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Gulamkhaja Mahamad Ibrahim Vs. Shivlal Hiralal - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 351 of 1934
Judge
Reported inAIR1938Bom295; (1938)40BOMLR381; 175Ind.Cas.939
AppellantGulamkhaja Mahamad Ibrahim
RespondentShivlal Hiralal
Excerpt:
hindu law-debts-father's debts-son's liability to pay-mortgage debt of father consisting of antecedent debts and cash advance-antecedent debts could be enforced against whole property-cash advance not enforceable under mortgage against sons who were minors at the date of mortgage-money decree for cash advance against minors-minors' interest in joint family property liable under the claim-period of limitation for such liability of sons-indian limitation act (ix of 1908), article 116.;under hindu law the interest of sons in joint family property is liable to be proceeded against for the liabilities incurred in a new business started by the father, on the ground of the pious obligation of the sons to pay their father's debts.;under hindu law, the pious obligation of the sons to pay their..........2 to 4 are concerned is set aside, and it is directed that the interest of all defendants in the suit property is liable to be sold in execution of the money decree for the amount of rs. 1,309-12-0 with interest at the rate of twelve per cent, after the mortgage and eighteen per cent, before the mortgage from the date of the promissory note. with regard to the cash advance, the interest of defendant no. 1 in the property should be sold in execution of the mortgage decree, but the interest of the ether defendants cannot be sold at present, but leave is reserved to the plaintiff to apply for execution against them in respect of this claim if the sale proceeds prove insufficient to satisfy the mortgagee's claim. the right of the mortgagee to proceed against the son's interest in the.....
Judgment:

Divatia, J.

1. This is a plaintiff's appeal in a suit to recover Rs. 7,600 with costs and future interest from the defendants who are all brothers. The lower Court has passed a decree against defendant No. 1 but it has dismissed the suit against defendants Nos. 2 to 4 on the ground that those defendants were minors at the date when the transaction in suit took place between the plaintiff and the defendants' father and therefore cannot be bound by that transaction, and in this appeal we are concerned with the rejection of the plaintiff's claim against them.

2. The facts shortly are that the defendants' father Hiralal passed a registered mortgage-deed in the plaintiff's favour on January 28, 1926. The consideration for that mortgage consisted of two parts. The first part consisted of Rs. 1,309-12-0 which were due as principal and interest on a promissory note dated January 13, 1926, passed by Hiralal in the plaintiff's favour. The second part consisted of Rs. 2,490-4-0 which were paid in cash before the Sub-Registrar at the time when the mortgage-deed was presented for registration. In all, the consideration for the mortgage-deed was Rs. 3,800 and the suit has been brought to recover that amount with interest at one and a half per cent, per mensem which was limited on the principle of damduppat to the same amount as principal, and the total amount sued for was, therefore, Rs. 7,600.

3. Now, so far as the case against defendant No. 1 is concerned, there is no difficulty because there is no appeal before us against the decree passed against him. With regard to defendants Nos. 2 to 4, the lower Court has dismissed the suit against them on the ground that the debts for which the mortgage-deed was passed by Hiralal were the debts of a new business consisting of a liquor shop started by Hiralal for the first time, and that although he and his sons were members of a joint family, the minor sons, viz. defendants Nos. 2 to 4, would not be bound by those debts concerning the new business started by him. For that view the lower Court relied on the decision of the Privy Council in the case of Benares Bank, Ltd. v. Hati Narain I.L.R. (1932) All. 564 : 34 Bom. L.R. 1079 According to the lower Court, the previous decision of the Bombay High Court in the case of Annabhat Shankarbhat v. Skivappa Dundappa I.L.R. (1928) Bom. 376 : 30 Bom. L.R. 539. wherein it was laid down that it was the pious duty of a son to pay the trade debts of his father out of ancestral property even though the trade was started by the father, had been overruled by the abovementioned Privy Council decision, which laid down that the manager of a joint Hindu family had no authority to impose upon the minor members the risk and liability of a new business started by him and that it did not make any difference whether the manager was the father.

