Skip to content


Nagindas Madhavlal Sandesara Vs. Kodidas Mangaldas - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFirst Appeal Nos. 670, 708 and 709 of 1954
Judge
Reported in(1958)60BOMLR1226
AppellantNagindas Madhavlal Sandesara
RespondentKodidas Mangaldas
DispositionAppeal dismissed
Excerpt:
hindu law - debts--debts by father not illegal or avyavaharik--suit against father for recovery of debts--subsequent partition between father and sons--decree passed against father alone after partition--death of father--decree sought to be excuted against property allotted to sons on partition--maintainability of darkhast--civil procedure code (act v of 1908), sections 50 and 53.; where there is a partition and division of a joint hindu family estate between a father and his sons prior to the date of the decree obtained against the father alone in respect of his legal debts, after the death of the father, execution of the decree may be had against the sons under the combined operation of sections 50 and 53 of the civil procedure code, 1908, and the properties allotted to the sons at the.....j.c. shah, j.1. his lordship after stating the facts and dealing1 with points not material to this report, proceeded : in a recent judgment of their lordships of the supreme court the extent of liability of hindu sons to pay the debt of their father was elaborately examined see pannalal v. mt. naraini : [1952]1scr544 . in that case, their lordships discussed the relevant law in detail and enunciated certain propositions. this judgment was relied upon both by the judgment-debtors and by the plaintiff, and the observations made therein are pressed into service in support of their respective contentions. in order to appreciate the contentions, it may be necessary to set out the material propositions which are enunciated in pannalal's case and then to examine whether the contentions advanced.....
Judgment:

J.C. Shah, J.

1. His Lordship after stating the facts and dealing1 with points not material to this report, proceeded : In a recent judgment of their Lordships of the Supreme Court the extent of liability of Hindu sons to pay the debt of their father was elaborately examined See Pannalal v. Mt. Naraini : [1952]1SCR544 . In that case, their Lordships discussed the relevant law in detail and enunciated certain propositions. This judgment was relied upon both by the judgment-debtors and by the plaintiff, and the observations made therein are pressed into service in support of their respective contentions. In order to appreciate the contentions, it may be necessary to set out the material propositions which are enunciated in Pannalal's case and then to examine whether the contentions advanced by the respective parties in support of their respective cases are supported by the observations relied upon.

2. The following undisputed propositions emerge from the judgment in Pannalal's case:

(1) A Hindu son is not personally liable to pay the debt of his father even if the debt was not incurred for an immoral purpose : the obligation of the son is limited to the assets received by him in his share of the joint family property or to his interest in such property, and it does not attach to his self-acquisitions.

(2) The pious obligation of the son to pay the debt of his father exists whether the father is alive or dead. It is open to a creditor of the father to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such a suit and obtain an adjudication from the Court that the debt was payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes.

(3) So long as the family remains undivided, the father is entitled to alienate for satisfying his personal debt not tainted with immorality the whole of the joint family estate, and a creditor of the father is also entitled to proceed against the entire estate for recovery of the debt borrowed by the father.

(4) The sons are not liable for the debts incurred by the father after partition between them and their father. The share which the father receives on partition and which after his death devolves upon his sons, may in the hands of the sons, be available to the creditors of the father, but the shares allotted on partition to the sons cannot be made liable for the 'post-partition' debts of the father.

(5) The sons are liable to pay the pre-partition debt of the father, even after partition if the debt of the father is not immoral or illegal and for the payment of which no arrangement was made at the date of the partition,

(6) A decree obtained against the father alone after partition in respect of a pre-partition debt cannot (during the life-time of the father) be executed against the property which is allotted to the son on partition. A separate and independent suit must be instituted against the sons before their share can be reached. The parenthetical clause is added by us.

(7) A decree passed against the separated sons as legal representatives of the deceased father in respect of a debt incurred before partition can be executed against the property obtained by the sons at the partition. This liability arises by virtue of Section 53 of the Civil Procedure Code. When execution is sought against the sons, the sons are at liberty to show that the property in their hands is not liable to pay the debts of the father; but the enquiry has to be made in the course of execution proceedings and not in a separate suit.

