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Tammanji Govind Kulkarni Vs. Abdul Rahim - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 907 of 1942
Judge
Reported inAIR1946Bom105; (1945)47BOMLR884
AppellantTammanji Govind Kulkarni
RespondentAbdul Rahim
DispositionAppeal dismissed
Excerpt:
hindu law - debts-father's debts-debt on mortgage of family property-decree on mortgage-son's liability to pay debt out of mortgaged property-whether subsequent partition affects son's liability.;under hindu law in a joint hindu family governed by the mitakshara and consisting of a father and sons the whole of the joint family property is liable for the father's debts provided they are not tainted by illegality or immorality. this obligation continues even after a partition, but is limited in the case of each of the sons to the extent of his share in the family property.;nanomi babuasin v. modhun mohun (1885) i.l.r. 13 cal. 21 p.c., brij narain v. mangla prasad (1923) l.r. 51 i.a. 129: s.c. 26 bom. l.r. 500, sat narain v. das (1936) i.l.r. 63 i.a. 384: s.c. 38 bom. l.r. 1129, and annabhat..........recover possession of the property and mesne profits. at a partition subsequent to the decree the suit property fell to the share of the father and the minor son who continued to remain joint. the trial court dismissed the suit. but the high court on appeal made a decree for possession and mesne profits in favour of the plaintiff. thereafter the father died and an application was made to recover the decretal amount by sale of other properties in the minor son's hands. that son pleaded a partition between him and his father during the pendency of the appeal in the high court alleging that the properties which fell to his share could not be rendered liable under the decree. venkatasubba rao j. and venkataramana rao j. took the view that where it can be held that the members of the joint.....
Judgment:

Sen, J.

1. This appeal arises out of execution proceedings. The father of appellants Nos. 1 and 2 executed three mortgages in favour of the respondent. There was an arbitration in respect of them followed by an award and by a decree) on October 29, 1929. The decree was for Rs. 3,000 to be paid in yearly instalments of Rs. 400, and it was directed that in default of payment of any two instalments the defendant would be entitled to recover the entire amount due by sale of the mortgaged property. The first instalment fell due in 1930, but it was not paid. The decree-holder filed a darkhast in 1931. During the pendency of the darkhast, suit No. 485 of 1939 was filed by the judgment-debtor Govind's son Tammaji (appellant No. 1) against Govind, his second son Appaji (appellant No. 2), his wife Akkubai (appellant (No. 3), the decree-holder and Govind's other creditors, including one Mallaya, for partition and a declaration that Govind's debts and his liabilities under the award decree were not binding on his share in the joint family property. On April 14, 1937, a decree was made directing partition to be made and giving a declaration that the award decree passed in favour of the present respondent was binding on the present, appellants as well as on Govind. The first darkhast filed in 1931 under the award decree was disposed of in 1933 on the ground that suit No. 485 of 1932 had not yet been disposed of. The second darkhast No. 530 was filed in 1936. The Court ordered the decree-holder to produce certified extracts from the Record of Rights, but as they were not produced the darkhast was struck off on August 29, 1937. Thereafter the present darkhast, No. 1011 of 1937, was filed on November 1, 1937, that is, after the date of the decree in suit No. 485 of 1932, against Govind only. The decree-holder prayed that the amount due be recovered by! sale of the mortgaged property. The notice to the judgment-debtor under Order XXI, Rule 22 was duly served, but he remained absent. The Court ordered on March 14, 1938: 'Sale of sufficient portion of mortgaged property through Collector is ordered. Send papers to Collector.' Govind the judgment-debtor died on January 18, 1941. An application was made to bring the present appellants on record as his heirs and they were brought on the record on February 18, 1941. They filed their written statement (exhibit 37) on October 27, 1941. Therein they contended that the decree-holder being aware of the decree in suit No. 485 of 1932 for partition and the applicants not having been made parties to the darkhast, he could not proceed against them or their separate shares in the family property At the hearing they raised three contentions: (1) that one Mallaya had a half share in the decree under execution and, therefore, he was a necessary party; (2) that the decree-holder's previous darkhast No. 530 of 1936 having been disposed of for non-production of the certified extracts of the Record of Rights, that is, for non-compliance with the requirements of Order XXI, Rule 14, under Order XXI, Rule 17(1), the darkhast application was not an application in accordance with law and that, therefore, the present darkhast was not in time under Article 182(5) of the schedule to the Indian Limitation Act; and (3) that as the darkhast had not been filed against them with respect to their own rights which were now separate from those of Govind, the decree-holder also having been aware of the partition, their shares in the mortgaged property were not liable to be sold. The Court negatived all these contentions and ordered the papers to be sent to the Collector for sale of the mortgaged property. There was an appeal to the District Court which summarily dismissed it. The appellants have now raised the same contentions as urged before the trial Court in this appeal.

