YALAVARTHI GOPALAKRISHNIAH CHOWDHARY Vs. RAJA KAMINENI BANGARU KRISHNAMANAYUNIM VARU

JUDGEMENT

(1.) THIS is an appeal against the dismissal of O. S. No. 62 of 1944 in the Court of the Subordinate Judge of Nellore on the ground that the suit was barred under Order 2, Rule 2, Civil P. C. as well as by limitation and further that even if there was no bar, the plaintiff cannot maintain the suit against the present Zamindar of Chundi in respect of the estate in his possession and that the debts contracted by the previous zamindar were not for purposes binding on the estate.

(2.) IN O. S. No. 106 of 1936 on the file of the Subordinate Judge's Court, Nellore, the appellant claimed to recover a sum of Rs. 8031 -4 -9 under six headings of liability incurred by the defendant in that suit and which were payable to the appellant. They consisted of a sum of Rs. 2000 claimed as damages for wrongful dismissal of the appellant from his position as Dewan of the Chundi estate in accordance with a contract dated 31 -12 -1935. The second item was a sum of Rs. 1566 -9 -4 due to the appellant under two promissory notes which had been got endorsed in his favour by him for collection, the promissory notes being one for Rs. 1250 dated 27 -12 -1935 and another for Rs. 250 dated 30 -12 -1935 executed by the then zamindar to one Seshamma. The third item of the claim was a sum of Rs. 2627 -6 -3 due under two promissory notes dated 31 -12 -1935 executed by the zamindar in favour of one Sambayya for Rs. 1670 and one Sambrajyamma for Rs. 800. These promissory notes were also endorsed over for collection in favour of the appellant. The fourth item was a aum of Rs. 1155 -4 -5 due on a promissory note dated 7 -1 -1936 by the same zamindar in favour of Y. Purushotham for Rs. 1100. The fifth item was a sum of Rs. 207 -0 -9 due on a promissory note for Rs. 200 executed by the zamindar in favour of the appellant himself. The sixth and the last item was a sum of Rs. 475 being the arrears of salary due to him. Despite the suit being contested by the zamindar, the Subordinate Judge on 19 -8 -1937 passed a decree for the amount claimed in the plaint after deducting Rs. 850 out of the damages claimed. It may be mentioned that the plaintiff claimed recovery of the amount not only from the then zamindar personally but also from the Chundi estate which is an impartible estate included in the schedule to the Madras Impartible Estates Act, 1904. Exhibit D. 3 -a, the decree, directs the payment by the defendant to the plaintiff of the sum of Rs. 7181 -4 -9 with interest and costs. There was no decree against the estate. The zamindar died on 4 -9 -1938 and as the present respondent, his son, was a minor, the Court of Wards took charge of the estate under Section 10, Madras Court of Wards Act. The appellant claimed the recovery of this amount from the estate in the hands of the Court of Wards and the collector passed orders, Ex. P -3 and P3 -a, by which portions of the amount decreed by the civil Court were disallowed. The claim for damages to the extent of Rs. 1150 allowed by the civil Court was approved of by the collector. So also the sum of Rs. 475 being the arrears of salary. He disallowed the amounts due under the promissory note executed in favour of Seshamma as well as the promissory notes exe -cuted in favour of Sambayya and Sambraj -yamma. With regard to the promissory note executed by the zamindar in favour of Y. Puru -shotham for a sum of Rs. 1100, it was held that it cannot bind the impartible estate beyond the lifetime of the zamindar. The claim as regards the sum of Rs. 207 baaed on a promissory note for Rs. 200 being the money lent by the plaintiff for raising the attachment on the zamindar's car was also disallowed. The appellant thereupon filed the present suit praying for the following relief: 'Declaring that the decree debt in O. S. No. 106 of 1936 on the file of the Sub -Court of Nollore less the sum of Rs. 2235 -1 -10 being the amount calculated as due on the promissory note executed in favour of Seshamma, is binding and enforceable against the defendant therein and the Chundi estate in the hands of the Court of Wards. The answer to the claim given by the defendant was that these debts were not binding on the estate beyond the lifetime of the executant of the promissory notes and therefore the suit was not maintainable. Various other pleas were taken in the written statement which formed the subject -matter of as many as seven issues in the suit. As stated already, the learned Judge held that the suit was not maintainable under issues l, 4, 5 and 6. On the question whether the auit was barred by res judicata, the learned Subordinate Judge was of opinion that since the appellant had already filed a suit against the previous zamindar as well as the estate in his hands and since the decree passed in O. S. No. 106 of 1937 was only a personal decree against the zamindar, the present suit was not maintainable. The question is whether that view of the learned Judge is correct or not.

