# Stolt r:j 1'1adhy.:J 1'1adf;;h v. Ueuashankar

- **Citation:** [1959] 1 S.C.R. 1384
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** B. P. 81~Ha, JAFER h1, J. L. KAPUf
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/stolt-r-j-1-1adhy-j-1-1adf-h-v-ueuashankar-1565
- **Pages:** 20

## Headnote

Hindr1 La<()-Dcbt.1' of fathcr--Pious oblt'gation uf son---I)artition. if ajf1:r:fs such obligation-A\
0yavaharika, J/raning •Jf- ·S11!r of
joint Ja1nily property-" J?ight, title and interest Qf d~Jaulter "-.
Bombay Land Rcrcntte Code, 1879 (Rom. V of 1879), s. i55 .
.J \\'as the 1nanaging director of a Co-operative Bc..nk getting
a y•mly remuneration of I<s. 1,000. The Bank went iat~ liquidation and an examination of th~ affairs ha\'ing
~ho\,·l'ci that the
n1011ies of the Bank ,,·ere not properly invested and that J \Vas
ncglige11t in the discharge of his duties, a payment order for
Rs. r5.100 wa9'rna11e by the Deputy Registrar of Co-operative
Societies against him.
On .July 2i, 1942, for the realisation of
the amount, an item of property belonging to the joint family of
.J was attached hy the Collector and brought to sale under s. 155
of the Bombay Land Ifovenue Code, and purchased at auction
hy the first respondent. This sale was held on Februuy 2. 1943,
and confirmed on .June 23, i943.
In the meantime on January
r5, -r943, one of the sons of J instituterl a suit for partition and
separate possession of his :->hare in the joint farnily properties.
and contended, i11ter alia, that the sale in favou1 of the first
respondent was not binding 011 the joint family.
lhc sale \\·a3
challenged on the grounds (1) that the liability wh'eh J incurred
\vas aP)'a;,•aJ1ariha and therefore the interest of his :ions could not
L><' sold for the realisation of tlw debt (2) that eve·1 if J.he debt
\\"as not ai·yaraharika, the institution ~f the suit for partition
operated as :;cverance of status bet\\·een the
1n1~mbers of the
family and, therefore, the father's power of disposition ovrr the
son·~ share hari con11! to an end and, consequently, at the a.uc:tion
sale the sha1'e of the. sons did not pass to the a'>ction pur-
'chaser, and (3) that what could legally ht sold under s. 155
. .
..
•
•
. •,
'
~-
,
,'-·
.....
t
• •
'
'
-'
~ .
• •
S.C.R. >~UPREME COURT REPORTS
1385
of the Bombay ,i.,and Revenue Code was the right, title and
interest of the defaulter, i. e.~ the 'father alone, which could not
include the share of the other memgers of the joint family. The
evidence consisting of the notice for sale, the proclamation of
sale and the sale certificate showed that the whole of the property was sold, and not the share of the father alone.
Held, that the liability which J incurred was not"avyavaharika and that the sale of the joint family property, including
the share of the sons, for the discharge of the debt, was valid.
Held, also, that, Colebrooke's translation of the term avya;1aharika as "any debt for a cause repugnant to good morals", was
the nearest approach to the true concept of the term as used in
the Smrithi texts.
Hem Raj alias Babu Lal v. Khem Chand, (r943) L. R. 70 I. A.
r7r, relied on.
.
Per Imam and Kapur JJ.-(r) The liability of the sons to
d~scharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons
which continues to exist in the lifetime and after the death of
the father and which does not come to an end as a result of
partition of the joint family property. All that results from
partition is that the right of the father to make an alienation
comes to an enll.
(2) Where the right, title and interest of a
judgment-debtor are set up for sale, as to what passes to the
auction purchaser is a question of fact in each case dependent
upon what was the estate put up for sale, what the Court
intended to sell and what the, purchaser intended to buy
ar1d did buy and what he paid for.
(3) The words "right,
title and interest " occurring in s. r55 of the Bombay Land
Revenue Code have the same connotation as. th<j' had in the
corresponding words used in the Code of Civil Procedure existing
at the time the Bombay Land Revenue Code was enacted. (4) In
execution proceedings it is not_ necessary to implead the sons
or to bring another suit if severance of status takes place

## Text

_Characters 0–39,577 of 45,648. This is a partial read: ask again with offset=39577 for what follows._

...
Stolt r:j 1'1adhy.:J
1'1adf;;h
v.
Ueuashankar
S. K. Das j.
Septen1ber 2 4.
•
•
•
• I
• •
1384
SUPH.ElllE COURT R~PORTS/ [1959]
now be decided by the High Court on merits in
accordance with law. It ~s ottly necessa~y to adr.1 that
the act complained of was committed a.s far ba~k as
l9;i3 and it is desirable that. the case should be dealt
with as expeditiously as possible.
•
Appeal aUoweJ'.
S. l\L JAKATI & ANOTHER
11.
S. JL BORKAR & OTHERS
•
(B. P. 81~HA, JAFER h1,n1 and J. L. KAPUf: JJ.)
Hindr1 La<()-Dcbt.1' of fathcr--Pious oblt'gation uf son---I)artition. if ajf1:r:fs such obligation-A\
0yavaharika, J/raning •Jf- ·S11!r of
joint Ja1nily property-" J?ight, title and interest Qf d~Jaulter "-.
Bombay Land Rcrcntte Code, 1879 (Rom. V of 1879), s. i55 .
.J \\'as the 1nanaging director of a Co-operative Bc..nk getting
a y•mly remuneration of I<s. 1,000. The Bank went iat~ liquidation and an examination of th~ affairs ha\'ing
~ho\,·l'ci that the
n1011ies of the Bank ,,·ere not properly invested and that J \Vas
ncglige11t in the discharge of his duties, a payment order for
Rs. r5.100 wa9'rna11e by the Deputy Registrar of Co-operative
Societies against him.