2. As to the question whether Mallaya is a necessary party to this darkhast, it is true that in suit No. 485 of 1932, Mallaya was one of the defendants and there he was described as a decree-holder under another award decree against Govind. But the decree I am concerned with makes no mention of Mallaya. In the present darkhast the decree-holder made an application asking that Mallaya should be made a party on the ground that he had a half share in the decretal amount, but the application was not pressed and it was filed by the Court. There seems, therefore, to be no substance in this contention.

3. Darkhast No. 530 of 1936 was struck off because the decree-holder failed to produce certain extracts of Record of Rights as ordered by the Court. The Court may, under Order XXI, Rule 14, require the production of such documents 'where an application is made for the attachment of any land which is registered in the office of the Collector.' Here no such application was made, the property being already secured for payment of the debt, and therefore, it cannot be said that the requirement of Order XXI, Rule 14 was not complied with. Sub-rules (1) and (2) of XXI, Rule 17, are as follows:

(1) On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with, and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it.

(2) Where an application is amended under the provision of Sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

4. As it cannot be said that the requirement of Rule 14 was not in this case complied with, it must be held that darkhast No. 530 of 1936 was an application in accordance with law. The finding of the trial Court, therefore, on this point is correct.

5. The third point urged is the most important one in this appeal. Mr. Jahagirdar does not deny that the appellants' shares are liable under the decree. But his contention is that as they were not parties to the darkhast but have been brought on the record merely as Govind's legal representatives, their shares cannot be proceeded against. It is now settled law that in a joint Hindu family governed by the Mitak-shara and consisting of a father and sons the whole of the joint family property is liable for the father's debts if they are not tainted by illegality or immorality Nanomi Babuasin v. Modhun Mohun I.L.R (1885) Cal. 21; Brij Narain v. Manila Prasad and that the obligation continues even after a partition, but is limited in the case of each of the sons to the extent of his share in the family property Annabhat Shankarbhat v. Shivappa Dundappa I.L.R (1928) Bom. 376: 30 Bom. L.R. 539. It is not alleged that in this case the mortgage debt was illegal or immoral. Mr. Jahagirdar has relied on Surajmal Deoram v. Motiram Kalu : AIR1940Bom22 , where Lokur J., sitting singly, was concerned with a case in which the decree-holder had obtained a money decree and had brought to sale the judgment-debtor's property and purchased it himself, and where the judgment-debtor's minor son, bom after the decree and not a party to the execution proceedings, brought a suit for a declaration that the decree-holder got no interest in the property purchased by him on the ground inter alia that there had been a partition between him and his father before the date of the execution, the property sold having come to his own share. After saying that it was well-settled in this province that even after partition a separated son is liable for his father's pre-partition debts which are not illegal or immoral, Lokur J. remarked (p. 1181):

But if the son is not a party to the creditor's suit, different considerations arise according as the partition takes place before the institution of the suit, or during the pendency of the suit, or after the decree is passed! against the father. It is obvious that if the creditor files his suit after the partition between the father and the son, he must implead the son also as a party to the suit if he wants to proceed against his share since the father ceases to represent the son after the partition. On the same reasoning, if a partition takes place during the pendency of the suit the father will not represent the son after the partition and the son ought to be impleaded if the decree is to be executed against his separated share. If the son is not a party to the decree, not represented by his father at the date of the decree, as he would not be after the partition, the decree would not be binding on him, though he might be liable for the debt.

