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Hutcha Thimmegowda and anr. Vs. Dyavamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 36/1949-50
Judge
Reported inAIR1954Kant93; AIR1954Mys93; ILR1954KAR70; (1954)32MysLJ33
ActsHindu Law; Constitution of India - Articles 141 and 261(3); Code of Civil Procedure (CPC), 1908; Hindu Law Women's Rights Act, 1933; Transfer of Property Act - Sections 53A; Mysore High Court (Amendment) Act
AppellantHutcha Thimmegowda and anr.
RespondentDyavamma and ors.
Appellant AdvocateV. Krishna Murthy, Adv.
Respondent AdvocateR.V. Sreenivasaiya, Adv.
Excerpt:
- religious endowments act, 1863 [repeal by act ii /1927] section 6 of act ii of 1927 & section 8; [a.s. bopanna, j] application of the repealing act held, section 8 would clearly indicate that the repeal of religious endowments act would apply in so far as hindu religious endowments to which the act applies. but in so far as the jain religious endowments, the repeal by act (ii) of 1927 is not applicable. further, the religious endowments act 1863 has been repealed only in so far as it applies to hindu religious endowments and the repeal is specific to that extent and therefore the applicability of the act to the jain religious endowments act, 1863 is still applicable to the jains of dakshina kannada. section 10; maintainability of application under power of the district judge to.....medapa, c.j.1. the facts of the case which led up to this appeal have been set out in full in the judgment of the trial court as also in the judgment of my learned brother justice sri b. vasudevamurthy which i have had the advantage of perusing; they need not therefore be reiterated. this appeal was directed to be placed before a pull bench as its disposal involved a consideration, rather a reconsideration of the views of this high court on a very important point of hindu law, regarding which a definite view had been taken from a long time. the necessity for the reconsideration arose on account of the decision of the supreme court reported in -- 'pannalal v. mt. narainl' : [1952]1scr544 (a). the important point of hindu law referred to above is whether the pious obligation of a son to.....
Judgment:

Medapa, C.J.

1. The facts of the case which led up to this appeal have been set out in full in the judgment of the trial court as also in the judgment of my learned brother Justice Sri B. Vasudevamurthy which I have had the advantage of perusing; they need not therefore be reiterated. This appeal was directed to be placed before a Pull Bench as its disposal involved a consideration, rather a reconsideration of the views of this High Court on a very important point of Hindu Law, regarding which a definite view had been taken from a long time. The necessity for the reconsideration arose on account of the decision of the Supreme Court reported in -- 'pannalal v. Mt. Narainl' : [1952]1SCR544 (A). The important point of Hindu Law referred to above is whether the pious obligation of a son to discharge his father's debt arises during the lifetime of his father. The point, as al-ready stated, was well settled in Mysore. The views of the High Courts outside the State were also equally definite and well settled and the importance which this matter has now assumed, is due to the fact that the view of our High Court is diametrically opposed to the view held in the other High Courts.

2. A marked and distinctive feature of Hindu Law is that a son acquires by birth a right in the joint family property. That right is not affected by any transfer effected by any other member of the joint family including the manager, even though the manager happens to be a father unless the transfer is for family benefit or necessity when the son is a minor and, if a major, unless he consents to the said transfer. Another distinctive feature of Hindu Law is that a son is under a pious - obligation to discharge the debts of his father, not incurred for illegal or immoral purposes. This obligation on the son to discharge the debt of his father arose, according to orthodox Hindu Law, only after the death of the father or where the father was as good as dead on account of the circumstances which will be referredto later. This was also the view taken in the early decisions of the High Courts, in what was prior to the Constitution known as British India, and also of the Privy Council, till the latter changed its view and the High Courts in British India had to follow and did follow the lead so given. It will be sufficient to give the following extract from the commentary in Mulla's Hindu Law, 10th-Edition, at P. 349 to show the trend of the view Of these Courts :

'There arose recently a conflict of opinion whether there was any pious obligation on the part of the sons to pay the father's debts in the lifetime of the father, or whether the obligation arose for the first time after the father's death. The conflict arose out of some observations of the Judicial Committee in -- 'Sahu Ram Chandra v. Bhup Singh' AIR 1917 PC 61 (B). Following those observations, the Allahabad High Court held that the obligation did not arise until after the father's death. On the other hand the Madras and Bombay High Courts held that the liability arose even in the father's lifetime, and that the observations in -- 'Sahu Ram's case, (B)', were mere obiter dicta and they did not affect the law as laid down by the Judicial Committee itself in a long line of decisions.