4. Now, in this appeal it has been contended on behalf of the appellant that the lower Court was wrong in dismissing the suit against defendants Nos. 2 to 4 and in taking the Privy Council decision to mean that in no case can a decree be passed against the sons for the debt of their father concerning a new business started by him. It is contended that the Privy Council did not mean to lay down that the sons would not be liable; in the case of a new business even on the ground of their pious obligation to pay their father's debts if they were neither illegal nor immoral. We think there is force in this contention. The decision of the Privy Council in Benares Bank, Ltd. v. Hari Narain I.L.R. (1932) All. 564 : 34 Bom. L. R. 1079. expressly proceeds on the principle that the minor members of a joint family would not be bound by the new business started by the manager or the father, because the new business would mean a sort of partnership to which all the members must be partners and that implies a contractual obligation which a minor cannot incur. It appears that an argument had been urged before their Lordships that the minor sons would be bound in execution on the principle enunciated in the second of the five propositions laid down by the Board in Brij Narain v. Mangla Prasad viz. that there was a pious obligation of the sons to pay their father's debt, but their Lordships observed that that point was not taken in the Courts below, and as it might involve questions of fact, it was not open to the bank to raise it at that stage. In our opinion, this case, therefore, cannot be taken to decide that in the case of a new business started by the father, a minor son would not be liable in execution even on the ground of the pious obligation of a Hindu son to pay his father's debts. After this Privy Council case, there has been a recent decision of our Court in the case of Jagadishprasad v. Ambashankar (1933) 36 Bom. L. R. 625. Therein the effect of the Benares Bank case has been discussed, and it is laid down that the minor sons' interest would be bound even in the case of a new business provided the debts were antecedent to the date of the mortgage executed by the father and sought to be enforced against the minor sons. We agree with this decision inasmuch as it lays down that the Privy Council decision in the Benares Bank case cannot be said to have overruled the argument that the sons' interest would be bound even in the case of a new business started by the father on the ground of the pious obligation of the sons to pay their father's debts. A, decree was passed in Jagadishprasad's case in the creditor's favour as against the minor's interest in the property in so far as the debts under the mortgage-deed executed by his father were antecedent. It is contended on behalf of the respondents in the present appeal that in that case a decree was passed against the son only for antecedent debts and that in any case the sons would be liable for such debts only relating to a new business and not for any cash advance at the date of the mortgage.

5. The pious obligation of the sons to pay the father's debts under a mortgage, part of which consisted of antecedent debts and part of which consisted of cash advance, can be divided into two parts. With regard to the antecedent debts the mortgage would have effect on the minor sons' interest in the property, but with regard to the; cash advance, they would not be bound by the debt as a mortgage debt, but their interest in the property would be liable for that debt by virtue of the fact that it is a debt of the father, and the sons' liability would not, therefore, be regarded as a mortgage liability but as one to have their interest in the property proceeded against in execution of a money decree against the father. Now, this liability of the sons may fall under three classes : firstly, where the suit is brought to enforce the mortgage against the father and the sons; secondly, where the suit is brought against the father alone ; and thirdly, where the suit is brought against the sons after the father's death. The present case falls under the third category. In this case it appears to us that the mortgagee can obtain a mortgage decree for antecedent debts and a money decree for the cash advance against the sons which may be enforced by sale of the entire joint family property, unless the suit against the sons for a money decree is barred by limitation.

