Appeal No 112 of 1957
Appeal by special leave from the judgment and decree dated January 28 1954 of the Bombay High Court in First Appeal No 69 of 1950
Purshottam Trikamdas and Naunit Lal for the appellants
C K DaphtarySolicitor General of India section N Andley J B Dadachanji and P L Vohra for respond ents Nos
I and 2
B R L Iyengar for respondents Nos
6 to 9 1961
February 21
The Judgment of the Court was delivered by SHAH J
The genealogy which sets out the relationship between some of the principal parties in this litigation is as follows Mallappa      Balappa Shivappa Basavanappa Chanamalappa   Basalingappa  Rachappa  Parvatewa Balappa deft
9  respdt
12        Shrishailappa Shivappa  Plaintiff 1 plaintiff 2          malappa Chanabasappa Balappa Basavanappa Shrishailppa deft
5 deft6 adopted by deft 7 deft 8 Chanamalappa Mallappa had four sons Balappa Shivappa Basavanappa and Chanamalappa
These four sons formed a joint Hindu family
Chanamalappa separated himself from the joint family sometime in the year 1909 and his other three brothers continued to remain joint
Shivappa was the Manager of the joint family 898 after the death of Mallappa
Shivappa died in 1928
and Rachappa became the Manager of the family
The joint family possessed lands in seventeen villages and many houses in Khanapur
The family had also an extensive money lending business
One Bashettappa Neeli hereinafter referred to as Bashettappawas married to the sister of Rachappa
On July 29 1929 Bashettappa executed a deed of simple mortgage in favour of Rachappa in respect of certain parcels of lands and houses belonging to him to secure repayment of Rs 173000  Rs 76700 out of which were received in cash and the balance represented amounts which Rachappa agreed to pay to Bashettappa s creditors
To one Gurappa Bashettappa owed Rs 8000 as an unsecured debt and Rachappa agreed to pay that debt
In Insolvency Application No 22 of 1929 of the file of the First Class Subordinate Judge Dharwar Bashettappa was adjudicated an insolvent and receivers were appointed by the Insolvency Court to administer his estate
The receivers applied for a declaration that the mortgage deed in favour of Rachappa was in fraud of creditors and was accordingly void
The Assistant Judge Dharwar in Appeal No 25 of 1934 from the order of the Insolvency Court held that Rachappa was entitled out of the mortgage amount to recover Rs 45700 as a secured debt and Rs 31000 as unsecured debt
Gurappacreditor of Bashettappa in the meanwhile filed Suit No 84 of 1932 against Rachappa and other members of his family in the court of the First Class Subordinate Judge Dharwar for a decree for Rs 8000claiming that Rachappa had acting on behalf of the joint family of which he was the manager undertaken under the deed of mortgage to pay that amount and
that he Gurappa had accepted that undertaking
 A decree exparte was passed in that suit against Rachappa on February 281933 and the claim against the other members of the family was either withdrawn  or rejected
On July 23 1939 the three branches of the joint family by mutual agreement severed the joint status and properties movables and immovables beloning to the family were divided
Pursuant to 899 this division lands and houses which fell to the shares of the three branches were mutated in the Revenue and Municipal records in the names of the managers of the respective branches
Movables were also divided
The mortgage amount recoverable from Bashettappa and a claim against one Desai were  it is the case of the plaintiff in the suit out of which this appeal Arises kept joint
Gurappa after making certain infructuous attempts to execute the decree filed dharkhast No 176 of 1940 to recover Rs 11061 6 9 and prayed for an order of attachment and sale of the rights of Rachappa under the mortgage bond dated July 291929
One Ganpatrao N Madiman hereinafter referred to as Madiman offered the highest bid at the court auction and the mortgage bond was sold to him for Rs 20000 An application filed by Rachppa for setting aside the sale pleading that the sale was vitiated by material irregularities and fraud in publishing and conducting the sale was rejected
The mortgage bond was delivered by the executing court to Madiman and orders were issued against Bashettappa and the receivers of his estate prohibiting them from making payments of the dues under the mortgage or any interest thereon to any person or personal except the purchaser Madiman
In Miscellaneous Application No 57 of 1944 Madiman applied to the Insolvency Court to be recognised as an unsecured creditor for Rs 31000 and the application was granted on the footing that the entire interest under the mortgage bond was purchased by him
Receivers appointed by the Insolvency Court thereafter put up for sale
the equity of redemption in the mortgaged properties and the same was purchased for Rs 15500 by Madiman
The sale deed in this behalf was executed by the receivers in favour of Madiman on January 28 1947
Madiman accordingly became the owner of the equity of redemption and claimed to be entitled to the entire mortgagee right as a purchaser of the right title and interest of Rachappa
Basalingappa who was the natural brother of Rachappa and was adopted by his uncle Basavanappa died in 1946 leaving him surviving his widow 900 Parvatewa and two sons Shrishailappa and Shivappa
The sons of Basalingappa who will hereinafter be referred to as the plaintiffs filed Suit No 253 of 1947 for a decree for Rs 123400 by enforcing the mortgage deed executed by Bashettappa claiming that Madiman had at the court auction acquired in the mortgagee right only the right title and interest of Rachappa which was a third and the plaintiffs and defendants 5 to 8 sons of Shivappa continued to remain owners of the remaining two third share
The plaintiffs prayed for a decree that the amount due under the mortgage be awarded to them and in default of payment the amount be realised by sale of the mortgaged property
To this suit were impleaded Bashettappa as defendant No 1 receivers of his estate as defendants Nos 2 and 3Madiman as defendant No 4 sons of Shivappa as defendants Nos 5 to 8 and Rachappa and his son as defendants Nos 9 and 10
Madiman died after the institution of this suit and his sons were impleaded as defendants Nos
