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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

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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 179 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

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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 180 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, 181 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

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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 25 182 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                             183 authority  of  the manager is based upon  the  principle  Of agency  or implied authority which has been formulated in  a

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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

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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

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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

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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. 189