M.R. Sethuratnam Iyer v. Chinna Solan

1. On the allegations that the plaintiffs' father obtained a decree against the father of the present defendants and also against defendant 3, in O.S No. 1180 of 1904, for the suit lands, and took delivery thereof on 27th September 1908, through Court in execution of the decree, and that in 1909 the defendants trespassed upon about 2 acres of the said lands and in 1917 upon about 5 more acres and that they were also attempting to disturb the plaintiff's enjoyment of the lands in B schedule, the plaintiffs instituted the original suit for possession of the A schedule lands, and for an injunction and if necessary also possession of the B schedule lands, attached to the plaint, with mesne profits. Of defendants 1, 2 and 3, who are brothers, defendant 3 disclaimed all interest in the suit lands, and defendant 2 was subsequently exonerated by the plaintiffs, and defendant 1, the really contesting defendant in the suit alleged that the lands belonged to the defendants, that in the partition which took place 25 years prior to the suit most of the suit lands fell to defendant 1's share that after the death of their father the defendants were in possession of his properties also, that the decree in the prior suit was not binding on the defendants, that the plaintiff's father never took actual delivery of the plaint lands in execution of the prior decree, and that the suit was barred by limitation. There was also a further plea raised in the additional written statement of defendant 1 that the suit for injunction in respect of B schedule properties was not maintainable as the plaintiffs was not in possession of the same.

2. Six issues were framed by the ??? Munsif, issue 1 raising the question alleged trespass and also limitation issue-2, raised the question of partition issue 3 raised the question ??? defendants 1 and 2 were precluded ??? putting forward the pleas by ??? the decision in O.S No. 1180 of ??? issue 4 raised the question ??? plaintiff was entitled to an ??? in respect of B schedule lands issue 5 was whether defendants ??? has acquired title by reason of a ??? possession of both warams as contended by them; and issue 6 raised the question of the relief to which the plaintiffs were entitled.

3. The District Munsif found that the partition set up by the defendants was not proved, that the trespass alleged by the plaintiff was proved, and that the suit was not barred by limitation as it was filed within 12 years from the date of the delivery of the lands to the plaintiffs' father in execution of the decree in the prior suit. The plaintiffs were given a decree for the possession of the suit lands (both A and B schedules) with mesne profits.

4. Defendant 1 preferred an appeal from the District Munsif's decree. The learned Additional Subordinate Judge reversed the decision of the District Munsif and dismissed the suit. The plaintiffs have preferred the present second appeal. The learned Additional Subordinate Judge upheld the decree of the District Munsif that the partition set up by the defendants had not been proved. That is a finding of fact and must be accepted. As I understand the learned Additional Subordinate Judge's judgment, he reversed the decision of the 1st Court by reason of his findings upon 2 points viz., that defendants 1 and 2 were not bound by the decree in the prior suit, and that plaintiffs had no possession within 12 years prior to the present suit. It is therefore necessary to consider those two points at some length.

5. The prior suit was instituted by the plaintiffs' father against the defendants' ??? (Korattayyan) who was defendant 82 in the prior suit, and the ??? defendant 3 who was defendant 83 in the prior suit. The defendants' father is said to have been very ??? at the time, and defendant 3, the ??? senior most male member of the ??? and the eldest son of Korattayyan was also a party to the suit. The defendants' father having died, the ??? was continued against his ???, defendant 83 (the present defendant 3), already on record. The ??? suit was contested by the defendants but the then plaintiff was ??? a decree by the District Munsif. ??? learned Additional Subordinate ??? held that defendants 1 and 2 were ??? by that decree because neither defendants' father nor defendant 3 was sued as manager, the learned Judge's view evidently being that unless they were sued expressly as managers, that decree could not be binding upon defendants 1 and 2. His reasoning is contained in para 10 of his judgment:

“Besides, there are no indications to show that either defendant 3, or the father of defendants 1 to 3 was sued as manager. If the father was sued in his capacity as manager, defendant 3 would have been an unnecessary party. If defendant 3 was the manager their father would have been unnecessary. The plaintiffs' father had to file a number of suits; apparently he was not aware of the existence of these defendants. But I do not think that the evidence justifies in inference that either defendant 3 or defendant 3's father was sued as manager of the family of defendants. I find that defendants 1 and 2 were not bound by the decree.”

6. I think the learned Subordinate Judge's decision of this point is unsustainable. The circumstance that neither the father of the present defendants nor defendant 3 was expressly described in the prior plaint as manager is not conclusive to show that the decision is not binding on defendants 1 and 2. The decision in Kunjan Chetty v. Sidda Pillai . [1899] 22 Mad. 461. and Subbanna Bhatta v. Subbanna . [1907] 30 Mad. 324, are authorities in support of this position. As remarked by Benson and Wallis, JJ. in Subbanna, Bhatta v. Subbanna at p. 326:

“Further, where as hare, the managing in amber is sued for the purpose of charging the joint family property, we think, he must be considered to be sued as a representative of the joint family even if it is not so expressly stated in the plaint.”