(3.) WE are of opinion that the principle enunciated in Bommayya Naicken v. Subra -mania Iyer, 46 M. L. J. 874 : A. I. R. 1924 Mad. 707 has to be applied to the facts of the present case. The judgment -debtor zamindar could not have represented the estate so as to make it liable beyond his lifetime. The analogy of the manager of a joint Hindu family being sued for a debt due by him, and the family properties being made liable for that amount cannot apply to the present case in view of Section 4, Impartible Estates Act. In the case of a joint Hindu family, if a decree is obtained against the manager personally, the judgment -creditor is entitled to recover the same from the share of the manager by an attachment of the share and getting it sold. But in the case of an impartible estate, the holder for the time being cannot have any share as such. All that the creditor can do is to realise the money by appointment of a receiver for the estate or by other means known to law during the lifetime of the judgment debtor zamindar. If he is not able to realise the money during that period and wants to enforce the liability against the estate in the hands of the succeeding holder, in our opinion, he will have to get a declaration that the debt incurred by the previous zamindar was for and on behalf of the estate and therefore the estate is liable. This, as held in Bommayya Naicken Ayyan v. Subramania Iyer, 46 M. L. J. 374 : A.i.r. 1924 Mad. 7071, cannot be decided in execution, but only by a fresh declaratory suit. We should not be understood as stating that in all respects an impartible estate bolder cannot represent the estate in litigation. It is only where his own acts are in question and when hie borrowings are sought to be charged on the impartible property that he cannot represent the estate, so that the debt may bind the estate beyond his lifetime. Suppose for example, there was a dispute as regards portions of the zamindari with a rival landholder and the zamindar for the time being contests the suit and a decision either way is passed, such a conclusion should be binding onthe succeeding zamindar on the principle of res judicata ; or in other words, in all cases where the action of the zamindar is one that could be impugned by the succeeding zamindar, it seems to us that the decree obtained against a zamin -dar who has himself created the debt, cannot be enforced in execution against the estate after his death. The Subordinate Judge seems to think that where an impartible estate holder incurs a debt, it is inconceivable that one suit could be filed against him based on a certain borrowing and another suit subsequently for a declaration that the same debt is binding on tbe impartible property. This is exactly what has boon repelled in Bommayya Naicken v. Subramania Iyer, 46 M. L. J. 374 : A. I. R 1924 Mad. 707. The distinction between the representative capacity of an impartible estate holder for transactions entered into by him for binding the estate beyond his lifetime and that where he represents the estate in other proceedings in which he has no personal estoppel against third parties is a real one; and wa are of opinion that Section 4, Impartible Estates Act, clearly enunciates this view. For purpose of our present case, it has to be said that an impartible estate -holder stands on an equal footing with the manager of a joint Hindu family even though in the case of a manager of a joint Hindu family, he has a share in the properties which can be proceeded in execution and in the case of an impartible estate holder such a thing cannot be resorted to. Following the principles laid down in Bommayya v. Subramania Iyer, 46 M. L. J. 374 : A. I. R. 1924 Mad. 707, we are of opinion that the suit as framed is maintainable.