{"id":69967,"date":"1953-10-05T00:00:00","date_gmt":"1953-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sidheshwar-mukherjee-vs-bhubneshwar-prasad-narainsingh-on-5-october-1953"},"modified":"2018-03-10T07:22:03","modified_gmt":"2018-03-10T01:52:03","slug":"sidheshwar-mukherjee-vs-bhubneshwar-prasad-narainsingh-on-5-october-1953","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sidheshwar-mukherjee-vs-bhubneshwar-prasad-narainsingh-on-5-october-1953","title":{"rendered":"Sidheshwar Mukherjee vs Bhubneshwar Prasad Narainsingh … on 5 October, 1953"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sidheshwar Mukherjee vs Bhubneshwar Prasad Narainsingh … on 5 October, 1953<\/div>\n
Equivalent citations: 1953 AIR 487, \t\t 1954 SCR 177<\/div>\n
Author: B Mukherjea<\/div>\n
Bench: Mukherjea, B.K.<\/div>\n
           PETITIONER:\nSIDHESHWAR MUKHERJEE\n\n\tVs.\n\nRESPONDENT:\nBHUBNESHWAR PRASAD NARAINSINGH AND OTHERS.\n\nDATE OF JUDGMENT:\n05\/10\/1953\n\nBENCH:\nMUKHERJEA, B.K.\nBENCH:\nMUKHERJEA, B.K.\nMAHAJAN, MEHR CHAND\nJAGANNADHADAS, B.\n\nCITATION:\n 1953 AIR  487\t\t  1954 SCR  177\n CITATOR INFO :\n R\t    1959 SC 282\t (12,13,14,15,16)\n R\t    1966 SC 470\t (5)\n F\t    1982 SC  84\t (60)\n\n\nACT:\n Hindu\tlaw-Debts-Pious\t obligation  of\t sons-Decree  against\n junior\t member for debts which are not immoral\t or  illegal-\n Sale  of  his\tinterest in  execution-Rights  of  purchaser-\n Interest  of  sons  of\t junior\t member,  whether  passes  to\n purchaser-Rule\t in Nanomi Babuasin's case-Purchaser's\tright\n to possession or share of profits.\n\n\n\nHEADNOTE:\nA  person  who has obtained a decree against a member  of  a\njoint  Hindu  family for a debt due to him  is\tentitled  to\nattach\tand  sell the interest of his debtor  in  the  joint\nfamily\tproperty,  and,\t if  the debt  was  not\t immoral  or\nillegal, the interest of the judgment debtor's sons also  in\nthe  joint  family property would pass to the  purchaser  by\nsuch sale even though the judgment-debtor was not the  karta\nof  the family and the family did not consist of the  father\nand  the sons only when the decree was obtained against\t the\nfather\tand the properties were sold.  It is  not  necessary\nthat  the  sons should be made parties to the  suit  or\t the\nexecution proceedings.\nLalta  Prashad v. Gazadhar (I..L.R. 55 All. 28),  Chhoteylal\nv. Ganpat (I.L.R. 57 All. 176) and Virayya v.  Parthasarathi\n(I.L.R. 57 Mad. 190) approved.\n\t\t\t   178\nThe rule laid down by the Privy Council in Nanomi Babuasin's\nCase is not restricted in its application to cases where the\nfather was the head of the family and in that capacity could\nrepresent  his\tsons in the suit or  execution\tproceedings,\nfor,  subject to the right of the sons to assert  and  prove\nthat  the  debt contracted by their father was not  such  as\nwould  be binding on them under the Hindu law,\tthe  father,\neven  if  he was not the karta could represent his  sons  as\neffectively in the sale or execution proceedings as be could\ndo if he was the karta himself.\nA  person  who has purchased the interest of a member  of  a\njoint  Hindu family in execution of a decree against him  is\nnot   entitled\tto  institute  a  suit\tagainst\t the   other\ncoparceners  for  recovery of a share of the income  of\t the\njoint  family properties from the date of his purchase.\t  He\ncan work out his rights only by a suit for partition and his\nright to possession would commence only from the period when\na specific allotment is made in his favour.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 53 to 55 of
\n1951.\n<\/p>\n
Appeals\t  from\tthe  Judgment  and  Decree  dated  the\t 8th
\nSeptember,  1948, of the High Court of Judicature  at  Patna
\n(Mahohar  Lall and Mahabir Prasad JJ.) in C.A. Nos.  219  of
\n1946,  and 40 and 39 of 1945, arising out of  the  Judgment’
\nand Decree dated the 29th January, 1946, and 16th September,
\n1944,  of the Court of the Subordinate Judge,  Motihari,  in
\nOriginal Suits Nos. 108, 109 and 110 of 1943.
