Full Judgment Text
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PETITIONER:
S. M. JAKATI & ANOTHER
Vs.
RESPONDENT:
S. M. BORKAR & OTHERS
DATE OF JUDGMENT:
24/09/1958
BENCH:
KAPUR, J.L.
BENCH:
KAPUR, J.L.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION:
1959 AIR 282 1959 SCR Supl. (1)1384
CITATOR INFO :
R 1964 SC 880 (13)
E&R 1978 SC1791 (17,18,19,20,22,25)
ACT:
Hindu Law-Debts of father-Pious obligation of son-Partition,
if affects such obligation-Avyavaharika, Meaning of-Sale of
joint family property-" Right, title and interest of
defaulter Bombay Land Revenue Code, 1879 (Bom. V of 1879),
s. 55.
HEADNOTE:
j was the managing director of a Co-operative Bank getting a
yearly remuneration of Rs. 1,000. The Bank went into
liquidation and an examination of the affairs having showed
that the monies of the Bank were not properly invested and
that J was negligent in the discharge of his duties, a
payment order for Rs. 15,100 was made by the Deputy
Registrar of Co-operative Societies against him. On July
27, 1942, for the realisation of the amount, an item of
property belonging to the joint family of J was attached by
the Collector and brought to sale under s. 155 of the Bombay
Land Revenue Code, and purchased at auction by the first
respondent. This sale was held on February 2, 1943, and
confirmed on June 23, 1943. In the meantime on January 15,
1943, one of the sons of J instituted a suit for partition
and separate possession of his share in the joint family
properties, and contended, inter alia, that the sale in
favour of the first respondent was not binding on the joint
family. The sale was challenged on the grounds (1) that the
liability which J incurred was avyavaharika and therefore
the interest of his sons could not be sold for the
realisation of the debt, (2) that even if the debt was not
avyavaharika, the institution of the suit for partition
operated as severance of status between the members of the
family and, therefore, the father’s power of disposition
over the son’s share had come to an end and, consequently,
at the auction sale the share of the’ sons did not pass to
the auction purchaser, and (3) that what could legally be
sold under s. I55
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of the Bombay Land Revenue Code was the right, title and
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interest of the defaulter, i. e., the father alone, which
could not include the share of the other members of the
joint family. The evidence consisting of the notice for
sale, the proclamation of sale and the sale certificate
showed that the whole of the property was sold, and not the
share of the father alone.
Held, that the liability which J incurred was not avyava-
harika and that the sale of the joint family property,
including the share of the sons, for the discharge of the
debt, was valid.
Held, also, that, Colebrooke’s translation of the term
avyavaharika as "any debt for a cause repugnant to good
morals,", was the nearest approach to the true concept of
the term as used in the Smrithi texts.
Hem Raj alias Babu Lal v. Khem Chand, (1943) L. R. 70 I. A.
171, relied on.
Per Imam and Kapur jj.-(1) The liability of the sons to
discharge the debts of the father which are not tainted with
immorality or illegality is based on the pious obligation of
the sons which continues to exist in the lifetime and after
the death of the father and which does not come to an end as
a result of partition of the joint family property. All
that results from partition is that the right of the father
to make an alienation comes to an end. (2) Where the right,
title and interest of a judgment-debtor are set up for sale,
as to what passes to the auction purchaser is a question of
fact in each case dependent upon what was the estate put up
for sale, what the Court intended to sell and what the
purchaser intended to buy and did buy and what he paid for.
(3) The words "right, title and interest " occurring in s.
I55 of the Bombay Land Revenue Code have the same
connotation as they had in the corresponding words used in
the Code of Civil Procedure existing at the time the Bombay
Land Revenue Code was enacted. (4) In execution proceedings
it is not necessary to implead the sons or to bring another
suit if severance of status takes place pending the
execution proceedings because the pious duty of the sons
continues and consequently there is merely a difference in
the mode of enjoyment of the property. (5) The liability of
a father, who is a managing director and who draws a salary
or a remuneration, incurred as a result of negligence in the
discharge of his duties is not an avyavaharika debt as it
cannot be termed as " repugnant to good morals
Case Law discussed.
Panna Lal v. Mst. Naraini, [1952] S.C.R. 544 and Sudhashway
Mukherjee v. Bhubneshwar Prasad Narain Singh, [1954] S.C.R.
177, followed.
Khiarajmal v. Daim, (1904) L.R. 32 I.A. 23 and Sat Narain
v. Das, (1936) L.R. 63 I.A. 384, distinguished.
Mulgund Co-operative Credit Society v. Shidlingappa Ishwa-
rappa, A.I.R. 1941 Bom. 381, approved.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
233 of 1954.