On .July 2i, 1942, for the realisation of
the amount, an item of property belonging to the joint family of
.J was attached hy the Collector and brought to sale under s. 155
of the Bombay Land Ifovenue Code, and purchased at auction
hy the first respondent. This sale was held on Februuy 2. 1943,
and confirmed on .June 23, i943.
In the meantime on January
r5, -r943, one of the sons of J instituterl a suit for partition and
separate possession of his :->hare in the joint farnily properties.
and contended, i11ter alia, that the sale in favou1 of the first
respondent was not binding 011 the joint family.
lhc sale \\·a3
challenged on the grounds (1) that the liability wh'eh J incurred
\vas aP)'a;,•aJ1ariha and therefore the interest of his :ions could not
L><' sold for the realisation of tlw debt (2) that eve·1 if J.he debt
\\"as not ai·yaraharika, the institution ~f the suit for partition
operated as :;cverance of status bet\\·een the
1n1~mbers of the
family and, therefore, the father's power of disposition ovrr the
son·~ share hari con11! to an end and, consequently, at the a.uc:tion
sale the sha1'e of the. sons did not pass to the a'>ction pur-
'chaser, and (3) that what could legally ht sold under s. 155
. .
..
•
•
. •,
'
~-
,
,'-·
.....
t
• •
'
'
-'
~ .
• •
S.C.R. >~UPREME COURT REPORTS
1385
of the Bombay ,i.,and Revenue Code was the right, title and
interest of the defaulter, i. e.~ the 'father alone, which could not
include the share of the other memgers of the joint family. The
evidence consisting of the notice for sale, the proclamation of
sale and the sale certificate showed that the whole of the property was sold, and not the share of the father alone.
Held, that the liability which J incurred was not"avyavaharika and that the sale of the joint family property, including
the share of the sons, for the discharge of the debt, was valid.
Held, also, that, Colebrooke's translation of the term avya;1aharika as "any debt for a cause repugnant to good morals", was
the nearest approach to the true concept of the term as used in
the Smrithi texts.
Hem Raj alias Babu Lal v. Khem Chand, (r943) L. R. 70 I. A.
r7r, relied on.
.
Per Imam and Kapur JJ.-(r) The liability of the sons to
d~scharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons
which continues to exist in the lifetime and after the death of
the father and which does not come to an end as a result of
partition of the joint family property. All that results from
partition is that the right of the father to make an alienation
comes to an enll.
(2) Where the right, title and interest of a
judgment-debtor are set up for sale, as to what passes to the
auction purchaser is a question of fact in each case dependent
upon what was the estate put up for sale, what the Court
intended to sell and what the, purchaser intended to buy
ar1d did buy and what he paid for.
(3) The words "right,
title and interest " occurring in s. r55 of the Bombay Land
Revenue Code have the same connotation as. th<j' had in the
corresponding words used in the Code of Civil Procedure existing
at the time the Bombay Land Revenue Code was enacted. (4) In
execution proceedings it is not_ necessary to implead the sons
or to bring another suit if severance of status takes place pending
the execution proceedings because the pious duty of the sons
continues ~nd consequently there is merely a difference in the
mode of enjoyment.of the property. (5) The liability of a father,
'vho is. a managing director and who draws ·a salary 01~ a
remuneration, incurred as a result of negligence in the discharge
of his duties is not an avyavaharika debt as it cannot be
termed as "repugnant to good morals".
Case Law discussed.
Panlll' Lal v. Mst. Nar'fni, [r952] S.C.R. 544 aird Sudhashwar Muilherjee v. Bhubnesh11ar Prasad Narain Singh, [r954] S.C.R.
r77, followed.
Khiarajmal v. Daim, (1904) L.R. 32 I.A. 23 and Sat Narain
v. Das, (r936) L.R. 63 I.A. 384, distinguished'.
'.
•
'
Mi;lgu.,d Co-opqative Credit Society v. Shidlingappa Ishwa- •
rappa,.A.I.R. r94r Bom. 38r, approved.
.
. .
. .
•
•
jakati
v.
Borkar
•
...
•
•
Jakali
v.
•
•
••
•
•
. '
• •
1386
SUPREME COURT HEPORTS,( [lll59]
Cn•1L APPELLATE .rnusu1c·1·wx: Civil Appeal Ko.
233 of 1954.
'
•
Appeal from the judg1i1Cnt and dc0ree dated August
22, 1950, of the Bombay High Court in Appeal Xo. 80
of 1946 from original decree, arising out of the judgment and decree dated October 10, l!J45, of the Court
of Civil Judge, Se11ior Division, Dlutrwar, in Special
Suit \"o. 64 of 1943.
A. V. Visu:anatha Sastri and N. S. ](, Sastri, for the
appellants.
A. S. H. Chari, Bann Shivchamn Sinrjh and G'o1:i1ulsaran Singh, for respondents ~ os. 2-4.
1958. September 24.
The judgmont of lma.m anrl
Kapur JJ. was deliverer! by Kapur J, Sinha '1·
agreed to the order proposed.
KAP'GR J.-This is 1111 appeal againHt the judgment
and decree of the High Court of Bombay varying the
decree of the trial Court decreeing the plaintiff's suit
for possession by partition of joint family.propert.y.
•
The facts of the case lie in a narrow compa.ss. :\!. B.
