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Calcutta High Court
Bhattu Mahton And Ors. vs Pareman Dass And Ors. on 10 March, 1897
Equivalent citations: (1897) ILR 24 Cal 672
Author: A B Treyelyan
Bench: Trevelyan, Beverley


Treyelyan, and Beverley, JJ.

1. This suit was brought by all the members of a Mitakshara family (sic)e one, namely, Mangru Mahton, who was the fifth defendant, for the (sic)pn of obtaining possession of property which had been sold in execution decree obtained against Mangru Mahton and also against Sobha Mahto brother, the fifth of the plaintiff’s. The family consisted of three brother their wives and sons. The suit in which the decree was obtained while to the sale was brought for the purpose of recovering damages for dhan had been stolen by the defendants in that suit. The defendants in the included Mangru Mahton and Sobha Mahton. We may mention in pa that the decree in that suit describes the claim as being for the recove Rs. 561-14-6 as damages on account of the price of the grains appropriat the defendants. That statement is important, having regard to the question which has been argued in this appeal.

2. No evidence has been given in this case as to any of the proceeding execution, and all we have to look at is the certificate of sale which has put in and the decree. The certificate of sale is headed with the (sic) of the parties, and it certifies the sale of this particular kasht, without deserz(sic)ing to whom it belongs.

3. It is contended on behalf of the purchaser that the effect of this sale to dispose of the rights of the whole family in this kasht. On the other ha it is urged on behalf of the appellants that only Mangru Mahton’s right pas(sic) thereby.

4. We may at once dispose of the rights of the children of Darshan Mahton, who was one of these three brothers, and of the widow-of Darshan. The argument addressed to us was based entirely upon the duty of a Hindu son, governed by the Mitakshara Law to pay the debts of his father, and there is nothing in this case which could possibly bind the family by any acts of a manager. In the first place, it is not shown that either Mangru or Sobha was the manager of the family, and the particular debt, if it was a debt, which was created, was not one which was contracted by the manager as such or in any way for the family. We say “if it was a debt,” because as a matter of fact it was not a debt at all. There is no way in which Darshan Mahton’s descendants are bound. So far as they are concerned therefore the appeal must fail.

5. To proceed with the others, we think it must be accepted that this sale was held in execution of a decree both against Mangru Mahton and Sobha Mahton. The sale purports to have been made in the suit as against all the defendants, and unless the contrary is shown, we must suppose that the judgment-creditor took proceedings against both Mangru and Sobha who were defendants in that suit and were interested in this kasht. In the plaint it is alleged that the proceedings were only against Mangru Mahton; but that allegation might easily have been substantiated by proof. In the absence of any proof we must take it that the certificate of sale was in pursuance of proper proceedings against both brothers. That being so, it follows that as far as Sobha Mahton is concerned his suit must fail.

6. But the case with regard to the others is very different. Although the sale certificate purports to pass the whole of the property, still the sons would not be liable, unless it is shown that there was a proper decree made against their father in respect of an antecedent debt which was not contracted for illegal or immoral purposes. That, to put it very shortly, is the result of the authorities on the matter. In the first place, we do not think that there was any antecedent debt at all. The cases cited refer to transactions which have been entered into by way of a contract or something approaching a contract between the father and some other person, and the debt which was so contracted it became the pious duty of the sons to pay off. But here there was no debt antecedent to the decree. There was merely a right to damages for a wrongful and criminal act; and so those cases would have no application to the present case. But even if it could be said that that right to damages created a debt before the suit was brought, still it, is difficult to see how such a debt was not tainted with either illegality or immorality. The origin of this debt, if debt it was, was a theft committed by those persons who were sued.

7. It is contended that the purchaser being a bond fide purchaser, was not compelled to go so far back as to ascertain those facts. On an authority which was cited to us it is argued that he need not go behind the decree. At any rate it is suggested that he ought not to investigate the decree which led up to the sale. Certainly a purchaser of property under these circumstances, when he is shown to be aware that the persons who on suing were members of a family, would act very unwisely if he did not examine at least the decree. The decree would either give the purchaser notice or put him on inquiry. This is not a case where the decree recites a debt which prima facie was one binding a family or one properly contracted, but it is a case distinctly which, to say the least of it, would put the purchaser upon inquiry.

8. There is one more matter which it is necessary for us to refer to. It argued at the beginning that this suit was barred by limitation, firstly, or ground that a claim had been preferred to the property in execution petition of claim has not been put in, and on the evidence on the record it appears that no decision was come to on that claim. The claim was put in too late, and nothing was done with regard to it.

9. Then it is said that under the Bengal Tenancy Act two years’ limitation applies. But this is not a suit by an occupancy raiyat against his landlord as such, but against a person who may happen to be his landlord, and who is being sued as purchaser of the occupancy right and in consequence of that purchase.

10. These are all the matters necessary for our consideration in this case.

11. The result is, that we must vary the decree of the lower Court by disallowing to Sobha Mahton the share which he claims. So far as he is concerned, therefore, the suit must be dismissed. Subject to this modification the decree will be affirmed.

12. The appellants must pay to the respondents the costs of this appeal.

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