PETITIONER: SIDHESHWAR MUKHERJEE Vs. RESPONDENT: BHUBNESHWAR PRASAD NARAINSINGH AND OTHERS. DATE OF JUDGMENT: 05/10/1953 BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. MAHAJAN, MEHR CHAND JAGANNADHADAS, B. CITATION: 1953 AIR 487 1954 SCR 177 CITATOR INFO : R 1959 SC 282 (12,13,14,15,16) R 1966 SC 470 (5) F 1982 SC 84 (60) ACT: Hindu law-Debts-Pious obligation of sons-Decree against junior member for debts which are not immoral or illegal- Sale of his interest in execution-Rights of purchaser- Interest of sons of junior member, whether passes to purchaser-Rule in Nanomi Babuasin's case-Purchaser's right to possession or share of profits. HEADNOTE: A person who has obtained a decree against a member of a joint Hindu family for a debt due to him is entitled to attach and sell the interest of his debtor in the joint family property, and, if the debt was not immoral or illegal, the interest of the judgment debtor's sons also in the joint family property would pass to the purchaser by such sale even though the judgment-debtor was not the karta of the family and the family did not consist of the father and the sons only when the decree was obtained against the father and the properties were sold. It is not necessary that the sons should be made parties to the suit or the execution proceedings. Lalta Prashad v. Gazadhar (I..L.R. 55 All. 28), Chhoteylal v. Ganpat (I.L.R. 57 All. 176) and Virayya v. Parthasarathi (I.L.R. 57 Mad. 190) approved. 178 The rule laid down by the Privy Council in Nanomi Babuasin's Case is not restricted in its application to cases where the father was the head of the family and in that capacity could represent his sons in the suit or execution proceedings, for, subject to the right of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the Hindu law, the father, even if he was not the karta could represent his sons as effectively in the sale or execution proceedings as be could do if he was the karta himself. A person who has purchased the interest of a member of a joint Hindu family in execution of a decree against him is not entitled to institute a suit against the other coparceners for recovery of a share of the income of the joint family properties from the date of his purchase. He can work out his rights only by a suit for partition and his right to possession would commence only from the period when a specific allotment is made in his favour. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 53 to 55 of
1951.
Appeals from the Judgment and Decree dated the 8th
September, 1948, of the High Court of Judicature at Patna
(Mahohar Lall and Mahabir Prasad JJ.) in C.A. Nos. 219 of
1946, and 40 and 39 of 1945, arising out of the Judgment’
and Decree dated the 29th January, 1946, and 16th September,
1944, of the Court of the Subordinate Judge, Motihari, in
Original Suits Nos. 108, 109 and 110 of 1943.
C. K. Daphtary, Solicitor-General for India (Rameshwar
Nath, with him) for the appellant.
Ratan Lal Chowla (K. N. Aggarwal with him) for respondents
Nos. I and 2.
H. J. Umrigar for respondents Nos. 3 and 4.
1953. October 5. The Judgment of the Court was delivered by
MUKHERJEA J.
Civil Appeal No. 53 of 1951.
This appeal is on behalf of the plaintiff and is directed
against a judgment and decree of a Division Bench of the
Patna High Court, dated the 8th of September, 1948,
modifying those of the Additional Subordinate
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Judge, Motihari, passed in Partition Suit No. 108/6 of
1943/46. There were two money suits between the same
parties which were tried along with the suit for partition
and both of them were decreed by the trial judge, but
dismissed by the High Court on appeal. Civil Appeals Nos.
54 and 55 of this court arise out of these appeals and we
will deal with them separately.
So far as the main appeal is concerned, the material facts
are uncontroverted and the dispute centres round one short
point, which relates to the extent of share in the disputed
properties to which the plaintiff can be said to have
acquired a legal title. The plaintiff averred that he was
entitled to a 4 annas share in the schedule lands and this
claim was allowed by the trial judge. The High Court held,
on the other band, that the plaintiff’s title extended only
to 1 anna 4 pies share in the disputed properties, and with
regard to this share alone he could claim partition. It is
the propriety of this decision that has been challenged
before us in this appeal.