Jitkati, defendant !'io. 1, was the :\lanaging Di1;ector of
Dharwar Urban Co-operative Bank Limit3d which
went into liquidation, and in that capacit,Y he was
receiving a yearly remuneration of Rs. 1,000. As a
result of certai1t proceerlingH taken against defendant
X o. 1, ?II. H. ,Jakati, by the liquidat-0r of the. Bank, a
payment order for Hs. 15, 100 was m1tde by the Deputy
H.egistmr of Cu-operative Societies on April 21, 1942.
In execution ufthis payment order a bungalo•\' belonging to M. B. ,fokati, defendant \"o. 1, was 1Lttached by
th~ Collector under the Bombay Land i{e1·enue Code
on July 27, 1942.
Xotice for sale wa~ iss1ied on
::\ovember 24, 1942, and the proclamatio11 on December 24, l!J.12. The sale was fixed for Febn,ary 2, 1943.
On Januar..Y 16, 1943, !IL B. Jakati defondant Xo. I
applied for postponing the sale t\'hich was rejec>icd. The
n.uction sale was held on Febrlary 2, l!H3, and was
confirmed on .Tune 23, l!J43,-the purcha;er was S. N.
Barkar, defencl1tnt N'o. 7, now respondent No. 1. On
• Februar)• fO, 1944, respondent No. l ~~old th~ property
to defendants 8 to 10 who are responden:,s 2 tu 4.
. . . . .
.
•
•
. ·.
'
,
r
;-...
' .
'
' .
• •
"\
S.C.R. , CiUPREME COURT REPORTS
1387
The following.pedigree table ,will assist in understanding the case :
'
Madhavarao Balakri~han Jakati Deft. 1
= Bhimabai ,, 2
,--
I
Shantibai
I J
.
ndumat1
I
Shriniwas
Krishnaji
Plff. 1
Plff. l(a)
daughter
Deft. No. 3
daughter
Deft. No. 4
On January 15, 1943, Krishnaji a son of defendant
No. 1 brought a suit for partition of the joint family
property and possession of his separate share alleging
inter alia that the purchase by respondent No. 1 of the
bungalow was not binding on the joint family as "it
was not liable to be sold for the illegal and immoral
acts on the part of defendant No. 1 which were charac-.
terised as misfeasance " ; that the auction sale was
under s. 155 of the Bombay Land Revenue Code under
which only" the right, title and interest of the defaulter" could Qe sold and therefore the right, title and
"interest of only the father, defendant No. 1 was sold
and not that of the other members. The plaintiff
claimed' 1/4 share of the prorerty and also alleged that
he was not on good terms with his father who had
neglected his interest; that he was staying with his
mother's sister and was not being msintained by his
father and mother.
On January 12, 1944, appellant
No. 1 filed his written statement supporting the claim
for partition and claiming his own share. He supported
the claim of the then plaintiff that the sale in favour
of respondent No. 1 was not binding on the joint
family. Defendant No. 2, now appellant No. 2, •the
moth~r, also supported the plaintiff's claim and on the
death of Krishnaji, she claimed his t share as his heir.
After the death of the original plaintiff Krishnaji,
Shriniwas appellant No. 1 was substituted as plaintiff
on J UWl 28, 1944.
1
. .
•
The suit was mainlyt contested by respondents 1 to 4.
Respondent No. 1 pleaded that plaintiff's suit for
partition was collusive having be@n bi:ought a~ the
instance of the defendant No. 1, M. B. J'akati, and it
was not" bona flde; that defendant No. 1 was mad~
..
•
•
•
]akati
v.
Borkar
Kapur J.
•
•
.
•
•
•
•
• •
]rJ!wli
v.
lrorkar
•
•
•
•
•
. '
• • r
1388
SUPREME COURT REPORT& , [1959]
liable at the instance of the li~uidator of.the Dharwar
Crban Co-operative Bank Ltd., for misfeasance because
he acted negligently in ~he discharge of his duties as
managing director of the Bank; that the debt was
binding on the family as defendant No. I, M. B. .fokati,
had been receiving a yearly remuneration from• the
Bank and the properties were sold in payment of a
debt binding on the family a11d therefore the "ale in
execution of the p11yment. order eould not be chal:.enged
as the sons were under a pious obligation und·.~r the
Hindu law to discharge the debts of their father; that
the sale could only be challenged 011 proof of the debt
of defendant X o. l being for an "immoral or i :legal"
purpose. These pleadings ga,·e rise to seYcral ismes.
The learned Civil Judge hclcl that the suit wa~
collusi'l'c; that the liability which defendan·; No. l
incurred was avyavaharika and was therefore not
binding on the sons and thus appellant Xo. I would
have ~' share in the joint family property, defendant
~o. I } and 11ppella.nt :No. 2 also A.
He therefore.
dccl11red the shiues as a.hove in the whole of 1;he joint
family property including the bungalow which is the
only property in which the respondents arc i!1t{,rested
and which is in dispute in 'this appeal.
•
On appeal the High Court held that the debt was
not avyavaharikia as t.here waR no evidence tn suppor1
the finding of the trial Court, the order of the Deputy
Hcgistrar being in the nature of a. judgment to which
neither the sons nor the auction purchasers wiire parties
nrnl therefore it was not "evide11ce of anyth',n~ except.
t.hc historical fact that it wa.s delivered". Ir: regard to
thn-<juP-st.ion as to whllt interest passed to the auction
purchaser on a sitle under s. lfJ5 of the Bombay ·Land
RPvenuc Code, it held that. the whole estate including
the share of the sons was sold in execution of the
payment order and therefore qua that property the
sons had no· interest left. The t(igh Court var~d tho
decrL'C to this extent and the pb\intiffs ha.rn come up
in appeal to this Court. by certificate C•f the High
Comt of Bol\lba,· .•
The ca~e "of the appellants is (1) that the d.ebt was
rtvyamharika and therefore in an at1ction sale the
..
