SUPHEME COURT REPORTS [1961]

1961 and that in our opinion is the effect of the proviso to

Commissio"" of s. 30(1) read with sub-s. (2) of s. 30 of the Act. It is

Income-tax, unnecessary therefore to refer to the two cases referred Bombay to by the High Court, i.e., Raja of Venkatagiri v. Com . •·. missioner of Income-tax (1) and Kamdar Brothers v. Con, M/s.F•lmistanLtd.missioner of Income-tax(').

Ka-;::; J.

The appeal is without force and is therefore dismissed with costs.

Fbruary 2I.

Appeal dismissed.

DEVIDAS AND OTHERS

SHRISHAILAPPA AND OTHERS. (J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)

Mortgage-Non-joinder of parties-Proper, but not necessary, party added beyond limitatior>-Suit instituted on behalf of joint family-Plaintiff not described as manager in the plaint-M ainlainability of suit-Indian Limitation Act, z908 (9 of I908), s. zz.

The manager of an undivided Hindu family consisting of himself, his brother and their step-mother •.. instituted a suit for recovery of the amount due under a mortgage belonging to the family.

The step-mother who was interested in the mortgagee right was not made a party to the suit. Though the manager (the first plaintiff) did not describe himself as the manager in the plaint, the allegations in the plaint showed that the suit was filed on behalf of the joint family. No objection as to non-joinder was raised in the trial court, but when the appeal was pending in the High Court the step-mother was added as a party on her application .. The contesting defendants pleaded that as all persons having an interest in the mortgage security were not joined as parties within the period of limitation prescribed for a suit to enforce the mortgage, and the first plaintiff did not, in any Gase, purport to institute the suit in his capacity as the manager, the suit must fail.

Held: (I) that the failure to join a per.son who is a proper but not a necessary party does not affect the maintainability of the suit nor does it invite the application of s. 22 of the Indian Limitation Act, 1908 ;

(2) that the question whether a suit was instituted by the manager of an undivided Hindu family in his personal capacity or as representing the family depends upon the circumstances of each case and that the failure of the plaintiff to describe himself as the manager in the plaint is not decisive of the question.

(1) (1955) 28 l.T.R. 189

(2) (1955127 l.T.R. 176,

In the present case, the step-mother was not a necessary party, and the facts showed that the suit was instituted by the first plaintiff in his capacity as manager. Accordingly, the suit was maintainable.

Guruvayya Gowda and Others v. Daltatraya Anant and Others

(1904) I.L.R. 28 Born. rr, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 112of1957.

Appeal by special leave from the judgment and decree dated Januarv 28, 1954, of the Bombay High Comt in :First Appeal No. 69 of 1950.

Pur8hottam T1ikamdM and Nanni! Lal for .the appellants.

C. K. Daphtary, Solicitor.General of India, S. N.

Andley, J.B. Dadachanji and P. L. Vohra for respondents Nos. 1 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 bet\\een some of the principal parties in this litigation is as follows:

I Balappa

I I I Rachappa Ba!!a\inga ppa deft. 9 (adopted by l Basavanappa) Chanamalappa

I Malappa (deft. 5)

I Chanabasappa (deft, 6)

Mallappa

I I Shivappa

I Basavanappa

I Basalingappa

(Parvatewa

respdt. 12)

I I Shrisbailappa (plaintiff 1)

I I Balappa Basavanappa (adopted by (deft. 7) Cbanamalappa

I Chanamalappa

I Balappa

I Sbivappa (plaintiff :z)

Shrishadappa

(deft. 8)

Mallappa had four sons Bala.ppa, Shiva.ppa, Basava.nappa. 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

DeuidtJs

SllrJshailappa

Shah ].

 r96r

Devidas

v. Shrishailappa

Shah I

898 StJPREME COURT REPORTS [1961]

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 a.n extensive money.lending business. One Biishetta.ppa 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 belouging to him to secure repayment of Rs. l,73,000/-, Rs. 76,700/- out of which were received in cash and the balance represented a.mounts which Rachappa agreed to pay to Bashettappa's creditors. To one Gurappa, Bashettappa owed Rs. 8,000/- 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. 45,700/- as a secured debt and Rs. 31,000/- as unsecured debt. Gurappacreditor of Bashettappa-in the meanwhile filed Suit

No. 84of1932 against Rachappa and other members of his family in the court of the Frst Class Subordinate Judge, Dharwar, for a decree for Rs. 8,000/' claiming that Rachappa had, acting on behalf of the joint family of which he was the man'1ger, undertaken under the deed of mortgage to pay that amount and that he-Gurappa-had accepted that undertaking.