To appreciate the contentions that have been raised by the
parties before us, it may be convenient to narrate a few
material facts. The properties in suit, which are comprised
in Tauzi No. 703 of the Champaran Collectorate, belonged
admittedly to the defendants first party and their
ancestors. Defendant No. 1, Bhubneshwar Prasad, who is the
main defendant in the present litigation, borrowed a sum of
money from one Panchanan Banerjee on the basis of a
promissory note some time before 1932. Panchanan instituted
a suit in the Court of the Subordinate Judge at Motihari
against Bhubneshwar for recovery of this loan and having
obtained a decree, put the decree in execution in Execution
Case No. 16 of 1932 of the Court of the Subordinate Judge at
Motihari. In course of these proceedings, the right, title
and interest of the judgment-debtor in the properties in
suit, which was described as amounting to 4 annas share in
the same, was put up to sale and purchased by the
decreeholder himself on 7th of September, 1932. The
purchaser got delivery of possession on January 25, 1935.
It is
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admitted that at the time of the sale, Bhubneshwar along
with his grand-father Bishun Prakash, his father Lachmi
Prasad and his two sons who are defendants 2 and 3 in the
suit, constituted an undivided Hindu family, of which
apparently his grand-father was the karta; and it is not
disputed that if a partition had taken place at that time,
Bhubneshwar Prasad along with his sons would have got 4
annas share in the joint ancestral property. Panchanan sold
the interest purchased by him at the execution sale to the
plaintiff by a conveyance dated the 1st of February, 1935,
and it is on the strength of this conveyance that the
plaintiff instituted the present suit claiming specific
allotment of a 4 annas share in the suit properties.
Bhubneshwar and his three son&, to wit, defendants 2, 3 and
4, are the main defendants in the suit and it is not
disputed that at the present moment they own the remaining
12 annas share in the suit properties. The defendants 5, 6
and 7 were impleaded as parties defendants on the allegation
that they held different portions of the joint properties as
zarpeshgidars under the 12 annas proprietors.
The suit was contested primarily by defendant No. 1 and the
substantial contention put forward by him was that as the
money suit was instituted by Panchanan against him alone and
his sons were not made parties either to the suit or the
execution proceeding, his own undivided interest in the
joint family properties and not that of his sons passed by
the sale. Consequently, the execution creditor could not by
his purchase acquire more than 1 anna 4 pies share in the
suit properties and to this share alone the plaintiff could
legitimately lay a claim. This contention was repelled by
the Subordinate Judge who took the view that as the debt
contracted by Bhubneshwar was not for immoral purposes, it
was open to his creditor to realise his dues not merely from
the father’s undivided coparcenary interest in the ancestral
property but from the entire interest of the father and the
sons in the same. The execution proceedings showed that the
creditor intended to attach and sell the interest of the
sons as well and unless,
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therefore, the sons succeeded in showing that the debts were
such which they were not obliged to pay under the rules of
Hindu law, the fact that they were not made parties to the
proceedings was altogether immaterial. The result was that
the trial judge allowed the plaintiff’s claim in its
entirety and passed a preliminary decree declaring the
plaintiff’s one-fourth share in the schedule properties.
The defendant No. 1 thereupon took an appeal to the High
Court. The learned Judges of the High Court, who heard the
appeal, were of the opinion that the decision of the trial
court would have been unassailable if the defendant No. I
was the head of a joint family consisting of himself and his
sons. In such cases he could have represented the interests
of his sons and the entire interest could have been sold in
the execution sale. But as in this case the plaintiff
himself was a junior member of the family, he had neither
any right of disposition over the interests of his sons, nor
could he represent them in any suit or proceeding. What the
purchaser acquired by the execution sale was not any
interest in a specified portion of the joint property, but
the right of the judgment-debtor to have his share defined
and allotted by partition, and in this claim for general
partition the question of the pious obligation of the sons
to pay their father’s debts would not at all arise. It was
held, therefore, that the plaintiff was legally entitled to
1 anna 4 pies share in the joint properties which the father
himself could claim on partition at the date of the sale.
