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Rubbi Roy Vs. Abilak Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal293
AppellantRubbi Roy
RespondentAbilak Roy and ors.
Cases ReferredSubramaniyayyan v. Subramaniyayyan I.L.R.
Excerpt:
hindu law - mortgage for legal necessity by managing brother of joint family--sale in execution of decree obtained against mortgagor alone--rights of purchaser and other members of joint family. - .....minor at that time. but the suit which was brought upon the mortgage bond was not brought against jori and abilak, but only against jori. that being so, the question arises whether the decree, and the sale which followed, would at all affect the interest of abilak. we think it is quite clear that it does not. the case of a decree being passed against the father acting as the representative of the family consisting of himself and his sons, is quite distinct from the case of a manager acting on behalf of his minor brothers. it was held in a pull bench decision, in the case of subramaniyayyan v. subramaniyayyan i.l.r. 5 mad. 125 that in a case where the elder brother, acting as a manager, executes a mortgage bond, if a decree be obtained against the executant of the bond and not against.....
Judgment:

Mitter and Field, JJ.

1. In this case we are of opinion that the decree, which was passed, and the execution which followed upon it, did not affect the interest of Abilak Roy. It is true that his elder brother, Jori Roy, as managing member of the family, raised a loan in order to meet certain legal necessities of the family, and the lower Appellate Court has found upon the evidence that the mortgage was binding upon Abilak Roy, who was a minor at that time. But the suit which was brought upon the mortgage bond was not brought against Jori and Abilak, but only against Jori. That being so, the question arises whether the decree, and the sale which followed, would at all affect the interest of Abilak. We think it is quite clear that it does not. The case of a decree being passed against the father acting as the representative of the family consisting of himself and his sons, is quite distinct from the case of a manager acting on behalf of his minor brothers. It was held in a Pull Bench decision, in the case of Subramaniyayyan v. Subramaniyayyan I.L.R. 5 Mad. 125 that in a case where the elder brother, acting as a manager, executes a mortgage bond, if a decree be obtained against the executant of the bond and not against his other brothers as well, the interest of the brothers who are not parties to the suit would not be affected by the decree, and the execution sale, although the mortgage itself might be binding upon them. Upon this point, namely, whether the decree and sale would, under the circumstances stated above, affect the interest of the minor brothers, who were not parties to the suit, all the learned Judges of the Madras High Court who sat in that Full Bench were unanimous, although there was a difference of opinion as regards the question, how far the mortgage itself was binding upon the younger brothers. But we are not called upon to decide this latter question in this case. The plaintiff, who is the auction-purchaser of the share of Jori Roy, seeks to obtain possession of the entire family property on the ground that in execution of the decree which was obtained against Jori Roy the whole of it has passed. We think that the interest of Abilak was not affected by the sale.

2. We, therefore, modify the decree of the lower Appellate Court, and allow the plaintiff a decree for two gundas and one krant with costs in proportion in all the Courts, and dismiss the claim in respect of Abilak's share.


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