A decree e; i; pr; irte was passed in~ that sui_t against Rachappa on February 28, 1933, 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 belonging to the family were <livided.

Pursuant tq

" '

3 S.C.R.

SUPRE~IE COURT REPORTS 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 Basliettappa 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 infructuo11s attempts to execute the decree filed dharkhast No. 176 of 1940 to recover .Rs. 11,061-6.9 and prayed for an order of attachment and sale of the rights of Rachappa under the mortgage bond dated July 29, 1929. One Ganpatrao N. Madiman-hereinafter referred to as Madimanoffered the highest bid at the court auction and the mortgage bond was sold to him for Rs. 20,000/-. An application. filed by Rachappa 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 persons except the purchaser Madirnan. In Miscellaneous Application No. 57 of 1944, Madiman applied to the Insolvency Court to be recognised as an unsecured creditor for Rs. 31,000/-, and the application was granted on the footing that the entire inter0b't 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. 15,500/- by Madiman.

The sale deed in this behalf was executed by the receivers in favour of Madirnan 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 Rachapp.a.

Basalingappa who was the natural brother of Hachappa and was adopted by his uncle Basavanappa died in 1946 leaving him surviving his widow

J 1.5

I96I

Devidas

Shrishailappo

Shah J.

Devidas v.

Shrisltailapa

Shah].

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 194 7 for a decree for Rs. 1,23,400/- by enforcing the mortgage deed executed by Bashettappa claiming that Madiman had at the court auction acquired in t.he mortgagee right only the right, title and interest of Rachappa which was a third a.nd 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 3, Madiman as defendant No. 4, sons of Shivappa as defendants Nos. 5 to 8 and Rachappa. and his son as defendants Nos. 9 and 10. Madirnan 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 me.in contentions raised by them were:

(1) tha, t the mortgagee right wa, s the separate property of Rachappa and it did not belong at a, ny time to the joint family of Rachappa defenda, nts 5 to 8 a, nd the plaintiffs, (2) that in any event, at the partition between the three branches the mortgagee right lrnd fallen to the share of Racha, ppa a, nrl 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 \rns old aud it was purcha, sed by Madi. man and consequently, the plaintiffs could not enforce the mortgage. The trial court 110gatived the contentions raised bv the sons of Madinia.1i. and held that only a third shaie in the mortgagee right was purchased at the court auction by Madiman. The court accordingly passed a decree against defondants Nos. 4A to 4D for pay. ment of Rs. 60,933-5-4 and proportionate costs with future intPrest at 6°1,, per annum "" Rs. 30,466-10-8

~ I '

' ' II

""".""1-1',.---:··~ ·,\ . "._;. 3 s.C:IL SU PH EM!<: cuuil1: '1tEPOR'fS ',_". , ' 901 . ·;_.,_,_,, ... ,• .. ' ' ' '. from , the date of the suit to the plaintiffs and defendants 5 to 8 within. six months and in uefanlt 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. 8,000/· to Gurappa was not binding upon ' that family and therefore in execution . of the decree passed in favmir 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 ofjoint 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 : '' \Vhether 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 negativt> 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 rnte of interest awarded by the trial court . . \Vith special leave under Art. 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 Xo. 84 of 1932 tiled by Gurappa it was alleged that Rachapp:i. was the manager of the joint family consisting of himself and the branches of Shi\appa and 1fa~; wanappa, arnl tha.t the mortgage trans;\ction was for t hl• hem tit of tlw joint family and that Rachappa ha<l entered into that . . ' - .

Devidas

Slirishailap'pa

S/iah ].

z,6I

. DMdas

Shmhailappa

Sha~}.

SUPREME COUHT REPORTS [1961]

transaction for and on behalf of the joint family, and in that suit Rachappa alone was declared liable to pay Rs. 8,000/-.