\nC.   K.\t Daphtary,  Solicitor-General for  India  (Rameshwar
\nNath, with him) for the appellant.\n<\/p>\n
Ratan Lal Chowla (K.  N. Aggarwal with him) for\t respondents
\nNos.  I and 2.\n<\/p>\n
H. J. Umrigar for respondents Nos. 3 and 4.\n<\/p>\n
1953.  October 5. The Judgment of the Court was delivered by
\nMUKHERJEA J.\n<\/p>\n
Civil Appeal No. 53 of 1951.\n<\/p>\n
This  appeal is on behalf of the plaintiff and\tis  directed
\nagainst\t a  judgment and decree of a Division Bench  of\t the
\nPatna  High  Court,  dated  the\t 8th  of  September,   1948,
\nmodifying those of the Additional Subordinate
\n179<\/span>
\nJudge,\tMotihari,  passed  in Partition Suit  No.  108\/6  of
\n1943\/46.   There  were\ttwo money  suits  between  the\tsame
\nparties\t which were tried along with the suit for  partition
\nand  both  of  them were decreed by  the  trial\t judge,\t but
\ndismissed  by the High Court on appeal.\t Civil Appeals\tNos.
\n54  and 55 of this court arise out of these appeals  and  we
\nwill deal with them separately.\n<\/p>\n
So  far as the main appeal is concerned, the material  facts
\nare  uncontroverted and the dispute centres round one  short
\npoint, which relates to the extent of share in the  disputed
\nproperties  to\twhich  the plaintiff can  be  said  to\thave
\nacquired  a legal title.  The plaintiff averred that he\t was
\nentitled  to a 4 annas share in the schedule lands and\tthis
\nclaim was allowed by the trial judge.  The High Court  held,
\non the other band, that the plaintiff’s title extended\tonly
\nto 1 anna 4 pies share in the disputed properties, and\twith
\nregard to this share alone he could claim partition.  It  is
\nthe  propriety\tof this decision that  has  been  challenged
\nbefore us in this appeal.\n<\/p>\n
To  appreciate the contentions that have been raised by\t the
\nparties\t before\t us, it may be convenient to narrate  a\t few
\nmaterial facts.\t The properties in suit, which are comprised
\nin  Tauzi  No. 703 of the Champaran  Collectorate,  belonged
\nadmittedly   to\t the  defendants  first\t party\t and   their
\nancestors.  Defendant No. 1, Bhubneshwar Prasad, who is\t the
\nmain defendant in the present litigation, borrowed a sum  of
\nmoney  from  one  Panchanan  Banerjee  on  the\tbasis  of  a
\npromissory note some time before 1932.\tPanchanan instituted
\na  suit\t in the Court of the Subordinate Judge\tat  Motihari
\nagainst\t Bhubneshwar  for recovery of this loan\t and  having
\nobtained a decree, put the decree in execution in  Execution
\nCase No. 16 of 1932 of the Court of the Subordinate Judge at
\nMotihari.  In course of these proceedings, the right,  title
\nand  interest  of the judgment-debtor in the  properties  in
\nsuit,  which was described as amounting to 4 annas share  in
\nthe  same,  was\t put  up  to  sale  and\t purchased  by\t the
\ndecreeholder  himself  on  7th\tof  September,\t1932.\t The
\npurchaser  got delivery of possession on January  25,  1935.
\nIt is
\n180<\/span>
\nadmitted  that\tat the time of the sale,  Bhubneshwar  along
\nwith  his  grand-father Bishun Prakash,\t his  father  Lachmi
\nPrasad\tand his two sons who are defendants 2 and 3  in\t the
\nsuit,  constituted  an\tundivided  Hindu  family,  of  which
\napparently  his\t grand-father was the karta; and it  is\t not
\ndisputed  that if a partition had taken place at that  time,
\nBhubneshwar  Prasad  along with his sons would\thave  got  4
\nannas share in the joint ancestral property.  Panchanan sold
\nthe  interest purchased by him at the execution sale to\t the
\nplaintiff  by a conveyance dated the 1st of February,  1935,
\nand  it\t is  on the strength of\t this  conveyance  that\t the
\nplaintiff  instituted  the present  suit  claiming  specific
\nallotment  of  a  4  annas share  in  the  suit\t properties.