In a later case, that of -- 'Brij Narain v. Mangal Prasad' AIR 1924 PC 50 (C), their Lordships of the Privy Council held that the observations in -- 'Sahu Ram's case', referred to above were not necessary for the decision of the case, and that the sons were liable for the father's debts whether the father was alive or dead when the liability attached.'

3. As pointed out in Mayne's Hindu Law and Usage, Eleventh Edition, p. 417 : 'On account of conflicting decisions, a Full Board of the Judicial Committee examined the whole-subject in -- 'Brij Narain v. Mangala Prasad, (C)' and Lord Dunedin laid down the following five propositions :

(1) The managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but

(2) if he is the father and the other members are the sons, he may, by incurring debt, so Zing as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt;

(3) if he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate;

(4) Antecedent debt means antecedent in fact as well as in time, that is to say that the debt must be fully independent and not part of the transaction impeached; and

(5) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.'

4. The result is that according to the view of the High Courts outside Mysore, the interest of a son cannot be proceeded against, when the father without any legal necessity or unless in discharge of an antecedent debt sells a joint family property or borrows money under a mortgage deed while the entire interest of the father as well as that of his son can be proceeded against in execution of a decree obtained against the father for the recovery of an unsecured debt unless the debt wascontracted for illegal or immoral purposes. This position of the law gives an unsecured creditor greater advantage than that given to a secured, creditor. Conversely it follows that while the father cannot borrow money straightway on the security of the interest of his son except for legal necessity, he can nevertheless borrow money without security and later on effectively mortgage or sell the interest of his son, on the ground that he is doing so for discharging an antecedent debt. (5) The High Court of Mysore has on the other hand consistently held from 1893, that is to say for over half a century, that there is no obligation on the part of the son to discharge the debts of his father during the latter's lifetime unless the debt had been incurred for family benefit or with the son's consent. This was the view of the majority of the Judges in the case reported in -- '10 Mysore LB 116 (PB) (D)'. This view was confirmed by an unanimous decision of a later Pull Bench reported in -- '15 Mys CCR 233 (E)'. It was there held that:

'It was open to the son to plead that in the absence of proof that the debt was incurred for the sake of the family, his interest were not affected by the' sale.'

There is hardly any doubt that the ancient texts of 'Hindu Law support the view taken by our High Court. A fuller but needlessly lengthy discussion may conveniently be avoided by inviting a reference to the judgment of Setlur J. in the above Full Bench case. The following extract from west and Buhler's criticism -on the Privy Council decisions is apposite :

'None of the texts...... nor any of the commentators on them say that a son's liability for his father's debts arises during the father's life ...... There are many texts which imply thecontrary. Vishnu says the sons and grandsons must pay when the debtor is dead or has been absent twenty years, that is, when he may be presumed to be dead, not before. Manu says simply when the father is dead. Brihaspati says the sons must pay even in the father's life but only in cases in which he is incapable of acquiring property or retaining it. The exception here is conclusive as to the rule, at least as it was understood by the school that produced this Smriti, which is sacred everywhere. The same observation occurs as to Katyayana's text .......so as to Narada's text on the subject.

The whole series quoted by Jagannatha imply a liability only after the father's natural or civil death or its equivalent, and so they have invariably understood by native lawyers reading them with the context. The case may be stated even more strongly. There is no text imposing on sons a liability during their father's life for debts incurred even for the benefit of the family except in cases in which the father is not capable of managing the estate and affairs of the family and the sons are.