Appeal from the judgment and decree dated August 22, 1950,
of the Bombay High Court in Appeal No. 80 of 1946 from
original decree, arising out of the judgment and decree
dated October 19, 1945, of the Court of Civil Judge, Senior
Division, Dharwar, in Special Suit No. 64 of 1943.
A. V. Viswanatha Sastri and M. S. K. Sastri, for the
appellants.
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A. S. R. Chari, Bawa Shivcharan Singh and Govindsaran
Singh, for respondents Nos. 2-4.
1958. September 24. The judgment of Imam and Kapur JJ. was
delivered by Kapur J. Sinha J. agreed to the order proposed.
KAPUR J.-This is an appeal against the judgment and decree
of the High Court of Bombay varying the decree of the trial
Court decreeing the plaintiff’s suit for possession by
partition of joint family property.
The facts of the case lie in a narrow compass. M. B.
Jakati, defendant No. 1, was the Managing Director of
Dharwar Urban Co-operative Bank Limited which went into
liquidation, and in that capacity he was receiving a yearly
remuneration of Rs. 1,000. As a result of certain
proceedings taken against defendant No. 1, M. B. Jakati, by
the liquidator of the Bank, a payment order for Rs. 15,100
was made by the Deputy Registrar of Co-operative Societies
on April 21, 1942. In execution of this payment order a
bungalow belonging to M. B. Jakati, defendant No. 1, was
attached by the Collector under the Bombay Land Revenue Code
on July 27, 1942. Notice for sale was issued on November
24, 1942, and the proclamation on December 24, 1942. The
sale was fixed for February 2, 1943. On January 16, 1943,
M. B. Jakati defendant No. 1 applied for postponing the sale
which was rejected. The auction sale was held on February
2, 1943, and was confirmed on June 23, 1943,-the purchaser
was S. N. Borkar, defendant No. 7, now respondent No. 1. On
February 10, 1944, respondent No. 1 sold the property to
defendants 8 to 10 who are respondents 2 to 4.
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The following pedigree table will assist in understanding
the case:
Madhavarao Balakrishan Jakati Deft. 1
Bhimabai 2
Krishnaji Shriniwas Shantibai Indumati
Plff. 1 Plff. 1(a) daughter daughter
Deft. No. 3 Deft. No. 4
On January 15, 1943, Krishnaji a son of defendant No. 1
brought a suit for partition of the joint family property
and possession of his separate share alleging inter alia
that the purchase by respondent No. 1 of the bungalow was
not binding on the joint family as "it was not liable to be
sold for the illegal and immoral acts on the part of
defendant No. 1 which were characterised as misfeasance ";
that the auction sale was under s. 155 of the Bombay Land
Revenue Code under which only " the right, title and
interest of the defaulter " could be sold and therefore the
right, title and interest of only the father, defendant No.
1 was sold and not that of the other members. The plaintiff
claimed 1/4 share of the property and also alleged that he
was not on good terms with his father who had neglected his
interest; that he was staying with his mother’s sister and
was not being maintained by his father and mother. On
January 12, 1944, appellant No. 1 filed his written
statement supporting the claim for partition and claiming
his own share. He supported the claim of the then plaintiff
that the sale in favour of respondent No. 1 was not binding
on the joint family. Defendant No. 2, now appellant No. 2,
the mother, also supported the plaintiff’s claim and on the
death of Krishnaji, she claimed his i share as his heir.
After the death of the original plaintiff Krishnaji,
Shriniwas appellant No. 1 was substituted as plaintiff on
June 28, 1944.
The suit was mainly contested by respondents 1 to 4.
Respondent No. 1 pleaded that plaintiff’s suit for partition
was collusive having been brought at the instance of the
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defendant No. 1, M. B. Jakati, and it was not bona fide;
that defendant No. 1 was made
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liable at the instance of the liquidator of the Dharwar
Urban Co-operative Bank Ltd., for misfeasance because he
acted negligently in the discharge of his duties as managing
director of the Bank; that the debt was binding on the
family as defendant No. 1, M. B. Jakati, had been receiving
a yearly remuneration from the Bank and the properties were
sold in payment of a debt binding on the family and
therefore the sale in execution of the payment order could
not be challenged as the sons were under a pious obligation
under the Hindu law to discharge the debts of their father;
that the sale could only be challenged on proof of the debt
of defendant No. 1 being for an " immoral or illegal
purpose. These pleadings gave rise to several issues.
The learned Civil Judge, held that the suit was collusive;
that the liability which defendant No. 1 incurred was
avyavaharika and was therefore not binding on the sons and
thus appellant No. 1 would have 1/3 share in the joint
family property, defendant NO. 1-1/3 and appellant No. 2
also 1/3. He therefore declared the shares as above in
the whole of the joint family property including the
bungalow which is the only property in which the respondents
are interested and which is in dispute in this appeal.