\nBhubneshwar and his three son&, to wit, defendants 2, 3\t and
\n4,  are\t the  main  defendants in the suit  and\t it  is\t not
\ndisputed  that at the present moment they own the  remaining
\n12 annas share in the suit properties.\tThe defendants 5,  6
\nand 7 were impleaded as parties defendants on the allegation
\nthat they held different portions of the joint properties as
\nzarpeshgidars under the 12 annas proprietors.
\nThe suit was contested primarily by defendant No. 1 and\t the
\nsubstantial  contention put forward by him was that  as\t the
\nmoney suit was instituted by Panchanan against him alone and
\nhis  sons  were not made parties either to the suit  or\t the
\nexecution  proceeding,\this own undivided  interest  in\t the
\njoint  family properties and not that of his sons passed  by
\nthe sale.  Consequently, the execution creditor could not by
\nhis  purchase acquire more than 1 anna 4 pies share  in\t the
\nsuit properties and to this share alone the plaintiff  could
\nlegitimately  lay a claim.  This contention was repelled  by
\nthe  Subordinate  Judge who took the view that as  the\tdebt
\ncontracted  by Bhubneshwar was not for immoral purposes,  it
\nwas open to his creditor to realise his dues not merely from
\nthe father’s undivided coparcenary interest in the ancestral
\nproperty but from the entire interest of the father and\t the
\nsons in the same.  The execution proceedings showed that the
\ncreditor  intended  to attach and sell the interest  of\t the
\nsons as well and unless,
\n181<\/span>
\ntherefore, the sons succeeded in showing that the debts were
\nsuch  which they were not obliged to pay under the rules  of
\nHindu  law, the fact that they were not made parties to\t the
\nproceedings was altogether immaterial.\tThe result was\tthat
\nthe  trial  judge  allowed  the\t plaintiff’s  claim  in\t its
\nentirety  and  passed  a preliminary  decree  declaring\t the
\nplaintiff’s  one-fourth\t share in the  schedule\t properties.
\nThe  defendant\tNo. 1 thereupon took an appeal to  the\tHigh
\nCourt.\tThe learned Judges of the High Court, who heard\t the
\nappeal,\t were of the opinion that the decision of the  trial
\ncourt  would have been unassailable if the defendant  No.  I
\nwas the head of a joint family consisting of himself and his
\nsons.  In such cases he could have represented the interests
\nof his sons and the entire interest could have been sold  in
\nthe  execution\tsale.\tBut as in this\tcase  the  plaintiff
\nhimself\t was a junior member of the family, he\thad  neither
\nany right of disposition over the interests of his sons, nor
\ncould he represent them in any suit or proceeding.  What the
\npurchaser  acquired  by\t the  execution\t sale  was  not\t any
\ninterest  in a specified portion of the joint property,\t but
\nthe  right of the judgment-debtor to have his share  defined
\nand  allotted  by partition, and in this claim\tfor  general
\npartition  the question of the pious obligation of the\tsons
\nto pay their father’s debts would not at all arise.  It\t was
\nheld, therefore, that the plaintiff was legally entitled  to
\n1 anna 4 pies share in the joint properties which the father
\nhimself\t could claim on partition at the date of  the  sale.
\nThe  sole point for our consideration is, whether  the\tview
\ntaken by the learned Judges is right ?\n<\/p>\n
For  a\tproper\tdetermination of this  point,  it  would  be
\nnecessary  to  consider\t first of all whether  the  sons  of
\ndefendant No. 1 were legally liable to pay the decretal debt
\ndue by their father and could this liability be enforced  by
\nattachment and sale of their undivided coparcenary  interest
\nin the joint family property along with that of their father
\n?  If the liability did not exist, no other  question  would
\narise;\tbut if it did exist, a question of  procedure  would
\nstill have to be considered as to whether the sons’ interest
\nin the coparcenary
\n25<\/span>
\n182<\/span>
\ncould  be attached and sold without making the sons  parties
\nto the suit and the execution proceedings.