•
•
•
,
•
•
i-\ •
•
' • •
S.C.R. ~
.'JUPRE~E COURT REPORTg
1389
interest of t~ ·sons and other members of the joint
family did not pass to tRe auction-purchaser; (2) that
even if the debt was not avwivaharika the institution
of the suit for partition operated as severance of status
between the members of the family and therefore the
fathfir's power of disposition over the son's sha.re had
come to an end and consequently in the auction sale
the share of the sons did not pass to the auction-purchaser; and (3) that what could legally be sold under
s. 155 of the Bombay Land Revenue Code was the right,
title and interest of the defaulter i. e. of the father
alone which could not include the share of the other
members of the joint family.
•
The first question for decision is whether the debt
qf the father was avyavriharika. This term has been
variously translated as being that which is not lawful
or what is not just or what is not· admissible under
the law or under normal conditions. Colebrooke
translated it as " a debt for a cause repugnant to good
morals". 'J;here is another track of decision which
nas translated it as meaning "a debt which is not
supported as valid by legal arguments''. The Judicial
Committee of the Privy Council in Hem Raj alias Babu
l,al v. Khem Chand (1) held t'hat the translation of the
term as given by Colebrooke makes the nearest
approach to the true conception of the ierm used in the
Smrithis texts and may well be taken to represent its
correct meaning and that it did not admit of a more
precise definition.
In Toshanpal Singh v. District Judge of Agra (2) the
Judicial" Committee held that drawings of monies for
unauthorised purposes, which amounted to criminal
breach of trust under s. 405 of the Indian Penal Code,
were not binding on the sons, but a ci vii debt arising
on account of the receipt of monies by the father
which were not accounted for could not be termed
avyavalJarika.
1
•
In the case now Jlefore us the appellants have
attempted to prove that the debt fell within the term
avyavaharika by relying upon the payment order and
(1) (194~) L.R. 70 I.A. I7I, 176.
(2) (1934) L.R. l1 I'.A. 350.
•
• •
•
•
Jakati
v.
Borkar
l(apu1' J.
•
•
•
•
•
•
•
Jak.citi
v.
Bork.ar
Kapur J.
•
•
. .
•
•
• '
• •
1390
r
Sl!JPREME COURT RF.;FORTS • • [1959]
the findings given by the Deputy Il:e~istrar in tlw
payment order where the1ial'llty was inter alia based
on a breach of trust.
A.ny opinion given in the ·Jrdcr
of the Deputy J{egistrnr as lo the nature of tlw liability of drfem!ant, Xo. I, .\1. 13. ,fakat.i, cannot be used
<18 evi<Jence in the present case lo determine whether
the debt was avyawharika or otherwise.
The order is
not admissible to prove the trnt.h of the facts therein
stated and except that it may be relevant to prc•ve the
existence of the judgment itself, it will not he 1dmissible in evidence. Hection 43 of t.hc Indian E\'idence
Act0 the principle of which is, that judgments excepting those upon questions of public and general ialerest.,
judgment in rem or when necessary to prove the
cxiskncc of a judgment, order or decree, which may
be a fact in isRuc, are irrelevant. It was then submitted that the pleadings of respondent :-.;o. l himself
show tlrn.t the debt was of an immoml or illegal nature.
In his written statement, respondent :'\o. l ha.d pl1~ad
ed that the liq uic.lator of the Bank !\ad charged
defendant No. l with misfoas:rncc because he was'
grossly negligent. in the discharge of his duty and responsibility as managing di11·ctor aurl tha:, •after a
thorough enquiry the .r.>eputy Hegistrar held mi!tfoas1\nce proved and ordered
a
contribution of
Hs. 15,100 b~' hini. As we have said above the translation given by Cnlehrooke of the term avya1x1harika is
the near.,st approach to its true concept i.e. "any
debt for a ea use repugnant. to good moro.ls ". The
managing direct.or of a Bank of the position of defendant !:\o. l who should ha\·e been more vigilant in
im·...,sting the monies of the Bank cannot be said to
have incurred the liability for a cause "n·pugnanl to
good morals ". We are !1t1able to subscribe to the proposition that in the modern age with its complex
institutions of !3ankH and ,Joint Stock Companies
gon,rncd b5· many technic:ditie\ and complex ~yst.em
of laws the liability such as h;\s arisen in the present
ease could b" ea!!ec.l avya1:aha.rika.
Tl:c debt was
the~cfore bi11ding.on the sons.
The effect: of sen>rance of stat.us brought about by
"the filing of the suit on January 2.\ • 1943, ftas been
..
•
•
. .
•'
~.
'
i
...
•
' • •
'
S.C.R. • 'SUPREME COURT REPOR'l"S
1391
made the basts
0
of the argmoont that only the share of
the father could be seized in execution of the payment
order made against him. This would necessitate an
examination into the rights and liabilities of Hindu
sons in a Mitakshara coparcenary family where the
fathM is the karta. In Hindu law there are two
mutually destructive 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, which lays open
the whole estate to be seized for the payment of
such debts.
According to the Hindu law givers
iliis pious duty to pay off the ancestors' debts and to
relieve him of the death torments consequent on nonpayment was irrespective of their inheriting any
property, but the courts rejected this liability arising
irrespective of inheriting any property and gave to
this religiouS' duty a legal character. M asit Ullah v.
Damodar Prasad (1).
]'or the payment of his debts it
is open to the father to alienate the whole coparcenary
estate including the share of.the sons and it is equally
open to his creditors to proceed against it; but this is
subject to the sons having a right to challenge the
alienation or protest against a creditor' proceeding
against their shares on proof of illegal or immoral
purpose of the debt. These propositions are well settled and are not within the realm of controversy.