On appeal the High Court held that the debt was not
avyavaharika as there was no evidence to support the finding
of the trial Court, the order of the Deputy Registrar being
in the nature of a judgment to which neither the sons nor
the auction purchasers were parties and therefore it was not
" evidence of anything except the historical fact that it
was delivered". In regard to the question as to what
interest passed to the auction purchaser on a sale under s.
155 of the Bombay Land Revenue Code, it held that the whole
estate including the share of the sons was sold in execution
of the payment order and therefore qua that property the
sons had no interest left. The High Court varied the decree
to this extent and the plaintiffs have come up in appeal to
this Court by certificate of the High Court of Bombay.
The case of the appellants is (1) that the debt was
avyavaharika and therefore in an auction sale the
S.C.R. SUPREME COURT REPORTS 1389
interest of the sons and other members of the joint family
did not pass to the auction-purchaser; (2) that even if the
debt was not avyavaharika the institution of the suit for
partition operated as severance of status between the
members of the family and therefore the father’s power of
disposition over the son’s share had come to an end and
consequently in the auction sale the share of the sons did
not pass to the auction-purchaser; and (3) that what could
legally be sold under s. 155 of the Bombay Land Revenue Code
was the right, title and interest of the defaulter i. e. of
the father alone which could not include the share of the
other members of the joint family.
The first question for decision is whether the debt of the
father was avyavaharika. This term has been variously
translated as being that which is not lawful or what is not
just or what is not admissible under the law or under normal
conditions. Colebrooke translated it as " a debt for a
cause repugnant to good morals ". There is another track of
decision which has translated it as meaning " a debt which
is not supported as valid by legal arguments ". The Judicial
Committee of the Privy Council in Hem Raj alias Babu Lal v.
Khem Chand (1) held that the translation of the term as
given by Colebrooke makes the nearest approach to the true
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conception of the term used in the Smrithis texts and may
well be taken to represent its correct meaning and that it
did not admit of a more precise definition.
In Toshanpal Singh v. District Judge of Agra (2) the
Judicial Committee held that drawings of monies for
unauthorised purposes, which amounted to criminal breach of
trust under s. 405 of the Indian Penal Code, were not
binding on the sons, but a civil debt arising on account of
the receipt of monies by the father which were not accounted
for could not be termed avyavaharika.
In the case now before us the appellants have empted to
prove that the debt fell within the term avyavaharika by
relying upon the payment order and
(1)(1943) L.R. 70 I.A. 171, 176.
(2) (1934) L.R. 61 I.A. 350.
1390
the findings given by the Deputy Registrar in thepayment
order where-the liabity was inter alia based on a breach of
trust. Any opinion given in the order of the Deputy
Registrar as to the nature of the liability of defendant
No.1, M. B. Jakati, cannot be used as evidence in the
present case to determine whether the debt was avyavaharika
or otherwise. The order is not admissible to prove the
truth of the facts therein stated and except that it may be
relevant to prove the existence of the judgment itself, it
will not be admissible in evidence. Section 43 of the
Indian Evidence Act, the principle of which is, that
judgments excepting those upon questions of public and
general interest, judgment in rem or when necessary to prove
the existence of a judgment, order or decree, which may be a
fact in issue, are irrelevant. It was then submitted that
the pleadings of respondent No. 1 himself show that the debt
was of an immoral or illegal nature. In his written
statement, respondent No. 1 had pleaded that the liquidator
of the Bank had charged defendant No. 1 with misfeasance
because he was grossly negligent in the discharge of his
duty and responsibility as managing director and that after
a thorough enquiry the Deputy Registrar held misfeasance
proved and ordered a contribution of Rs. 15,100 by him. As
we have said above the translation given by Colebrooke of
the term avyavaharika is the nearest approach to its true
concept i. e. " any debt for a cause repugnant to good
morals ". The managing director of a Bank of the position of
defendant No. 1 who should have been more vigilant in
investing the monies of the Bank cannot be said to have
incurred the liability for a cause " repugnant to good
morals ". We are unable to subscribe to the proposition that
in the modern age with its complex institutions of Banks and
Joint Stock Companies governed by many technicalities and
complex system of laws the liability such as has arisen in
the present case could be called avyavaharika.- The debt was
therefore binding on the sons.
The effect of severance of status brought aboutthe filing of
the suit on January 25, 1943,
made the basis of the argument that only the share of the
father could be seized in execution of the payment order
made against him. This would necessitate an examination
into the rights and liabilities of Hindu sons in a
Mitakshara coparcenary family where the father is the karta.
In Hindu law there are two mutually destructive principles,
one the principle of independent coparceiiary rights in the
sons which is an incident of birth, giving to the sons
vested right in the coparcenary property, and the other the
pious duty of the sons to discharge their father’s debts not
tainted with immorality or illegality, which lays open the
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whole estate to be seized for the payment of such debts.
