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Chanmallappa Shivlingappa Dankare Vs. Vannaji Sakalchand - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 655 of 1939
Judge
Reported inAIR1943Bom241; (1943)45BOMLR457
AppellantChanmallappa Shivlingappa Dankare
RespondentVannaji Sakalchand
DispositionAppeal dismissed
Excerpt:
decree-execution-decree against hindu father-subsequent partition between father and sons-father's debt not illegal nor immoral-whether decree can be executed against sons shares-separate suit whether necessary-civil procedure code (act v of 1908), section 60.;where there has been a decree against a hindu father for a debt binding on his sons as not being illegal or immoral and a partition takes place between him and his sons after the decree, the decree can be executed by attachment and sale of the properties which have come to the sons under the partition. it is not necessary for the judgment-creditor to bring a separate suit for the purpose.;nathu shankarshet v. motilal ratanchandshet (1942) f.a. no. 335 of 1940, decided by broomfield, and macklin jj. on january 27, 1942 (unrep.)..........be reached without doing violence to section 60.again at p. 148 the learned judge says :-in our view, property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold. what that is is found by looking at section 60. when one looks at section 60, one finds that the property in question should either belong to the judgment-debtor or he should have a disposing power over it. after partition the share that goes to the son does not belong to the father and the father has no disposing power over it. therefore such property does not fall within section 60. thus it cannot be attached. it by no means follows that the son cannot be made liable. he could be made liable for his father's debts if he had become a surety; he can be made liable.....
Judgment:

Broomfield, J.

1. The question for decision in this second appeal is this. When there has been a decree against a Hindu father for a debt binding on his sons as not being illegal or, immoral and a partition takes place between him and his sons after the decree, can the decree be executed, by attachment and sale of the properties which have come to the sons under the partition, or must the judgment-creditor bring a separate suit ?

2. The facts of the case' are as follows. The respondent obtained a money decree against two brothers on January 24, 1933 After the decree there were disputes between the first brother judgment-debtor No. 1 and his sons who are the present appellants. The disputes were referred to arbitration, and on January 4, 1935, the arbitrator effected a, partition, the terms of which were embodied' in a decree. On August 31, 1935, the respondent filed a darkhast against judgment-debtor No. 1. On March 14, 1936, he made the sons, i.e. the present appellants, parties to the darkhast. They were minors and they contended through their guardian that in view of the partition the property attached was not liable to be sold. It should be mentioned that family properties including the shares of the sons had been attached in the darkhast. The trial Court overruled the objection and allowed the darkhast to' proceed on the ground that it was not a bona fide partition and the family was still joint. The District Judge in appeal confirmed the order. He expressed no opinion as to whether there was a bona fide partition but held that the sons were liable in any case for pre-partition debts. We thought it desirable to get a finding from the Court of first appeal as to whether there was in fact a partition on January 1, 1935, and a finding has now been returned in the affirmative.

3. On the point that the sons' shares of the family property are liable for the debt in spite of the partition the authorities are practically unanimous. There are cases in which it has been held that the creditor's remedy is by a separate suit against the sons, but even in those cases the liability of the property in the hands of the sons to be proceeded against for the debt is recognised. So far as this High Court is concerned, we have a clear authority on this point in Annabhat Shankarbhat v. Shivappa Dundappa. I.L.R. (1928) 52 Bom. 376 30 Bom. L.R. 539 S.C.

4. The liability being clear, the question whether that liability is to be enforced by execution of the decree' against the father or by a separate suit against the sons is a matter of procedure, and being a. matter of procedure, it is presumably to be determined by the provisions of the Civil Procedure Code as held by the Nagpur High Court in Jainarayan Mulchand v. Sonaji. [1937] Nag. 136 The provisions of Section 60 of the Code are therefore important. We ourselves held quite recently in Nathu Shankarshet v. Motilal Ratanchandshet (1942) F.A. 335 , decided by Broomfield and Macklin JJ. on January 27, 1942 (Unrep.) that the proper procedure is by way of execution. The matter was not fully argued on that occasion, but the view we took is in accordance with the view taken by the Allahabad High Court in Kishan Sarup v. Brijraj Singh I.L.R. (1929) All. 932 and by the Chief Court of Oudh in Jageshwar v. Manni Ram I.L.R. (1927) Luck. 561 and Raghunandan Pershad v. Moti Ram I.L.R. (1929) Luck. 497. Reference may also be made to Atul Krishna Ray v. Lala Nandanji. I.L.R. (1935) Pat. 732

5. The same view has been taken by Mr. Justice Lokur sitting alone in Surajmal Deoram v. Motiram Kalu. : AIR1940Bom22 He discussed the authorities at considerable length and laid down a number of propositions, of which those material for our purpose are these (p. 1177):-

A decree against the father alone, passed when he was joint with the son, is binding on the son even after partition, though it is open to him to impeach it, either in execution proceedings or in a separate suit, on the ground that the debt for which the decree was passed was incurred for immoral or illegal purposes.

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.

Mr. Justice Lokur considered the provisions of Section 60 of the Code, but they were not considered by the Court in any of the other cases to which I have referred.

6. Section 60, Clause (1) provides as follows :-

The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, banknotes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immoveable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf.