\nSo far as the first point is concerned, the question whether
\nthe sons of defendant No. 1 were liable in law to  discharge
\nthe decretal debt due by their father could be answered only
\nwith  reference\t to  the doctrine of  Mitakshara  law  which
\nimposes\t a duty upon the descendants of a person to pay\t the
\ndebts  of their ancestor provided they are not tainted\twith
\nimmorality.  This doctrine, as is well known, has its origin
\nin  the conception of Smriti writers who regard\t non-payment
\nof  debt as a positive sin, the evil consequences  of  which
\nfollow the undischarged debtor even in the after-world.\t  It
\nis for the purpose of rescuing the father from his  torments
\nin  the\t next world that an obligation is imposed  upon\t the
\nsons  to  pay  their  father’s\tdebts.\t The  doctrine,\t  as
\nformulated  in the original texts, has indeed been  modified
\nin  some respects by judicial decisions.  Under the law,  as
\nit now stands, the obligation of the sons is not a  personal
\nobligation  existing  irrespective  of the  receipt  of\t any
\nassets; it is a liability confined to the assets received by
\nhim  in\t his share of the joint family property\t or  to\t his
\ninterest  in  the same.\t The obligation exists\twhether\t the
\nsons  are major or minor or whether the father is  alive  or
\ndead.\tIf the debts have been contracted by the father\t and
\nthey  are  not immoral or irreligious, the interest  of\t the
\nsons  in the coparcenary property can always be made  liable
\nfor such debts.\n<\/p>\n
We  do not find any warrant for the view that to saddle\t the
\nsons  with this pious obligation to pay the debts  of  their
\nfather,\t it  is\t necessary that the  father  should  be\t the
\nmanager\t or  karta of the joint family, or that\t the  family
\nmust  be  composed of the father and his sons  only  and  no
\nother  male member.  No such limitation is deducible  either
\nfrom  the original texts or the principles which  have\tbeen
\nengrafted upon the doctrine by judicial decisions.  Where  a
\ndebt is incurred for necessity or benefit of the family, the
\nmanager, whether he be the father or not, has the  undoubted
\npower  to alienate any portion of the  coparcenary  property
\nfor the satisfaction of such debts, irrespective of the fact
\nas to who actually contracted the debts.  The
\n\t\t\t    183<\/span>
\nauthority  of  the manager is based upon  the  principle  Of
\nagency\tor implied authority which has been formulated in  a
\ntext quoted by Mitakshara.  “Even a single individual,” thus
\nruns  the  text, “may make a donation, mortgage or  sale  of
\nimmovable property during a season of distress, for the sake
\nof  the\t family and especially for  religious  purposes”(1).
\nSuch  family  debt,  however, stands on\t quite\ta  different
\nfooting from a personal debt contracted by the father  which
\ndoes  not benefit the family.  The liability of his sons  to
\npay  such  debt\t does not rest on  the\tprinciple  indicated
\nabove, according to which the junior members of a family are
\nmade  to  pay the family debts.\t It is a  special  liability
\ncreated on purely religious grounds and can be enforced only
\nagainst the sons of the father and no other coparcener.\t The
\nliability,   therefore,\t has  its  basis  entirely  on\t the
\nrelationship  between the father and the son.  There  is  no
\nauthority  to show that it is in any way dependent upon\t the
\nconstitution of the family either at the time when the\tdebt
\nwas  contracted\t or  when the obligation  is  sought  to  be
\nenforced.  On the other hand, the subject of debts has\tbeen
\ndealt with by the author of Mitakshara quite separately\t and
\nit has apparently no connection with the provisions made  by
\nthe  author relating to inheritance and constitution of\t the
\nfamily.\n<\/p>\n
The  learned Judges of the High Court laid great  stress  on
\nthe fact that the defendant No. 1 in the present case was  a
\njunior\t member\t and  not  the\tkarta  of  the\tfamily\t and
\nconsequently had no rights of disposal over his own interest
\nor the interest of his sons in the joint property.  The idea
\nseems  to be that if the father was incompetent to  alienate
\nthe  coparcenary rights of his sons for satisfaction of\t his
\nown  debts,  the creditor of the father could not  claim  to
\noccupy\ta  better position.  This way of approach  does\t not
\nseem to us to be correct.  It cannot be laid down as a\tpro-
\nposition  of  law that the creditor’s  power  of  proceeding
\nagainst the son’s share in the joint estate for recovery  of
\nthe debt due by the father is co-extensive with the father’s
\npower of disposal over such interest.  As has
\n(1)  Mitak. 1. L, 28,
\n184<\/span>
\nbeen  observed\tby this court in the case  of  Pannalal\t and
\nAnother\t v.  Mst.   Naraini<\/a>(1)\t“the  father  is  power\t  of
\nalienating the family property for payment of his just debts
\nmay be one of the consequences of the pious obligation which
\nthe Hindu law imposed upon the sons; or it may be one of the
\nmeans  of enforcing it, but it is certainly not the  measure
\nof  the\t entire obligation.” If the  creditor’s\t rights\t are
\ndeemed\tto be based exclusively upon the father’s  power  of
\ndisposition  over  the\tson’s  interest,  such\trights\tmust
\nnecessarily  come to an end as soon as the father  dies,  or
\nthere  is  a  partition between him and\t his  sons.   It  is
\nsettled law that even after partition the sons could be made
\nliable\tfor the pre-partition debts of the father  if  there
\nwas  no proper arrangement for the payment of such debts  at
\nthe  time  when\t the partition was  effected,  although\t the
\nfather\tcould  have  no longer any right  of  alienation  in
\nregard to the separated shares of the sons.