4A to 4C and his widow as defendant 4D Madiman s sons were the principal contesting defendants and the main contentions raised by them were 1 that the mortgagee right was the separate property of Rachappa and it did not belong at any time to the joint family of Rachappa defendants 5 to 8 and the plaintiffs 2 that in any event at the partition between the three branches the mortgagee right had failed to the share of Rachappa and that it was not kept undivided as alleged by the plaintiffs and 3 that in Execution Petition No 176 of 1940 the entire interest of the joint family was sold and it was purchased by Madiman and consequently the plaintiffs could not enforce the mortgage
The trial court negatived the contentions raised by the sons of Madiman and held that only a third share in the mortgagee right was purchased at the court auction by Madiman
The court accordingly passed a decree against defendants Nos 4A to 4D for payment of Rs 60933 5 4 and proportionate costs with future interest at 6 per annum on Rs 3046610 8 901 from the date of the suit to the plaintiffs and defendants 5 to 8 within six months and in default of payment for sale of the mortgaged property
Against that decree defendants 4A to 4C hereinafter referred to as the appellants appealed to the High Court at Bombay
The High Court held that the mortgagee right belonged to the joint family that the agreement to pay Rs 8000 to Gurappa was not binding upon that family and therefore in execution of the decree passed in favour of Gurappa only the right title and interest of Rachappa was purchased by Madiman
The High Court further held that there was in 1939 severance of joint family status between the members of the family of Rachappa plaintiffs and others but as in the state of the record in the view of the court a finding on the question whether the mortgage debt was kept undivided could not be recorded they remanded the case for recording a finding on the following issue  Whether it is proved that the mortgage debt of 29th July 1929 fell to the share of defendant No 9 at the family partition of July 1939  and directed the trial court to allow both the parties to lead evidence upon this issue and to certify its findings thereon
The trial court recorded a negative finding on that issue
It held that the mortgage claim was kept undivided at the partition
The High Court confirmed this finding and dismissed the appeal filed by the appellants subject to a slight modification as to the rate of interest awarded by the trial court
With special leave under article 136 of the Constitution this appeal is preferred
No serious argument was advanced before us on the plea that the amount due under the mortgage from Bashettappa was not the property of the joint family
At the material time when the mortgage deed was executed by Bashettappa Rachappa was the manager of the joint family
In Suit No 84 of 1932 filed by Gurappa it was alleged that Rachappa was the manager of the joint family consisting of himself and the branches of Shivappa and Basavanappa and that the mortgage transaction was for the benefit of the joint family and that Raohappa had entered into that 902 transaction for and on behalf of the joint family and in that suit Rachappa alone was declared liable to pay Rs 8000 
Partition of the year 1930 is supported by evidence which has remained unchallenged
Intimation was given to the village and Municipal authorities pursuant to the partition for mutating the names of the different branches to whom the shares were allotted
The evidence of Rachappa and Mallappa that the partition took place also has remained uncontradicted
The question which calls for consideration is whether at the partition the mortgagee right under the deed executed by Bashettappa was kept undivided
Mallappa defendant No 5 in his evidence when he was examined after remand stated that  an equal division was made of the lands according to the income and that Rachappa was not given a smaller share in the lands
 He also stated that the houses were divided in equal shares and the outstandings in the money lending business except two bonds the mortgage bond executed by Bashettappa and one Desai were kept undivided
He denied the suggestion that the mortgage debt due from Bashettappa was allotted exclusively to Rachappa
Rachappa in his evidence also stated that the mortgage bond was kept undivided between the three branches and that it was not true that it was allotted to his shares at the partition
Devidas defendant No 4 A had evidently no personal knowledge about this partition or the terms thereof His statement that Rachappa had told him at the time when Madiman offered his bid at the court auction that the mortgage bond was allotted exclusively to Rachappa s share could not in the circumstances of the case be true and was rightly believed by the trial court and the High Court


Summary:
A decree dated September 2 1938 in a suit for partition of joint Hindu family property awarded a house to the share of one J and his four minor sons
J failed to execute the decree
On November 23 1949 an application was made by the appellants the four sons of J for execution of the decree stating that three of them had been minors till then and one of them was still a minor and so no question of limitation arose
The respondent objected that the application was barred under section 7 of the Indian Limitation Act
The appellants contended that section 7 did not apply to a partition decree and that section 7 was no bar as j could not have given a valid discharge of the liability under the decree in view of the provisions of 0 32 of the Code of Civil Procedure
Held that the application for execution was barred by limitation
J the managing member of the family could have given a discharge of the liability under the partition decree by accepting possession on behalf of his minor sons without their consent and so time ran against them under section 7 from the date of the decree
Order 32 rr
6 and 7 were no bar to j giving a discharge of the liability under the decree as it was neither a case of receipt of any money or movable property nor was there any question of entering into an agreement or compromise on behalf of the minors
Ganesha Row vs Tuljaram Row 1913 LR 40 1A 132 Parmeshwari Singh vs Ranjit Singh AIR 1939 Pat
33 and Letchmatsa Chetty vs Subbiah Chotty Mad 920 referred to 876