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PETITIONER: VYANKATES DHONDDEO DESHPANDE

       Vs.

RESPONDENT: SOU. KUSUM DATTATRAYA KULKARNI & ORS.

DATE OF JUDGMENT27/09/1978

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KRISHNAIYER, V.R.

CITATION:  1978 AIR 1791            1979 SCR  (1) 955  1979 SCC  (1)  98

ACT:      Hindu Law-Tagai-Loan-Pre-partition debt of father-Son’s liability-Partition   if   affects   such   obligation-Pious obligation-Pious obligation of son-Avyavaharik-sale of joint family  property   for  antecedent  debt-Whether  executable against property allotted to sons on partition.      Land  Improvement  Loans  Act,  1883-Sec.  7-Expression "borrower" need not be given a restricted meaning-Karta of a joint Hindu  family can  be  borrower  in  a  representative capacity.

HEADNOTE:      The respondents’  father took  a Tagai  loan  from  the Government for  the purpose  of digging wells in his land by offering his  land as  security for the loan. When he failed to repay  the loan,  the suit  land was  auctioned under the revenue recovery  proceeding and  it was  purchased  by  the appellants. In  a  suit  for  recovery  of  possession,  the respondents  alleged  that  their  father  had  no  saleable interest in  the land because, prior to the date of auction. in the  partition between  themselves and  their father, the suit land  came to  their share and therefore the land which belonged to  them could not have been sold in an auction for recovering a personal debt of their father.      The trial  court declared  the sale  as void.  The High Court affirmed the trial Court’s order.      In appeal  to this Court the respondents contended that the debt was not a joint family debt; neither was the father acting as Karta of the joint family nor was the loan for the benefit of  the joint  family and therefore the joint family property could not be made liable for such loan.      Allowing the appeals the Court, ^      HELD: 1  (a) The suit land was joint family property of the respondents and their father. [961C]      (b) If  the loan,  for the  recovery of  which the suit property was  brought to  auction, was joint family debt and if the  suit property  was joint family property it would be liable to be sold for recovery of joint family debt. [963A]      (c) Whether the Karta acted in his personal capacity or representative capacity  has to  be gathered  from  all  the surrounding circumstances.  The father  borrowed the loan in

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his capacity as Karta of the joint family for improvement of the joint  family lands  and for  this purpose he offered as security the land which was joint family property. It is not necessary that  the Karta  acting in  his capacity  as Karta should   describe   himself   as   Karta   to   affirm   his representative capacity. Therefore he must be deemed to have acted in the transaction on behalf of the family. [961G-H] 956      (d) Agriculture  was one  of the  occupations which the father was  carrying on  as Karta  of the  joint family.  If agriculture was  one of  the occupations of the joint family and if  the loan  was borrowed  for the purpose of improving the joint  family lands,  the loan  would ipso  facto be for legal necessity and it would be joint family debt. [962H]      (e) Where  the sons  are joint  with their  father  and debts have  been contracted  by the  father for his personal benefit the  sons are  liable to pay the debts provided they were not  incurred for  illegal  or  immoral  purpose.  This liability to  pay the  debt  had  been  described  as  pious obligation of  the son to pay the father’s debt if it is not tainted with illegality or immorality. [960F]      Muttayan v.  Jamindar of  Sivagiri, [1883]  9 I.A.  128 Anthonyswmy v.  M. R.  Chinnaswamy Koundan  (dead) by L. Rs. Ors. [1970] 2 SCR 648; referred to.      (f) If  at a partition amongst the members of the joint family no  provision was  made for  joint family debts, then despite the  partition and  allotment of shares to different coparceners, the joint family property acquired by partition would still be liable for the joint family debts. [964D]      Sat Narain  v. Das, [1936] 63 I.A. 384; Pannalal & Anr. v. Mst.  Naraini & Ors. [1952] SCR 544 at 558; Vriddhachalam Pillai v. Shaldean Syrian Bank Ltd. & Anr. [1964] 5 SCR 647; referred to      (g) In  the instant  case the  property sold was liable for the  discharge of  the father’s  debt. The  debt being a pre-partition debt  which was  not shown  to be tainted with illegality or  immorality, could be recovered from the joint family property in the hands of the sons. [965F]      (h) The  pious obligation  of the  sons continues to be effective  even   after  partition.   If  the  creditor,  in execution of  a decree,  obtained prior to partition, seizes the property in execution without making the sons parties to the suit  and the  property was  sold at  an auction and the purchaser was  put in  possession, the  remedy of  the  sons would be  to challenge  the character  of  the  debt  in  an appropriate proceeding.  The sale  cannot be  voided on  the only ground  that it  took place  after  partition  and  the property sold  was one  which was  allotted to  the sons  on partition. Partition  in such  a situation merely provides a different mode  of enjoyment  of property  without affecting the joint  family’s liability for discharge of pre-partition debts. [968D-F]      S. M.  Jakati &  Sons &  Anr. v.  S. M.  Barkar & Ors., [1959] SCR 1384 referred to.      (i) In  the instant  case the  debt was not shown to be tainted with  illegality or  immorality. Therefore,  even if the respondents  were not  parties to the proceeding held by the Revenue Authorities, once the sale was confirmed and the purchaser was  put in possession, the sons can challenge the sale only  by establishing the character of the debt. [968G, 969A]      (2) The  loan sought  to be  recovered being Tagai loan advanced under the Loans Act, it can be recovered as arrears of land  revenue. The  Bombay land  Revenue  Code,  provides procedure for realisation of land revenue, recovery of which

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could be made as if it was arrears of land revenue and other revenue demands. [969C] 957      (3) When  a loan  was taken under the Loans Act and was being recovered as arrears of land revenue, the order of the Revenue Authority  would tantamount  to a  decree and when a proclamation of  sale was issued it amounted to execution of the decree. [970F]      4 (a)  The High  Court was  wrong in holding that since the Act  was applicable  to all communities in India and not merely to  the Hindus, if it legislature intended to include manager of  a family  in the word ’borrower’, it should have said so  in express  terms. There is nothing in the language of s.  7 of  the Loans  Act to  show that  the borrower must always  and   of  necessity   be  an   individual.  If   the construction suggested  by the  High Court  is  accepted  it would  put   the  joint  Hindu  family  at  disadvantage  in borrowing loans  under the  Loans Act because the Karta of a joint Hindu  family, if  he has  no separate property of his own, and  if he cannot borrow the loan in his representative capacity, has  no security to offer. Nor would he be able to take advantage  of the  beneficial provision  of the Act for improving the  land belonging  to the  joint  Hindu  family. [973C-E]      (b) Moreover  there is no justification for restricting the word  ’borrower’ to  be an  individual  alone.  The  Act itself contemplates  joint borrowers.  A Karta  of  a  joint Hindu  family  can  be  a  borrower  in  his  representative capacity. [973F]      Sankaran Nambudripad  v. Ramaswami Ayyar, [1918] ILR 41 Madras 691;  Chinnaswami Mudaliar v. Trimalai Pillai, [1902] ILR 25 Madras 572, inapplicable.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 2084- 2085/74.      Appeals by  Special Leave  from the  Judgment and Order dated 10/11/10/1974 of the Bombay High Court in First Appeal No. 160 and 173 of 1966.      U. R.  Lalit, V.  N. Ganpule  and Mrs. V. D. Khanna for the appellant.      B.  D.  Bal,  P.  H.  Parekh  and  M.  Mudgal  for  the Respondent.      The Judgment of the Court was delivered by      DESAI, J. These two appeals by special leave arise from a suit  filed by  the respondents  plaintiffs for recovering possession of  land  bearing  Survey  Nos.  487/1  to  487/6 situated  at   Shirwal  Peta  Khandala  from  the  appellant defendant. During the pendency of this suit a portion of the land in  dispute was acquired under the Land Acquisition Act and as both the plaintiffs and the defendant laid a claim to compensation, a  reference was  made under section 30 of the Land Acquisition Act for determining the eligibility for the amount  of   compensation.  The   trial  Court  decreed  the plaintiffs’ suit  and First  Appeal  No.  160  of  1966  was preferred by the defendant to the High Court of 958 Bombay. Following  the decision  of  the  trial  Court,  the reference under  s. 30  of  the  Land  Acquisition  Act  was answered in  favour of  the plaintiffs-respondents  and  the defendant preferred First Appeal No. 173 of 1966 to the High Court. Both  the appeals  were heard  together  and  by  its judgment dated  10/11 October,  1974 a Division Bench of the

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High Court  dismissed both the appeals with costs. Thereupon the appellant preferred the present two appeals. As both the appeals arise  from  a  common  judgment,  they  were  heard together and are being disposed of by this common judgment.      Facts necessary  for  appreciating  the  point  of  law canvassed in  these appeals lie within a narrow compass. One Dattatraya Govind  Kulkarni, husband  of plaintiff No. 1 and father of plaintiffs 2 to 6 had borrowed a Tagai loan of Rs. 12,000/- by making an application Exhibit 129 accompanied by prescribed form,  Ext. 128  on 7th  February, 1949. The loan was borrowed  for constructing  wells in Survey Nos. 167 and 170 and he offered as security the lands bearing Survey Nos. 165, 166, 167, 170 and 172. In the application Ext. 129 that accompanied the  prescribed form  it was  stated that  wells have to  be sunk  to bring barren land under cultivation. In other words,  the loan  was for improvement of the land. The loan was  advanced and the borrower failed to repay the loan as per  the stipulations.  A revenue recovery proceeding was commenced and as by the sale of the land offered as security the Government  could not  reimburse itself the total amount outstanding,  a   proclamation  of   sale  was   issued  and ultimately the  suit land was auctioned and it was purchased by the  defendant and  the sale  in his favour was confirmed and he  was  put  in  possession  on  20th  May,  1960.  The plaintiff stated that prior to the date of auction there was a partition  between the  father and  his sons  on 6th July, 1956 evidenced  by Ext.  53 and  at this  partition the suit land with  its  sub-divisions  came  to  the  share  of  the plaintiffs  and   therefore,  the  father  had  no  saleable interest in the suit land and it could not have been sold at a revenue  auction for  recovering the  personal debt of the father. So  contending, the plaintiffs brought an action for a declaration  that the  sale is  not binding  upon them and possession may be restored to them.      The trial  Court held  that the  suit  land  was  joint family property consisting of Dattatraya and his sons but as there was  an effective  partition prior to the revenue sale and the  partition being  a genuine one, the subsequent sale is not  binding upon  the plaintiffs to whose share the suit land was  allotted at the partition and, therefore, the sale was void  and the  plaintiffs are entitled to be put back in possession. 959      The High  Court in  appeal  by  the  present  appellant examined the question of the validity of the revenue sale in the context  of the provisions of the Land Improvement Loans Act, 1883  (’Loans Act, for short) and held that the auction sale of the lands at the relevant time standing in the names of the  plaintiffs, the  land being  not one  in respect  of which the  Tagai loan  was advanced, or which was offered as security for  that loan,  would  not  be  binding  upon  the plaintiffs as  the plaintiffs  were not borrowers within the meaning of s. 7(1) of the Loans Act and the plaintiffs’ suit on this ground was rightly decreed. The submission on behalf of the  defendant that Tagai loan was a debt and that it was incumbent on  the sons  of Dattatraya  under the doctrine of pious obligation  of the sons of a Hindu father to pay their father’s debts  which were  not tainted  with immorality  or illegality, was  not accepted  and the  High Court held that this doctrine  of pious obligation cannot be extended to the debts contracted  under the  Loans Act as the Act applies to all citizens  of India  irrespective of their religion. With these findings the appeals were dismissed.      Mr. U.  R. Lalit,  learned counsel  for  the  appellant urged that Tagai loan was borrowed by Dattatraya, the father

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for improvement  of lands  bearing Survey  Nos. 167  and 170 which were joint family property and the debt represented by Tagai loan  would be  joint  family  debt  incurred  by  the manager for  the benefit  of the  joint family  or  for  the benefit of  the estate  of the  joint family and, therefore, the joint  family property, irrespective of the fact whether it was  offered as  security for  the  loan  or  whether  it benefited by  the loan, would be liable for the repayment of the loan notwithstanding the fact that a partition has taken place before  the suit  land, which  again is a joint family property, was  brought to revenue auction. It was also urged that the  partition is not genuine and that it is a sham and bogus one  and in  fact there was no partition in the eye of law. It  was further urged that the pious obligations of the sons of  a Hindu  father to  pay the  debt incurred  by  the father not  tainted with  illegality or  immorality  to  the extent of  the joint  family property  in their  hands would certainly apply to loan borrowed under the Loans Act and the expression "borrower"  under  the  Loans  Act  can  as  well include a  joint Hindu  family and thereby making the entire joint family property liable for repayment of the loan.      Mr. Bal, learned counsel for the plaintiffs respondents contended that Tagai loan was not a joint family debt nor in borrowing the  loan the  father was  acting as Karta but was acting in  his personal  capacity, nor  the loan was for the benefit of  the joint  family estate.  It was  said that the Loans Act being a complete Code in itself and only 960 recognised borrower  in his  individual capacity, one cannot import the  concept of  Karta of  a joint  family  borrowing under the  Loans Act in his representative capacity so as to make the joint family property liable for such loans.      The principal  contention which goes to the root of the matter is whether the Tagai loan borrowed by Dattatraya, the father, was  borrowed  in  his  personal  capacity  for  his personal use or as Karta of the joint family for the benefit of the  joint family or joint family estate. If the loan was borrowed by  Dattatraya, the  father, as  Karta of the joint Hindu family  for the  benefit of  the family,  certainly it would be  a joint  family debt  and  all  the  joint  family property would  be liable  for this debt. Even if there is a subsequent partition before the debt is repaid, the creditor can proceed  against the  joint family property in the hands of any  of the coparceners because the joint family property is liable  for the  joint family  debts. The  Karta  or  the Manager of  a joint  Hindu family  has implied  authority to borrow money  for family purposes and such debts are binding on other coparceners and the liability of the coparceners in such a case does not cease by subsequent partition (See Para 240, Mulla’s  Hindu Law, 14th Edn., p. 298). Where father is the Karta  of  a  joint  Hindu  family  and  the  debts  are contracted by the father in his capacity as manager and head of the  family for  family purposes,  the sons as members of the joint family are bound to pay the debts to the extent of their interest  in the  coparcenary property. Further, where the sons are joint with their father and the debts have been contracted by  the father  for his own personal benefit, the sons are  liable to  pay the  debts provided  they were  not incurred for  illegal or  immoral purposes.  This  liability arises from  an obligation  of religion  and piety  which is placed upon  the sons  under the Mitakshara Law to discharge the father’s  debts, where  the debts  are not  tainted with immorality. This  liability of  the sons to pay the father’s debts exists whether the father be alive or dead, (para 290, Mulla’s Hindu Law, 14th Edn., p. 354). A further requirement

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is that  for an  effective partition  of a  Mitakshara joint Hindu family  a provision  for the joint family debts should be made.  In order  to determine  what property is available for partition, provision must first be made for joint family debts which  are payable  out of  the joint family property, personal debts  of the  father not  tainted with immorality, maintenance of  dependent female members and of disqualified heirs, and  for the marriage expenses of unmarried daughter. This must  be  so  because  partition  is  of  joint  family property and  if joint  family debts  are repaid  before the partition only the residue would be available for partition. Therefore, if partition is effected before paying 961 the debts,  provision to  pay the debts should be made so as to determine the residue available for partition.      Having cleared  the ground in law, let us look at facts which have  been found  by the  Courts  on  appreciation  of evidence and which unless found to be utterly unconscionable this Court  would not  interfere with. The trial Court found that the  suit property  was joint  family property  and the High Court  has not  departed  therefrom.  In  fact,  in  an earlier suit  filed by  these very  plaintiffs being Special Suit No.  14 of  1958 it  has been  in terms stated that the lands described  in para  1 of  the  plaint  Ext.  37  which include the suit land, were originally owned by joint family of plaintiffs  and Dattatraya. Therefore, on plaintiffs’ own admission  the  suit  land  was  joint  family  property  of plaintiffs and Dattatraya.      The next  important question  is whether the Tagai loan was the  personal debt of Dattatraya or was debt incurred by him as  Karta of  the joint  family for  the benefit  of the joint family.  We would  only look at uncontroverted salient features of  the evidence.  Prescribed form  of application, Ext. 128  with application Ext. 129 would show that the loan was borrowed  for constructing  wells for improvement in the potentiality of  the lands  bearing Survey Nos. 167 and 170. It was  submitted that  these lands,  for the improvement of which the loan was borrowed, were not joint family property. There again, a reference may be made to the admission of the plaintiffs in  plaint Ext.  37  which  also  includes  lands bearing Survey  Nos. 167  and 170  being  described  by  the plaintiffs themselves  as joint  family property.  The  High Court held that Dattatraya borrowed the loan for improvement of the  land. Therefore,  Dattatraya, the  father,  borrowed loan in  his capacity as the father for improvement of joint family lands  and for this purpose offered as security three other pieces  of land  which were  joint family property. In the face  of this  unimpeachable evidence  the statement  in Ext. 128,  the application for loan, that Dattatraya was the full owner  of the  lands therein mentioned would not convey the idea  that it  was his  separate  property.  It  is  not necessary that  Karta acting  in his  capacity as  Karta  to describe himself  as  Karta  to  affirm  his  representative capacity. Whether  he has  acted in his personal capacity or representative  capacity   can  be  gathered  from  all  the surrounding  circumstances   and  in   this  case  they  are eloquent,  in  that  he  mortgaged  or  gave  as  collateral security joint  family property, to wit land, and it extends to whole  of the  interest of the family and is not confined to Karta’s  share, and  therefore, he must be deemed to have acted in  the transaction  on  behalf  of  the  family  (see Mulla’s Hindu  Law, 14th  Edn., page 313, Art. 251). It was, however, stated that agriculture 962 was not  the avocation  of the  joint family and, therefore,

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the father  as the  Karta did not have the implied authority to borrow  loan  so  to  be  binding  on  the  joint  family property. One  has merely  to look  at the  content  of  the application for  loan, Ext.  129 made  by Dattatraya  to the Mamlatdar, Taluka Vichitragad, for advancing loan to him, to dispel  the   contention.  The   application  recites   that applicant Dattatraya,  the father  had undertaken  extensive work  to  bring  barren  land  under  cultivation  to  raise sufficient crops  as well  as to improve the quality of Land and  for   improving  the  quality  of  agriculture  he  had undertaken, loans  should  be  advanced  to  him.  Mr.  Bal, however, pointed  out that  Dattatraya was  carrying on some business which  would be  evident from  Ext. 23,  a copy  of execution application  No. 87/60  filed by  Bhor State  Bank Ltd., against  one Pandurang Krishnaji Kamble and Dattatraya Govind Kulkarni  in which  the occupation  of Dattatraya  is shown as  business; and  Ext. 22  being a  copy of Execution Application No.  92/57 in  which his  occupation is shown as general agent,  and Ext. 120 a copy of the decree in Special Civil Suit  No. 2/49 wherein the occupation of Dattatraya is shown as  business and  which further  shows that Dattatraya had running  account with  one Raghunath  Shridhar Phadke in which Dattatraya had withdrawn Rs. 56,800/- and had credited Rs. 41,000/-  and after  adding  interest  leaving  a  debit balance of  Rs. 19,238-14-00. It was urged that if all these aspects are  taken into  consideration, it would appear that agriculture was not the occupation of the joint family. Now, as against this, one may also refer to Ext. 24 a copy of the BADR Execution Application No. 294/56 for executing an Award made under  the  Bombay  Agricultural  Debtors’  Relief  Act against Dattatraya  which would  show that Dattatraya was an agriculturist by  occupation and  his debts were adjusted by the Courts  set up  under the  Bombay  Agriculture  Debtors’ Relief Act  and this  could  have  only  been  done  if  his principal  occupation   was  agriculture.   Therefore,  mere description of  Dattatraya’s avocation  in Exts.  22, 23 and 120 is  hardly determinative of the occupation of Dattatraya or his  family. It  may be  that over  and above agriculture Dattatraya may  have been carrying on some side business but if his  application Ext.  129 shows  that he  had on his own showing 160  bighas of  land most  of which  are  admittedly shown to  be joint family property, it cannot be denied that agriculture was  one of the occupations of Dattatraya and he was carrying  on that avocation as Karta of the joint family consisting  of   himself  and   his  minor   sons.  Now,  if agriculture was  one of  the occupations of the joint family and if  loan was  borrowed for  the purpose of improving the joint family  lands, the  loan would ipso facto be for legal necessity and  it would  be joint  family debt for which all the joint family property would be liable. 963      If thus  the loan  for the  recovery of  which the suit property was brought to auction was joint family debt and if the suit  property was  joint family  property, certainly it would be  liable to  be sold  for recovery  of joint  family debt.      The  question,   however,  is:   does  the   subsequent partition make any difference in respect of the liability of the joint  family property for the joint family debts ? That would necessitate  examination of the circumstances in which the partition  was brought  about though we are not inclined to examine  the question whether the partition was a sham or bogus transaction  or was  a motivated  one with  a view  to defeating the creditors of the joint family.      The partition  is evidenced  by a registered deed, Ext.

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79 dated  6th July 1956. Partition is between father and his minor sons.  There is  no dispute that on that date the debt of Tagai  loan was outstanding as well as there were certain other debts.  In the  partition deed  Ext. 79  there  is  no express or  implied provision  for the  repayment  of  joint family debts  or even  outstanding debts  of Dattatraya, the father. There  was some  suggestion that  the property which was allotted  to Dattatraya  was sufficient  for discharging the debts  outstanding on  the date  of partition.  That  at least is  not borne  out  by  the  partition  deed  nor  has Dattatraya gone  into the  witness box  to say that such was the  position.  Therefore,  taking  into  consideration  the recitals in  the partition  deed as  well  as  the  relevant evidence on  record the  position is clear that no provision was made at the time of partition for the joint family debts or alternatively  outstanding debts  incurred by the father. It is  not for  a moment  suggested that on this account the partition is  bogus and  sham, an  argument  which  was  put forward before  the High  Court and negatived. The substance of the  matter is that if at a partition amongst the members of the  joint family  no provision  is made for joint family debts, then despite the partition and allotment of shares to different coparceners  the joint  family property  in  their hands which they acquired by partition would still be liable for the  joint family  debts. The  Judicial Committee in Sat Narain v. Das(1), pointed out that when the family estate is divided, it  is necessary to take account of both the assets and the  debts for  which the  undivided estate  is  liable. After affirming this ratio, this Court in Pannalal & Anr. v. Mst Naraini & Ors.(2) observed as under:           "... the  right thing  to do was to make provision      for  discharge   of  such   liability  when  there  was      partition of the 964      joint estate. If there is no such provision, "the debts      are to  be paid  severally by all the sons according to      their shares  of inheritance",  as enjoined  by  Vishnu      (Vishnu, Chap.  6, verse  36). In  our opinion, this is      the proper  view to take regarding the liability of the      sons under Hindu law for the pre-partition debts of the      father. The  sons are  liable to  pay these  debts even      after partition  unless there  was an  arrangement  for      payment of  these debts  at the time when the partition      took place. This is substantially the view taken by the      Allahabad High Court in the Full Bench case referred to      above and it seems to us to be perfectly in accord with      the principles of equity and justice". If thus  the partition  makes no  provision for repayment of just debts  payable out  of the  joint family  property, the joint family  property in  the hands of coparceners acquired on partition  as well as the pious obligation of the sons to pay the debts of the father will still remain.      This position  of law  was reaffirmed  in Vriddhachalam Pillai v.  Shaldean Syriam  Bank Ltd.  & Anr.(1).  The  only effect of  partition is  that after  the disruption of joint family status  by partition  the father has no right to deal with the  property by  sale or mortgage even to discharge an antecedent debt  nor is  the son under a legal obligation to discharge the post-partition debts of the father.      Assuming we are not right in holding that the debt, was for the  benefit of  the estate  of the  joint  family  and, therefore, a joint family debt, and assuming that Mr. Bal is right in  contending that  it was  the personal  debt of the father, yet  the doctrine  of pious obligation of the son to pay the  father’s debt  would still  permit the  creditor to

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bring  the  whole  joint  family  property  to  auction  for recovery of  such debts. Where the sons are joint with their father and  debts have been contracted by the father for his personal benefit,  the sons  are liable  to  pay  the  debts provided they  were not  incurred for  an illegal or immoral purpose. This  liability to  pay the debt has been described as pious  obligation of the son to pay the father’s debt not tainted with  illegality or immorality. It was once believed that the liability of the son to pay the debts contracted by the father,  though for  his own  benefit,  arises  from  an obligation of  religion and  piety which  is placed upon the sons under  the Mitakshara  law to  discharge  the  father’s debts, where  the debts are not tainted with immorality, yet in course  of time  this liability has passed into the realm of law. 965      In Anthonyswamy  v. M. R. Chinnaswamy Koundan (dead) by l.r.s. &  Ors.(1), following  the decision  in  Muttayan  v. Zamindar  of   Sivagiri(2),  this   Court  held   that  this obligation of  the son  to pay  the father’s debt not tained with illegality  or immorality was not religious but a legal obligation and  the rule  would operate  not only  after the father’s death  but even  in the  father’s life time and the pertinent observation is as under:           "It is  evident therefore  that  the  doctrine  of      pious obligation is not merely a religious doctrine but      has passed  into the  realm of  law. The  doctrine is a      necessary and  logical corollary to the doctrine of the      right of  the son  by birth to a share of the ancestral      property and both these conceptions are correlated. The      liability imposed  on the  son to  pay the  debt of his      father is  not a gratuitous obligation thrust on him by      Hindu law  but is  a salutary  counter balance  to  the      principle that  the son  from the  moment of  his birth      acquires along  with his  father an  interest in  joint      family property".      It is  not the  case of  the plaintiffs  that the  debt contracted by the father for which the property was sold was tainted  with  illegality  or  immorality  or  that  it  was ayyravaharik in the sense opposed to good morals. Therefore, even assuming  that there  was a  partition, the  debt being antecedent debt  for which  no provision  was  made  in  the partition and  the debt  having not been shown to be tainted with illegality  or immorality,  the sons were liable to pay this debt  to the  extent the  joint family property came in their hands.      Viewed from  either angle, the property sold was liable for the discharge of the debt of Dattatraya, the father, and even if  it came  in the hands of the sons on partition, the debt admittedly  being a  pre-partition debt not shown to be tainted with  illegality or  immorality, could  be recovered from the joint family property in the hands of the sons.      Mr. Bal, however, raised an interesting contention that if the  joint family property which came in the hands of the sons on partition was to be sold for recovery of the debt of the father  after partition a suit would have to be filed by the creditor and if the property in the hands of the son was to be  made liable for discharge of the debt, the sons ought to be  joined as parties to the suit because only in such an event the  sons could  set up  the defence of the debt being tainted 966 with illegality  or immorality.  Where a  revenue sale takes place, it  was said,  the sons  would have no opportunity to contest the  character of the debt, and, therefore, any sale

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in such  circumstances, of  the property  that has fallen to the shares  of the  sons at  a partition,  subsequent to the partition would  be void  as against the sons. In support of the submission  reliance was  placed on  an  observation  in Pannallal’s case  (supra) that  a decree  against the father alone obtained  after partition  in  respect  of  such  debt cannot be  executed against the property that is allotted to the sons  and that  a separate  and independent suit must be filed against  the sons  before their shares can be reached. After observing  that a  son is  liable even after partition for the  pre-partition debts  of his  father which  are  not immoral or  illegal, this  Court proceeded  to  examine  the question as  to how  this liability is to be enforced by the creditor, either during the life time of the father or after his death.  After taking note of a large number of decisions in which  it was held that a decree against the father alone obtained after  partition in  respect of such debt cannot be executed against  the property that is allocated to the sons on partition  and a  separate and  independent suit  must be instituted against  the sons  before  their  shares  can  be reached, it  was held  that the  principle underlying  these decisions is  sound. This  Court approved  the  decision  in Jagnarayan v.  Somaji (1).  It may  be noted that decree for the pre-partition  debt was made after partition when in the suit father  after partition  could not  represent the sons. This very  question again came up before this Court in S. M. Jakati &  Anr. v.  S. M.  Borkar &  Ors.(2) In that case the Deputy Registrar of Co-operative Societies had made an order against Mr. Jakati for realisation of the amount and an item of property  belonging to  the joint  family of  Jakati  was attached by  the Collector and duly brought to sale under s. 155 of  the Bombay  Land Revenue  Code. The sale was held on 2nd February,  1943 and confirmed on 23rd June, 1943. In the meantime. On  January 15,  1943, one  of the  sons of Jakati instituted a  suit for  partition and separate possession of his share  in the  joint family property and contended inter alia that the sale in favour of the first respondent was not binding on  the joint  family. If  the order  of the  Deputy Registrar was  to be  treated as a decree, the sale under s. 155 of  the Bombay  Land Revenue Act being execution of that decree, was  after the institution of the suit for partition and therefore  it was  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 was of a  whole estate  including  the  interest  of  the  sons, because after the partition the 967 father no  longer possessed  the power to sell the shares of sons to  discharge his  debts. Negativing this contention it was held as under:      "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 dependant 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

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    the sons  are precluded from setting up 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  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".      The High  Court while  examining the  ratio in Jakati’s (supra)   case   observed   that   even   though   Ganpatrao Vishwanathappa Barjibhe  v. Bhimrao  Sahibrao Patil(1),  was referred to  therein it  was not specifically overruled and, therefore, the  trial Court was right in relying upon it and incidentally itself  relied on  it. In that case it was held that in  order to  make  the  share  of  sons  liable  after partition they  should be  brought  on  record.  This  Court referring to Ganpatrao (1) observed that the decision should be confined  to the  facts of that case and further observed as under :      "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 eo nomine is not necessary because      they still have the right 968      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  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  the      attachment or impair the rights of the creditor."      The binding  ratio would  be one  laid down in Jakati’s (supra) case  and it  cannot be  ignored by merely observing that a  different approach  in Ganpatrao  (supra) case holds the field  for the  High Court  as it  was not  overruled in Jakati’s case.  It is  thus crystal  clear  that  the  pious obligation of  the sons continues to be effective even after partition and  if the  creditor in  execution  of  a  decree obtained prior to partition seizes the property in execution without making  sons parties to the suit and the property is sold at  an auction  and the  purchaser is put in possession and the  property thus passes out of the family in execution of the  decree on  the father’s debt, the remedy of the sons would be  to challenge  the character  of  the  debt  in  an appropriate proceeding  brought by  them. The sale cannot be voided on the only ground that the sale of the property took place after  partition and  the property  sold was one which was allotted  to the  sons on partition once the property is liable to  be sold  for  recovery  of  debt  of  the  father incurred prior  to partition  and which  is not tainted with illegality or  immorality. Partition  in  such  a  situation merely provides  a different  mode of  enjoyment of property without  affecting  its  liability  for  discharge  of  pre- partition debts.      In the present case the sons have filed the suit and in

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this suit  issue No. 6 framed by the learned trial judge was whether the  Tagai loan  of Rs.  12,000/-  was  incurred  by Dattatraya as manager of the family, for legal necessity and the family  has benefited by it, and this issue was answered in the  affirmative, meaning  the debt  is not  shown to  be tainted with  illegality or  immorality. No  submission  was made to  us by Mr. Bal on behalf of the respondents that the debt was  tainted with  illegality or  immorality. In such a situation unless  in  this  suit  the  sons  challenged  the character of the debt and established to the satisfaction of the Court  that the  debt was  tainted  with  illegality  or immorality,  they  cannot  obtain  any  relief  against  the purchaser who  purchased the  property at an auction held by the Civil Court or by the revenue authorities for recovering the debt of the father which the sons 969 were under a pious obligation to pay. Therefore, even if the plaintiffs   were not  parties to  the proceedings  held  by revenue authorities  for sale  of the  land involved in this dispute, once  the sale  took place and it was confirmed and purchaser was  put in  possession, the sons can successfully challenge the sale by establishing the character of the debt thereby showing  that they  were not  bound to  pay it  and, therefore, their  share in  the property  cannot be  sold to discharge the  debt. They  cannot succeed merely by showing, as is  sought to be done in this case, that as the sale took place subsequent  to partition  and as they were not parties to the  proceedings the  sale is  not binding  on them. This clearly merges  by reading Pannalal and Jakati cases (supra) together.      The loan  sought to  be  recovered  was  a  Tagai  loan advanced under the Loans Act. The amount can be recovered as arrears of  land revenue.  Chapter XI  of  the  Bombay  Land Revenue Code  provides procedure  for  realisation  of  land revenue, recovery  to be made as if they are arrears of land revenue and other revenue demands. Section 150 provides that an arrear  of land  revenue may  be recovered  inter alia by sale of  the defaulter’s  immovable property  under s.  155. Section 155 provides that the Collector may cause the right, title or interest of the defaulter in any immovable property other than  the land  on which the arrear is due to be sold. The sale is subject to sanction and confirmation.      The  first   contention  is   that  the   Collector  is authorised to  cause the  right, title  or interest  of  the defaulter in  any immovable  property which  is sought to be sold in  a revenue  auction and in this case as the sale was after the partition the defaulter Dattatraya had no interest in the  property brought to auction and, therefore, no title passed to  the auction  purchaser. This submission overlooks again the pious duty of the sons to pay the father’s debt as also the  right of  the creditor  to recover  debts from the joint family  property in  the hands  of the coparceners. In Jakati’s case  (supra) this  was the  exact  contention  and after comparing  the parallel provision in the Code of Civil Procedure, viz.,  "the  right,  title  or  interest  of  the judgment debtor",  this Court  held that it is a question of fact in  each case  as to  what was sold in execution of the decree. This  Court affirmed  the ratio  in Rai Babu Mahabir Prasad v.  Rai Markunda Nath Sahai(1), that it is a question of fact  in each case as to what was sold, viz., whether the right, title or interest of the debtor or defaulter was sold or the  whole of  the property  was put  up for sale and was sold and purchased. It 970 was concluded  that where  the right,  title and interest of

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the judgment debtor are set up for sale as to what passed 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. There  is not  the slightest doubt  that the  whole of the property was sold in the instant  case and  that was  intended to be sold and the purchaser purchased  the  whole  of  the  property  and  the certificate was  issued in  respect of  sale of the property and, therefore,  it is  futile to  say that  only the right, title and interest of Dattatraya was sold and that as he had no interest  in the  property sold  on the  date of  auction sale, nothing passed to the purchaser.      Assuming, for  a moment  that if  the sale  takes place after the partition, to such a proceeding the sons should be a party  before the liability arising out of the doctrine of pious obligation  to  pay  the  father’s  debt  is  enforced against the  joint family property in the hands of the sons, evidence reveals  that the  sons were  fully  aware  of  the intended sale  and not  only they  knew of the intended sale but possession  was taken  from them  by the purchaser after notice to  them. Proceedings  for the recovery of the amount of Tagai  loan of  Rs. 12,000/- were commenced much prior to 25th April,  1955 because  the first proclamation of sale in respect of  four pieces  of land  was issued  on 25th April, 1955. Ext.  79 would show that no bid was received whereupon the Kamgar  Patil offered  a nominal bid of Re. 1/- for four pieces of  land. It may here be mentioned that this sale was challenged by  none other than Dattatraya and it was quashed and he  had taken back the land included in the proclamation Ext. 79.  Thus the  recovery of  the loan  started prior  to partition which  took place  on 6th July, 1956. Where a loan is taken  under the  Loans Act  and it is being recovered as arrears of  land revenue, the order of the revenue authority to recover  the amount would tantamount to a decree and when a proclamation  of sale is issued it amounts to execution of the decree,  to borrow  the phraseology of the Code of Civil Procedure. It  is thus clear that execution started prior to the partition. Undoubtedly the proclamation for sale of suit land was  issued on  22nd January,  1957 as  per Ext. 80 and that was  subsequent to  the partition  but  when  different properties  are   brought  to   auction  by  different  sale proclamations it is nonetheless an execution proceeding. The sale proclamation  was issued  under the  provisions of  the land revenue  code. Amongst  others the proclamation of sale is to  be fixed  on the  property which  is to be auctioned. After the  sale was confirmed, the purchaser was required to be put  in  possession.  The  plaintiff  claimed  to  be  in possession and  yet the revenue officer on 20th May, 1960 as per Ext. 82 handed over possession of 971 the land  involved in the dispute to the purchaser. It would be advantageous to point out here that the plaintiffs served notice dated  2nd February,  1957 which  would mean that the notice was  served prior  to the  date of  the auction.  The plaintiffs therein  referred to the proclamation of sale for the land  involved in  dispute and they also referred to the proclamation of  sale for  the land  involved in dispute and they also  referred to the attachment of the land. They also referred to  the date  of intended  auction  sale  and  they called upon  the Collector not to proceed with the sale. The plaintiffs thereafter  filed their  first suit being Special Suit No.  14/58, certified  copy of  the plaint  of which is Ext. 37,  which would  show that  it was filed on 6th April, 1957. In this plaint they sought a declaration that the sale

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held on  26th May,  1955 and  6th April,  1957  be  declared illegal. It  was alleged in the plaint that Dattatraya was a drunkard and  was in  bad company and had borrowed the Tagai loan for  his  own  vices  and  in  collaboration  with  the concerned officers  of the  revenue department  and the loan could never  be said to be a Tagai loan. Amongst others, the State  of   Bombay  was   impleaded  as   party   defendant. Subsequently this  suit was  withdrawn and  the present suit was filed  deleting State  of Bombay  as  party.  From  this narration of  facts it  clearly emerges  that the plaintiffs had the  knowledge of  the proclamation  of sale  and yet no attempt was  made  by  them  either  to  appear  before  the Collector who  had issued  the proclamation  or as  was  now sought to be urged, offered to repay the loan. If after this specific knowledge  that proceeding  for recovery  of  Tagai loan had commenced and during its pendency the partition was brought about  and yet  on the  subsequent sale  the revenue authority sold  the whole  of the property and the purchaser intended to  buy the whole of the property, the only way the sons  can   challenge  this  sale  is  by  establishing  the character of  the debt  as being  tainted with illegality or immorality and the purchaser would be entitled to defend his purchase and  possession on  all the contentions which would negative the  plaintiffs’ case  including the  one about the pious obligation  of the  sons to  pay  the  father’s  debt. Therefore, there  is no  force in the contention that as the plaintiffs were  not parties to the recovery proceedings the sale is not binding on them.      That brings  us to  the last contention which has found favour with  the High  Court. The  contention is that a loan borrowed under  the provisions of the Loans Act could always be in  the individual  and personal capacity of the borrower and the Loans Act being applicable to all the communities in this country,  it does  not admit of a person borrowing loan in his  representative capacity as Karta of the joint family and, thereby  making joint  family property  liable for  the discharge 972 of the  debt. Section  5 prescribes the mode of dealing with the applications  for loans and s. 6 provides for the period for repayment  of loans.  Then comes s. 7 which is material. It provides  for the  mode of recovery of the loans borrowed under the Act. Section 7 reads as under:      "7. (1)  Subject to  such rules  as may  be made  under      section 10,  all loans  granted  under  this  Act,  all      interest (if  any) chargeable  thereon, and  costs  (if      any) incurred  in making  the same,  shall,  when  they      become due,  be recoverable  by the Collector in all or      any of the following modes, namely:           (a) from  the borrower-as  if they were arrears of      land revenue due by him;           (b) from  his surety  (if any)  -as if  they  were      arrears of land revenue due by him;           (c) out  of the  land for the benefit of which the      loan has  been granted-as  if they were arrears of land      revenue due in respect of that land;           (d)  out   of  the   property  comprised   in  the      collateral security (if any)-according to the procedure      for the  realisation of  land revenue  by the  sale  of      immovable property  other than  the land  on which that      revenue is due:           Provided that no proceeding in respect of any land      under clause (c) shall affect any interest in that land      which existed before the date of the order granting the      loan, other  than the  interest of the borrower, and of

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    mortgages  of,  or  persons  having  charges  on,  that      interest, and where the loan is granted under section 4      with the  consent of  another person,  the interest  of      that person,  and of  mortgagees of,  or persons having      charges on, that interest.           (2) When  any sum due on account of any such loan,      interest or  costs is paid to the Collector by a surety      or an  owner of  property comprised  in any  collateral      security, or  is recovered under sub-section (1) by the      Collector from  a surety  or out  of any such property,      the Collector  shall, on  the application of the surety      or the  owner of  that property  (as the  case may be),      recover that  sum on  his behalf  from the borrower, or      out of  the land  for the benefit of which the loan has      been granted, in manner provided by sub-section (1).           (3) It  shall be  in the discretion of a Collector      acting under  this section  to determine  the order  in      which he  will resort  to the various modes of recovery      permitted by it." 973      The loan  can be  recovered from  the borrower as if it were an arrear of land revenue due by him or from his surety by the  same procedure or out of the land for the benefit of which the  loan has  been  granted  by  following  the  same procedure or  out of  the property  comprising as collateral security, if any, according to the procedure for realisation of land revenue by sale of immovable property or by the sale of immovable  property other than the land on which the land revenue is  due. Now  the word  ’borrower’ is  not  defined. Could it be said that a borrower for the purpose of s. 7 can be an  individual and  no other  person  ?  The  High  Court observed that  the Act  is applicable  to all communities in India  and   not  merely   to  Hindus  and  there  are  many communities which do not have the system of joint family and if  the   legislature  intended   to  include  in  the  word ’borrower’ manager  of a  family, it  should have said so in express terms.  There is  nothing in  the language  of s.  7 which would  show that  the  borrower  must  always  and  of necessity be an individual. Even if the Act applies to other communities which  do not  have the  system of joint family, that by  itself would  not exclude  the manager  of a  joint Hindu family  from becoming  a borrower  under s.  7. If the construction as  suggested by  the High Court is accepted it would put  joint Hindu family at a disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family, if he has no separate property of his own, and if he cannot borrow  the loan  in his representative capacity, has no security  to offer,  nor could  he take  advantage of the beneficial provision  of the  Act  for  improving  the  land belonging to the joint Hindu family. We see no justification for restricting  the word  ’borrower’ to  be  an  individual alone. In  fact the Act itself contemplates joint borrowers. Section 9  provides for joint and several liability of joint borrowers. A  Karta of a joint Hindu family therefore can be a borrower in his representative capacity. If the Karta of a joint Hindu  family is  considered eligible  for becoming  a borrower would  it run  counter to  the  position  of  other communities in  which there  is no concept of a joint family and joint  family properties  ? In  the absence  of any such concept a  borrower other  than a  Hindu can  offer all  the property at  his disposal  even  if  he  has  not  sons,  as security for  the loan  to  be  borrowed  because  in  other communities governed by their personal laws the son does not acquire interest  in the ancestral properties in the hand of the father  from the  time of  his birth.  But in  Hindu law

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there are  two seemingly  contrary but  really complimentary principles, one  the principle  of  independent  coparcenary 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, 974 which lays  open the  whole estate  to  be  seized  for  the payment of  such debts  (see Jakati’s case) (Supra). Now, if the sons  of a  Hindu father  take interest in the ancestral property in  the hands  of the  father by  the  incident  of birth, they  also  incur  the  corresponding  obligation  of discharging the  debts incurred by the father either for his own benefit  or for the benefit of the joint family from the property in  which the  sons take  interest by birth. Such a concept being  absent in  communities not  governed by Hindu law in this behalf, the father would be free to encumber the property and  the sons in such communities would neither get interest by birth nor the liability to pay the father’s debt and would  not be able to challenge the sale or property for discharge of the debt incurred by the father. Therefore, the expression ’borrower’ in s. 7 need not be given a restricted meaning merely  because the  Act applies to all communities. Hence a  father  who  is  the  Karta  of  the  joint  family consisting of  himself and his sons can become a borrower in his capacity as Karta and if the loan is for legal necessity or for  the benefit  of the  joint family  estate  he  would render the joint family property liable for such debt and if it is  for his  personal benefit  the joint  family property even in the hands of the sons would be liable if the debt is not tainted  with illegality  or immorality.  The High Court said that such liability which arises from the obligation of religion and  piety cannot be extended to the loans borrowed under the  Loans Act  because there is no such obligation in other communities to which the Act applies. In reaching this conclusion the High Court overlooked the principle that this doctrine of  pious obligation is not merely a religious duty but has  passed into  the realm  of law  (see Anthonyswamy), (supra). On  the facts  of  that  case  this  principle  was applied to  parties belonging  to Tamil  Vannian Christians. Viewed from  this angle,  the High  Court was  in  error  in holding that  Dharmashastras of  Hindus  never  contemplated improvement loans  being given by the Governments of the day which were  usually monarchies and, therefore, a debt of the kind which  is contemplated  under the Loans Act could never have been  under  the  contemplation  of  the  writers  like Brihaspati and  Narada in whose texts the pious liability is imposed on  the sons  and others.  It  is  not  possible  to subscribe  to   this  view   for  the  reasons  hereinbefore mentioned.  The   decisions  in   Sankaran  Nambudripad   v. Ramaswami Ayyar,(1)  and Chinnasami  Mudaliar  v.  Tirumalai Pillai,(2) do  not touch  the question herein raised and are of no assistance in the matter.      It, therefore,  clearly transpires  that Dattatraya had borrowed a  loan from the Government under the Loans Act for the benefit of 975 joint family  property. It was being recovered as arrears of land revenue.  The property  which is  the subject-matter of dispute in this proceeding was joint family property. It was sold at  a revenue auction and the whole of the property was sold and the whole of it was purchased by the purchaser. The debt of  Tagai loan  for which  the property was sold is not shown  to  be  tainted  with  illegality  or  immorality  or avyavaharik. Therefore,  the suit  property was liable to be

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sold at court auction for two reasons, one that the debt was joint family debt for the benefit of the joint family estate and, therefore,  all segments  of the  joint family property were liable  for the  discharge of  the debt,  and secondly, under the  doctrine of  pious obligation  of the sons to pay the father’s debt. In the present proceedings no attempt was made to  establish that the debt was tainted with illegality or  immorality.   Therefore,  the  sale  is  valid  and  the purchaser  acquired   a  full  and  complete  title  to  the property. The sale is not void.      Part of  the property  is acquired and the compensation is taken  by the  plaintiffs subject  to the  orders of  the Court.      Accordingly, both  these appeals  are allowed  and  the plaintiffs’  suit   is  dismissed   but  in  the  facts  and circumstances of  this case,  with  no  order  as  to  costs throughout. N.V.K.                                      Appeals allowed. 976