(Panna Lal v. Mst· Naraini ('); Girdharee Lal v. Kantoa
Lal 1tnd Mudhan Thakaor v. Kantaa Lal('); Suraj
Bansi Kaer v. Shea Prasad Singh ('); Brij Narain v.
M angla Prasad ('). In the fast mentioned case the
Privy Council s1tid :
" Nothing clearer could be s1tid than what was
s1tid by Lord Hobhouse delivering the judgment of the
Board m Nanami Bab:f;,in v. Modun Mahun (')already
quoted : " Destructive as it may be . of the principle of
(1) (1926) L.R. 53 I.A. 204.
(3) (1874) L.R. I I.A. 321, 333.
(5) (192~ L.R. 51 I.A. 129, 136.
177
•
(2) [1952] s.c.R.- 5..J4, s;2. 553, 556 .• 559.
(4) ('878) LR 6 LA. 8$, 1p1.
(6) (i885) LR. 13 I.A. I, 17, 18,
•
•
. .
•
jakafi
v.
Bo'rkar
•
•
•
•
•
•
]akati
v.
Kapicr ].
•
•
•
•
•
•
• '
• • r
1:~02
stJPRE:IIE COURT REPORTS• • (1959]
iu~epcndent coparccnary .rigl\ts in the· sens, the deci.
sions have for sometime established the principle that
t.l1e sons cannot set up their rights against their
father's alicm1tion for an antecedent debt., or ae.ainst
his credit-0r's remedies for their debts, if not ta.intcd
with il'nmorality. On this important, quest.ion cf the
liability of the joint estate, their Lordships think that
there is no conflict of authority".
There is no discrepancy of judicial opinion as l.o the
pious duty of Hindu sons. In Panna Lal ,._ Mst.
Naraini (')this Court approved the following dictum
of Suleman A. C. J. in Bankey/al v. Durga P1w1ad (') :
"Tlw ll indu Law texts based the liabilit v on the
pious obligation itself aud not on the father's
0
Jl<J1W'r to
sell the sons' share".
•
So great was the importance attached to the payment
of debts that Hindu law givers gave the non-payment
of a debt the status of sinfulness and such 11011-pay.
ment was wholly repugnant to Hindu concept of son's
rights and liabilities. lu Bankeylal v. Durga Prasad(');
Lal Gopal :llukherji J. s>Lid at p. 896:
" A perusal of text hooks of Smriti deali11g with
debts will show that under the H iudu Law the n1m·
payment of a just debt was regarded as <t Yery heinous
sin."
The liability ~f the Hindu son based on his pious
obligation again received the approval of thi~; Court in
Sudheshwar Mukhe1ji v. Bhubneshwar Prnswl Xara·in
Sinrth (3), where the following observation made in
l'annu I.,al's case(') (at p. 184):
•
, "The fathe1"s power of alienaLing the family
property for paymcut of his just clebts may be.one of
the conserp1enccs of the pious obligati<m which the
Hindu law imposed upon the sons; ot· it may be one
of the means of enforcing it, but it is certainly not the
measure of the entire obligatio~ "
was reitcrat;!d.
And again at.•· 18~{ :llukhcrjc~L .J. (as
he then was) said :
•
. "It is p. special liability created on pmcly religious
(1) i 195•i] ~C.H. 5·14 • .s52, 553, .5.'/1• 559·
(i) (1931) l.L.H. 53 All. 868, 8')6.
(j) [195,] ,.C.H. 1J7, 183. 184 .
• •
•
•
. .
,·
,
r
,. __
t
y
,i
,~-" •
•
' • •
'"'\
S.C.R. • ~UPREME COURT REPORTS
1393
grounds and !ilan be enforced. only against the sons of
the father and no other coparcener. The liability,
therefore, has its basis entirely on the relationship between the father and the son ".
Therefore unless the son succeeds in proving that the
decrl\e was based on a debt which was for an immoral
or illegal purpose the creditor's right of seizing in
execution of his decree the whole coparcenary property
including the son's share remains unaffected because
except where the debt is for an illegal or immoral
purpose it is open to the execution creditor to sell the
whole estate in satisfaction of the judgment obtained
against the father alone. Sripat Singh v. Tagore (1 ). The
necessary corollary which flows from the pious obligai!iion imposed on Hindu sons is that it is not ended
by the partition of the family estate unless a .
provision has been made for the payment of the just
debts of the father.
This again is supported by the
authority of this Court in Pannakil's case (2) where
.Mukherjea J. said at p. 559:
"Thus, in our opinion, a son is liable, even after
partitiun for the pre-partition debts of his father which
:i,r¥ not immoral or illegal. and for the payment of
which no arrangement was made at the date of the
partition ".
The liability of the sons is- thus unaffected by partition because the pious duty of the sons to pay the
debt of the father, unless it is for an immoral or illegal
purpose, continues till the debt is paid off and the
pious obligation .incumbent on the sons to see that
their father's debts are paid, prevents the sons from
asseri.ing that the family estate so far as their interest
is concerned is not liable to purge that debt. Therefore
even though the father's power to discharge his debt
by selling the share of his sons in the property may no
longer exist as a result of partition the right of the
judgm~nt creditor to f seize the erstwhile coparcenary
property remains unatrected and undiminished because
of the pious obligation of the sons. There does not
seem to be any divergence of judiciar opin1on. in regard
(r) (19!6) L.R. 44"1.A. I.
(2) [1952] S.C.R. 544, 552, 553, 556, 559· •
. .
•
•
] akati
v.
Borkar
Kapur ].
•
•
•
•
•
•
:958
/ ul1ali
v.
Bork11r
A'a]'Hr ].
