanatb, and the latter had two sons, Masaheb and Chumun. A property, Muddenpore, had been purchased in the name of Ramanath when he was joint with Nath Dass, and there were two other properties, Ramnuggur and Rudder-pore, which were leaseholds, one in the name of Nath Dass and the other in the names of Nath and Ramanath. The zemindar obtained two decrees for rent on account of Rudderpore and Ramnugger, one against the guardian of Masaheb and Chumun and the other against Masaheb as heir of Nath Dass. And there was a third decree obtained against Masaheb for rent of Rudderpore. In execution of these three decrees the property Muddenpore was sold, and the question that arose in the suit was whether Muddenpore could be sold in execution of those decrees and what might be their true character. It was found that the family was joint, and it was held that Muddenpore must be taken to have been purchased by Ramanath for the family; that the lease of Ramnuggur must be assumed to have been taken on behalf of the family by Nath Dass, and that the debt was a joint family debt; that Masaheb must be taken to have been sued in his representative capacity, and therefore all the three decrees could be properly executed against the joint family property, as having been obtained against the respective defendants in their representative capacity.

34. In Jeo Lal Singh v. Gunga Pershad I.L.R. 10 Cal. 996 the facts were that a joint Hindu family, consisting of three brothers, held a tenure which stood in the zemindar's sherista in the name of one of them, Gupta Lall, who was the manager of the family. There were two zemindars, each owning a moiety of the estate. One of them obtained a decree for his share of the rent against the recorded tenure-holder, and in execution thereof the right, title and interest of that individual was sold under Section 64 of Bengal Act VIII of 1869 and purchased by the defendant, who, under that sale, obtained possession of the whole tenure. Upon this, the two brothers of Gupta Lall brought a suit to recover their share of the joint property, and the claim was disallowed.

35. It was held that the judgment-debtor Gupta Lall had been sued as representing the ownership of the whole tenure, and therefore the decree and sale bound the interest of the other members of the family. Garth, C.J., in delivering the judgment of the Court, among other matters, observed as follows:

Now, in the present case, Gupta Lall, the defendant No. 4, was not only the manager but the sole registered owner of the tenure, and Adhikari Koer, in claiming against him the entirety of her share of the rent, took the ordinary and proper course of suing the tenant, who in the zemindars' sherista represented the entire tenure. Moreover, when she had obtained her decree, she was unable, as she only owned a share in the zemindari interest, to sell the whole tenure under Section 59. She could only obtain her execution in the way in which she proceeded to enforce it, namely, by selling the right and interest of the judgment-debtor, under Section 64. But as between her and the persons interested in the tenure she had a right to treat Gupta Lall as the sole owner of the tenure, and when she sold his right and interest for the rent due, she was, in our opinion, selling the tenure itself. As his name was registered as the sole owner of the tenure, he represented his brother's interest in it as well as his own. The rent was due from them all, though he alone was sued for it, and as they were equitably liable to pay the amount of the decree, it was only just that their interest as well as his should be sold to satisfy it.

36. It seems to me that, if in either of the cases of Bissessur Lall Sahoo and Jeo Lall, the other members of the family to whom the property belonged had objected to the sale in the course of the execution-proceedings taken out by the decree-holder, and their objection had been allowed, upon the ground that, not being parties to the suit in which the decree was obtained, their share could not be sold, a suit could be maintained for the purpose of obtaining a declaration that the decree was one which had been obtained against the judgment-debtor in his representative capacity, and therefore the whole family property was liable to be sold in execution of that decree.

37. Having in view the principle which underlies these two cases, as also the cases of Sitanath Koer v. Land Mortgage Bank of India I.L.R. 9 Cal. 888 and Nobin Chandra Boy v. Magantara Dassya I.L.R. 10 Cal. 924 I am unable to say for the appellant that the present suit does not lie, for it may well be regarded as a suit for declaration that the decree was obtained against Ramanand in his representative capacity, and that, therefore, the shares of the other members of the family in the properties attached are equally liable to satisfy that decree. But whether the plaintiff is entitled upon the facts of this case to the declaration that he has asked for is wholly a different question.

38. As regards the contention that the claim is barred by limitation, I need only say that, if the suit be regarded in the light I have just expressed, and if the order of the execution Court gave the plaintiff a cause of action, it is obvious that the plea of limitation is not tenable, notwithstanding the expiry of three years from the time when the rent for which the decree was obtained actually fell due.

39. I now proceed to consider the question whether, for satisfaction of the decree in question, the plaintiff is entitled to sell the property of the defendants other than Ramanand, or, in other words, whether the decree, though obtained against Ramanand, is binding upon the other members of the family.

40. Bearing in mind the principle upon which the cases of Bissessur Lall Sahoo and Jeo Lal were decided, it seems to me that the success of the plaintiff's suit depends upon proof that the defendants Were members of a joint undivided family with Ramanand and that the decree was obtained against Ramanand in his representative capacity. [His Lordship then went into the evidence and concluded as follows:] Upon all these grounds I am unable to say that the decree obtained by the Maharaja against Ramanand was in the latter's representative character, and that for satisfaction of that decree the property of the other defendants is liable to be sold.

41. The result is that the appeal No. 261 is dismissed, and the appeal No. 304 allowed, but, under the circumstances, without any costs.


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