"A" as a managing member of the joint Hindu family borrowed Rs. 5000/- from "B" for the necessities of the joint family. "B" obtained a decree against "A" as manager of the joint family. Could the decree be executed against the personal separate properties of all the members of the joint family?

Question: "A" as a managing member of the joint Hindu family borrowed Rs. 5000/- from "B" for the necessities of the joint family. "B" obtained a decree against "A" as manager of the joint family. Could the decree be executed against the personal separate properties of all the members of the joint family? Decide giving reason. [DJS 1982]

Find the question and answer of Hindu Law only on Legal Bites. ["A" as a managing member of the joint Hindu family borrowed Rs. 5000/- from "B" for the necessities of the joint family. "B" obtained a decree against "A" as manager of the joint family. Could the decree be executed against the personal separate properties of all the members of the joint family? Decide giving reason.]

Answer

The institution of a joint Hindu family is very old. It is a unique institution having no parallel in the whole world. It has evolved from the ancient patriarchal family which can be described as the earliest unit of human society. The head of such a unit is always, in practice, despotic and enjoyed the highest respect. The induction of the coparcenary system considerably whittled down the absolute power of the head.

But the joint family with its unique characteristics remained the basic tenet of Hindu society. It was to be the most characteristic way of Hindu life inevitable for the cohesive development of the society. Hence it led to a presumption that every Hindu family is a joint Hindu family. Hindus are accustomed to living in joint family units. A joint Hindu family, at best, may be defined by stating the jointness of members of whom it is made up.

The Karta may represent the joint family in the event of a suit by or against the family so that other members are not the necessary parties to the same. The Karta himself be sued or he can institute a suit with respect to any property or other matters of the joint family. Whenever a decree is passed against him, that would bind all other members of the family, if, as regards minor members, he acted in the litigation in their interest, and in the case of major members, he acted with their consent. As was held in the case of Lungangowda v. Basangowda, 54 IA, 122; AIR 1956 Mad. 801.

In the case of Daulat Ram v. Mehr Chand, 1888 15 Cal 70, it was established that a decree passed against the manager of a joint family as representing the family for a debt contracted by him for family necessities, or for the family business, or in respect of family properties, operates as res judicata under section 11, Explanation 6, Code of Civil Procedure, and is binding upon all the members of the family including minors, and it may be executed against the whole coparcenary property, although the other members were not parties to the suit.

It is otherwise if the decree is against the manager personally. A decree, even for family debt, passed against the manager personally, cannot be executed against the whole coparcenary property, it can be executed only against his interest in the property. As was estalished in the Handa Das v. Muralidhar Pati, AIR 1990 Ori 226.

In Hori Lal v. Munman Kunwar, (1912) 34 All 549, it was held that it is not necessary, in order that a decree against the manager may operate as res judicata against coparceners, who were not parties to the suit, that the plaint or written statement should state in express terms that he is suing as manager, or is being sued as a manager. It is sufficient if the manager is in fact suing, or being sued as representing the whole family.

In the case of Baldeo v. Mobarak, (1902) 29 Cal 583, A, B and C were members of a joint family. A and B were the managing members. A and B borrowed Rs 5,000 from P for the necessities of the family. P sues A and B as managers and obtains a decree against them as such. The decree may be executed against the whole coparcenary property including C's interest there though C was not a party to the suit, and even if C was a minor.

In the above case, P is entitled also to a personal decree against A and B, the parties to the contract. Such a decree will enable P to proceed against the separate properties also of A and B. However, P is not entitled to a personal decree against C, even if C was an adult, for C was not a party to the contract.

As the facts given in the present question, "A" as a managing member of the joint Hindu family borrowed Rs. 5000/- from "B" for the necessities of the joint family. "B" obtained a decree against "A" as manager of the joint family. If we take the example of above mentioned case laws and apply them in this present scenario. We can conclude that the decree can not be executed against the personal separate properties of all the members of the joint family as they were not a party to the contract. But the decree maybe executed against the whole coparcernary property."B" is also entitled to a personal decree against "A", as he is the party to the contract. Such a decree will enable "B" to proceed against the separate property of "A"

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