According to the Hindu law givers this pious duty to pay off
the ancestors’ debts and to relieve him of the death
torments consequent on nonpayment was irrespective of their
inheriting any property, but the courts rejected this
liability arising irrespective of inheriting any property
and gave to this religious duty a legal character. Masit
Ullah v. Damodar Prasad (1). For the payment of his debts
it is open to, the father to alienate the whole coparconary
estate including the share of the sons and it is equally
open to his creditors to proceed against it; but this is
subject to the sons having a right to challenge the
alienation or protest against a creditor proceeding against
their shares on proof of illegal or immoral purpose of the
debt. These propositions are well settled and are not
within the realm of controversy. (Panna Lal v. Mst. Naraini
(2); Girdharee Lal v. Kantoo Lal and Mudhan Thakoor v.
Kantoo Lal (3) ; Suraj Bansi Koer v. Sheo Prasad Singh (4);
Brij Narain v. Mangla Prasad (5). In the last mentioned
case the Privy Council said:
" Nothing clearer could be said than what was said by Lord
Hobhouse delivering the judgment of the Board in Nanomi
Babusin v. Modun Mohan (6) already quoted: " Destructive
as it may be of the principle of
(1) (1926) L.R. 53 I.A. 204. (2) [1952] S.C.R. 544, 552,
553, 556, 5-59.
(3) (1874) L.R. 1 I.A. 321, 333. (4) (1878) L.R. 6 I.A. 88,
101.
(5) (1923) L.R. 51 I.A. 129, 136. (6) (1885) L.R. 13 I.A.
1, 17, 18.
177
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independent coparcenary rights in the sons, the decisions
have for sometime established the principle that the sons
cannot set up their rights against their father’s alienation
for an antecedent debt, or against his creditor’s remedies
for their debts, if not tainted with immorality. On this
important question of the liability of -the joint estate,
their Lordships think that there is no conflict of authority
".
There is no discrepancy of judicial opinion as to the pious
duty of Hindu sons. In Panna Lal v. Mst. Naraini (1) this
Court approved the following dictum of Suleman A. C. J. in
Bankeylal v. Durga Prasad (2):
The Hindu Law texts based the liability on the pious
obligation itself and not on the father’s power to sell the
sons’ share ".
So great was the importance attached to the payment of debts
that Hindu law givers gave the non-payment of a debt the
status of sinfulness and such non-payment was wholly
repugnant to Hindu concept of son’s rights and liabilities.
In Bankeylal v. Durga Prasad (2) Lal Gopal Mukherji J. said
at p. 896:
" A perusal of text books of Smriti dealing with debts will
show that under the Hindu Law the nonpayment of a just debt
was regarded as a very heinous sill."
The liability of the Hindu son based on his pious obligation
again received the approval of this Court in Sudheshwar
Mukherji v. Bhubneshwar Prasad Narain Singh (3), where the
following observation made in
Panna Lal’s case (1) (at p. 184):
" The father’s power of alienating the family property for
payment of his just debts may be one of the consequences of
the pious obligation which the Hindu law imposed upon the
sons; or it may be one of the means of enforcing it, but it
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is certainly not the measure of the entire obligation was
reiterated. And again at p. 183 Mukherjea J. (as he then
was) said:.,
" It is a special liability created on purely religious
(1) [1952] S.C.R. 544, 552, 553, 556, 559.
(2) (1931) I.L.R. 53 All. 868, 896. (3) [1954] S.C.R. 177,
183, 184.
1393
grounds and can be enforced only against the sons of the
father and no other coparcener. The liability, therefore,
has its basis entirely on the relationship between the
father and the son ".
Therefore unless the son succeeds in proving that the decree
was based on a debt which was for an immoral or illegal
purpose the creditor’s right of seizing in execution of his
decree the whole coparcenary property including the son’s
share remains unaffected because except where the debt is
for an illegal or immoral purpose it is open to the
execution creditor to sell the whole estate in satisfaction
of the judgment obtained against the father alone. Sripat
Singh v. Tagore (1). The necessary corollary which flows
from the pious obligation imposed on Hindu sons is that it
is not ended by the partition of the family estate unless a
provision has been made for the payment of the just debts of
the father. This again is supported by the authority, of
this Court in Pannatal’s case (2) where Mukherjea J. said at
p. 559:
" Thus, in our opinion, a son is liable, even after
partition for the pre-partition debts of his father which
are not immoral or illegal and for the payment of which no
arrangement was made at the date of the partition ".