\nIt  is\ttrue  that  under  the\tMitakshara  law,  as  it  is
\nadministered  in  the  State of\t Bihar,\t no  coparcener\t can
\nalienate,  even\t for valuable consideration,  his  undivided
\ninterest  in the joint property without the consent  of\t his
\ncoparceners;  but  although a coparcener is  incompetent  to
\nalienate voluntarily his undivided coparcenary interest,  it
\nis  open to the creditor, who has obtained a decree  against
\nhim  personally, to attach and put up to sale his  undivided
\ninterest, and after purchase to have the interest  separated
\nby a suit for partition.  A personal decree obtained against
\nthe  sons  could  certainly  be\t executed  against  them  by
\nattachment  and\t sale  of  their  undivided  interest.\t The
\nposition,  in our opinion, cannot be different if  they\t are
\nunder  a legal liability to discharge the decretal debt\t due
\nby their father; and this liability must be capable of being
\nenforced  in  the same manner as a personal  decree  against
\nthem.\tWhether this could be done only by making  the\tsons
\nparties\t to  the sale or execution  proceeding,\t is  another
\nmatter to which we would advert presently; but so far as the
\nlegal  liability  of  the sons is concerned,  as  the  debts
\nincurred by the father have not been shown to be immoral  or
\nirreligious, it must be hold that tinder
\n(2)  [1952] S.C.R. 544 at 556,
\n185<\/span>
\nthe  rule  of Hindu law mentioned above, there\tis  a  legal
\nliability  on the part of the sons to discharge these  debts
\nand  the creditor can enforce this liability  by  attachment
\nand  sale of the sons’ interest in the same manner as if  it
\nwas  a personal debt due by them.  The fact that the  father
\nwas not the karta or manager of the joint family or that the
\nfamily\tdid consist of other coparceners besides the  father
\nand  sons, does not affect the liability of the sons in\t any
\nway.  This view has been taken in quite a number of cases(1)
\nby  the Allahabad as well as the Madras High Courts, and  in
\nour opinion it is quite a sound view to take.
\nHolding, as we do, that the sons were liable in this case to
\ndischarge the decretal debt due by their father, the further
\nquestion arises as to how this liability could be enforced ?
\nCould  the  interest of the sons in the\t joint\tproperty  be
\nattached  and  sold without making the sons parties  to\t the
\nsuit and the execution proceedings?  The point does not seem
\nto  us to present much difficulty.  Strictly  speaking,\t the
\nsons could not be said to be necessary parties to the  money
\nsuit which was instituted by the creditor against the father
\non  the basis of a promissory note.  If a decree was  passed
\nagainst\t the father and the sons jointly, the  latter  would
\nhave  been  personally liable for the debt  and\t the  decree
\ncould have been executed against their separate or  personal
\nproperty  as well.  No doubt the sons could have  been\tmade
\nparties\t to  the suit in order that the\t question  of  their
\nliability for the debts of their father might be decided  in
\ntheir presence.\t Be that as it may, the money decree  passed
\nagainst the father certainly created a debt payable by\thim.
