24 September 1958
Supreme Court
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S. M. JAKATI & ANOTHER Vs S. M. BORKAR & OTHERS

Case number: Appeal (civil) 233 of 1954


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PETITIONER: S.   M. JAKATI & ANOTHER

       Vs.

RESPONDENT: S.   M. BORKAR & OTHERS

DATE OF JUDGMENT: 24/09/1958

BENCH: KAPUR, J.L. BENCH: 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

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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  avyava- harika  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  Ishwa- rappa, A.I.R. 1941 Bom. 381, approved. 1386

JUDGMENT: 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.

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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

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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

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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 aboutthe 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

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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

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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

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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. 932. 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

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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

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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 eo 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. i. (3) (1887) L.R. 14 I.A. 77. 1399 right  and  interest was intended to pass  to  the  auction- purchaser.   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

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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

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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  Decem- ber 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

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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.