The liability of the sons is thus unaffected by partition
because the pious duty of the sons to pay the debt of the
father, unless it is for an immoral or illegal purpose,
continues till the debt is paid off and the pious obligation
incumbent on the sons to see that their father’s debts are
paid, prevents the sons from asserting that the family
estate so far as their interest is concerned is not liable
to purge that debt. Therefore even though the father’s
power to discharge his debt by selling the share of his sons
in the property may no longer exist as a result of
partition’ the right of the judgment creditor to seize the
erstwhile coparcenary property remains unaffected and
undiminished because of the pious obligation of the sons.
There does not seem to be any divergence of judicial opinion
in regard
(1) (1916) L.R. 44 I.A.1.
(2) [1952] S.C.R. 544, 552, 553, 556, 559.
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to the Hindu son’s liability to pay the debts of his father
after partition, and by the mere device of entering into
partition with their father, the sons cannot get rid of this
pious obligation. It has received the approval of this
Court in Panna Lal v. Mst. Naraini (1) and Sidheshwar
Mukherji v. Bubneshwar Prasad Narain Singh (2) where
Mukherjea J. observed in the latter case at p. 184:
" It is settled law that even after partition the sons could
be made liable for the pre-partition debts of the father if
there was no proper arrangement for the payment of such
debts at the time when the partition was effected, although
the father could have no longer any right of alienation in
regard to the separated share of the sons
The question then arises how the liability of the sons is to
be enforced. Another principle of Hindu law is that in a
coparcenary family the decree obtained against the father is
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binding on the sons as they would be deemed to have been
represented by the father in the suit: Kishan Sarup v.
Brijraj Singh (3). As was pointed out in Sidheshwar
Mukherji’s case (2), the sons are not necessary parties to a
money suit against the father who is the karta, but they may
be joined as defendants. The result of the partition in a
joint family is nothing more than a change in the mode of
enjoyment and what was held jointly is by the partition held
in severalty and therefore attachment of the whole
coparcenary estate would not be affected by the change in
the mode of enjoyment, because the liability of the share
which the sons got on partition remains unaffected as also
the attachment itself which is not ended by partition (S. 64
C. P. C. is a useful guide in such circumstances.
Dealing with the question as to how the interest of the sons
in joint family property can be attached and sold, Mukherjea
J. as he then was, observed at p. 185 in Sidheshwar
Mukherji’s case (2):
Be that as it may, the money decree passed against the
father certainly created a debt payable by
(1) [1952] S.C.R. 544, 552, 553, 556, 559.
(2) [1954] S.C.R. 177, 183, i84. (3) (1929) I.L.R. 51 All.
932.
1395
him. If the debt was not tainted with immorality, it was
open to the creditor to realise the dues by attachment and
sale of the sons’ coparcenary interest in the joint property
on the principles discussed above. As has been laid down by
the Judicial Committee in a series of cases, of which the
case of Nanomi Babuasin v. Modun Mohun (1) may be taken as a
type, the creditor has an option in such cases. He can, if
he likes, proceed against the father’s interest alone but he
can, if he so chooses, put up to sale the sons’ interest
also and it is a question of fact to be determined with
reference to the circumstances of each individual case
whether the smaller or the larger interest was actually sold
in execution ".
But it has contended that a partition after the decree but
before the auction sale limited the efficacy of the sale to
the share of the father even though the sale in fact was of
the whole estate, including the interest of the sons,
because after the partition the father no longer possessed
the right of alienation of the whole coparcenary estate to
discharge his debts. But this contention ignores the
doctrine of pious obligation of the sons. The right of the
pre-partition creditor to seize the property of the
erstwhile joint family in execution of his decree is not
dependent upon the father’s power to alienate the share of
his sons but on the principle of pious obligation on the
part of the sons to discharge the debt of the father. The
pious obligation continues to exist even though the power of
the father to alienate may come to an end as a result of
partition. The consequence is that as between the sons’
right to take a vested interest’ jointly with their father
in their ancestral estate and the remedy of the father’s
creditor to seize the whole of the estate for payment of his
debt not contracted for immoral or illegal purpose, the
latter will prevail and the sons are precluded from setting
tip their right and this will apply even to the divided
property which, under the doctrine of pious obligation
continues to be liable. for the debts of the father.
Therefore where the joint ancestral property including the
share of the sons has
(1) (1885) L.R. 13 I. A. 1, 17, 18.
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passed out of the family in execution of the decree on the
father’s debt the remedy of the sons would be to prove in
appropriate proceedings taken by them the illegal or immoral
purpose of the debt and in the absence of any such proof the
sale will be screened from the sons’ attack, because even
after the partition their share remains liable.
Girdhareelal v. Kantoolal (1), Suraj Bansi Koer v. Sheo
Prasad Narain Singh(2) Mussamat Nanomi Babuasin v. Modwn
Mohun (3) Chandra Deo Singh v. Mata Prasad (4) which was
approved by the Privy Council in Sahu Ram Chander v. Bhup
Singh (5), Pannalal v. Naraini (6) and Sidheshwar Mukherji’s
case (7).