It is impossible that of the numerous texts treating of debts contracted for the family and of the sons' liability as survivors of their father all should have omitted to mention their liability during the father's life, had the liability been recognized. But the father is regarded as alone responsible, and alone having administrative control as the head of an undivided family ...... The Vyavahara Mayukha, the chief localauthority of Bombay dwells elaborately on the debtor's obligations, but says nothing about any obligation of the sons except on their father's death or prolonged absence. The Mitaksharaitself in commenting on the texts of Yajnavalkya ....construes them as imposing a duty only on the father's death, his absence for twenty years-or on his imbecility.'

6. Mulla's commentary on the point at p. 349 (10th edition) is succinct and deserves reference:

'It may here be observed that under the old Hindu Law the liability of the son to pay thefather's debt did not arise until after the father's-death. Under Hindu Law as interpreted by the British Courts the liability exists even in the lifetime of the father. To this extent the British Courts have extended the liability of the son.'

7. It will thus be noticed that the view of our High Court prevailing for over 60 years fortified as it has been by two Full Bench decisions, is in consonance with the texts of Hindu Law and that the view of their Lordships of the Privy Council has brought about a change in this branch of the law in the rest of India. The change however cannot be said to be advantageous as it brings about a distinction between a secured creditor and an unsecured creditor, the latter being placed in a more advantageous position than the former. The father is allowed to alienate the property of his son by merely borrowing money before alienating, the property of the joint family. It enables, in a way not contemplated by Hindu Law, a father to defeat the rights that a son gets by birth by intentionally borrowing money and by that device to ultimately alienate his son's interest without, the son's consent even though there was no legal necessity for the loan.

8. It has been observed in -- : [1952]1SCR544 (A)', that:

'It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead.'

The law as laid down in this decision and in -- 'Sidheshwar v. Bhubneshwar' : [1954]1SCR177 (F), by their Lordships of the Supreme Court is binding on us. Article 141 of the Constitution makes this position doubly clear. It is besides desirable that the law applicable to all parts of India is made uniform as far as possible for more reasons than one and in Mysore this need for uniformity has now become more imperative than even before, as some parts of what was known as British India, have as a result of integration of the States and the creation of new Provinces, come under the jurisdiction of this High Court. It follows that unless and until the Supreme Court thinks it necessary to reconsider the position in view of the strong and pertinent criticisms such as those of West and Buhler, the long existing view in this State enunciated in the two Full Bench decisions of this Court referred to above has to yield ground to the view expressed by the Supreme Court based on what must be taken as well established law in all the Courts outside Mysore and which was also the view of their Lordships of the Privy Council.

9. The decree of the lower Court is accordingly modified in the manner indicated by my learned brothers in their judgments.

Venkata Ramaiya, J.

10. The facts relating to the appeal are fully stated in the judgment of my learned brother Vasudevamurthy J. The controversy is of the familiar type between purchasers of joint Hindu family property and the members of the family about the validity of the sales as regards those who were not parties to the sales with the additional feature of the mother and unmarrieddaughters of the vendor having joined his sons in attacking the sales and claiming shares in the properties. The claim of the mothers and daughters rests on the provisions of Hindu Law Women's Rights Act (No. 10 of 1933) and that of the sons of the Law of Mitakshara. Adopting the considerations applied hitherto in such cases the learned Sub-Judge held that the Appellants have acquired only the intereest of the vendor in the properties conveyed to them and granted a decree for partition of the properties and possession of the shares due to the mother, daughters and sons according to law. It is contended for the appellants who are two of the purchasers that the decision is erroneous as the principles laid down in former decisions of this Court on which it is based need reconsideration and revision. The contention raises questions of importance and I shall briefly state my views about it.

11. The powers of a Hindu father under the law of Mitakshara to alienate family property and contract debts binding on the sons and other members of the family are discussed in a number of cases with special reference to the ancient texts. While it is agreed that discharge of debt is enjoined as a sacred duty and that the obligation is cast not merely on the father but also on the sons there is divergence of opinion about the duty of the son concerning this when the father is alive. The view which has prevailed in Mysore so far is that:

'the liability of the Hindu son for the debts of his father (Joes not arise as long as the debtor himself is alive and is not so disabled by disease or other physical disability as not to be able to discharge it himself or has been absent so long as to raise a presumption of death.'

