JUDGMENT
Viswanatha Sastri, J.
1. This second appeal is preferred by the third defendant against the decree of the learned Subordinate Judge of Tuticorin in A.S. No. 65 of 1945. The lower appellate Court granted a decree in favour of the plaintiff for partition and separate possession of 5/18 share in the B Schedule properties on payment of Rs. 225. The third defendant has preferred an appeal objecting to the decree for partition passed in favour of the plaintiff. Defendants 1, 2 and 4 sail along with the third defendant though they have not preferred an appeal. They have however been made respondents to the appeal and hence the case of defendants 1 to 4 falls to be considered in this second appeal.
2. The plaintiff’s father created a mortgage over his share of certain property on foot of which a suit, O.S. No. 261 of 1926, was filed by the mortgagee. On the 22nd July, 1930, a final decree was passed against the plaintiff’s father for a sum of Rs. 500. The plaintiff’s father died in June, 1933. He left behind him two sons of whom the plaintiff is the younger, his elder brother being Anthiramudaya Nadar. He also left a widow Vaduvathi Nadathi who is the fifth defendant in the suit. From the suit register extract, Exhibit D-3, filed in the case it appears that the personal remedy on the mortgage had become barred and that two infructuous execution applications that had been filed by the decree-holder had been dismissed on 9th November, 1933, and 13th September, 1935. During the course of the execution proceedings the plaintiff and his elder brother were brought on record on 21st August, 1935, but the execution petition was allowed to be dismissed by the decree-holder. It does not appear that any amount was realised towards this decree as a result of the execution applications.
3. On 22nd January, 1936, under Exhibit D-5 the plaintiff’s elder brother and his mother sold the property which is the subject of this suit for a sum of Rs. 400 of which Rs. 390 was directed to be paid to discharge the decree in O.S. No. 261 of 1926. On the 30th of April, 1936, this decree was assigned by the decree-holder to D.W. 4 in the case, the maternal uncle of defendants 1 to 4. On the 12th June, 1937 a sum of Rs. 450 is stated to have been paid by the vendees to the assignee decree-holder and a discharge has been entered on the deed of assignment itself.
4. There was a partition suit, O.S. No. 37 of 1931, on the file of the Sub-Court of Unicorn, in which the present plaintiff was the 133rd defendant and his elder brother was the 132nd defendant. The plaintiff was described as a minor represented by his elder brother as guardian ad litem.
5. Defendants 1 to 4 in the present suit were impleaded as defendants 139 to 142 in O.S. No. 37 of 1931. The suit was originally filed against the father of the plaintiff but as he died during its pendency his two sons were added as legal representatives in his place. By the final decree passed in O.S. No. 37 of 1931 the plaint B schedule properties were allotted to the share of defendants 139 to 142 in the partition suit, they being defendants 1 to 4 in the present suit. The plaintiff brought the present suit, O.S. No. 391 of 1943, on the file of the Court of the District Munsiff of Srivaikuntam, for a 5/18 share of the property allotted at the partition to the present defendants 1 to 4 impugning the sale thereof by his elder brother and mother under Exhibit D-5, dated 22nd January, 1936 on several grounds. The plaintiff alleges that his elder brother was a man of weak intellect and health incapable of taking proper care of the family affairs and properties. He further says that the sale under Exhibit D-5 was effected by his elder brother and his mother for no consideration and ignoring his interest in the property though he was at that time an adult of 25 years of age. His further contention is that his mother was not competent to represent him in connection with the sale transaction and therefore his interest in the property did not pass under Exhibit D-5.
6. The lower appellate Court found that Exhibit D-5 was a real sale supported by consideration and that the plaintiff and his elder brother were members of an undivided family. It however passed a decree for a 5/18 share in favour of the plaintiff on payment of Rs. 225 paid by defendants 1 to 4 for discharging the mort-gage decree in O.S. No. 261 of 1926, on the ground that Exhibit D-5 was inoperative to bind the plaintiff’s interest. In its opinion Exhibit D-5 having been executed by the mother of the plaintiff as his guardian it was impossible to hold that the plaintiff’s elder brother executed the document as manager of the joint family so as to bind the plaintiff as well.
