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TMI Blog1947 (7) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... s are members of a Hindu joint family. Respondent 2 (defendant 1) is the father, and respondents 1 and 3 (plaintiff and defendant 2 respectively) are the sons. The family became indebted and respondent 2, as father and manager of the family, made certain alienations to which the other respondents were parties. Respondent 1, however, was a minor at the time, and was represented in those transactions by his father as his guardian. The alienations were made to pay antecedent debts and they would, under Hindu law, be binding on the sons unless it was proved that the debts were incurred by the father for illegal or immoral purposes. An attempt was made to prove this but respondent 1 did not succeed in establishing it. His main contention, however, was that the father had become divided from his sons at the dates of the alienations, because, previously thereto, he had executed a deed of settlement in respect of the disputed properties in favour of his mother, which in substance was a deed of partition effecting a disruption of the joint family. 5. Respondent 2's father, Venkata Reddi, died in 1907, having his widow Seethamma and his only son respondent 2. He left some immovable pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not contracted for illegal or immoral purposes, the settlement deed was not a fraud on the creditors, it was an arrangement made for the benefit of the sons and was in effect a partition deed giving property to the members of the family other than respondent 2, there was no property to be divided, the suit therefore failed and was dismissed. There was an appeal to the High Court by the sons. While the appeal was pending, respondent 2 entered into a composition deed with the creditors. The order of adjudication was annulled. The appeal of the sons was then withdrawn. 11. It appears from the evidence, which is collected in the trial Court judgment, that, after the deed of 3-6- 1914, respondent 2, his sons, his wife and mother, all continued, as before, to live as members of an undivided Hindu family, with respondent 2 acting as its manager. In 1924 they all joined in executing a mortgage, treating the properties now in suit as joint family properties in which respondent 2 had coparcenary rights. In 1925 respondent 2's mother, Seethamma, died. The remaining members continued to live as a joint family. From 1926 to 1932 several alienations (by way of mortgages and sale) were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the settlement deed was in the nature of a partition was neither correct nor relevant, that the deed did not have the effect of causing the division in status between the father and his sons, that the words the said property should again pass to my family did not mean that the property should pass to his issue only but meant that the property should revert to the joint family consisting of the father and his issue, that the father was not excluded by the use of the words my family. He also stated that the parties understood the deed in that sense and acted on that basis. As for the alienations, he held, on the documentary and oral evidence in the case, that they were for consideration and were made to discharge antecedent and other debts incurred for the benefit of the family: they were therefore binding on respondent 1. He further held that respondent 1 would be entitled to share in the equity of redemption in respect of the mortgages along with the other respondents but as he had not filed the suit for partition on that basis he could not grant him any relief. In the result he dismissed the suit with costs to the contesting defendants. On 17 - 12 - 1941, a decree was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to make a provision for the mother's maintenance in consonance with what would be her rights under the general principles of Hindu law. A maintenance grant to a female member of a Hindu family is ordinarily for the life of the grantee. She has no right to alienate the property and after her death the property comes back to the joint family out of whose assets it was carved. Consequently, the words after your lifetime the said property should again pass to my family are capable of a plain and natural interpretation in keeping with the ordinary notions of Hindus, and the principles of Hindu law. Their Lordships, therefore, do not find any reason why this plain and natural meaning of these words should be discarded in favour of another, based on conjectural considerations, which the High Court has accepted. There are no words in the deed denoting any idea of partition or severance between any members of the family. The words of the document, being plain and unambiguous, the fact that the parties had interpreted them in a sense different from that which the words themselves plainly bore could not affect the construction. As was observed by the Earl of Halsbury L. C., see 1900 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel that the question whether the deed of 1914 was a partition deed or not was res judicata by reason of the decision on this point in the previous suit No. 6 of 1919. The facts relating to that case and the present one for instance, that the suit of 1919 was ultimately dismissed and the claim was later on com - promised) make it difficult to apply to this case the principles of res judicata. But, apart from that, it is enough, in their Lordships' opinion, to dispose of this matter to say that there was no issue on this point and the question of res judicata has to be specially pleaded. The record shows that this question was not argued before the High Court, and before the trial Court respondent 1's pleader argued exactly the contrary of his present argument, namely, that the decision in the previous suit could not operate as res judicata. That was obviously because two of the findings in that suit were in favour of the alienees. Their Lordships are therefore unable to accept this argument. 20. For all these reasons, the preliminary decree of the High Court directing partition of the property and giving other reliefs will be reversed, the decree of the Subordinate Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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