Baso Kooer And Ors. vs Hurry Dass And Ors. on 6 December, 1882

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Calcutta High Court
Baso Kooer And Ors. vs Hurry Dass And Ors. on 6 December, 1882
Equivalent citations: (1883) ILR 9 Cal 495
Author: Mitter
Bench: Mitter, Norris


Mitter, J.

1. The plaintiffs in these two suits are members of a joint family of which Chumun Lal was the common ancestor. Chumun Lal left six sons him surviving, viz., Behari Lal, Kanhya Lal, Sheo Lal, Domun Lal, Shoukhi Lal and Amrit Lal; but Amrit Lal may be left out of consideration, as he died without issue leaving a widow Radha Kooer. There was a question raised in the lower Court as to the date of the death of Chuman Lal, but the lower Court has found that it took place in 1262 (1855). We concur in this finding. Of the descendants of the surviving five sons of Chuman Lal, it is sufficient for our purpose to state that Behari Lal had three sons, viz., Bhowani Pershad, Peary Lal and Gopal Lal, and that Sheo Lal had a son named Durga Pershad. In the suit out of which appeal No. 60 arises, the plaintiffs are the widow and sons of Kanhya Lal, and the sons and wives of Bhowani Pershad, of Gopal Lal and of Domun Lal. In the other suit the plaintiffs are sons of Shoukhi Lal, sons and wife of Durga Pershad, and wives of Nuthoo Lal and Gopi Lal who are the sons of Peary Lal. In both these suits one Mohabir Pershad, not belonging to the family, has joined as plaintiff. He is the benamidar of one Bunwari Lal, a rich banker in the district of Mozufferpore, who has purchased a share of the disputed property from the other plaintiffs.

2. It appears that this family carried on a trade of saltpetre in the names of some of its members. The principal defendants in this case, who acted as the, bankers of this family for a long time, used to advance money from time to time with which this trade was carried on. On the 26th November 1864 there was an adjustment of accounts between the parties, and the sum of Rs. 24,283-15-6 was found due to the defendants. On that date a cash loan of Rs. 9,716 odd annas 6 pie having been taken by the joint family, a bond for the consolidated amount for Rs. 34,000 was given by the head members of the family to the defendants. This bond was executed by Kunhay Lal, Domun Lal, Bhowani Pershad, and Gopal Lal. The reason for these four persons only executing the bond was that the properties, which were hypothecated as collateral security in it, stood in their names. All these properties are situated within the district of Tirhoot.

3. The money covered by this bond not having been paid on the due date, a suit was brought against these four persons. It was decreed on the 10th; February 1866. The Court in its judgment found that the money was taken far the purpose of carrying on the family trade mentioned above. This decree was obtained in the District Court of Patna. There was no direction in it for the sale of the hypothecated properties.

4. In execution of this decree the properties in dispute in this case, consisting of the hypothecated properties as well as certain properties which had not been hypothecated, were brought to sale in the District Court of Mozufferpore. in the years 1866-67-68. Two of these sales, however, took place so late as in the year 1871. The defendants who became the auction-purchasers in these sales took possession under colour of their purchase of the shares of their judgment-debtors as well as of their sons.

5. The money covered by the decree not having been satisfied, the defendants brought another suit against the head members of the remaining branches of the family, viz., Shoukhi Lal, Durga Pershad, Nuthoo Lal, Gopal Lal, and Gobardhun for a declaration that they were entitled to have the balance of the decree realized by the sale of their property. This suit was decreed in their favour on the 30th June 1868, the Court finding that the original debt, contracted under the bond of 26th November 1864, was binding upon the joint-family. Under this decree the remaining shares of the family properties mentioned above were brought to sale in the years 1868 and 1869. The defendant in these instances also became the auction-purchasers, and, under colour of their purchase, took possession of the shares of their judgment-debtors as well as of their sons.

6. Some of the sons of the judgment-debtors in both these decrees were adults. The present suits were brought in February and March 1879, on the allegation that by these sales only the interests of the persons, who were defendants in these two suits passed, and that the plaintiffs are entitled to recover back their shares from the auction-purchasers. It will have appeared from the dates given above that the suits were brought in some instances more than 11 years after the auction sales; and in no instance are the dates of the suits less than eight years from the date of the auction-purchase. The lower Court being of opinion that the original debt was binding upon the whole family, and finding that there was long delay in bringing these suits, dismissed them with costs. The lower Court has also found that the majority of the properties in dispute in this case were acquired after the death of Chumun Lal.

7. In these two appeals nothing has been urged before as regards the properties acquired after the death of Chumun Lal. With reference to the remaining properties two objections have been taken to the decree of the lower Court: First, that as regards the plaintiffs who had attained their majority before the suits against their fathers were brought (and which suits resulted in the decrees.of the 10th February 1866 and 30th June 1866), their shares did not pass by the auction sales; secondly, that as regards properties not hypothecated in the bond of the 26th November 1864, nothing but the interests, of the judgment-debtors passed under the auction sales.

