S. M. Jakati & ANR Vs. S. M.
Borkar & Ors [1958] INSC 82 (24 September 1958)
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 1385 of the Bombay Land
Revenue Code was the right, title and 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 avyavaharika 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 Ishwarappa, A.I.R. 1941 Bom. 381, approved.
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.
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.
1387 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
defendant No. 1, M. B. Jakati, and it was not bona fide;
that defendant No. 1 was made 1388 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 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
about the 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 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 1392 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 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.
1394 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 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.
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.
1396 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 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 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.
(3) (1887) L.R. 14 I.A. 77.
1399 right and interest was intended to pass
to the auctionpurchaser. 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 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 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 December 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 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.
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