Partition of the year 1939 is supported by evidence which has remained unchallenged. Intimation was given to t.he 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 wh.en he was examined after remand stated that " an equal division was made of the lands according to the income and that Racha.ppa was not given a smaller share in the lands." He alsll stated that the houses were divided in equal shares and the outstandings in the money-lending busines8 except, two bonds-the mortgage bond, executed by Bashettappa and one Desaiwere kept undivided.

He denied the suggestim;1 that the mortgage d<lht due from Bashettappa was allotted exclusively to Rwhappa. l{achappa in hiH 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 bis share at the partition.

Devidas----, defendant No. 4A-had evidently no. personal knowledge rtbout, this partition or the terms thereof.

HiR st:ttement 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 itn<l was r.ightly disbelieved by the trial court and the High Court.

On an analysis of t, hc various entries on the record of rights relating to the lauds held by the three branches, the trial Judge held that the plaintiffs' father had received at the partition lands admeasuring 203 acres 18 gunthas assessed at Rs. 233-1.0, defendants 5 t, o 8 had received 127 acres 29 gunthas of lands assessed at Rs. 262.6-0 and Rachn.ppa had received

3 S.C.R SUPREME COURT ltEPORTS , 903

:,;<';.

.<'1'\~: 122 acres 18 gunthas of lands assessed at/; RS 232-6-0 "in addition to a number of lands whose';.reas and assessment were not known". In theviewOf the trial court, this supported the plea that the partition of lands was not unequal. It appears from entries inthe record of rights that Rachappa received at the partition lands producing annually 86 bags of paddy, defendants 5 to 8 received lands p!'oducing 92 bags of paddy and Basalingappa received for his share lands producing 89 bags of paddy. It also appears from the village Panchayat extracl s that the family was possessed in 1938-39, of 30 houses which stood in Rachappa's name as m>inager and the total rental of those houses was Rs. 1,262/,. These .30 houses we're also divided : 16 houses were allotted to defendants 5 to 8, 10 houses to lachappa and 3 houses to the plrtintiffs and this d.ivision was not shown to be uneq 1ml.

According to the trial Judge, the movables were also equally divided. The view of the trial judge as to the equality "f the division of the houses, lands, movables and outstandings was confirmed by the High Court.

The High Court accordingly held agreeing with the trial Judge that the mort.gagee right was left undivided.

Prima facie, the question whether at a partition between members of a joint Hindu family certain property was left undivided is a question of fact depending upon appreciation .of evidence.

Before the trial court and the High Court there was evidence of defendants 5 and 9 corroborated by the division of the properties movable and immovable, indicating that the mortgage claim was left undivided and this court according to its settled practice regards that conclusion as binding.

But counsel for the appellants submitted that to certain important circumstances which appeared from the evidence, due weight was not attached by the trial Court and the High Court.

[Their Lordships then considered the arguments urged on behalf of the appellants and concluded.] We would not be justified in an appeal with special leave in discarding that finding because some other 'evidence which could have been brought before the court in support thereof was not tendered.

nevidas

Siu ishailappa

Shah].·

Dtvidas

Shrishailappa

Slush J.

904 cl.'Pl:lEME ()JUKT l:lEPORfc l Hl61 J

It was also urged that once it is proved that there is a partition of the joint family, it must be presumed that all the properties are partitioned and whoever alleges that any propert.y was kept undivided, the burden of proving that fact lies upon him, and reliance in support thereof was placed upon the decision of the Judicial Committee of the Pri vv Council in Rajah Kishen Dutt Ram Panday v. Narendar Rahadoor Singh (1 ). But the case of the plaintiffs here is not that the members of the family remained joint qua the mortgagee right but that it was not allotted to any member of the family because it was the subject. matter of pending litigation. Qua that property also the three branches were divided and it was since the partition of their tenancy-in-common. It was the case of the plaintiffs that the property was not divided by metes and bounds, as it could not be, pending the settlement of the disputes.

After the case reached the High Court after remand, counsel for the appellants raised an argument about non-joinder of Parva'.tewa-step-mother of the plaintiffs. It was urged tltr, t the suit as framed was defective and was bound to fail.

Parvatewa was undoubtedly interested in the mortgagee right and was not joined as a party to the suit. But no objection as to non-joinder was raised in the trial court.