8. With reference to these two grounds, the learned Counsel for the appellants has placed before us all the decided cases bearing upon them, and has contended that the balance of authorities is in favour of the contention raised by him.

9. The only cases cited in support of the first objection are Laljee Sahoy v. Fakeer Chand I.L.R. 6 Cal. 135 and Upooroop Tewary v. Lalla Bandhjee Sahoy I.L.R. 6 Cal. 749.

10. The last-mentioned case does not, in our opinion, support this contention. It has rather a contrary tendency. The facts of that case are that a Mitakshara father executed a bond hypothecating a certain ancestral property. He had at that time an adult son. Upon the mortgage bond, a decree was obtained against the father alone, and in execution of that decree the mortgaged property was sold and purchased by the defendant, who, under colour of his purchase, took possession thereof. The son then brought a suit to recover possession of his share, and it was held that the mortgage by the father would not be binding upon the son, unless it was shown that the son had either expressly or impliedly consented to it, and the case was remanded to try that question. It is, therefore, an, authority for the proposition that although an adult son may not have been made a defendant, yet if a particular property were property liable to be sold in execution of the decree which may have been passed against the father, the whole property would pass.This case, therefore, instead of supporting the appellant’s contention, goes to show that where a property is liable for the debt contracted by the father, it may be brought to sale in execution of a decree based upon that debt; and that that. sale would pass the interest of the son (whether minor or adult) not with standing that he was not made a party to the suit in which the decree was passed.

11. The case of Laljee Sahoy v. Fakeer Chand I.L.R. 6 Gal. 135 does to a certain extent support the appellant’s contention. There also a certain ancestral property had been mortgaged by a father, and it was proved that the mortgage had been made with the consent of the son, who was adult at the time of the mortgage. The suit upon the mortgage bond was brought only against the father, and, a decree having been obtained, the ancestral property was brought to sale. The purchaser obtained possession of it, and after nearly, the lapse of twelve years the son brought a suit to recover possession of his share.

12. Mr. Justice Pontifex, in delivering judgment in that case, made the, following observations:

The result, in fact, seems to be that, qua ancestral property, the son is as equally liable for his father’s debts if not incurred for immoral purposes, as for his own debts; but if the interests of an adult son were affected by a decree against the father alone, which, in our opinion, is not the law, the unreasonable consequence might be that the son’s interest would be more liable for the payment of the father’s debt than for the debt and perhaps the prior debt of, the son, for no creditors of the son could touch his interest without suing him.

13. No doubt this passage lends some colour to the contention that, in order to affect an adult son, the suit must be brought against him also; but the result of the decision shows that full effect was not given by the learned Judges to the dictum laid down above; for they held that, as the son had stood by and allowed the mortgagee to believe that the mortgage covered” the whole sixteen annas of the property, and then allowed him to take possession under his purchase, and to remain in unmolested possession for nearly twelve years, he was estopped from afterwards claiming his share in the property sold.

14. These observations show that the son was bound by the mortgage because he had, by his conduct, allowed the mortgagee to believe that the mortgage would affect the whole sixteen annas of the property; but according to the dictum extracted above, a decree passed upon a mortgage bond binding upon the son would not affect him unless made a party to the suit. The con duct of the son, therefore, in not bringing a suit for a period of eleven years and upwards, could not make the auction-purchase made by the mortgagee himself extend over the whole sixteen annas of the property if really its legal effect were to convey the father’s interest only.

15. Therefore, although there are certain observations in this judgment which lend some support to the contention of the learned Counsel, the final result of the decision is that the adult son was held bound by the sale which was effected in execution of a decree against the father alone. Therefore, the cases cited by the learned Counsel do not support the objection taken by him.

16. Then, apart from the decided cases, there does not appear to us to be any difference in principle between the cases of adult and minor sons. It has been now conclusively held that an ancestral property in the possession of a father and a son, whether an adult or not, is liable for the father’s personal debts, provided that these debts are not proved to have been contracted for immoral purposes. That being the law, it is difficult to understand upon what ground the distinction between the case of an adult and a minor son can be supported.

17. In the case of an adult son, it may be urged that he ought to be made a party to the suit, because that may enable him, in some cases, to save the family property by paying the debt out of his own private funds, if he be possessed of any. If a case like this be made out by an adult son in any suit, the question may arise whether he should not be allowed to have the sale set aside on the payment of the debt due under the decree; but that is not the case here. It is not said here that the adult sons, by reason of their not having been made parties, were deprived of the opportunity of saving the property by paying off the debt.