This was laid down so far back as 1909 by a Full Bench in -- '15 Mys OCR 233 (E)', where the question was whether a son who was not a party to the suit for enforcement of a mortgage effected by the father with respect to ancestral property can resist the claim of the purchaser in execution of the decree, for possession of the property, on the ground that his interest in the property is not affected by the sale in the absence of proof that the debt was incurred for the sake of the family. That was a case in which the father was alive when the liability of the son's share in the property for recovery of the mortgage debt was disputed.

For payment of unsecured debts of the father the accepted rule is that the pious duty of the sons does not arise when the father is alive but does arise when he Js dead, unless the debts are proved to he illegal or immoral and that family properties in the possession of the sons may be proceeded against for recovery thereof. The obligation extends to the grandsons for the payment of such debts of the grand-father and family properties are similarly liable. See -- '36 Mys HCR 416 (G)'.

There is a qualification of the rule for payment of debts contracted by the father mortgaging family property as it is considered that the liability of the sons for mortgage debts does not arise by reason of the death of the father and that their interest in the property mortgaged would be liable under the mortgage whether the father is alive or dead, only if the debt was incurred for the necessity or benefit of the family that in the absence of such necessity or benefit, the sons' liability arises if the father is dead and the creditor obtains a personal decree. It is enough to refer to three cases concerning this -- each of a sepa-rate Division Bench -- '41 Mys HCR 382 (H)' and-- '45 Mys HCR 26 (I)' and -- '45 Mys HCR 83 (J)'. In each of these the mortgagee sought payment of the money due under a mortgage by the father of the family properties, and the sons who were not parties to the mortgage denied liability of their shares in the family property for the debt. In the last case the father was dead when the suit was filed and in the first two cases he died after the institution of the suit. As legal necessity or family benefit for the mortgage or for the prior debts which it purported to discharge was found to be wanting, it was held in all the cases that the shares of the sons in the properties were exempt from liability under the mortgage.

As regards pious liability of the sons to discharge the debt after the father's death Chad J. in --41 Mys HCR 382 (H)', at p. 389, expressed:

'....a mortgage is an alienation of interest possessed in the mortgaged property and as such the doctrine of pious obligation is not applicable to it; in other words even if the father is dead it would still be the duty of the creditor to prove that the debt was borrowed for legal necessity or for the benefit of the family.'

This view was affirmed in the two later cases, 'at pp. 26 (I) and 83 (J), of 45 Mys HCR. But in-- '45 Mys HCR 83 at p. 87 (J)', Reilly C. J. added:

'....If there were a balance left to be recovered from the father's estate as a personal debt after his death then no doubt the pious obligation of his son would apply to that balance and it could be recovered from the son's interest in what had been the joint family property of himself and his father if the remedy against him is not time barred.'

Another point to be noticed in these and other cases where family property was alienated by the father for discharging debts previously incurred by him is the emphasis placed on the ascertainment of the need for such debts.

12. The effect of the decisions of this Court is:

1. The pious duty of the sons for payment or the father's debts does not arise during the lifetime of the father;

2. After death of the father the pious obligation of the sons arises with respect to simple money debts (not avyavaharika) and not mortgage debts.

3. Interest of the sons in family property mortgaged by the father for a debt contracted by him are not liable for payment of the debt in enforcement of the mortgage unless the mortgage is shown to be for legal necessity and for this it makes no difference whether the father is dead or alive. But family properties in the possession of the sons may be proceeded against, if the father is dead, in execution of a personal decree obtained by the mortgagee.

4. Discharge of an antecedent debt by means of an alienation of family property effected by the father is not sufficient by itself to render the alienation valid. It must be proved that the prior debts were incurred for the necessity or benefit of the family or that the creditor made reasonable inquiry to be satisfied about the need for the debts.