Our attention was drawn to two decisions, one by the High
Court of Bombay in Ganpatrao v. Bhimrao (8) that in order to
make the share of the sons liable after partition they
should be brought on the record and the other of the Madras
High Court in Kameshwaramma v. Venkatasubba Row(9) that the
creditor has to bring another suit against the sons, obtain
a decree against them limited to the shares allotted to them
on partition and then attach and sell their share unless the
partition was not bona fide in which case the decree could
be executed against the joint family property. But the
decision in these cases must be confined to their own facts.
It is true that the right of the father to alienate for
payment of personal debt is ended by the partition, but as
we have said above, it does not affect the pious duty of the
sons to discharge the debt of their father. Therefore where
after attachment and a proper notice of sale the whole
estate including the sons’ share, which was attached, is
sold and the purchaser buys it intending it to be the whole
coparcenary estate, the presence of the sons eonomine is not
necessary because they still have the right to challenge the
sale on showing the immoral or illegal purpose of the debt.
In our opinion where the pious obligation exists and
partition takes place after the decree and
(1) (1874) L.R. i I.A. 321. 333. (2) (1878) L.R. 6 I.A. 88,
101.
(3) (1885) L.R. 13 I.A. Y. (4) (1909) I.L.R. 31 All.
176, 196.
(5) (1916) L.R. 44 I.A. 1. (6) [1952] S.C.R. 544,
552, 553, 556, 559.
(7) [1954] S.C.R. 177, 183,184. (8) I.L.R. 1950 Bom. 114.
(9) (1914) I.L.R. 38 Mad. 1120.
1397
pending execution proceedings as in the present case, the
sale of the whole estate in execution of the decree cannot
be challenged except on proof by the sons of the immoral or
illegal purpose of the debt and partition cannot relieve the
sons of their pious obligation or their shares of their
liability to be sold or be a means of reducing the efficacy
of tile attachment or impair the rights of the creditor.
Reliance is placed on the judgment in Khiarajmal v. Daim (1)
where the Privy Council held that the sale cannot be treated
as void on the ground of mere irregularity but the Court has
no jurisdiction to sell the property of persons " not
parties to the proceedings or properly represented on the
record ". There two such persons were Alibux and Naurex. As
against Alibux there was no decree. He was not a party to
the suit, and it was held by the Privy Council that his
interest in the property " seems to have been ignored
altogether ". He was not even mentioned as a debtor in the
award on the basis of which the decree, which was executed
was made. Similarly Naurez was not represented in either of
the suits and therefore there was no decree against him and
the sale of his property also was therefore without
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jurisdiction and null and void. This case cannot apply to
sons in a joint Hindu family where a father represents the
family and the decree is executable against the shares of
the sons while the coparcenary continues and the liability
of their shares continues after partition. Sat Narain v.
Das (2) is equally inapplicable to the present case. There
the Privy Council was dealing with the father’s power of
disposal of property before and after partition which power
vests in the Official Assignee on his bankruptcy, the
question of the right of the judgment-creditor to proceed in
execution against the divided shares of sons which had been
attached before partition was not a point in controversy.
There was no decision on the powers of an executing court to
proceed against the shares of the sons but the question
related to voluntary alienations by a father for payment of
his debts not incurred for an immoral or illegal purpose.
(1) (1904) L.R. 32 I.A. 23. (2) (1936) L.R. 63 I.A. 384.
1398
In cases where the sons do not challenge the liability of
their interest in the execution of the decree against the
father and the Court after attachment and proper notice of
sale sells the whole estate and the auction-purchaser
purchases and pays for the whole estate, the mere fact that
the sons were eo nomine not brought on the record would not
be sufficient to defeat the rights of the auction-purchaser
or put an end to the pious obligation of the sons. As was
pointed out by Lord Hobhouse in Malkarjun Bin Shidramappa
Pasare v. Narhari Bin Shivappa (1):
" Their Lordships agree with the view of the learned Chief
Justice that a purchaser cannot possibly judge of such
matters, even if lie knows the facts; and that if he is to
be held bound to enquire into the accuracy of the Court’s
conduct of its own business, no purchaser at a Court sale
would be safe. Strancers to a suit are justified in
believing that the Court has done that which by the
directions of the Court it ought to do. "
In Mussamat Nanomi Babuasia v. Modun Mohun Lord Hobhouse
said at p. 18:
" But if the fact be that the purchaser has bargained and
paid for the entirely, he may clearly defend his title to it
upon any ground which would have justified a sale if the
sons had been brought in to oppose the executing
proceedings. "
The question which assumes importance in an auction sale of
this kind therefore is what did the court intend to sell and
did sell and what did the auction purchaser purport to buy
and did buy and what did he pay for. One track of decision
of which Shambu Nath Pandey v. Golab Singh(3) is an
instance, shows when the father’s share alone passes. In
that case the father alone was made a party to the
proceedings. The mortgage, the suit of the creditor and the
decree and the sale certificate all purported to affect the
rights of the father and his interest alone. It was
therefore held that whatever the nature of the debt, only
the father’s
(1) (1900) L.R. 27 I.A. 216, 225. (2) (1885) L.R. 13 I.A.
i.