The sole point for our consideration is, whether the view
taken by the learned Judges is right ?
For a proper determination of this point, it would be
necessary to consider first of all whether the sons of
defendant No. 1 were legally liable to pay the decretal debt
due by their father and could this liability be enforced by
attachment and sale of their undivided coparcenary interest
in the joint family property along with that of their father
? If the liability did not exist, no other question would
arise; but if it did exist, a question of procedure would
still have to be considered as to whether the sons’ interest
in the coparcenary
25
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could be attached and sold without making the sons parties
to the suit and the execution proceedings.
So far as the first point is concerned, the question whether
the sons of defendant No. 1 were liable in law to discharge
the decretal debt due by their father could be answered only
with reference to the doctrine of Mitakshara law which
imposes a duty upon the descendants of a person to pay the
debts of their ancestor provided they are not tainted with
immorality. This doctrine, as is well known, has its origin
in the conception of Smriti writers who regard non-payment
of debt as a positive sin, the evil consequences of which
follow the undischarged debtor even in the after-world. It
is for the purpose of rescuing the father from his torments
in the next world that an obligation is imposed upon the
sons to pay their father’s debts. The doctrine, as
formulated in the original texts, has indeed been modified
in some respects by judicial decisions. Under the law, as
it now stands, the obligation of the sons is not a personal
obligation existing irrespective of the receipt of any
assets; it is a liability confined to the assets received by
him in his share of the joint family property or to his
interest in the same. The obligation exists whether the
sons are major or minor or whether the father is alive or
dead. If the debts have been contracted by the father and
they are not immoral or irreligious, the interest of the
sons in the coparcenary property can always be made liable
for such debts.
We do not find any warrant for the view that to saddle the
sons with this pious obligation to pay the debts of their
father, it is necessary that the father should be the
manager or karta of the joint family, or that the family
must be composed of the father and his sons only and no
other male member. No such limitation is deducible either
from the original texts or the principles which have been
engrafted upon the doctrine by judicial decisions. Where a
debt is incurred for necessity or benefit of the family, the
manager, whether he be the father or not, has the undoubted
power to alienate any portion of the coparcenary property
for the satisfaction of such debts, irrespective of the fact
as to who actually contracted the debts. The
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authority of the manager is based upon the principle Of
agency or implied authority which has been formulated in a
text quoted by Mitakshara. “Even a single individual,” thus
runs the text, “may make a donation, mortgage or sale of
immovable property during a season of distress, for the sake
of the family and especially for religious purposes”(1).
Such family debt, however, stands on quite a different
footing from a personal debt contracted by the father which
does not benefit the family. The liability of his sons to
pay such debt does not rest on the principle indicated
above, according to which the junior members of a family are
made to pay the family debts. It is a special liability
created on purely religious 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. There is no
authority to show that it is in any way dependent upon the
constitution of the family either at the time when the debt
was contracted or when the obligation is sought to be
enforced. On the other hand, the subject of debts has been
dealt with by the author of Mitakshara quite separately and
it has apparently no connection with the provisions made by
the author relating to inheritance and constitution of the
family.
The learned Judges of the High Court laid great stress on
the fact that the defendant No. 1 in the present case was a
junior member and not the karta of the family and
consequently had no rights of disposal over his own interest
or the interest of his sons in the joint property. The idea
seems to be that if the father was incompetent to alienate
the coparcenary rights of his sons for satisfaction of his
own debts, the creditor of the father could not claim to
occupy a better position. This way of approach does not
seem to us to be correct. It cannot be laid down as a pro-
position of law that the creditor’s power of proceeding
against the son’s share in the joint estate for recovery of
the debt due by the father is co-extensive with the father’s
power of disposal over such interest. As has
(1) Mitak. 1. L, 28,
184
been observed by this court in the case of Pannalal and
Another v. Mst. Naraini(1) “the father is 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.” If the creditor’s rights are
deemed to be based exclusively upon the father’s power of
disposition over the son’s interest, such rights must
necessarily come to an end as soon as the father dies, or
there is a partition between him and his sons. 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 shares of the sons.