•
•
•
•
•
•
1394
• '
• • r
SUPHEME COURT REPORTS., , [l!J59]
to the Hindu son's liab[Iity to pay tlu~debis of his
fat.her after partition, and by the mere device ofcntering into partition with their father, t.he sons cannot
get rid of this pious obligation.
It ha.s ree,ei,·ed the
appro\'>tl of this Court in Pa11na Lal v. Jlst. Na.ra::ni (')
and 8idheHhuwr
i1!11khe1ji
v. B11bnesh1car l'i'Gsad
Narain Singh(') where :lluklwrjra ,J, ohsez·\'ed in the
latter emse at p. 184:
"Jt. is settled l1tw that e:\·eiuLfter partition the SOll8
could be made liable for the: pre-partition debts <•f the
father if there was no proper arrangement for the
pa,yment of snch debts at t.he time, when the partition
was effected, alth<1ugh the father conld have no longer
any right of 1dienation in regard t-0 the se1•a,rnted
slmre of the sons".
•
Tht' question then arises how the liability of the sons
is to be enforced.
Another principle of Hinelu law is
that in a, eoparcenary family the drcrce obtained
against the father is binding on the sons as they would
be deenwd to h:~\-e brcu represented by t.lie father in.
the suit: ]{ ishan Sarup v. Hrijmj Singh(').
As was
pointed out in Sidheshwar M11khe1ji's r,ase ('), the sons
a.re not. necessary p:irties to a money suit agll.ii1st the
fat.her who is the ka.rta, 1n1t. they may be jDint!<l •M
defc•n<lants.
The result of the partition i11 a joint
family is no:hi11g more than >t rhange in th·~ mode nf
enjoyment and what was held jointly is hy t.hc partition held in scvernltv and therefore attachment of the
whole coparcenary estate would not. he affec({!d by the
change in the mode of t•njoyment, because tr.e.Jiability
of the Hhare which t.hn sons got on part.itio·~ remains
urmffecte<l I" also tbe attachment it.self which is 110!.
c·ndec.I by partition (8. 64 C. P. C. is a useful g11iclc in
such circumstances).
Dealing with the question as to how the intcn•st of
the sons in joint family property ean be attached and
sold, ;\Iukherjea ,J. 1is he tlwn.,-as, observ·3rl at..p. 185
in Sidheshu:ar Mukhe;ji's case(')\:
"Be that as it may, the money decree passed
agaw1st the £athen certainly cre1tted a <frht payable by
<1l ~·1952t s.~.n. 544. 552. 553, 556, 559.
•
(z) (1954] S.C.H.. 177, 183, 184.
(3) (19-ft;) I.L.H. 5~ All. 932 .
. .
•
•
•
.. -
\.
,
•
.) .
.,
•
•
• •
'
S.C.R. , .SUPREME COURT REPOR'FS
1395
him. If the i;lebt was not tainted with immorality,
it was open to the creditm~ to realise the
dues by
attachment and sale of the. sons' coparcenary interest
in the joint property on the principles discussed above.
As has been laid down by the Judicial Committee in a
serie!l of cases, of which the case of N anomi Babuasin
v. Modiin Mohun (1) may be taken as a type, the
creditor has an option in such cases. He can, if he likes,
proceed against the father's interest alone but he can,
if he so chooses, put up to sale the sons' interest also
and it is a question of fact to be determined with
reference to the circumstances of each individual case
whether the smaller or the larger interest was actually
sold in execution".
, But it was contended that a partition after the
decree but before t;lie auction sale limited the efficacy
of the sale to the share of the father even though the
sale in fact was of the whole estate, including the
interest of the sons, because after the partition the
.father no lo!ilger possessed the right of alienation of the
whole coparcenary estate to discharge his debts. But
this contention ignores the doctrine of pious obligation
of the sons. The right of the pre-partition creditor to
freize the property of the "erstwhile joint family in
execution of his decree is not dependent upon the
father's power to alienate the share of•his-sons but on
the principle of pious obligation on the part of the sons
to discharge the debt of the father. The pious obligation continues to exist even though the power of the
fat,her t~ alienate may come to an end as a result of
partition. The consequence is that as between the
sons' right to take a vested interest jointly with their
father in their ancestral estate and the remedy of the
father's creditor to seize the whole of the estate for
payment of his debt not contracted for immoral or
illegal purpose, the latter will prevail and the sons are
preclu~ed from settit:Jg 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- wh&re the joint
ancestraJ prope~ty including the share ofth'c sons ha~
(1) (1885) L.R. 13 I. A. l, 17, 18.
•
•
••
•
•
jakati
v.
Borka'I'
f{apuY J-
•
•
•
•
•
•
1958
Jak1111
v.
f(O/ UY J.
•
•
•
•
•
•
• •
• •
1396
r
SUPREME COUltT REPORTS. • [1959)
passed out of the family i11 execution ot \he decree on
the father's debt the remedy 'of the sons would
b·.~ to
proye in appropriat~ p1'tJceedings titken by them the
illPgal 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 partiit.ion
their share remains liiible. Girdhareelal \". Kantoo/al (1),
Suraj Bansi Koer ''· Sheo Prasad Narain Singh('),
MuBsamat
Nmwrni Babuasin v. Modnn Mohi:n('),
Chandra Deo Sinyh v. Jllatn
Prasad(') which was
approved by the Pri,·y Council in Sahu llarn Chander
,.. Bhup Singh('), Pannalal
v.
Naraini (')
and
Sidheshwar Mukherji's wse (').
Our attention was drawn to two decisions, or:e by
the High Court of Born bay in Ganpatruo v. Bhimrao (':)
that in order to make the share of the sous liable after
partition they should be brought on the record and the
other of the llladrns High Court in Ka.meshu:aramrna v.