6. The conclusions he arrived at are stated towards the end of the judgment in six paragraphs, the fifth of which is relevant (p. 1189):

If such decree is to be executed after the son has separated from his father, the son must be made a party to the execution proceedings, if his separated share is to be proceeded against. Otherwise its sale will not be binding on the son.

One of the grounds on which this proposition is based is that the Court should take as strict a view as possible of the effect of the son's pious obligation to pay, his father's debts, the doctrine about which (which is to be applied even to cases in which the son may have derived no benefit front the father's debts) is seemingly so unjust that in Subramania Ayyar V. Sabapathy Aiyar I.L.R (1927) Mad. 361.Coutts Trotter C.J. condemned it as (p. 367) 'an illogical relic of antiquity unsuited to any but a primitive and patriarchal society' and that we should apply the doctrine of the son's pious obligation 'within the limits made binding upon us by the decisions and should refuse to go a step further.'

7. In Venkatanarayana v. Somaraju [1937] Mad. 880. a full bench of the Madras High Court held that a Hindu father by virtue of his position as manager of the undivided Hindu family has the power to represent the entire family in all transactions relating to the family ; that when the suit relates to joint family property it must be presumed that he was sued as representing his family, and the decree need not be specifically passed against him as such, and that once a liability is declared to be a family liability, every item of the joint family property is bound to: satisfy that; liability, and the question whether the family continues to remain joint or became divided becomes immaterial. Venkata-subba Rao J. observed (p. 894):

The reason for holding that the members not joined should be held liable is, that they are substantially parties to the suit through the manager, in other words, they are sufficiently represented, though not eo nomine parties on the record. It follows, from this that the decree can be executed not only against the parties whose names appear but also against those who must be deemed to be constructive parties. In this view it is immaterial whether the family continues to remain joint or became divided.

The above line of reasoning, however, did not commend itself to Lokur J. and the ground of his decision to the contrary effect is that after a partition the father could not represent his separated son and that therefore though the son was constructively a judgment-debtor [see Kishan Sarup v. Brijraj Sing I.L.R (1929) All. 932 and Mayne's Treatise on Hindu Law and Usage, 10th Edn., p. 440], he should be joined as a party to the execution proceedings if his separated share was to be attached and sold, for the separated son might be ignorant of the decree against his father and must be afforded an opportunity to save his separated share by paying the decretal amount.

8. Besides relying on the ground that after the partition the father ceases to represent the sons, Mr. Jahagirdar has pointed out that the appellants have been brought on the record not in their capacity as members of the family, but as legal representatives of Govind, and he has contended that their liability would be to the extent of Govind's share, that is, a one-fourth share, in the family property. Mr. Gajendragadkar on behalf of the respondent decree-holder has contended that this case can be distinguished from Surajmal Deoram v. Motiram Kalu on the following grounds: (1) that whereas the decree in that case was a money decree, the decree in the present suit is a mortgage decree which authorises the decree-holder to bring the whole of the mortgaged property to sale ; (2) that the partition decree expressly declares the award decree to be binding on the appellants; (3) that the appellants have appeared in these proceedings only as legal representatives of Govind and as such they are not entitled to rely on their alleged rights in their individual capacity ; and (4) that the order of the Court dated March 14, 1938, for sale of the property is binding on them as such representatives as Yes judicata. To take the last point first, there is no doubt that the principle of res judicata applies to execution proceedings Ram Kirpal Shukul v. Mussummat Rup Kuari (1883) L.R. 11 IndAp 37 and would apply after the death of a party bound by it to his legal representatives, and it is obvious that Govind, if he had been alive at the date of the appellants' application, could not have been allowed to say that the order of sale of the mortgaged property was bad or not binding on the whole of the mortgaged property. This line of argument appears to me to be not without considerable force, though it may be a somewhat technical way of shutting out the main contention on which Mr. Jahagirdar has relied. It may also be that strictly speaking all that the appellants can urge is what they as representatives of Govind are entitled to urge. But they have brought to the notice of the Court that they became divided from Govind after the date of decree, and it does not now appear possible for the Court to shut its eyes to the legal consequences of such partition. In Venkatanara-yana v. Somaraju, as in the present case, there had been a mortgage decree against the father in an undivided Hindu family, whereas the decree with which Lokur J. was concerned in Surajmal Deoram v. Motiram Kalu was a money decree. In Venkala-narayana's case the mortgagee decree-holder brought the mortgaged property to sale and purchased it and then filed a suit against the father and his two major sons to recover possession of the property and mesne profits. At a partition subsequent to the decree the suit property fell to the share of the father and the minor son who continued to remain joint. The trial Court dismissed the suit. But the High Court on appeal made a decree for possession and mesne profits in favour of the plaintiff. Thereafter the father died and an application was made to recover the decretal amount by sale of other properties in the minor son's hands. That son pleaded a partition between him and his father during the pendency of the appeal in the High Court alleging that the properties which fell to his share could not be rendered liable under the decree. Venkatasubba Rao J. and Venkataramana Rao J. took the view that where it can be held that the members of the joint family not joined in the suit should be held liable on the ground that they were sufficiently represented though not eo nomine parties on the record, it is immaterial whether the family continues to remain joint or became divided. The following passage from Mayne was relied on (p. 894):