7. The two propositions laid down by the Nagpur High Court in Jainarayan Mulchand v. Sonaji were these (p. 136):-

When in execution of a mortgage decree for sale passed against a Hindu father exempting from liability the son's share in the undivided property, the father's share is exhausted and a personal decree is passed against the father, the debt covered by the personal decree, being neither illegal nor immoral, imposes a pious obligation upon the undivided son and the decree may be enforced by attachment and sale of the son's undivided share under Section 60 of the Civil Procedure Code even though it was exempted by the original mortgage decree.

Where however after judgment in the mortgage suit and before execution of the mortgage decree there was a partition of the joint family property, the property allocated to the son's share will not be liable to attachment and sale in execution of the personal decree against the father. (Page 137).

Dealing with the provisions of Section 60 Sir Gilbert Stone said (p. 146);-

Before we can get at the son's property (the son being now separate from his father and the son's property being separated by metes and bounds from the father's property) that property must in some way be connected with the judgment-debtor. If at the time of execution, the father and son were not divided, we can immediately see a connection. The property would be property; over which the father has disposing power and would therefore fall within the class of property that can be attached. It would therefore be property against which attachment could issue in execution of a decree obtained against the father. But if the father has no disposing power and the decree is not against the son, it is difficult to see how it can be reached without doing violence to Section 60.

Again at p. 148 the learned Judge says :-

In our view, property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold. What that is is found by looking at Section 60. When one looks at Section 60, one finds that the property in question should either belong to the judgment-debtor or he should have a disposing power over it. After partition the share that goes to the son does not belong to the father and the father has no disposing power over it. Therefore such property does not fall within Section 60. Thus it cannot be attached. It by no means follows that the son cannot be made liable. He could be made liable for his father's debts if he had become a surety; he can be made liable under the pious obligation rule. In neither of the cases put could his liability take the form of having his property taken in execution and sold without any prior proceedings brought against him.

8. In my view it is by no means easy to get out of the difficulty which arises from the terms of Section 60 of the Code. The only possible answer is suggested by the line of reasoning which has been adopted in Kishan Sarup v. Brijraj Singh (see pp. 933 and 954) and in Venkatanarayana v. Somaraju [1937] Mad. 880 viz. that the father represents the sons even in a suit brought against him for a private debt, so that the sons may be regarded as substantially parties to the suit. It is not altogether a satisfactory way out of the difficulty, because, if the sons are to be regarded as substantially parties to the suit, then by reason of Section 47 of the Code all questions arising between them and the decree-holder relating to the execution, discharge or satisfaction of the decree must be determined in execution proceedings and a separate suit would not be permissible. Mr. Justice Lokur's view in the case to which I have referred was, that it is open to the son after a partition to impeach the decree against his father either in execution proceedings or in a separate suit. In this and in other respects, the' view that the son is represented by the father in litigation against the latter may perhaps give rise to difficulties.

9. In the present case, however, we are not concerned with any point of that kind. I think that our attention has now been drawn to all the relevant cases and there seems to be no doubt that the balance of authority is in favour of the view that the procedure by execution, i.e'., the procedure adopted by the respondent in this case, is permissible. As at present advised and after further consideration of the matter I am not prepared to differ from the view taken by the Courts below. The appeal, therefore, fails and must be dismissed with costs.

Macklin, J.

10. I agree.

11. It is settled law that generally speaking sons are liable for a father's debt, and it is not disputed that when a son is under a pious obligation to pay his father's debt the creditor may execute a decree passed against the father alone by a proceeding against the entire interest of both father and sons. The question is whether a partition between the decree and execution makes any difference.

12. In Jainarayan Mulchand v. Sonaji [1937] Nag. 136 the Court dealt with a case where the decree expressly excluded the sons from liability, and it was held that by reason of s 60 of the Civil Procedure Code the property which went to the sons on a partition made after the decree could not be sold in execution of the decree, . because it was no longer the property of the' judgment-debtor or property over which the judgment-debtor had a disposing power. I do not think that there can be any question of the correctness of this view in the circumstances of that particular case. The only judgment-debtor was the father, and the property of the sons, even where they were liable under the rule of 'pious obligation' for the decretal debt in so far as it was not an immoral debt, could not be attached and sold in execution of the decree. Execution is one of the matters for which the Code makes provision, and every execution must conform to the requirements of the Code. But it is not in every case that the rule in Jainarayan Mulchand v. Sonaji applies. There are a number of authorities which appear to ignore Section 60 altogether, perhaps because in those cases a consideration of Section 60 was not necessary, and state broadly that a partition to which the creditor was not a party can make no difference to the liability of the sons' property to be taken in execution : see for example Jageshwar v. Manni Ram I.L.R. (1927) Luck. 561 Raghunandan Pershad v. Mali Ram I.L.R. (1929) Luck. 497 and Kishan Sarup v. Brijraj Singh. I.L.R. (1929) All. 932 But between these cases and the Nagpur case there is a definite mark of distinction. In the one case the sons were expressly excluded by the decree from liability; in the other cases, though not expressly made liable, they could be regarded as having been represented by their father in the suit and in the decree and therefore as being judgment-debtors under the decree. In fact they were substantially parties to the suit through the manager and therefore sufficiently represented in the suit, though not eo nomine parties on the record : see Venkatanarayana v. Somaraju. [1937] Mad. 880 On this view their shares would of course be liable in execution even if a partition did take place after the decree.

13. My learned brother has pointed out the difficulty that may arise in this connection if execution is permitted on the principle of the sons having been represented in the decree. But we are not concerned with that difficulty in; the present litigation, and I do not think that it is necessary to let it influence our decision of this case. I agree, therefore, with the order proposed.


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