(3) (1887) L.R. 14 I.A. 77.
1399
right and interest was intended to pass to the auction-
purchaser. In Meenakshi Naidu v. Immudi Kanaka Rammaya
Kounden(1) which represents the other track of decision, the
Privy Council held that upon the documents the court
intended to sell and did sell the whole of the coparcenary
interest and not any partial interest. The query in decided
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cases has been as to what was put up for sale and was sold
and what the purchaser had reason to think he was buying in
execution of the decree. Mussamat Nanomi Babuasin v. Modun
Mohun (2) (supra), Bhagbut Persad v. Mussamat Girja Koer
(3), Meenakshi Naidu v. Immudi Rammaya Kounden (1) and Rai
Babu Mahabir Persad v. Rai Markunda Nath Sahai (4) and
Daulat Ram v. Mehr Chand (5).
In the present case the payment order was made by the Deputy
Registrar on April 21, 1942, and after the order had been
sent to the Collector for recovery, the property was
attached on April 24, 1942, and notice of sale was issued on
November 24, 1942, and was published under ss. 165 and 166
of the Bombay Land Revenue Code. The proclamation of sale
was dated December 12, 1942.
The property put up for sale was plot No. 36 -D measuring 6
acres and one guntha and its value was specified as 13,000
rupees. There was a note added :
" No guarantee is given of the title of the said defendant
or of the validity of any of the rights, charges or
interests claimed by third parties ". The order confirming
the sale also shows that the whole bungalow was sold. It
was valued at Rs. 16,000 and there was a mortgage of Rs.
2,000 against it and what was sold and confirmed by this
order was the whole bungalow. The sale certificate was in
regard to the whole bungalow i. e. City Survey No. 67--D
measuring 6 acres and one guntha the sale price being Rs.
13,025. There is little doubt therefore that what was put
up for auction sale was the whole bungalow
2,0.6
(1) (1888) L.R. 16 I.A. i.
(3) (1888) L.R. 15 I.A. 99.
(5) (1889) L.R. 14 I.A. 187.
178
(2) (1885) L.R. 13 I.A. i.
(4) (1889) L.R. 17 I.A. 11, 16.
1400
and what the auction-purchaser purported to buy and paid for
was also the whole bungalow and not any fractional share in
it. It is a case where not only was the payment order
passed before the partition but the attachment was made and
the sale proclamation was issued before the suit for
partition was filed and the sale took place of the whole
property without any protest or challenge by the sons and
without any notice to the Collector or the judgment-creditor
of the filing of the suit for partition. In such a case
respondent No. 1 is entitled to defend his title upon the
grounds which would have justified the sale had the
appellants been brought on record in execution proceedings.
The binding nature of the decree passed on the father’s
debts not tainted with immorality or illegality, and the
pious obligation imposed on the sons under the Mitakshara
law would be sufficient to sustain the sale and defeat the
sons’ suit in the same way and on the same grounds as in the
case of execution proceedings. Nanomi Babuasin v. Modun
Mohun (1). Consequently whether the sons were made parties
to the execution proceedings or brought a suit challenging
the sale of their shares the points for decision are the
same-the nature of the debts and liability of the sons under
Hindu law, and these are the determining factors in both the
cases i.e. the sons being parties to the execution
proceedings or their suit challenging the sale of their
shares.
The effect of attachment on the severance of status by the
filing of a suit by one of the members of the coparcenary
whose share was liable in execution of the decree has not
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been debated at the bar and how exactly it would affect the
rights of the parties need not therefore be decided in this
case. As a consequence it would not be necessary to discuss
the pronouncements of the Privy Council in Suraj Bansi Koer
v. Sheo Prasad Singh (2) ; Moti Lal v. Karrabuldin (3)
Ragunath Das v. Sundar Das Khetri (4); Ananta Padmanabha
Swami v. Official Receiver, Secunderabad (5).
(1) (1885) L.R. 13 I.A. i.
(3) (1897) L.R. 24 I.A. 170.
(2) (1878) L.R. 6 I.A. 88, 101.
(4) (1914) L.R. 41 I.A. 251.
(5) (1933) L.R. 60 I.A. 167, 174-5.