2. These propositions have not been challenged before us as they evidently could not be challenged having regard to the opinion expressed by their Lordships of the Supreme Court. It was, however, urged on behalf of the judgment-debtors that the decree could not be executed even against the ancestral property in the hands of the sons of Lallubhai Maganchand and Madhavlal Laxmichand, because at the date of the decree the aforesaid defendants could not by reason of the partitions effected before the date be represented by their sons in the suit. It was with some force urged that if the pious obligation to discharge the father's lawful debts could not be enforced during the lifetime of the father by executing the decree obtained against him alone after partition it could not be enforced after the father's death in execution proceedings by merely bringing the sons on the record as heirs and legal representatives of the debtor-father. On behalf of the plaintiff it was urged that even if there had been a partition before the date on which the decree was passed, and at the date of the decree the father did not represent the joint family, the liability of the sons to satisfy the debt was not thereby extinguished, and, by virtue of Section 53 of the Civil Procedure Code, after the death of the father the property allotted to the sons on partition could be reached in execution for recovering the amount due by the father and that the creditor was not required to proceed by a suit.

3. Undoubtedly Pannalal's case has no direct bearing on the question which falls to be determined in the case before us. In that case, one Baldev Das executed a deed on September 30, 1925, in favour of Mt. Naraini and Talok Chand hypothecating certain moveables belonging to the joint family of himself and his sons to secure repayment of a loan of Rs. 16,000. On April 16, 1928, the sons of Baldev Das filed a suit against Baldev Das for partition of the joint family property and a final decree for partition was passed on July 20, 1928, and the joint family property was divided by metes and bounds and separate possession of their respective shares was taken by Baldev Das and his sons. On September 29, 1934, Mt. Naraini filed a Suit against Baldev Das for a decree for Rs. 12,500 remaining due under the hypothecation bond. It was averred in the plaint that the debt was incurred by Baldev Das as manager of the joint Hindu family consisting of himself and his sons, and the plaintiff claimed a decree against the hypothecated property as well as against the joint family. The sons of Baldev Das then applied to be joined as parties to the suit. It was asserted in the application that Baldev Das was not the manager of the joint family and the properties had been partitioned by a decree of the Court, and the properties alleged to be hypothecated were allotted to the share of the petitioners. Counsel for Mt. Naraini then gave up the claim for a mortgage decree and prayed only for a money decree against Baldev Das personally and the plaint was amended by deleting all references to the joint family property. When this amendment was made, the sons of Baldev Das withdrew their application for being impleaded as parties to the suit. On April 17, 1935, Baldev Das died and on September 2, 1935, the widow and sons of Baldev Das were brought on the record as legal representatives of Baldev Das. They then raised a contention that the debt incurred by Baldev Das was illegal or immoral and was not binding on the family property. On November 20, 1935, the parties arrived at a compromise and a simple money decree was passed in favour of the plaintiff for the amount claimed in the suit together with half costs against the estate of Baldev Das in the hands of his legal representatives. Mt. Naraini, made attempts to execute this decree but they proved abortive. Ultimately she applied to the Court which had passed the decree that the properties which had been allotted to the sons of Baldev Das under the partition decree, be attached and sold. The sons of Baldev Das objected to the attachment and sale of the properties allotted to their share on the plea that these properties did not belong to Baldev Das and were the separate properties of the objectors and that the same had been obtained on partition with their father long before the plaintiff's decree was obtained. It was contended that the properties could not be made liable for satisfaction of the decretal dues which had to be realised, under the terms of the decree, from the estate left with Baldev Das.

4. It is evident from this resume of facts that before the suit was filed against Baldev Das there was a partition between him and his sons and the properties which were sought to be attached by the creditor were allotted to the sons of Baldev Das, and the suit in which the decree was obtained was also filed after the date on which the partition was effected. The question which fell to be determined in that case was whether the decree obtained against the sons of Baldev Das as his legal representatives, could by virtue of Section 53 of the Civil Procedure Code be executed against property which had fallen, to the share of the sons of Baldev Das at a partition effected prior to the date of the suit. Their Lordships of the Supreme Court held that the son being deemed by a fiction of law to be the legal representative of the deceased father in respect of the property which was in his hands and which was liable under the Hindu Law to pay the debts of the father, although he had in truth obtained the property not as a legal representative of the father at all, the decree was liable to he executed. In Pannalal's case, there was a partition before the date of the suit and a decree was passed in the suit against the sons of Baldev Das as his legal representatives and that decree was held to be executable against the property obtained by the sons on partition; in this case we have a partition which took place after the institution of the suit, and after the partition a decree was obtained against the father alone and after the death of the father execution is sought to be levied against the property allotted to the sons at the partition. In this case, the decree was passed against the father when he did not represent the joint family. In Pannalal's case the decree was obtained against the sons of Baldev Das but as representing the estate of Baldev Das. In both the cases, therefore, the sons were not directed by the decree to pay the amount due by the father. Evidently during the lifetime of Lallubhai Maganchand and Madhavlal Laxmichand the decree could not be executed against the share in the joint family property which fell on partition to their respective sons. If the property received by the sons at a partition could be reached, during the lifetime of the father, only by a suit on the original debt against the sons or by a suit for a declaration that the sons were liable to pay the decretal debt under the pious obligation of Hindu sons to pay their fathers' debts which were not illegal or immoral or avyavaharik, the question arises whether the death of the father so alters the position that a liability, which could be enforced during the lifetime of the father by a suit only, can, after the death of the father, be enforced in execution by attachment of the property received by the sons at a partition effected during the lifetime of the father. Before we proceed to answer that question, it may be pertinent to analyse some of the cases of the Bombay High Court which were relied upon by the advocates, and in which the question as to the procedure to be followed for enforcement of decrees for debts due by a Hindu father against the property in the hands of the son has arisen.