After the finding of the trial court was received, Parvatewa applied to be joined as a party respondent in the appeal and that application was granted by the High Court. Relying upon the application and the order passed by the High Court, counsel for the appellants urged that the suit filed by the plaintiffs was not properly 0onstituted because all persons having an interst in the mortgage security were not joined as parties withi~ the period of limitation prescribed for a suit to enforce the mortgage. The partitior. of 1939 was between three branches of Rachappa, Shivappa and Basavanappa, and there is no evidence that the joint faJY1ily status between members of these three branches inter se was severed.

Plaintiff" No. 1 was the manager of the branch of

(I) (1875) L.R. 3 l.A. 85.

3 s.e.Ri.

SUPREME COURT REPORTS 005'

BM!ava.napp& and when he filed the suit for enforce. ment of the mortgage, he must be deemed to have filed it as manager of that branch, and the allegations in the plaint especially in paragraph 4 make it abund. a.1ltly clear that the suit was filed on behalf of t.he br&nch of Basa vana ppa. Plaintiff No. 1 therefore represented a.II the members of that branch having an interest in the pr6perty.

In Guruvayya Gowda and Others v. Dattatraya Anant and Others (1 ), it was held that the question of the right of a. manager to sue in that capacity is one of authority. If the other co.sharers are adults and the right to insist on the other coparceners being brought on the record is for the benefit of the defendant to insure himself against further litigation and is therefore dependent on the objection being taken at an early -stage, the objection on the score of want of authorisation being one of a character which it is clearly open to the defendant to waive. Parvatewa was in the suit as constituted not a necessary party.

It is true that she was interested in the mortgage security and could have been joined as a proper pil.rty; but failure to join a person who is a proper but bot a necessary party does not affect the maintainability of the suit nor does it invite the application of s.• '22 of the Indian Limitation Act. The rule that a. person who ought to have been joined as a. plaintiff to the suit and is not made a. party will entail dismis. sal of the suit, if the suit as regards him be ba.rreci.by limitation when he is joined, has no application to non-joinder of proper parties. In Gurumyya' a case (1) a suit to recover possession of a house was originally brought by two plaintiffs, the second plaintiff being described as the manager of the family. At a. late stage of the suit, defendants raised an objection that the other members of the family had not been joined.

The trial court allowed the application filed by the other members to be joined as parties and decreed the suit; but the appellate court dismissed the suit holding that it was barred because of s. 22 of the Limitation Act. The High Court held that s. 22 of the

(1) (190•) I.L.R. 28 Bo111. p.

Shiidai)appu

ShdJ.

,~,

Bevidfis

SArislu!iltV>J>•

Limitation Act does not in itself purport to determine directly whether the joinder of the parties after the

illlltitution of a suit in all oases necessarily involves the bar of limitation if the period prescribed for such a suit has then expired. Such a result must depend upon whether the joinder was necessary'to enable the court to award such. relief as may be given in the suit as framed. If fresh parties are merely joined fur the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination of the date of the institution of the suit as regards such freshly joined p&rties does not ordinarily affect the right of the original plaintiff to continue the suit and will not attract the application of the general provisions of tha Limitation Act.

Pie.in tiff No. 1 did not describe himself as a manager in the plaint; but failure to so describe himself is not decisive of the question whether the suit was instituted by him in his capacity as a manager. It must depend upon the circumstances of each case whether the suit was instituted by the manager in his personal capacity or as representing the family. In paragraph 4 of the plaint, it was averred by the plaintiffs that in the consideration for the mortgage, they had a third share, that defendants 5 to 8 had a third share and defendants 9 and 10 bad the remaining share. These averments clearly indicate that according to the plaintiffs there was no division between the members of each of the individual branches and that-the shares of the branches collectively were determined. Plaintiff No. 1 was the only adult member in his branch and he must be presumed to be the manager. The suit in these circumstances must he regarded as instituted by plaintiff No. 1 in his capacity as manager and he must he deemed to represent all the members of his branch of the family, males as well as females.

Addition to the suit of any member of the branch to whillh the plaintiffs belonged would only mean setting

out the nanw of such a person eo nomine. _

All the objections raised by the appellants theEefove fail and the appeal is dismissed with costs.

Appeal diamiaaed, -