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Subraya Vithal Naik Vs. Nagapa Subaya Shanbhog - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 835 of 1907
Judge
Reported in(1908)10BOMLR1206
AppellantSubraya Vithal Naik
RespondentNagapa Subaya Shanbhog
DispositionAppeal dismissed
Excerpt:
hindu law-father's debts-liability of sons to pay-father's power to alie-nate ancestral property-attachment of son's share in the property- prohibition of alienation under section 276 of the civil procedure code- father's right to deal with the share.;under hindu law a father has the right to sell or mortgage ancestral property including the interests therein of his sons, in satisfaction of his antecedent debts, provided those debts were not contracted for immoral or illegal purposes. this right to dispose of the ancestral property so as to include and affect the shares of the sons arises according to hindu law in virtue of the pious obligation of the sons to pay the debts of the father, which were not illegal or immoral. in other words, where the father alienates the property, he..........not illegal or immoral. in other words, when the father alienates the property, he exercises the power of alienation which the sons would have exercised in discharge of their pious duty which they owed to him : he is virtually alienating the property for them and on their behalf in discharge of their duty in accordance with the power given to him by hindu law. when once this principle of hindu law is grasped, it follows that when the right, title and interest of a hindu son in joint ancestral property has been attached in execution of a decree against him and its private alienation by him has been prohibited by an order of the court under section 276 of the code of civil procedure, his father is deprived of the power of alienation of that interest in satisfaction of his own debts. and.....
Judgment:

Chandavarkar, J.

1. Under the Hindu Jaw a father has the right to sell or mortgage ancestral property, including the interests therein of his sons, in satisfaction of his antecedent debts, provided those debts were not contracted for immoral or illegal purposes. This right to dispose of the ancestral property so as to include and affect the shares of the sons arises, according to Hindu law, in virtue of the pious obligation of the sons to pay the debts of the father, which were not illegal or immoral. In other words, when the father alienates the property, he exercises the power of alienation which the sons would have exercised in discharge of their pious duty which they owed to him : he is virtually alienating the property for them and on their behalf in discharge of their duty in accordance with the power given to him by Hindu law. When once this principle of Hindu law is grasped, it follows that when the right, title and interest of a Hindu son in joint ancestral property has been attached in execution of a decree against him and its private alienation by him has been prohibited by an order of the Court under Section 276 of the Code of Civil Procedure, his father is deprived of the power of alienation of that interest in satisfaction of his own debts. And that is so, because, the son's power of alienation having been taken away by the Court, there is no power left in him on which the father's power could rest after the Court's order. For these reasons we think the lower Court is right and its decree is confirmed with costs.


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