5. In Annabhat v. Shivappa : AIR1928Bom232 , it was held that the son was under a pious obligation to pay the debts of his father incurred by him on account of trade liabilities out of ancestral property, even though the trade may have been started by the father, and that this duty arose even during the lifetime of the father and the liability could not be avoided by the son coming to a partition of the family property subsequent to the filing of the suit against the father and the son. In that case, the debt was not an avyavaharik debt and the plaintiff filed a suit against the father as well as the son, and during the pendency of the suit the defendants arrived at a partition. A decree was then passed against the father and the son, to be satisfied out of the joint family estate and also personally from the father. It was held by this Court that the son was liable to satisfy the debts out of the joint family property allotted to him at the partition. That was a simple case in which the son was impleaded in the suit to recover a debt due by the father and the decree was passed against the son.

6. The next case to which we may refer is Surajmal Deoram v. Motiram Kalu : AIR1940Bom22 . In that case Mr. Justice Lokur set out several propositions enunciating the extent and character of the liability of Hindu sons governed by the Mitakshara Law to satisfy the debts of the father which were not avyavaharik, and the procedure to be followed for enforcement of that liability. In that case, a suit was filed against the father alone when he was the manager of the joint Hindu family and a decree was obtained against him. Thereafter partition was effected between the debtor and his sons, and execution was sought to be levied against the father, and the property of the erstwhile joint family was sold. The decree-holder purchased the property and the son filed a suit for a declaration that the creditor had not purchased his interest in the property. Mr. Justice Lokur in that case held that the son was liable to pay the debt of the father, but the liability of the son could be enforced by a separate suit and not by execution of the decree against the father and that the sale, at the execution, of the property which had been allotted to the son at the partition did not convey to the purchaser that property and that the son was entitled to the declaration claimed by him.

7. In Chanmallappa Shivlingappa v. Vannaji Sakalchand (1942) 45 Bom. L.R. 457, a Division Bench, of this Court held that a decree against a Hindu father for a debt binding on his sons, which was not illegal or immoral, can be enforced against the sons after partition in execution proceeding by attachment and sale of the properties and that it was not necessary to file a separate suit. This case is an authority for the proposition that after a decree is obtained against a Hindu father even if there be partition between him and his sons and division of the joint family estate the property of the joint family including the property which has been allotted to the sons is liable to be resorted to for satisfaction of the debt due to the creditor in execution proceedings after impleading the sons. The distinction between Surajmal's case and Chanmallappa's case is obvious. In Surajmal's case the son was not made a party to the execution proceedings. In Chanmallappa's case, the sons were made parties to the execution proceedings and their interest in the property was held liable to satisfy the debts of the father, and execution was held to be the proper method of enforcing the liability against the sons by impleading them in the darkhast.

8. The question was again considered by Mr. Justice Lokur in Ramchandra Rango v. Annaji Venkatesh : AIR1944Bom59 . In that case, Mr. Justice Lokur added one more proposition to the six propositions which he had enunciated in the earlier case of Surajmal as follows (p. 1044):

To obtain such a decree, (i.e. a decree for recovery of a debt due by a Hindu father after partition), the creditor must either join the son as a party to the suit against the father, or, if he has already obtained a decree against the father alone after the partition, he must file a separate suit against the son on the original debt, if it be in time, or sue for a declaration that the son's separated share in the joint family property is liable to be attached and sold in execution of the decree against the father for the satisfaction of the entire decretal amount or such portion of it as may be found binding on the son.