18. Beyond this, it does not appear to us that there is any other reasonable ground upon which it can be said that the law should, in the case of an adult son, be different from what it is in the case of a minor son. The first ground taken before us, therefore, is untenable.

19. As regards the second objection, it seems to us that the balance of authorities is against the contention raised by the learned Counsel.

20. The cases cited before us in support of this contention are Ruder Perkash Misser v. Hurdai Narain Sahu 5 C.L.R. 112; Laljee Sahoy v. Fakeer Chand I.L.R. 6 Cal. 135; Bhagwat Dassa v. Gouri Kunwar 7 0. L.R. 218; and Ramphul Singh v. Deg Narain Singh I.L.R. 8 Cal. 517.

21. When these cases are narrowly examined, it appears that the only decision which supports the contention is that of Ramphul Singh v. Deg Narain Singh. In the other three cases it is not broadly laid down that in execution of a money-decree against the father, his interest in the joint property can only be brought to sale. What has been decided in these cases is that, having regard to the circumstances of each transaction forming the basis of each of those suits, what was sold was the interest of the father alone.

22. The learned.counsel relied very strongly upon the judgment of the Privy Council in the case of Deendyal Lal v. Jugdeep Narain Singh L.R. 4. I.A. 247 : S. c. I.L.R. 3 Cal. 198. In the case of Umbica Prosad Ternary v. Ram Sahay Lall I.L.R. 8 Cal. 898 I have gone at some length into this question, and it seemed to me then, as it seems to me now, that what was decided by their Lordships in the Judicial Committee in the case of Deendyal Lal v. Jugdeep Narain was simply this,-that the interest of a member of a joint Hindu family in joint property is liable to be sold in execution of a decree against him. On the other hand, there is a current of decisions showing that, in execution of a money-decree against the father alone, the whole family property may be brought to sale, and that, when such property is sold, the son cannot get the sale set aside, unless he proves that the debt, for which the decree was passed, has been contracted by the father for immoral purposes. See Junnuk Kishoree Koonwar v. Rughoonundun Singh S.D.A. 1861 213; Balmokund v. Jhoona Lall S.D.A. N.W.P. 2 Sel. Ca. 469; Beer Pershad v. Doorga Pershad W.R. 1864 310; Budree Lall v. Kantoo Lall 23 W.R. 260; Anooragee Kooer v. Bhugobutty Kooer 25 W.R. 148; Luchmi Dai Koori v. Asman Singh I.L.R. 2 Cal. 213; 25 W.R. 421; and Ponappa Pillai v. Poppuvayangar I.L.R. 4 Mad. 1.

23. Many of these cases are based upon the decision of the Judicial Committee of the Privy Council in the case of Muddun Thakoor v. Kantoo Lall L.R. 1 I.A. 321; s. C. 14 B.L.R. 187.

24. It is said that this last-mentioned case is only an authority for the proposition that, where a father mortgages ancestral property, the son cannot recover his share of it unless it be shown that the mortgage debt was contracted for illegal purposes.

25. The observations of the Judicial Committee do not warrant us in taking this narrow view of their decision. All that they say is that it was shown in that case that a Court of Justice had given a decree against him (the father) in favour of the creditor, and that the Court had given an order for the particular property to be put up for sale under the execution. A reference to the Paper Book before the Privy Council will show that the decree was a simple money-decree; that there was no reference in it to any mortgage; and that the sale was made in the ordinary way, there being no special directions given for the sale of the whole ancestral property. Then, again, the Judicial Committee expressly confirm the ruling in the case of Junnuk Kishoree Koonwar v. Rughoonundan Singh S.D.A. 1861 213. In that case there was no sale in execution of a mortgage decree. The sales which were upheld in that case were all sales in execution of simple money-decrees. There is no ground, therefore, for supposing that their Lordships of the Judicial Committee intended that the operation of the principle laid down in the case of Muddun Thakoor v. Kantoo Lall L.R. 1 I.A. 321 s.c 14 B.L.R. 187 should be restricted in its application only to sales in execution of decrees based upon bonds, under which ancestral properties are hypothecated.

26. It being clear, therefore, that in each case it will have to be determined whether the whole ancestral property has been sold, and whether the sale can be impeached by the son or not, there cannot be the least doubt, having regard to the facts of the case before us, that the decrees made by the lower Courts are correct upon the sale proceedings; there is not the slightest doubt that the whole family property was sold. It is also clear that the debts, which were the foundation of the decrees in execution of which the properties were brought to sale, were debts contracted by the heads of the several branches of the joint family for family purposes. Under these circumstances, and especially having regard to the length of time which elapsed between the dates of sale and the dates of the institution of these suits, we are of opinion that the decision of the lower Court is correct. We, therefore, dismiss both these appeals with costs.

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