1401
The argument based on the interpretation of the words I
right, title and interest of the defaulter’ in s. 155 of the
Bombay Land Revenue Code was that it was only the share of
the defaulter himself which was and could be put up for
auction sale. That the whole of the property was put up for
sale, was sold and was purchased as such is shown by the
documents to which reference has already been made viz., the
notice of November 24, 1942, proclamation of sale of Decem-
ber 24, 1,942, the order of confirmation of sale dated June
28, 1943, and the sale certificate issued by the Collector.
The Civil Procedure Code at the time of the enactment of the
Bombay Land Revenue Code required that the property sold in
execution should be described as " right, title and interest
of the judgment debtor " and the same words have been used
in s. 155 of the Bombay Land Revenue Code. It is a question
of fact in each case as to what was sold in execution of the
decree. In Rai Babu Mahabir Prasad v. Markunda Nath Sahai
(1) Lord Hobhouse observed as follows at p. 16 :
" It is a question of fact in each case, and in this case
their Lordships think that the transactions of the 4th and
5th of January, 1875, and the description of the property in
the sale certificate, are conclusive to shew that the entire
corpus of the estate was sold. " Similarly in Meenakshi
Naidu v. Immudi Kanaka Rammaya Kounden (2) the whole
interest of the coparcenary was held to be sold taking into
consideration the evidence which had been placed on the
record. Lord FitzGerald at p. 5 pointed out the difference
where only the father’s interest was intended to
pass:
"In Hurdey Narain’s case" (Hurdey Narain v. Rooder Perkash
(3)) " all the documents shewed that the Court intended to
sell and that it did sell nothing but the father’s share-the
share and interest that he would take on partition, and
nothing beyond it-and this tribunal in that case puts it
entirely upon the ground
(1) (1889) L.R. 17 I.A. 11, 16. (2) (1888) L.R. 16 I.A. i.
(3) (1883) L. R. 11 I. A. 26, 29.
1402
that everything shewed that the thing sold was "whatever
rights and interests, the said judgment debtor had in the
property " and nothing else ".
In Sripat Singh v. Tagore (1) the "right, title and interest
of the judgment debtor" were sold and there also it was held
to convey the whole coparcenary estate and it was remarked
that it was of the utmost importance that the substance and
not merely the technicality of the transaction should be
regarded. What is to be seen is what was put up for sale
what the court intended to sell and what the purchaser was
intending to buy and what he purported to buy.
Counsel for the appellants relied on Shambu Nath Panday v.
Golab Singh(2) where it was held that right and interest of
the father meant personal interest but in that case as we
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have pointed out, the documents produced all showed that the
father’s interest alone was intended to pass.
In Mulgund Co-operative Credit Society v. Shidlingappa
Ishwarappa (3) it was held that the sale under the Bombay
Land Revenue Code has the same effect as the sale by the
Civil Court. The language used in the Bombay Land Revenue
Code and the then existing Civil Procedure Code is similar
i.e. " the right, title and interest of the defaulter " in
one case and " of the judgment debtor " in the other. This
is supported by the observation of the Privy Council in Rai
Babu Mahabir Prasad v. Markunda Nath Sahai (4) and as to
what passed under the sale does not become any different
merely because the sale is held under s. 155 of the Bombay
Land Revenue Code rather than the Code of Civil Procedure.
The effect in both cases is the same.
We hold therefore (1) that the liability of the sons to
discharge the debts of the father which are not tainted with
immorality or illegality is based on the pious obligation of
the sons which continues to exist in the lifetime and after
the death of the father and which does not come to an end as
a result of partition of the joint family property. All
that results from partition is that the right of the father
to make an
(i) (1916) L.R. 44 I.A. i.
(3) A.I.R. 194i Bom. 385.
(2) (1887) L.R. 14 I.A. 77.
(4) (1880) L.R. 17 I.A. 11, 16.
1403
alienation comes to an end. (2) Where the right, title and
interest of a judgment-debtor are set up for sale as to what
passes to the auction-purchaser is a question of fact in
each case dependent upon what was the estate put up for
sale, what the Court intended to sell and what the purchaser
intended to buy and did buy and what he paid for. (3) The
words di right, title and interest " occurring in s. 155 of
the Bombay Land Revenue Code have the same connotation as
they had in the corresponding words used in the Code of
Civil Procedure existing at the time the Bombay Land Revenue
Code was enacted. (4) In execution proceedings it is not
necessary to implead the sons or to bring another suit if
severance of status takes place pending the execution
proceedings because the pious duty of the sons continues and
consequently there is merely a difference in the mode of
enjoyment of the property. (5) The liability of a father,
who is a managing director and who draws a salary or a
remuneration, incurred as a result of negligence in the
discharge of his duties is not an avyavaharika debt as it
cannot be termed as " repugnant to good morals ".
In the result the appeal fails and is dismissed with costs.
SINHA J.-I agree to the order proposed.
Appeal dismissed.