In that case, after the debt was incurred by the father, property of the joint family was partitioned, and a suit was filed against him for recovery of the debt and a decree was passed. That decree was sought to be executed against the sons and the sons contended that the decree could not be executed against them. It was held by Mr. Justice Lokur that the liability could only be enforced after obtaining a decree against the sons declaring their liability and not by executing the decree against their father.

9. In Ganpatrao Vishwanathappa v. Bhimrao (1948) 52 Bom. L.R. 154 it was held that a money decree obtained against a Hindu father could not after partition be executed against the property allotted to the sons on partition without impleading the sons in the execution proceeding. Mr. Justice Bavdekar in delivering the judgment of the Court observed (p. 157):.a decree obtained against the father alone cannot be executed against the son's interests after partition without making the sons parties to the execution proceedings. It is true that the decree can be executed against their interest; but the question is whether the decree can be executed against their interest without making them parties, and the proposition of law...is that in case a creditor wants to bring to sale the interest of a particular person, that person must be represented in the execution proceedings.

10. In none of these cases, during the pendency of the suit partition had taken place between the defendant and his sons and a money decree was obtained against the father alone and that decree was sought to be executed against the sons. The case before their Lordships of the Supreme Court is also not one in which a decree passed against the father after severance of the joint family status was since the death of the father sought to be enforced against the property allotted to the sons on partition. It is expressly observed by their Lordships that a decree against the father alone obtained after partition in respect of a pre-partition debt cannot be executed against the sons. Prima facie that proposition may appear to support the contention raised by the judgment-debtors. But it appears from the last proposition which their Lordships have laid down that after the death of the father the decree is liable to be executed against the property in the hands of the sons and it is not necessary to file a suit to enforce that liability. That view is supported by the language used in Section 53 of the Civil Procedure Code. That section is one of the three sections which deal with execution of decrees either passed or sought to be enforced against the legal representative of a debtor. By Section 50 of the Civil Procedure Code, the holder of a decree is entitled to apply to the Court which passed the decree to execute the same against the legal representative of the judgment-debtor if the latter dies before the decree has been fully satisfied. By Section 52 of the Civil Procedure Code, a decree-holder is entitled to execute a decree by attachment and sale of the property of the deceased if a decree for payment of money out of the property of the deceased is passed against a party as the legal representative of the deceased person. By Section 53, which was added for the first time in the Civil Procedure Code in 1908, it is provided that

For the purposes of Section 50 and Section 52, property in the hands of a son or other descendant which is liable under Hindu Law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

11. In dealing with the effect of Section 53 of the Civil Procedure Code, their Lordships of the Supreme Court in Pannalal's case observed (p. 178):.the section has been worded in such a comprehensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either the decree has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under Section 50, Civil P.C. In both these sets of circumstances, the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu Law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all.

12. From these observations it is evident that even if there be partition and division of the joint family estate prior to the date of the decree, after the death of the father execution of the decree obtained against the father alone may be had against the sons and the properties allotted to the sons at the partition out of the joint family property may be sold in execution proceedings to satisfy the decree. A Hindu son it is true is not a legal representative of the father in the strict sense of the term because his rights in the property arise not on the death of his father but on his birth in the joint family; but the property in his hands, which is liable under the pious obligation, to satisfy the debts of his father, can according to their Lordships be reached by the creditor, even if the property has come to him by partition and not on the death of the father. A Hindu son qua property, which is liable to satisfy the debts of his father is therefore regarded fictionally as a legal representative on the death of his father, even though before the death of the father the property had, at a partition, fallen to his share. It is true that these observations were made by their Lordships of the Supreme Court in considering1 a case where in a suit filed after partition the decree was obtained against the sons of the debtor or his legal representatives and not in a case where a decree obtained against the father alone after partition between him and his sons was sought to be executed against his sons after the father's death and satisfaction was claimed out of the joint family property allotted on partition to the sons' share. But in our view, there can be no distinction in principle between these two classes of cases. In either case, it is the liability of the father which is sought to be enforced against the sons relying on the doctrine of pious obligation. In the case before their Lordships of the Supreme Court the decree was against the estate of the father represented by the son. In this case, the decree is against the father and execution is sought against the sons after the death of the father. In other words, whereas the decree in Pannalal's case was regarded as enforceable against the sons of Baldev Das by the combined operation of Section 52 and Section 53 of the Civil Procedure Code so as to render the property obtained by the sons on partition liable to satisfy the debts of the father, in the present case it is sought to be rendered liable by the combined operation of Sections 50 and 53 of the Civil Procedure Code. Section 53 is a corollary both to Sections 50 and 52; and if for purposes of Sections 52 and 53 'property of the deceased' includes property in the hands of a son liable under the Hindu law for the payment of the debt of a deceased ancestor, even if such property has been received by the son on partition during the lifetime of the ancestor, that expression must have the same connotation in the context of Sections 50 and 53.