It is true that under the Mitakshara law, as it is
administered in the State of Bihar, no coparcener can
alienate, even for valuable consideration, his undivided
interest in the joint property without the consent of his
coparceners; but although a coparcener is incompetent to
alienate voluntarily his undivided coparcenary interest, it
is open to the creditor, who has obtained a decree against
him personally, to attach and put up to sale his undivided
interest, and after purchase to have the interest separated
by a suit for partition. A personal decree obtained against
the sons could certainly be executed against them by
attachment and sale of their undivided interest. The
position, in our opinion, cannot be different if they are
under a legal liability to discharge the decretal debt due
by their father; and this liability must be capable of being
enforced in the same manner as a personal decree against
them. Whether this could be done only by making the sons
parties to the sale or execution proceeding, is another
matter to which we would advert presently; but so far as the
legal liability of the sons is concerned, as the debts
incurred by the father have not been shown to be immoral or
irreligious, it must be hold that tinder
(2) [1952] S.C.R. 544 at 556,
185
the rule of Hindu law mentioned above, there is a legal
liability on the part of the sons to discharge these debts
and the creditor can enforce this liability by attachment
and sale of the sons’ interest in the same manner as if it
was a personal debt due by them. The fact that the father
was not the karta or manager of the joint family or that the
family did consist of other coparceners besides the father
and sons, does not affect the liability of the sons in any
way. This view has been taken in quite a number of cases(1)
by the Allahabad as well as the Madras High Courts, and in
our opinion it is quite a sound view to take.
Holding, as we do, that the sons were liable in this case to
discharge the decretal debt due by their father, the further
question arises as to how this liability could be enforced ?
Could the interest of the sons in the joint property be
attached and sold without making the sons parties to the
suit and the execution proceedings? The point does not seem
to us to present much difficulty. Strictly speaking, the
sons could not be said to be necessary parties to the money
suit which was instituted by the creditor against the father
on the basis of a promissory note. If a decree was passed
against the father and the sons jointly, the latter would
have been personally liable for the debt and the decree
could have been executed against their separate or personal
property as well. No doubt the sons could have been made
parties to the suit in order that the question of their
liability for the debts of their father might be decided in
their presence. Be that as it may, the money decree passed
against the father certainly created a debt payable by 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(2) may
(1) Vide Lalta Prashad v, Gazadhar, 55 All. 28; Chhotey Lal
v. Ganpat 57 All.176; Vivayya v. Parthasarathi, 57 Mad. 190.
(2) 13 I.A. 1. Also see Bhagbut Pershad v. Mst. Girja
Kour, 15 I.A. 99.Minakshi Naidu v. Immudi, 16 I. A. 1 ;
Mahabir Prashad v. Marktunda, 17 1, A. 11 ; Sripat v,
Tagore, 44 I. A. 1.
186
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. In the present case it has
been found as a fact by the trial judge-and this finding has
not been reversed in appeal -that the executing court
intended to sell and did sell a four annas share in the
joint property which included the undivided interest of the
sons of defendant No. 1. According to the view taken by the
Privy Council in Nanomi Babuasin’s case(1), all that the son
can claim in such cases is that not being made party to the
sale or execution proceeding, he ought not to be barred from
trying the nature of the debt or his liability to pay the
same in any suit or proceeding started by him or to which he
might be made a party. He could raise the point either by
way of objection in the execution proceeding itself or he
could himself file a suit for a declaration that the debt
was not binding on him. He could also raise it by way of
defence when the auction purchaser seeks to have his rights
defined and demarcated in a partition suit. In the case
before us, the sons, who were made defendants to the
partition suit, had that opportunity given to them. Unfor-
tunately, however, they did not choose to avail themselves
of this opportunity. Defendant No. 2, the major son of
defendant No. 1, did not file any written statement or
contest the suit at all. A written statement was indeed
filed on behalf of the minor sons, defendants 3 and 4, who
were represented by a pleader guardian and there this point
was specifically raised. But it appears from the records
that they did not invite the court to frame any issue on the
point, nor did they lead any evidence upon it. They failed
to show, therefore, that the debt was one which they were
not obliged to pay under the rule of Hindu law. It may be
further noted that although the trial court’s decision was
against the sons, they did not choose to challenge the
decree by way of an appeal. The appeal was filed only by
their
(1) 13 I.A.
