# ' • , ~ -- VYANKATES DHONDDEO DESHPANDE v. SOU. KUSUM DAITATRAYA KULKARNI & ORS

- **Citation:** [1979] 1 S.C.R. 955
- **Court:** Supreme Court of India
- **Decided:** 1978-09-27
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vyankates-dhonddeo-deshpande-v-sou-kusum-daitatraya-kulkarni-ors-7551
- **Pages:** 21

## Headnote

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VYANKATES DHONDDEO DESHPANDE
v.
SOU. KUSUM DAITATRAYA KULKARNI & ORS.
September 27, 1978
lV. R. KRISHNA lYBR AND D. A. DESAI, JJJ
...
95·5
lli11du Law-Tagai-Loan-Pre-partition debt
of
father-Son•s
liabilityPortition if t1/ftcl• such obligation-Pious obligation of son-A vyavahariksale of Joint family property for antecedent debt-Whether executable against
prop1rty allotted to soru on partition.
Land lmpravement Loans Act, 1883-Sec. 1-Expression "borrower" need
not be gi1en a restricted meanfng-Karta of a joint Hindu family can be borrower in a repruentative capacity,
The respondents' father took a Tagai loan from the Government for the
purpooe Of digging wells in ihis 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
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no saleable interest in 1he land because, !prior to the date of auction, in the
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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 las 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
not 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. [%IC]
(b) If the loan, for the recovery of whlch 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]
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(c) Whether the Karta acted in his personal capacity
or
representative
G
capacity has to be ,gathered
from all
the
surrounding
circumstances.
The
flather borrowed the loan in 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 K.arta 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]
H
Mullals Hindu Law (14<h &Jn.) p. 313, Art. 251. referred to.
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956
SUPREME COURT REPORTS
[1979] l s.c.R.
(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 Jaruis, 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 bis personal benefit the •ons 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.
~960FJ
Muttayan v. Jamindar of Sivagiri, [1883] 9 I.A.
128
A111hony..,amy v.
M. R. Chinnaswamy Koundan (dead) by L. R.r. & 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 allotmeat of
shares to different coparceners, the foint family property acquired by partition
would still be liable for the joint family debts.
[964DJ
Sat Narain ,v. Das, [1936] 63 /.A. 384;
Pan11ala/ & Anr. v. M.n. Narolni
& Ors. [1952) SCR 544 at 558;
Vriddhac

## Text

_Characters 0–39,802 of 57,636. This is a partial read: ask again with offset=39802 for what follows._