Venkatasubba Row(") that the creditor has to bring
another suit against the Rons, obtain '' dtl4!ree a.gainst,
them limited to the shares allotted to them on parti.
tion and then attach and sell their Hhare unless the
partition 1rn:i not bona .fi~e in which case the decree
could be executed against the joint family propertt.
Bnt the decision in these cascR must be confined to
their own faf-ts.· It is true that the right of th•) father
to tdienate for payment of personal debt is ended by
the partition, but t>S we h<we said above, it does not
affPct t.he pious duty of the .quns to discharge ·.he debt
of their father. Therefore where after attachm•mt and
a proper notice of sale thc whole estate including the
so1ts' share, whic:h was attached, 1s sold ;i,nd th"
purchaser buyR it intending it to be the whole coparce.
1i:ir~- estat<J, the presence of the .-;ons w nom :ne is not
1wcess•>ry because they st ill have the right to ·~hallenge
the sale on showing the immoral or illegal purpose of
the debt.
0 ln our opinion whe1'l the pious obl.igation
exists and partition t<tkes phtc8 after the decree and
(tJ :1s74) LR. 1 I.:\. 3~1. 333. (2) {18j8) L.H. ()I.A. t;f, 101.
r11) (18.-i5) L.J~. 13 I.'\. 1.
(4) (1909) l.L.H. 31 All. 171), JC)&.
(5) (1916~ L.•H .. '4·1 I.A. I.
(6) l1952} ~.C.R. 544, 55i, 55.l. 556, 559
•
(i) ~1951] s.C.H. '7i. 183. 184.
(SJ l.L.H. 1950 ~1n. 1 r4.
•
(9) (1914) I.L.H.. 38 ~lad. 1120.
. .
. .
•
•
. '•
·-II
$
•
'
,
•
' • •
'
S.C.R. • tlUPREME COURT REPOR'.PS
1397
pending execvtion proce~dinis as in the present case,
the sale of the whole estate in execution of the decree
cannot be challenged except ori proof by the sons of the
immoral or illegal purpose of the debt and p·artition
cannot relieve the sons of their pious obligation or their
shares of their liability to be sold or be a m~ans of
reducing the efficacy of the attachment or impair the
rights of the creditor.
Reliance is placed on the judgment in Khiarajmal v.
Daim (1) where the Privy Council held that the sale
cannot be treated as void on the ground of mere
irregularity but the Court has no jurisdiction to sell the
property of persons " not parties to the proceedings or
properly represented on the record". There two such
persons were Alibux and Naurex. As against Alibux
there was no decree. He was not a party to the suit;
and it was held by the Privy Council that his interest
in the ·property "seems to have been ignored altogether". He was not even mentioned as a debtor in the
.award on tlie basis of which the decree, which was
executed was made. Similarly Naurez was not represented in either of the suits and therefore there was no
decree 'against him and the sale of his property also
wits -therefore without jurisdiction and null and void.
This case cannot apply to sons in a joint Hindu family
where a father represents the family and the decree is
executable against the shares of the sons while the
coparcenary continues and the liability of their shares
continues after partition. Sat Narain v. Das (2) 1s
equally _inapplicable to the present case. There the
Privy Council was dealing with the father's power of
disposal of property before and after partition which
powel' vests in the Official Assignee on his bankruptcy,
the question of the right of the judgment-creditor to
proceed in execution against the divided shares of sons
which had been attached before partition was not a
point i.J. controversy. 1 There was no decision on the
powers of an executing court to proceed against the
shares of the sons but the question related to voluntary alienations by a father for payment.of his debts
not incurred for an immoral or illegal purpose.
•
•
(1) (1904) L.R. 32 I.A. 23.
(2) (1936) L.R. 63 I.A. 384.
•
•
..
•
•
j ahati
v.
Borkar
Kapur ].
•
•
•
•
•
•
. .
jflkati
v.
JJ01kar
Kapt" /.
•
•
•
•
•
..
•
• •
• • r
1398
OOPRg!llE COURT REPORTS. • [1959]
Jn cases where the sons. rlo pot. chaliP11g" t.Jie liability of their interest in tlw rxecution of th•) decree
ag~1inst the father and' the Court after atfachment
and pf·oper not.ice of sale sells the whob eAtate
:111d the auction-purchaser purchasPs and pays for the
whole •est att>, the mere fact that the sons •were
eu nominc not brought on the record woulJ not be
sufficient to defeat the rights of the anetio11-j.•urchaser
or put an end to the pious obligat.ion of the rnns.
As
was pointed out by Loni Hobhousc in Jialkurjun Bin
Shirlramappu l'a8ure v . .Varhari Bin Shimpp1. ('):
"Their Lordships agree with the Yiew of t.he
learned Chit.f Justice that a purchaser ca11not possibly
judge of such matters, even if he knows the facts; and
that if he i:; to be held bound to enquirt' into the
accuracy of the Court's conduct of its own husines1<, no
purchaser at :t Court sale would he •;afr.
Stmngcrn to
a suit are justified in belieYing that the Cour•, bn.s done
tlmt which by the directions of the Court it ought
to do. ,,
•
In :l!ussamat .Ynnmni Babuasia \'. Modun Jl!ohun (')
Loi'<! Hobhouse said n.t p. 18 :
•
"llut if the fad be tlmt the purchaser has _b~r.
gained and paid for the Pntircty, he llll•Y dearly
defond his title ~o it upon any ground which would
havt' justified a sale if the sons had been brought in to
oppose the cx"cuting proceedings."
The question which assumes importance in an auction
sale of this kintl therefore is what did the C•lUrt intend
t<> sell and did sell and what did the auctio11 pim:haser
purport. to buy n.nd did buy and wlrnt did he ptiy fl!r .
One trnck of rlecision of which Sharnbu Natli PunJcy v.