13. If any doubt remains on this question, it is clearly resolved by the approval their Lordships gave to the minority judgment of Mr. Justice Wort in Atul Krishna Roy v. Lala Nandanji ILR (1935) 14 Pat. 732. That was a case in which a debt was incurred by a Hindu father and thereafter there was partition between him and his sons. Before the partition was effected a suit was commenced by the creditor for recovery of the amount due by the father, and after partition a decree was passed against the father for payment of the debt. After the decree the father died and the sons were brought on the record in execution proceedings. The decree was then sought to be executed against the sons relying upon Sections 50 and 53 of the Code of Civil Procedure against the property of the sons which they had obtained on partition: and Mr. Justice Wort held that the sons' share was liable under Section 53 of the Code and that no separate action to enforce their pious obligation to pay the father's debts was required to be filed. Mr. Justice Mohamad Noor and Mr. Justice Agarwala, who were the other members of the Bench, disagreed with the view expressed by Mr. Justice Wort. Their Lordships of the Supreme Court in Pannalal's case observed that the correct view on the point was taken by Mr. Justice Wort in Atul Krishna Roy's case.

14. Strong reliance was placed by Mr. Karlekar upon a judgment of the Madras High Court in Ramayya v. Yenkamraju [1954] Mad. 834. Mr. Karlekar contended that the High Court of Madras has taken a view which is inconsistent with the one which we have expressed. In that case, following the judgment of their Lordships of the Supreme Court in Pannalal's case, it was held that a decree obtained against a father alone, even for a pre-partition debt, cannot be executed against the properties allotted to the share of a separated son, but the creditor must proceed only by an independent suit against the divided son if he wants to enforce the pious obligation of the son. In that case the suit was filed against a debtor and his son to recover a debt incurred under a promissory note. The suit was instituted in November 1946 and a decree was passed on the promissory note against the executant. It appears that before the suit was filed the debtor had executed a deed of relinquishment in favour of his own father and his minor son. The creditor sought to execute the decree by sale of certain properties which had been attached before judgment, and the Court in that case held that after partition the only method of enforcement of liability against the interest of the separated son was by an independent suit and not in execution. But evidently the first defendant, who had incurred the debt was alive at the date when the execution proceedings were started, and the case expressly fell within the proposition in the judgment of the Supreme Court, which we have already set out as the sixth proposition. The Madras High Court was not dealing with a case in which the liability of the son was sought to be enforced after the death of the debtor. This case, in our judgment, can have no application to cases where the liability is sought to be enforced under Section 53 of the Civil Procedure Code.

15. One other question which was raised by Mr. S.N. Patel on behalf of the appellants in First Appeal No. 708 of 1954 may now be disposed of. It was urged that the heirs of the judgment-debtors could only be brought on the record by the transferor Court and not by the transferee Court and the Mehsana Court having passed the order impleading the heirs and legal representatives of the two out of the three original judgment-debtors, the proceedings were vitiated, and must be regarded as void. In support of that argument Mr. Patel relied upon the judgment in Manjulabai v. Pandurang (1933) 36 Bom. L.R. 443. That was a case in which there were two judgment-debtors and both of them died before an application for transfer was made. The proceedings having been transferred to the Thana Court from the original side of this Court, an application was made to the Thana Court for bringing the heirs on record as legal representatives of the two judgment-debtors, and it was held by a Division Bench of this Court that the application could not lie in the Thana Court. It was held that the order of transfer when all the judgment-debtors had died could not be made by the transferee Court. In the present case, one of the judgment-debtors, viz., Lallubhai Karamchand, was alive and he is a party to these proceedings. It could not be said that the order of transfer was, therefore, ab initio void. As their Lordships of the Privy Council have held in Jang Bahadur v. Bank of Upper India Ltd. (1928) L.R. 55 IndAp 227 : 30 Bom. L.R. 1373, an application for bringing the names of the legal representatives on the record filed in a transferee Court, if granted, is merely an irregularity in procedure and does not affect the jurisdiction of the Court. It must, therefore, be held that the order of the Mehsana Court bringing on record the heirs of the original judgment-debtors, even if irregular, did not affect the jurisdiction of the Court to execute the decree.

16. All the appeals, therefore, fail and are dismissed with costs in favour of the plaintiff.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //