# Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh and Others

- **Citation:** [1954] 1 S.C.R. 177
- **Court:** Supreme Court of India
- **Decided:** 1954
- **Case number:** Civil Appeals Nos. 53 to 55 of 1951
- **Bench:** Mehr Chand Mahajan, MuKHERJEA, Jagannadhadas Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sidheshwar-mukherjee-v-bhubneshwar-prasad-narain-singh-and-others-243
- **Pages:** 12

## Headnote

Hindii law-Debts-Pioiis obligation of sons-Decree against
jimior meinber for debts which are not immoral or illegal-Sale of
his interest in exewtion-Rights of pnrchaser-Interest of sons
of jwiior member, whether passes to p11rchaser-R11le iii Nanomi
Babuasin's case-P11rchaser's right to possession or share of profits.
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 judgmentdebtor'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 part.ies to the suit or the execution proceedings.
Lalta Prashad y. G'azadhar (I.L.R. 55 All. 28), Ohhotevlal v.
Ganpat (I.L.R. 57 All. 176) and Virayya v. Parthasarathi (I.L.R.
57 Mad. 190) approved .
1953
Oct. 5.
1963
Sidheshwar
Mukherjee
v.
Bhubneshwar
Prasad Narain
Singh
and Others.
i78
stJ:P:R:E~iE COURT REPORfS
[1954]
The rule laid down by the Privy Council in Nmwini Babl!asin,'s case is not restricted. in its application to cases \vhere 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 la,v, the father, even if he \Vas not the karta could represent his sons as effectively in the sale or execution proceedings
as he could do if he was the kctrta himself.
A person who has purchasecl the interest of a member of a joint
Hindu family in execution of a decree against him is not entitled
to institute a suit against the other coparceners for recovery of a
share of the income of the joint family properties from the date of
his purchase. He can work out his rights only by a suit for partition and his right to possession would commence only from the
period \Yhen a specific allotn1ent is made in his favour.
CrvIL
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. ](. Daphtary, Solicitor.General for India (Rameshwar Nath, with him) for the appellant.
Ratan Lal Chawla (1(. N. Aggarwal, with him) for
respondents Nos. 1 and 2.
H.J. Umrigar for respondents Nos. 3 and 4.
';
1953. October 5. 'l'hc Judgment of the Court was
delivered by MUKHEIWEA 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
•
•
S.C.R.
SUPREM~ COURT REPORTS
179
.Judge, Motihari, passed in Partition Suit No. 108/6 of
1.953
1943/46. There were two money suits between the
Sidheshwar
same parties which were tried along with the suit for
Mukherjee
partition and both of them were decreed by the trial
v.
judge, but dismissed by the High Court on appeal.
Bhubneshwar
Civil Appeals Nos. 54 and 55 of this court arise out of Prasa;. N;"in
these appeals and we will deal with them separately.
and ''d:hers.
So far as the main appeal is concerned, the material
facts are uncontroverted and the dispute centres round Mukherjea J.
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 tit

## Text

•
s.c.:it.
SUPREME COURT REPORTS
177
document is silent on the question as to what hap1953
Pened to the assets and liabilities of the firm that was 0
-. -.
,,
•
orn1nissioner OJ
constituted under the deed of 1939.
To all mtents
Income-tax
and purposes the firm as reconstituted was not a
West Bengal
different unit but it remained the same unit in spite of
v.
the change in its constitution.
A. w. Figgie•
1
b
d £
and Co.,
The resu t is that we see no su stantial groun s or
and Others.
disturbing the opinion given by the High Court on the
question submitted to it. The appeal therefore fails
and is dismissed with costs.
Appeal dismissed.
Agent for the appellant: G. H. Rajadhyaksha.
Agent for the respondents: P. K. Chatterjee.
SIDHESHW AR MUKHERJEE
v.
BHUBNESHW AR PRASAD NAHAIN
SINGH AND OTHERS.
[MEHR CHAND MAHAJAN, MuKHERJEA and
JAGANNADHADAS JJ.J
Hindii law-Debts-Pioiis obligation of sons-Decree against
jimior meinber for debts which are not immoral or illegal-Sale of
his interest in exewtion-Rights of pnrchaser-Interest of sons
of jwiior member, whether passes to p11rchaser-R11le iii Nanomi
Babuasin's case-P11rchaser's right to possession or share of profits.
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 judgmentdebtor'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 part.ies to the suit or the execution proceedings.
Lalta Prashad y. G'azadhar (I.L.R. 55 All. 28), Ohhotevlal v.
Ganpat (I.L.R. 57 All. 176) and Virayya v. Parthasarathi (I.L.R.
57 Mad. 190) approved .
1953
Oct. 5.
1963
Sidheshwar
Mukherjee
v.
Bhubneshwar
Prasad Narain
Singh
and Others.
i78
stJ:P:R:E~iE COURT REPORfS
[1954]
The rule laid down by the Privy Council in Nmwini Babl!asin,'s case is not restricted. in its application to cases \vhere 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 la,v, the father, even if he \Vas not the karta could represent his sons as effectively in the sale or execution proceedings
as he could do if he was the kctrta himself.
A person who has purchasecl the interest of a member of a joint
Hindu family in execution of a decree against him is not entitled
to institute a suit against the other coparceners for recovery of a
share of the income of the joint family properties from the date of
his purchase. He can work out his rights only by a suit for partition and his right to possession would commence only from the
period \Yhen a specific allotn1ent is made in his favour.
CrvIL
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. ](. Daphtary, Solicitor.General for India (Rameshwar Nath, with him) for the appellant.
Ratan Lal Chawla (1(. N. Aggarwal, with him) for
respondents Nos. 1 and 2.
H.J. Umrigar for respondents Nos. 3 and 4.
';
1953. October 5. 'l'hc Judgment of the Court was
delivered by MUKHEIWEA 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
•
•
S.C.R.
SUPREM~ COURT REPORTS
179
.Judge, Motihari, passed in Partition Suit No. 108/6 of
1.953
1943/46. There were two money suits between the
Sidheshwar
same parties which were tried along with the suit for
Mukherjee
partition and both of them were decreed by the trial
v.
judge, but dismissed by the High Court on appeal.
Bhubneshwar
Civil Appeals Nos. 54 and 55 of this court arise out of Prasa;. N;"in
these appeals and we will deal with them separately.
and ''d:hers.
So far as the main appeal is concerned, the material
facts are uncontroverted and the dispute centres round Mukherjea J.
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 hand, that the
plaintiff's title extended only to I 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. I, Bhubneshwar Prasad, who is the main defendant in the present
litigation, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note
some time before 1932. Panchanan instituted a suit in
the Court of the Subordinate Judge at Motihari against
Bhubneshwar for recovery of this loan and having
obtained a decree, put the decree in execution in
Execution Case No. 16 of 1932 of the Court of the
Subordinate Judge at Motihari. In course of these
proceedings, the right, title and interest of the judgment-debtor in the properties in suit, which was described as amounting to 4 annas share in the same,
was put up to sale and purchased by the decreeholder
himself on 7th of September, 1932. The purchaser got
delivery of possession. on January 25, 1935. It is
1953
Sidhe8hwar
Mukherjee
v.
Bhubneshwar
180
SUPREME COURT REPORTS
[1954]
admitted that atthe 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
Prasad Narain
Singh
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
and Others.
M ukher)ea J.
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 sons, 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
uuder 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 thatthe creditor intended to attach
!Ind sell the interest of the sons as well aμd unless,
'
·-
•
S.C.R.
SUPREME COURT REPORTS
181
therefore, the sons rmcceeded 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. 1 was the head
of a joint family consisting of himself and his sons. In
such cases he could have represented the interests of
his sons and the entire interest could have been sold in
the execution sale. But as in this case the plaintiff
himself was a junior member of the family, he had
neither any right of disposition over the interests of his
sons, nor could he represent them in any suit or proceeding. What the purchaser acquired by the execution sale was not any interest in a specified p0rtion 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
Sidheshwar
Mukherjee
v.
Bhubneshwar
Prasad Narain
Singh
and Others.
Mukherjea J.
1958
Sidheshwar
l'rtukherJee
v.
Bhubneshwar
Prasad Narain
Singh
and Othr1's,
11'[ 11 kherjea J.
182
SUPREME COURT REPORTS
(1954]
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, th~ debts,
'.I'h11
,.
•
•
•
S.C.R.
SUPREME COURT REPORTS ..
1s3·-
authority of the manager is , based . upon the principle
of agency or ifilplied ·authority which · has been formulated in · a text quoted by Mitakshara.
"Even a
single individual," thus runs the text, "may make a
donation, mortgage or sale · of immovable property
during· a· season of distress, for the sake of the family
and especially for religious purposes"( 1). Such family
debt, however, stands on quite a different footing from
a personal debt contracted by. the father which does
not benefit the family.
The liability of his sons
to pay such debt does not rest· on the principle indicated above, according to which the junior members
of a family are made to pay the family debts. ·Jt 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 proposition 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. I. L. 28.
1953
Sidheshwar
Mukherjee
v.
B!w.bmshwar
Prasad .Natain
Singh
and Others.
llfu&j•a ].
. 1953 ·-
Si.dhtshwar
Mukl•cj"
v.
B!wbntslu.oar
Prasad Narai.
Singh
11nd Others.
184
SUPREME COURT REPORTS
[1954]
lieen observed by this court in the case of Pannalal
and Another v. Mrt. Naraini( ') "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 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 :i.t
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
adminjstered in the State of Bihar, no coparcener can
alienate, even for valuable consideration, his undivided
interest in the joint property without the conseiit ·of
his coparceners ; but although a coparcener is incompetent to alienate· voluntarily his undivided coparcenary
interest, it is open to the creditor, who has obtained a
decree against him personally, to attach and put up to
sale his undivided interest, and after purchase to have
. the interest separated by a suit for partition.
A personal decree obtained against the sons could certainly
be executed against th em 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.
'Vhether 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 held that under·
(I) [1952] S.C.R. 5H at 556.
-
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•
'
S.C.R.
SUPREME COURT REPORTS
>'
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
copa1·ceners besides the fathei' and sons, does not affect
the liability of the sons in any way.
This view has been
taken in quite a number of cases(') 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 partie:; 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 be_en 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
principle;; discussed above.
As has been lai<l down by
the Judicial Committee in a series of cases, of which
the case of Nanomi Babuasin v. ]Jfodun Mohun(2) may
(l) Vide Lalla Prashad v. Gazadhar, 55 All. 28; Ch/wtcy Lal v .. Gw11pat
57 All. 176; Virayya v. Parthasarathi, 57 Mad. 190.
12) 13 L\. 1.
:\lso see lJhagbut /'m;/zad v. lllsi. Girja Kaur, 15 L\. yy;
Minakshi Naidu v. Jmniudi, 16 I.A. 1; Mahabi• Perslwd '" ,1Ia1·kttndo 17
I.A. 11; Sri:pat v. Tagore, 44 I.A. 1.
'
1953
Sidheshwar
Mukherjee
v.
Bhubneshwar
Prasad Narain
Singh
and Others.
Mukhe~jea J.
1953
SidheshU'ar
J.1 ukherjee
v.
Bhubneshwar
Prasad Narain
Singh
and Others.
M ukherjea J.
186
SUPREME COURT REPORTS
[1954]
be taken as a type, the creditor has an option in such
cases.
He can, if he likes, proceed against the father's
interest alone but he can, if he so chooses, put up to
sale the sons' interest also and it is a question of fact
to be determined with reference to the circumstances
of each individual case whether the smaller or the
larger interest was actually sold in execution. In the
present case it has been found as a fact by the trial
judge-and this finding has not been reversed in appeal
-that the executing court intended to sell and did
sell a four annas share in the joint property which
included the undivided interest of the sons of defendant
No. 1.
According to the view taken by the Privy
Council in Nanomi Babuasin's case('), 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.
Unfortunately, however, they did not choose to avail themselves of this opportunity. Defendant No. 2, the major
son of defendantNo. l, didnotfileanywritten 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
(I) I3 I.A. I.
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•
S.C.R.
SUPREME. COURT REPORTS
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 N anomi Babuasin' s case(') 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(
2
) and we think
rightly that so long as the family remains joint, all the
members of a branch or a sub-branch of the family can
form a distinct and separate corporate unit within the
larger unit.
Of such a smaller unit consisting of the
father and his sons, the father would undoubtedly be
the head and legal representative, although he is not
the head of the larger unit. In our opinion, therefore,
the High Court was not right in holding that the plaintiff could not claim 4 annas share in the property on
(r) 13 I.A r.
(•)
v;c~e E1.dc-"01c.11, '"· !>"arasim/,ulu, I.LR. 25 Mad. 149, 15?,
1963
Sidheshwar
Mukherjee
v.
Bhubneshwar
Prasad Narain
Singh
and Others.
1963
Si'dheshwar
J11ukherJce
v.
Bhubne8hwar
Prasad Narain
Singh
and Others.
M ulcherjea "';/,
188
SUPREME COURT. REPORTS
[1954)
the strength of the purchase by his predecesRor in the
execution sale simply because the father was not the
manager or karla 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 andthose of the
trial judge restored. The plaintiff will have coRts 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 ~efendants 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 la'v
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 No8. 54 and 55 disrni88ed.
Agent for the itppellant: Ra,jinder Narain.
Agent for the respondents Nos. 1 & 2: P. G.
Aggarwal.
,.
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