7. The learned advocate for the appellant has raised two contentions in this appeal. First he states that the sale deed Exhibit D-5 must, in the circumstances of the case, be held to be binding on the plaintiff and that the lower appellate Court has misdirected itself in law when it came to a contrary conclusion. Secondly he contends that the claim of the plaintiff to a moiety of the B Schedule property is barred by res judicata by reason of the property having been allotted to the share of defendants 139 to 142 in O.S. No. 37 of 1931, the present defendants 1 to 4. Reliance is placed for the appellant on Muthiah Chettiar v. Rayalu Aiyar Nagasami Iyer and Co. (1943) 2 M.L.J. 548 and Ramakrishna Mudaliar v. Manicka Mudaliar (1937) 1 M.L.J. 587 at 593, and it is contended that as the plaintiff’s elder brother was in fact the manager of the joint family, and the debt for the discharge of which the sale was executed was one binding on the family it must be construed as conveying the entire interest in the joint family property which the manager was capable of conveying to the alienee. If the purpose for which the alienation was made was one which would be binding on the family and if the transferor was in fact the manager of the family even though the transferor purports to act on his own behalf and not as manager representing the junior members of the family still the transfer would be effective to convey the entire interest in the family property to the alienee. The transfer in such a case would be considered as having been entered into in the capacity in which the alienor could have conveyed the entire property. The mere fact that the manager does not describe himself as manager or sets up an exclusive title to the properties conveyed is not such an assertion of a hostile claim in himself as against the other members of the family as would prevent the alienee from getting a title to the entire property if the purpose of the alienation was one binding on the family. In such a case the transferor might still be regarded as having entered into the transaction in the capacity in which he could bind the family. In the present case a perusal of the sale deed, Exhibit D-5, shows that the property which was being conveyed thereunder was dealt with as joint family property. The entire interest in the property was intended to be conveyed. The plaintiff’s elder brother did not assert any exclusive title in himself to the property adverse to or in denial of the rights of the plaintiff. On the other hand he managed to describe the plaintiff as a minor represented by his mother as guardian in order that his interest also might be conveyed to the purchaser. If the plaintiff’s brother was not the manager of the joint family such a device would have been ineffective and the alienee would not have obtained the share of the plaintiff. Further the inclusion of the mother as a party to the conveyance in her own right was apparently with a view to prevent her from setting up a claim for maintenance from and out of the joint family propeties. The property being admittedly joint family property according to the finding of the lower appellate Court and the purpose being one Which was binding on the joint family and the transferor also being a person who was in fact the manager of the joint family I see no obstacle to holding that the sale deed, Exhibit D-5 conveyed the entire interest of the family in the property sold notwithstanding the fact that the plaintiff was an adult member of the family and that a disingenuous attempt was made to represent him as a minor represented by his mother as guardian in the transaction. Mr. Venugopalachariar, the learned advocate for the respondent has referred me to a case in Chandiprasad Misir v. Balqji Misir (1930) I.L.R. 53 All. 427, for the principle that if a minor member of a joint Hindu family is impleaded as a party to the suit along with the manager it is incumbent upon the plaintiff to have a separate guardian ad litem appointed for the minor so as to represent him effectively in the suit. If the plaintiff chooses to sue not the manager alone but also the minor members of the family individually, it is his duty to have a guardian ad litem appointed for the minors and he cannot rely upon the fact that the manager was a party and could represent the minor members of the family. This decision is based mainly on the procedural law indicated in Order 32, Civil Procedure Code, and does not bear upon the question now under discussion. The decision in Nandan Prasad v. Abdul Aziz (1923) I.L.R. 45 All. 497, was also cited to show that where a transfer is effected in denial of the rights of the minor members who are owners of the property transferred by a person who had no title at all to or any interest in the property, the transfer is ineffective to bind the interest of the minors even though the consideration had been applied in discharge of debts binding on the minors. That is not a case where the transferor was the manager of a joint Hindu family authorised under circumstances recognized by Hindu law to represent the junior members of the family in transactions affecting family property. It was the case of a total stranger claiming title to the property without any shadow of a legal right and purporting to dispose of the property as owner to the prejudice of the minors who were the persons found really entitled to the property. I do not consider that the present case differs in substance or in principle from the two decisions of this Court to which reference has already been made. I therefore consider that the learned Subordinate Judge came to an erroneous conclusion on this part of the case. I hold that Exhibit D-5 was. effective to convey the entire interest of the family including that of the plaintiff in the properties sold in favour of defendants 1 to 4.
8. Mr. Venugopalachariar the learned advocate for the respondent who has preferred a memorandum of cross-objections argued that there were a number of suspicious circumstances in the case which throw doubt on the genuineness or the reality of the sale Exhibit D-5 and that the lower appellate Court has not come into close quarters with the evidence relating to this aspect of the case. He pointed out that according to the suit register extract Exhibit D-3 the personal liability had become barred and no serious steps had been taken for the realisation of the decree amount in the mortgage suit beyond filing two execution applications which were however allowed to be dismissed. He suggests that this indifference of the decree-holder and the long period during which the decree was allowed to remain unsatisfied suggest that there must have been substantial payments in reduction of the decree if not a discharge of the decree altogether. He further states that there was no need to sell the family property under Exhibit D-5 for a sum of Rs. 400 because all that the decree-holder could have done was merely to sell this item through Court and realise what he could out of the sale amount. The sum of Rs. 10 paid in cash at the time of Exhibit D-5 is a mere illusory payment designed to lend an air of reality to the sale. These contentions are no doubt relevant and weighty but I am unable to see that the lower appellate Court erred in coming to the conclusion on the evidence that the decree in O.S. No. 261 of 1926 had not been proved to have been discharged, the burden of proving such a discharge being on the plaintiff. D.W. 1, the decree-holder, and D.W. 4, the assignee thereof, both say that the decree had not been discharged during the lifetime of the plaintiff’s father. The suggestion of the plaintiff himself is that the decree was discharged in 1933 shortly before the death of his father but there is no acceptable evidence of such a payment. In these circumstances it cannot be held that Exhibit D-5 was unsupported by consideration or that it was a mere nominal or sham transaction. ‘ On my findings it follows that the decree of the lower appellate Court is incorrect and that it should be reversed. I therefore allow the appeal and dismiss the memorandum of objections with costs, in the appeal. There will be no order as to costs in the memorandum of cross-objections. As regards the costs in the Courts below I do not interfere with the order of the lower appellate Court that each party should bear his own costs in these Courts. The plaintiff’s suit is hereby dismissed.
No Leave.