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VYANKATES DHONDDEO DESHPANDE
v.
SOU. KUSUM DAITATRAYA KULKARNI & ORS.
September 27, 1978
lV. R. KRISHNA lYBR AND D. A. DESAI, JJJ
...
95·5
lli11du Law-Tagai-Loan-Pre-partition debt
of
father-Son•s
liabilityPortition if t1/ftcl• such obligation-Pious obligation of son-A vyavahariksale of Joint family property for antecedent debt-Whether executable against
prop1rty allotted to soru on partition.
Land lmpravement Loans Act, 1883-Sec. 1-Expression "borrower" need
not be gi1en a restricted meanfng-Karta of a joint Hindu family can be borrower in a repruentative capacity,
The respondents' father took a Tagai loan from the Government for the
purpooe Of digging wells in ihis 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
A
B
c
no saleable interest in 1he land because, !prior to the date of auction, in the
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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 las 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
not 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. [%IC]
(b) If the loan, for the recovery of whlch 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]
E
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(c) Whether the Karta acted in his personal capacity
or
representative
G
capacity has to be ,gathered
from all
the
surrounding
circumstances.
The
flather borrowed the loan in 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 K.arta 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]
H
Mullals Hindu Law (14<h &Jn.) p. 313, Art. 251. referred to.
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956
SUPREME COURT REPORTS
[1979] l s.c.R.
(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 Jaruis, 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 bis personal benefit the •ons 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.
~960FJ
Muttayan v. Jamindar of Sivagiri, [1883] 9 I.A.
128
A111hony..,amy v.
M. R. Chinnaswamy Koundan (dead) by L. R.r. & 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 allotmeat of
shares to different coparceners, the foint family property acquired by partition
would still be liable for the joint family debts.
[964DJ
Sat Narain ,v. Das, [1936] 63 /.A. 384;
Pan11ala/ & Anr. v. M.n. Narolni
& Ors. [1952) SCR 544 at 558;
Vriddhachalam Pillai v. Sha/dean Syrian
Bank Ltd. & Anr., [1964) S SCR 647; referred to.
(g) Jn the instant case the property sold was liable for the diacb&rge <>f
the father's debt. The debt being a pre-partition debt which was not shmm to
be tainted with illegality or immorality, could be r<covered 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 executiori 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 po!·
session, the remedy of /the sons would be to challenge the character of the
debt in an appropriate proceeding. The sale cannot be voided Oil the only
1round 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
th"
joint family's liability for discharge of pre-partition debts. [968D-F]
S. M. Jakatl & 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 wC:re not parties to the
proceeding held by the Revenue Authorities, once the sale was confirmed ar:d
the purchaser was put in posession, the sons can challenge the sale only by
establishing the character of the debt.
[968G. 969AJ
(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 La\1d
Revenue Code, provides procedure for realisation of land revenue, recovery
of which could be made as if it was arrears of land
revenue
and
otl:.er
revenue demands.
[969C)
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v. D. DESHPANDE v. K. D. KULKARNI (Desai, J.)
957
( 3} When a loan was taken under the Loans Act and was being recovered
A
:'U arrears of land revenue, the order of the R~venue Authority
would tanta·
I:Q.ount_ to a decree and when a proclamation of sale was issued it amounted
to execution of the decree.
[970F)
4 (a) Tue High Court was wrong in h<>lding that since
the Act was
2pplicable 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 tho l""- of •· 7
-0f 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 a disadvantage in borrowing loans under
the Loans Act because the Karta of a joint lfindu family,
if he has
no
·separate property of his own, and if he cannot borrow the loan in his rcpre-
· scntat!ve 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 borrowcr!I.
A
'Karta of a joint Hindu family can be a borrower in his representative capacity.
[973F)
Sonkarau _Nambudripad
v.
1691; Chinna.nvami lt.fudaliar v.
inapplicable.
Ran1aswami Ayyar, [1918] ILR 41 Madras
Timmalai Pillai, [1902] ILR 25 Madras 572,
OVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2084-2085/
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Appeals by Special Leave from the Judgment and Order dated
10/I l /10/1974 of the Bombay High Court in First Appeal No. 160
;and 173 of I 966.
U. R. La/it, V. N. Ganpult and _Mrs. V. D. Khanna for the appel-
\lant.
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
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'filed by the respondents plaintiffs for recovering possession of land
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bearing Survey Nos. 487 /l 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 detenninin_g the eligibility for the amount of compeiisaII
tion.
The trial Court decreed the plaintiffs' ~uit and First Appeal
No. 160 of 1966 was preferred by the defendant to the High Court of
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SUPREME COURT REPORTS
(1979] 1 S.C.RBombay.
Following the decision of the trial Court, the reference
under s. 30 of the Land Acquisition Act was answered in favolll' 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 High Court dismissed both the appeals with costs.
Thereupon
the appellant preferred the present two appeals.
As both the appears
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 wel!B 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 tlie sale of the
lai'ia offered as security the Government could not reimburse ilielf 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 plaintiffs 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 plainCiffs brought an
action for a declarati6n 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·
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one, the subsequent sale is not binding upon the plaintiffs to whose
share the suit land was allotted at the partition and, thei:efore, the
sale was void and the plaintiffs are entitled to be put back in possession.
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v. D. DESHPANDE v. K •. D. KULKARNI (Desai, J.)
959
The High Court in appeal by the present appellant examined the
question of the validity of the revthue 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 relevaat 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 (l) 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 t)1e 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 Datt~traya, the father for improv.ement of lands
bearin~ Survey Nos. 167 and 170 which were joint fa1uily properfy
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, lhe joint family
property, irrespective of the fact whether it was offered as security
for the loan or whether it benefited by !]1e 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 :fluuily 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 uot tainted with illegality or immorality to the extent
of the joint family property in their hands would certainly apply to a
loan borrowe<l 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
loai; 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 itseTf and only
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SUPREME COURT REPORTS
[1979] 1 s.c.R.
A _,recognised· borrower in his individual capacity, one cannot import tlie
concept of Karta of a joint family borrowing uhder the Loans Act in
-his representative capacity so as to make the joint family property
liable for such loans.
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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 Karla of
the joint family for the benefit of the joint family or joint fa!llilY estate.
If the loan was borrowed by Dattatraya, the father, as Karla of the
joint Hindu family for the benefit of toe 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 Man~ger 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 "re
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 faffier
and the deb!S have been contracted by the father for his own personal
benefit, the sons are Ii.able 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, whero the debts