6. It is contended on behalf of the respondents that in the present case even though the personal liability of the father did exist under the mortgage-deed at the time when the present suit was brought, the sons' liability did not exist because the suit was brought more than three years after the debt. In our opinion this argument is not correct. It has been conceded and rightly conceded that the period of limitation for the personal liability of the father under the mortgage-deed in this case is six years, and according to the principle of decided cases, the period of limitation against the father as well as the sons would be the same. There is some difference of opinion between the High Courts on this point. According to the Madras High Court, in such cases the contract of the father should be regarded as the contract of the sons, and therefore the period of limitation against the sons would be the same as the period of limitation against the father [Periasami Mudaliar v. Seetharama Chettiar I.L.R. (1903) Mad. 243], whereas, according to the Calcutta and Allahabad rulings, whatever may be the period of limitation against the father, the period of limitation against the sons would be six years under the residuary Article 120 of the Indian Limitation Act [Narsingh Misra v. Lalji Misra I.L.R. (1901) AIL 206 Brijnandan Singh v. Bidya Prasad Singh. I.L.R. (1915) Cal. 1068] But that difference of the opinion does not affect the present cage, because it is rightly conceded that the period of limitation in the present case far the personal liability of the father under the registered mortgage-deed is six years under Article 116 of the Indian Limitation Act. Therefore, in any case, the period of limitation against the sons would also be six years from the date of the mortgage-deed. It is thus clear that the suit against the sons, treating this suit as a suit for money against the sons, is within limitation.

7. That being so, we think that according to the principle of decided cases the liability of the defendants would stand on this footing : So far as defendant No. 1 who was a major is concerned, a mortgage-decree can be passed against him, but so far as defendants Nos. 2 to 4 are concerned, a money decree for the cash advance could be passed against them which could be enforced by sale of the entire joint family property. With regard to the antecedent debts under the mortgage-deed amounting to Rs. 1,309-12-0, under the principle of the ruling in Jagdishprasad v. Ambashmkar, the sons' interest in the property would be liable to be sold under the mortgage decree for this amount. But with regard to the cash advance of Rs. 2,490-4-0 no mortgage-decree can be passed against them, but the mortgagee would be at liberty to proceed against them by way of execution of a money decree if the sale proceeds after the mortgaged property is sold do not satisfy the mortgagee's claim. It is contended on behalf of the respondents that such money decree cannot be passed against these defendants because the plaintiff has asked for only a mortgage-decree against the defendants, and in Jagadishprasad v. Ambashankar no decree was passed for the cash advance. I is true that in that case no decree had been passed for the cash advance, but there does not appear to be any argument on that point, and we see no reason why the sons' interest in the property is not liable to be proceeded against in execution by way of a money decree for the cash advance on the principle of the pious obligation of the son to pay the father's debts. With regard to the pleadings the plaintiff has stated in the relief Clause (c) that if it appeared that the proceeds of the sale were insufficient to satisfy the plaintiff's dues, leave may be reserved to the plaintiff to apply for a decree for the balance. This would include a relief against these defendants for a money decree, and although it is true that for this money claim for the cash advance no decree can be passed as a mortgage-decree for sale of the property, leave could be reserved to the plaintiff to proceed against the interest of these defendants in execution if the sale proceeds under the mortgage-decree prove insufficient to satisfy the mortgagee's claim.

8. The result therefore, is that the decree of the lower Court in so far as defendants Nos. 2 to 4 are concerned is set aside, and it is directed that the interest of all defendants in the suit property is liable to be sold in execution of the money decree for the amount of Rs. 1,309-12-0 with interest at the rate of twelve per cent, after the mortgage and eighteen per cent, before the mortgage from the date of the promissory note. With regard to the cash advance, the interest of defendant No. 1 in the property should be sold in execution of the mortgage decree, but the interest of the ether defendants cannot be sold at present, but leave is reserved to the plaintiff to apply for execution against them in respect of this claim if the sale proceeds prove insufficient to satisfy the mortgagee's claim. The right of the mortgagee to proceed against the son's interest in the property in respect of the cash advance, with respect to which liberty is reserved, applies not simply to the mortgaged property but to any property which these defendants have got from their father, but it does not apply to their self-acquired or separate property.

9. We think the plaintiff-mortgagee is entitled to have costs of the appeal as well as costs in the lower Court.

Sen, J.

10. I agree.


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