\nIf the debt was not tainted with immorality, it was open  to
\nthe  creditor to realise the dues by attachment and sale  of
\nthe sons’ coparcenary interest in the joint property on\t the
\nprinciples  discussed above.  As has been laid down  by\t the
\nJudicial  Committee in a series of cases, of which the\tcase
\nof Nanomi Babuasin v. Modun Mohun(2) may
\n(1)  Vide Lalta Prashad v, Gazadhar, 55 All. 28; Chhotey Lal
\nv. Ganpat 57 All.176; Vivayya v. Parthasarathi, 57 Mad. 190.
\n(2)  13\t I.A.  1. Also see Bhagbut Pershad  v.\tMst.   Girja
\nKour,  15  I.A. 99.Minakshi Naidu v. Immudi, 16 I.  A.\t1  ;
\nMahabir\t Prashad  v.  Marktunda, 17 1, A.  11  ;  Sripat  v,
\nTagore, 44 I. A. 1.\n<\/p>\n
186<\/span><\/p>\n
be  taken  as  a type, the creditor has an  option  in\tsuch
\ncases.\t He can, if he likes, proceed against  the  father’s
\ninterest alone but he can, if he so chooses, put up to\tsale
\nthe sons’ interest also and it is a question of fact, to  be
\ndetermined  with  reference  to the  circumstances  of\teach
\nindividual  case whether the smaller or the larger  interest
\nwas actually sold in execution.\t In the present case it\t has
\nbeen found as a fact by the trial judge-and this finding has
\nnot  been  reversed  in appeal\t-that  the  executing  court
\nintended  to  sell and did sell a four annas  share  in\t the
\njoint property which included the undivided interest of\t the
\nsons of defendant No. 1. According to the view taken by\t the
\nPrivy Council in Nanomi Babuasin’s case(1), all that the son
\ncan claim in such cases is that not being made party to\t the
\nsale or execution proceeding, he ought not to be barred from
\ntrying\tthe nature of the debt or his liability to  pay\t the
\nsame in any suit or proceeding started by him or to which he
\nmight  be made a party.\t He could raise the point either  by
\nway  of objection in the execution proceeding itself  or  he
\ncould  himself file a suit for a declaration that  the\tdebt
\nwas  not binding on him.  He could also raise it by  way  of
\ndefence when the auction purchaser seeks to have his  rights
\ndefined\t and  demarcated in a partition suit.  In  the\tcase
\nbefore\tus,  the  sons,\t who were  made\t defendants  to\t the
\npartition suit, had that opportunity given to them.   Unfor-
\ntunately,  however, they did not choose to avail  themselves
\nof  this  opportunity.\tDefendant No. 2, the  major  son  of
\ndefendant  No.\t1,  did not file any  written  statement  or
\ncontest\t the  suit at all.  A written statement\t was  indeed
\nfiled  on behalf of the minor sons, defendants 3 and 4,\t who
\nwere represented by a pleader guardian and there this  point
\nwas  specifically raised.  But it appears from\tthe  records
\nthat they did not invite the court to frame any issue on the
\npoint, nor did they lead any evidence upon it.\tThey  failed
\nto  show, therefore, that the debt was one which  they\twere
\nnot  obliged to pay under the rule of Hindu law.  It may  be
\nfurther\t noted that although the trial court’s decision\t was
\nagainst\t the  sons,  they did not choose  to  challenge\t the
\ndecree\tby way of an appeal.  The appeal was filed  only  by
\ntheir
\n(1) 13 I.A.\n<\/p>\n
187<\/span><\/p>\n
father and they were made respondents; and it was only at  a
\nvery late stage that the appellate court transferred them to
\nthe category of appellants.  The learned Judges of the\tHigh
\nCourt  seem  to\t be  of\t the  opinion  that  the   principle
\nenunciated  by the Judicial Committee in  Nanomi  Babuasin’s
\ncase(1) or the other cases that followed it could apply only
\nwhen  the  father  was the head of the family  and  in\tthat
\ncapacity  could\t represent  his\t sons in  the  suit  or\t the
\nexecution proceeding.  But if the father was not the  karta,
\nthis  principle,  it  is  said,\t would\tnot  apply  and\t the
\npurchaser  could only acquire the right, title and  interest
\nof the father alone even though the court purported to\tsell
\nthe interest of the sons as well.  This does not seem to  us
\nto  be\ta sound view to take.  It is true that\tin  all\t the
\ncases referred to above, the father was actually the head of
\nthe  family  but  that\tdoes  not  make\t any  difference  in