arc 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 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
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_,_,._
V. D. DESHPANDE v. K. D. KULKARNI (Desai, l.)
961
the debts, provision to pay the debts should be made so as to determine
A
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 wllh .
The trial Court found that the suit property was joint family property
B
and the High Court has not departed therefrom. In fact, in an earliec
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
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Dattatraya.
The next important question is whether the Tagai loan was the
personal debt of Dattatraya or was debt incurred by him as Karla
of the joint family for the benefit of tbe 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 improyement 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 impr~vement 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 U1at
it was his separate property. It is not necessary that Karla 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 wh land, and
it extends to whole of the interest of the family and is not confined
to Karla'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
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962
SUPREME COURT REPORTS
11979] I s.c .R.
was not the avocation of the joint family and, therefore, the. father
as the Karla did not have the implied authority to borrow loan so JS
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
Debtocs' 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' Relid'
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 busin= 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 occupati.Oos
of Dattatraya and he was carrying on that avocation as Karta of the
joint family con,'listing 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 factlJ be for legal necessity and it would be joint family
debt for which all the joint family property would be liable.
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V. D. DESHPANDE V. K. D. KULKARNI (De.mi, J.)
963
If thus the loan for the recovery of which the suit property was
A
'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
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joint family debts ? That would necessitate examination of the circum·
stances in which the partition was brought about though we are not
inclined to examine the question whether the partition \Vas a sham or
bogus transaction or was a motivated oμe with a view to defeating
the creditors of the joint family.
The partition is evidenced by a registered deed, Ext. 79 date.d
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 joiiit
family debts or even outstanding debts of Daltatraya, 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 ey 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(''), 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.
M<t Naraini & Ors.( 2 ) observed as under :
" ..... the right thing to do was to make provision for
dii;charge of such liability when there was partition of the
(I) (1936] 63 I. A. 384.
(2) [1952] S. C. R. 544 at 558.
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If there is no such provisiQll, "the debts are
Lo 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 arrang~
ment 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 Syrian Bank Ltd. & Anr.(') _ 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 todischarge an antecedent debt nor is the son under a legal obligation t0>
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 thaj: 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·
bring the whole joint family property to auction for recovery of sucn
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 ia course
of time this liability has passed into the realm of law.
(l) [1964] 5. S. C. R. 647.
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965
In Anthonyswamy v. M. R. Chinnaswamy Koundan (dead) by l.r.s.
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·& Ors.(1), following the ~ecision in Muttayan v. Zamindar of Siva-
;giri('), 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:
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"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 tl(inted with illegality or
immorality or that it was ayyavaharik in the sense opposed to good
morals.
Therefore, even assuming that there was a
partition,
the
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debt being antecedent debt for which no provision wa~ made in the
partition and the debt having not been shown to be taintell with illegaE
lity 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
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pre-partition debt not shown to be tainted with illegality o~ 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 <if the sons on partition was
to be sold for recovery of the debt of the father after parUtion 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
<I) [1970] 2 S. C.R. 648.
(2) [1883] 9 I. A. 128.
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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 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 Pannalal'll
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 prepartition 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(''). 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 arid separate
possession of his share in the joint family property and contended
inter alia that the sale in favour of the first respondent was n6t 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
(l) A. I. R. 1938 Nagpur 136.
(2) [1959] S.C. R.1384.
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v. D. DESHPANDE v. K. D. KULKARNI (Desai, J.)
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father no longer possessed the power to sell the shares of sons to disA
charge his debts.
Negativing this contention it was held as under :
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"But this contention ignores the doctrine of pious obligalion
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 pions obligation on the part of the sons to discharge the debt of the father.
The pious obligation continues to exist even though the power
of the father to alienate may come to an end as a result of
partition.
The consequence is that as between the sons'
right to take a vested interest jointly with their father in
their ancestral estate and the remedy of the father's creditor
to seize the whole of the estate for <payment of his debt
not contracted for immoral or illegal purpose, the latter will
prevail and the sons are precluded from setting 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 <)n 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)
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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 tfut
in order to mak.e the share of sons liable after partition they should
be brought on record.
This Court referring to Ganpatraej(>) observed
that the decision should be confined to the facts of tbat case and
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further observed as under :
"Therefore where after attachment and a proper notice of
sale the whole estate including the sons' share, which w~s
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
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(I) 52 Dom. L. R.154.
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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 immoraJ 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 attaclnuent
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 !akati's case. It is thus crystal clear that the
pious obligation of the sons continues to be effective eyen after partition and if the creditor in execution of a d~ree 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, tho 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 this suit
issue No. 6 framed by the learned trial judge was whether the Tagai
Joan 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
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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
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or i~orality, they cannot obtain any relief against the purchaser who
purchased the property at an auction held by the Civil Court or by the
revenue authorites for recovering the debt of the father which the sons
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v. D. DESHPANDE v. K. D. KULKARNI (Desai, I.)
959
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 ft
was confirmed and purchaser was put in possession, the sons can
successfully challenge the sale by ,!)Stablishing 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.