7. As remarked by Subramanya Ayyar and Benson, JJ., in the case reported in Kunjan Chetty v. Sidda Pillai at p. 462:

“If the father is manager and the question is issue is one which equally affects him and the other members of the family, and if the suit is properly defended, the adjudication will bind all the persons interested along with the father for the reason that, in that case, it must be presumed that the father represents the interest of all.”

8. Thus the circumstances that neither the defendants' father nor defendant 3 who were parties to the prior suit was described expressly as manager of the family, does not by itself make the decision in the prior suit not binding on the present defendants who were members of an undivided family. Further the provisions of Section 11, Expl. 6 of the CPC, have also to be considered in this connexion, to see whether the prior decision is res judicata against the present defendants:

“Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right, shall, for the purpose of this section (S. 11) be deemed to claim under the persons so litigating.”

9. As decided by the Privy Council in the case reported in Lingan Gowda v. Bastan Gowda . A.I.R 1927 P.C 56 a decree obtained by or against the managing member of the joint Hindu family is binding upon minor members of the family, under S. 11 Expl. 6, if it appears to the Court that the manager was acting in the former litigation on behalf of the minors in their interests. Their Lordships observed at p. 453 (of 51 Bom.):

“In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he comes of age and then bring an action or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to the Expl. 6, Section 11 of the CPC to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors.”

10. The finding of the lower Court as regards the binding nature of the decree in the previous suit could not I think be supported.

11. The decision of the learned Subordinate Judge on the question of limitation also is, I think, unsustainable. If the decree was binding on the joint family, including the present defendants, then the delivery of possession made to the decree-holder of that decree was also equally binding on the joint family. The learned District Munsiff in the present case came to the conclusion that under Ex. B the lands included in the decree were actually delivered to the decree-holder (father of the present plaintiffs) on 27th September 1908. The present suit was filed on 27th September 1920 and is prima facie not barred by limitation. From the learned Subordinate Judge's judgment, it is not quite clear whether he was or was not satisfied that the decree-holder got actual possession in execution and was in possession for a time, however short, of the said properties after the delivery made to him through Court under Ex. B. It is observed in paras. 16 and 18 of the lower appellate Court's judgment that:

“the evidence is hardly satisfactory to show that the plaintiffs or their lessee or their servants aver enjoyed the property in pursuance of the delivery under Ex. B.”

12. The question to be considered is not whether the decree-holder or his servants “actually enjoyed” the property (para 16) but whether they were in possession by virtue of the delivery made through Court. There is difference between “possession” and ‘enjoyment’. Even if the defendants continued to be in the possession of the properties in spite of the delivery of the properties made through Court yet, as against the defendants to the suit and persons represented by them, the effect of such delivery should be taken to be that the decree-holder was in possession; and consequently a fresh cause of action would arise against the defendants, and limitation would begin to run only from the date of the delivery made through Court. This is made clear by the observations of Sir S. Subramanya Ayyar, Offig. C.J and Bhashyam Iyengar, J., in the case reported in K.K Venkatakrishna Row v. V. Venkappa . [1904] 27 Mad. 262. at p. 270:

“If the judgment-debtor is in possession, such delivery operates as a delivery of actual possession.”

13. The recent decision of a Bench of two learned Judges of this Court (Waller and Madhavan Nair, JJ.) in the case reported in Kamayya v. Mahalakshmi . A.I.R 1927 Mad. 849. also supports this proposition. In that case, the plaintiff obtained a decree for possession and applied for delivery. He obtained only symbolical possession and not actual possession. The defendant was in possession both before and after the delivery for a total period of about 20 years. Plaintiff waited for nearly years from the date of the symbol delivery and then brought a suit as the same defendant for recovery of session. The learned Judges held the ??? suit was not barred by limitation the symbolical delivery gave ??? fresh period of limitation as against ??? judgment-debtor who was not ??? to deny that he was dispossessed, ??? though he was not actually evicted fact the Privy Council in the case ??? in Radha Krishna v. Ram Bahadur . A.I.R 1917 P.C 197. held that symbolical possession was sufficient to interrupt adverse possession, if the adverse possessors were parties to the proceedings in which it was given. The Privy Council approved of the decision of a Full Bench of five learned Judges of the Calcutta High Court, in the case reported in Juggobhundhu Mukerjee v. Ramchander Bysack . [1880] 5 Cal. 584. This has been the view followed by this High Court in the cases reported in Govind Bidiraj v. Venkata Sastrulu . [1907] 17 M.L.J 598. and D. Kamayya v. B. Mahalakshmi . A.I.R 1927 Mad. 849.. The finding of the learned Subordinate Judge on the question of limitation is therefore unsustainable. It therefore follows that even if the decree-holder did not obtain actual possession, a fresh cause of action arises from the date of the delivery made in execution, and so the present suit is not barred. As the decision of the lower appellate Court has proceeded on erroneous principles, I reverse that decision and remand the appeal to the lower Court for fresh disposal according to law on the evidence on record having regard to the observations contained in this judgment. The costs of the second appeal will abide and follow the result of the decision of the appeal on remand. The court-fee paid on the second appeal memorandum will be refunded to the appellants.

P.R.S/V.S

14. Appeal remanded.