\nprinciple.   If the difference is sought to be made  on\t the
\nbasis of the father’s capacity to represent the sons in\t any
\nlitigation,  it may be said that, subject to the  rights  of
\nthe  sons  to assert and prove that the debt  contracted  by
\ntheir father was not such as would be binding on them  under
\nthe  rule  of  Hindu law, the father even if he\t was  not  a
\nkarta,\tcould represent the sons as effectively in the\tsale
\nor execution proceedings as he could do if he was the  karta
\nhimself.   Without  being  a karta he could,  as  a  father,
\ncompletely   represent\t his  branch  of   the\t coparceners
\nconsisting  of himself and his sons; and vis-a-vis his\tsons
\nhis  position  would not improve in any way by his  being  a
\nkarta  of  the\tfamily.\t It has been observed  in  a  Madras
\ncase(1)\t and  we think rightly that so long  as\t the  family
\nremains\t joint, all the members of a branch or a  sub-branch
\nof  the\t family can form a distinct and\t separate  corporate
\nunit  within  the  larger  unit.  Of  such  a  smaller\tunit
\nconsisting  of\tthe father and his sons,  the  father  would
\nundoubtedly  be the head and legal representative,  although
\nhe  is\tnot the head of the larger unit.   In  our  opinion,
\ntherefore, the High Court was not right in holding that\t the
\nplaintiff could not claim 4 annas share in the property on
\n(1) 13 I.A 1.\n<\/p>\n
(2)   Vide  Sudarsaram v. Narasimhulu, I.L.R. 25  Mad.\t149,
\n155,
\n188<\/span>
\nthe  strength  of  the purchase by his\tpredecessor  in\t the
\nexecution sale simply because the father was not the manager
\nor  karta of the joint family at that time.  The  result  is
\nthat this appeal is allowed, the judgment and decree of\t the
\nHigh  Court  are  set aside and those  of  the\ttrial  judge
\nrestored.   The plaintiff will have costs of this  court  as
\nwell as of the court below.\n<\/p>\n
Civil Appeals Nos. 54 and 55 of 1951.\n<\/p>\n
Coming now to the money appeals, the point for consideration
\nis a short one.\t The suits out of which these appeals  arise
\nwere  instituted  by  the plaintiff in\tthe  partition\tsuit
\nagainst\t the  first party defendants for recovery of  his  4
\nannas  share  of  the income or profits\t of  the  properties
\nspecified  in  the schedules to the plaints and\t which\twere
\nincluded admittedly in his purchase, on the allegation\tthat
\nthe  defendants first party appropriated the entire  profits
\nto  themselves\tand  refused  to  give\tthe  plaintiff\t his
\nlegitimate  share.  The High Court has held that this  claim
\nof  the plaintiff must fail.  All that he purchased  at\t the
\nexecution sale was the undivided interest of the coparceners
\nin  the\t joint property.  He did not acquire  title  to\t any
\ndefined share in the property and was not entitled to  joint
\npossession from the date of his purchase.  He could work out
\nhis  rights  only by a suit for partition and his  right  to
\npossession  would  date\t from the  period  when\t a  specific
\nallotment  was made in his favour.  In our opinion, this  is
\nthe  right  view to take and Mr. Daphtary, who\tappeared  in
\nsupport of the appeals, could not satisfy us that in law his
\nclient was entitled to joint possession on and from the date
\nof  his\t purchase.   The result is that\t these\tappeals\t are
\ndismissed with costs.\n<\/p>\n
\t\t   Appeal No. 53 allowed.\n<\/p>\n
\t     Appeals Nos. 54 and 55 dismissed.\n<\/p>\n
Agent for the appellant: Rajinder Narain
\nAgent for the respondents Nos.\t1 & 2: P. G. Aggarwal.\n<\/p>\n
189<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sidheshwar Mukherjee vs Bhubneshwar Prasad Narainsingh … on 5 October, 1953 Equivalent citations: 1953 AIR 487, 1954 SCR 177 Author: B Mukherjea Bench: Mukherjea, B.K. 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-69967","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSidheshwar Mukherjee vs Bhubneshwar Prasad Narainsingh ... on 5 October, 1953 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sidheshwar-mukherjee-vs-bhubneshwar-prasad-narainsingh-on-5-october-1953\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sidheshwar Mukherjee vs Bhubneshwar Prasad Narainsingh ... on 5 October, 1953 - 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