Oolab Singh C) is an instance, shows when the father's
shtire alone passes.
Jn that case the fathe:: alone was
made a party U> the proceedings.
The mortgage, the
snit of the eteditor and t.hc decyc ancl the sal•;. certilieate all purported to <Lffcct the, rigilt." of the fat.her
and his inkrest; alone. It was therefore hdd that
what-eve1· th!' nature of the debt, only the father's
• •
'
(I) ltQoOJ L.R·. 27 I.A . .::16, 2.:5.
(2) {1885) L.H. I~ I.A. l.
.............
•
(3) (1b87) L.I<. I.I I.A. 77.
•
lll
• •
•
•
•
~.
>
'
•
•
• •
~
S.C.R. , J3UPREfy[E COURT REPORTS
1399
right and int11rest was intended to pass to the auctionpurchaser. In Meenakshi Naidu v. Immudi Kanaka
Rammaya Kounden (1) whiclr represents •the other
track of decision, the Privy Council held that upon
the documents the court intended to sell and did sell
the whole of the coparcenary interest and not any
partial interest. The query in decided cases has been
as to what was put up for sale and was sold and what
the purchaser had reason to think he was buying in
execution of the decree. Mussamat Nanomi Babuasin·v.
Modun Mohun (')(supra), Bhagbut Persad v. Mussa.
mat Girjci Koer ('), Meenakshi Naidu v. Immudi Rammaya Kounden (1) and Rai Babu Mahabir Persad v. Rai
Markunda Nath Sakai(') and Daulat Ram v. Mehr
{)hand(').
In the present case the payment order was made by
the Deputy Registrar on April 21, 1942, and after the
order had been sent to the Collector for recovery, the
property was attached on April 24, 1942, and notice of
• sale was iiisued on November 24, 1942, and was
published under ss. 165 and 166 of the Bombay Land
Revenue Code. The proclamation of sale was dated
December 12, 1942.
• •The property put up for sale was plot No. 36-D
measuring 6 acres and one guntha and its value
was specified as 13,000 rupees. There. was a note
added:
" No guarantee is given of the title of the said
defendant or of the validity of any of the rights,
charges. or interests claimed by third parties ".
The order confirming the sale also shows that the
whole bungalow was sold. It was valued at Rs. 16,000
and there was a mortgage of Rs. 2,000 against it and
what was sold and confirmed by this order was the
whole bungalow. The sale certificate was in regard to
the whole bungalow i.e. · City SurveY. No. 67-D
measi.ring 6 acres antl one guntha the sale price being
Rs. 13,025. There is little doubt therefore that what
was put up for auction sale was the whole bungalow
(•) (•888) L.R. 16 I.A. I.
(2) (1885? L.R. "3 I.A. L
(3) (1888) L.R. •5 I.A. 99.
(4) (<889) L.R. 1f!.l!. n, <6.
•
•
(5) (1889) L.R. 14 I.A. 187.
•
•78
•
• •
•
•
jakati
v.
Borkar
Kapur ].
•
•
•
•
•
•
..
1958
]akati
v.
Borkar
Kof'ur ].
•
•
•
•
•
..
•
• •
• • ,-
1400
S'BPREME COURT REPORTS. ,, [1959)
and what the auction-purchaser purporte~ to buy and
paid for was also the wl;olc 'bungalow am.I not any
fractional share in it. It is a case whore not onlv was
the payment order passed before the partition b~t the
attachment was made and the sale proclamation was
issued before the suit for partition was filed and· the
sale took place of the whole property without any
protest or challenge by the sons and without any
notice to the Collect-Or or the judgment-creditor of the
filing of the suit for partition. In such a case re8pondent !\o. l is entitled to defend his title upon the
grounds which would have justified the sale had the
appellants bG>en brought on record in execution proceedings.
The binding nature of the decree passed on
the father's debts not tainted with immorality
o~
illegality, and the piou8 obligation imposed on the
sons under the Jlitakshara li~w would be sufficient to
sustain the sale and defeat the sons' suit in the same
way and on the same grounds as in the case of execution proceedings.
Nanmni Babuasin .v.
Jlfodun.
Jlfohun ('). Consequent.ly whether the sons were made
parties to the execution proceedings or brought a suit
challenging the sale of their shares the points f'Or decision are the same-the nature of the debts and liabi-'
litv of the sons under Hindu law, and these a.re t.hc
determining .fa~tors in both the cases 1.c. the sons
being parties to the execution proceedings or their suit
challenging the sale of their shares .
The effect of attachment on the severance of status
by the filing of a suit by one of the members of the
copa.rcenary whose share was liable in execution of the
decree has not been debated at the bar and ho.w
exactly it would affect the rights of the parties •need
not therefore be decided in this case.
As a consequence it would not be necessary to discuss the pronouncements of the Privy Council in Suraj JJansi
Kaer v. Shed Prasad Singh('); Jfoti Lal v. J(~rabul
din (");
Ragunath Das v. Swular Das Khetri (');
Ananta Pmlmanahha Swami v. Official Receiver, Secundera9ad (').
•
(1) (1885) 'L.JI. 13 I.A. I.
(2) (1S78) L.R. 6 l.A. 88, IOI.
•
(3) (1897) I. R. 24 I.A. 170.
(4) (1914) l.~R 41 l.A, '251.
, (.'il (19~3) L,H. 6~ I.A. 167. 174-5 .
I
•
. ·-..
~·
'
•
•
• •
.,
S.C.R. • .SUPRE¥E COURT REPOR'.CS
1401
The arguJ:Jteflt based on the interpretation of the
words ' right, title and interest of the defaulter ' in
s. 155 of the Bombay Land Revenue Code was that it
was only the share of the defaulter himself which was
and could be put up for auction sale.