187
father and they were made respondents; and it was only at a
very late stage that the appellate court transferred them to
the category of appellants. The learned Judges of the High
Court seem to be of the opinion that the principle
enunciated by the Judicial Committee in Nanomi Babuasin’s
case(1) or the other cases that followed it could apply only
when the father was the head of the family and in that
capacity could represent his sons in the suit or the
execution proceeding. But if the father was not the karta,
this principle, it is said, would not apply and the
purchaser could only acquire the right, title and interest
of the father alone even though the court purported to sell
the interest of the sons as well. This does not seem to us
to be a sound view to take. It is true that in all the
cases referred to above, the father was actually the head of
the family but that does not make any difference in
principle. If the difference is sought to be made on the
basis of the father’s capacity to represent the sons in any
litigation, it may be said that, subject to the rights of
the sons to assert and prove that the debt contracted by
their father was not such as would be binding on them under
the rule of Hindu law, the father even if he was not a
karta, could represent the sons as effectively in the sale
or execution proceedings as he could do if he was the karta
himself. Without being a karta he could, as a father,
completely represent his branch of the coparceners
consisting of himself and his sons; and vis-a-vis his sons
his position would not improve in any way by his being a
karta of the family. It has been observed in a Madras
case(1) and we think rightly that so long as the family
remains joint, all the members of a branch or a sub-branch
of the family can form a distinct and separate corporate
unit within the larger unit. Of such a smaller unit
consisting of the father and his sons, the father would
undoubtedly be the head and legal representative, although
he is not the head of the larger unit. In our opinion,
therefore, the High Court was not right in holding that the
plaintiff could not claim 4 annas share in the property on
(1) 13 I.A 1.
(2) Vide Sudarsaram v. Narasimhulu, I.L.R. 25 Mad. 149,
155,
188
the strength of the purchase by his predecessor in the
execution sale simply because the father was not the manager
or karta of the joint family at that time. The result is
that this appeal is allowed, the judgment and decree of the
High Court are set aside and those of the trial judge
restored. The plaintiff will have costs of this court as
well as of the court below.
Civil Appeals Nos. 54 and 55 of 1951.
Coming now to the money appeals, the point for consideration
is a short one. The suits out of which these appeals arise
were instituted by the plaintiff in the partition suit
against the first party defendants for recovery of his 4
annas share of the income or profits of the properties
specified in the schedules to the plaints and which were
included admittedly in his purchase, on the allegation that
the defendants first party appropriated the entire profits
to themselves and refused to give the plaintiff his
legitimate share. The High Court has held that this claim
of the plaintiff must fail. All that he purchased at the
execution sale was the undivided interest of the coparceners
in the joint property. He did not acquire title to any
defined share in the property and was not entitled to joint
possession from the date of his purchase. He could work out
his rights only by a suit for partition and his right to
possession would date from the period when a specific
allotment was made in his favour. In our opinion, this is
the right view to take and Mr. Daphtary, who appeared in
support of the appeals, could not satisfy us that in law his
client was entitled to joint possession on and from the date
of his purchase. The result is that these appeals are
dismissed with costs.
Appeal No. 53 allowed.
Appeals Nos. 54 and 55 dismissed.
Agent for the appellant: Rajinder Narain
Agent for the respondents Nos. 1 & 2: P. G. Aggarwal.
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