All the members of the family, and therefore all their property, divided or undivided, will be liable for the debts which have been contracted on behalf of the family by one who was authorised to contract them.' Mayne's Hindu Law, 9th Edn., Section 333. Venkataramana Rao J. observed (p. 904):

The principle of Hindu Law is that members, who are united at the time a joint family liability is incurred, are not absolved from their liability by the fact that they become subsequently divided ; vide Chalamayya v. Varudayya I.L.R (1898) Mad. 166 So far as a creditor is concerned, he is entitled to have re course to every item of the joint family property so long as it is in the hands of the persons who are) under the law liable for his debt. When they must be held to the parties to the suit, it is immaterial what the character of the property in their hands is, whether it is still undivided property or has become separate property by division.

With respect I agree with this view. Mr. Jahagirdar did not seek to repudiate the liability of his clients under the decree sought to be executed, but he contended that if the decree-holder did not take care to implead them in his darkhast, he could not avail himself of such liability. Such a view would necessitate the decree-holder's impleading in execution all coparceners of a joint Hindu family against whose karta he has obtained a decree which is binding on such coparceners for they may plead a partition of which he may not even be aware. Why he should not proceed against the judgment-debtor on the record, especially when, as in this case, the decree enables him to bring the property mortgaged to sale, is somewhat difficult to understand, for a technical objection like the one Mr. Jahagirdar has pressed amounts, in a case like the present, virtually to a repudiation of the other coparceners' liability so far as the darkhast in question is concerned. In a case like the present, a partition in such circumstances appears to me to be a fortuitous event of which such coparceners should not be allowed to take advantage, and the representative character of the father or manager in the suit cannot in my judgment be made to disappear in the execution proceedings at the mere will of those bound by the decree by effecting a partition. In Venkata-narayana's case Venkatasubba Rao J. remarked (p. 889):

Is it to be imagined that the respondent could at his will abruptly put an end to the representation which had gone on for about twelve years, producing by his act the strange legal result of his not being bound by the decree to be passed shortly thereafter? I think the answer to this question must be in the negative.

In the present case the decree rendered the mortgaged property liable to sale and. the partition decree has expressly declared therein that the award decree is binding on the plaintiff and defendants Nos. 1, 2 and 3, the present appellants and Govind. In these circumstances the omission of the decree-holder to implead the appellants separately from Govind in execution is, in my judgment, immaterial. The other line of reasoning would appear to involve the exemption of the unimpleaded coparceners from their liability even if the partition takes place during the execution proceedings, for instance, on the date next preceding the sale, so that the sale may be said to affect the interest of the only judgment-debtor on record. With respect, therefore, the reasoning adopted in the Madras case appears to me to apply to the facts of this case rather than that adopted in Surajmal Deoram v. Motirom Klau. In the result I hold that the view taken by both the Courts below was correct, and the appeal is, therefore, dismissed with costs.


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