13. In this case as in others where the validity of alienations by a Hindu father of family properties for discharging debts contracted by him is to be determined, the decision of the Supreme Court in -- : [1952]1SCR544 (A)', is referred to as laying down principles at variance with those summarised above. As Article 141, Constitution of India states that the law declared by the Supreme Court shall be binding on all Courts within theterritory of India, it is necessary to see if the law applicable to the matters in issue here is enunciated in the case mentioned. The decision of the Supreme Court relates to a case in which the suit was filed for enforcement or a mortgage hut the claim to a mortgage decree was given up and a decree was passed by consent for payment of money by the defendant. Later on, the defendant died and his sons who were impleaded as legal representatives objected to the execution of the decree against the properties in their possession on the ground that these belonged to them absolutely as a result of the partition between them and their father. It was held that the amount payable under the decree was a pre-partition debt which the sons were liable to pay provided it was not illegal or immoral and no arrangement was made at the partition for payment of the debt. In the course of the judgment it is observed :

'It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead. Thus it is open to the lather during his lifetime to effect a transfer of -my joint family property including the interest of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit provided it is not tainted with immorality. According to the strict Hindu theory the obligation of the sons to pay the father's debts normally arises when the father is dead, disabled or unheard of for a long time. No question of alienation of the family property by the father arises in these events although it is precisely under these circumstances that the son is obliged to discharge the debts of his father.'

14. In -- 'AIR 1924 PC 50 (C)', referred to as supporting some of the above statements and which is also relied upon in -- '41 Mys HCR 382 (H)', the sons impeached a decree obtained by a creditor of the father on the foot of a mortgage. A Full Board of the Privy Council after reviewing the cases bearing on the question declared that the mortgage was binding on the sons as it was effected in order to pay antecedent debts due under two older mortgages.

15. There is provision in the texts for alienations only in case of distress, benefit or good of the family, (Apathkale, Kutumbarthe, Dharmarthe) and the theory that discharge of antecedent debts is a justification for the alienation of family property by the father seems to have developed as a corollary to the doctrine of pious obligation of the sons. As stated in -- 'AIR 1924 TC 50 at p. 54 (C)':

'On the one hand there is the general rule of the Mitakshara Law that the manager cannot burden the estate for his own purposes........on the other hand there is the obligation of the son to discharge his father's debts, based on the doctrine of pious duty...... It is enough to saythat both principles are firmly established by long trains of decisions and it certainly occurs to the view that the term 'antecedent' debt represents a more or less desperate attempt to reconcile the conflicting principles.'

It is mentioned as an exception to the generalrule, in -- 'AIR 1917 PC 61 (B)' thus:

'Although the correct and general principle isthat if the debt was not for the benefit of anestate then the manager should have no powereither of mortgage or sale of that estate in orderto meet such a debt, yet an exception has beenmade to cover the case of mortgage or sale bythe father in consideration of an antecedentdebt'; and that it is intended to protect alienees for onerous consideration and in good faith.'

It is unnecessary to pursue the inquiry as the point is concluded by the explicit statement in the judgment of the Supreme Court that

'There is no question that so long as the family remains undivided the father is entitled to alienate for satisfying his own personal debts not tainted with immorality the whole of the ancestral estate.'

In -- 'Shanmukam v. Nachu Ammal' AIR 1937 Mad 140 (K) a mortgage of family property by a junior member of the family whose father was alive was challenged by the sons. Varadachariar J. who delivered the judgment of the Bench held that the mortgage was binding on the son's share in the hypothecated properties to the extent to which the debts referred to in the mortgage deed were antecedent debts although the father was not the manager and in respect of the balance of the mortgage amount the plaintiff was entitled to relief as on a money claim. The judgment directed that if after the sale of the father's share in the hypothecated properties for the full amount and of the son's share in the properties for the amount held binding, the decree amount is not fully realised the plaintiff was entitled to proceed against the son's interest in the joint family properties for the recovery of the balance.

16. Whether the mortgage is treated as a transaction of debt as in -- '15 Mys OCR 233 (PB) (E)' or as an alienation as in -- '41 Mys HCR 382 (H)' or of both, it is evident that legal necessity or family benefit cannot be the sole criterion for the intersest of the sons in the mortgaged properties being affected by a transaction of the father according to these decisions. Although there was no question regarding sale in the case before the Supreme Court the decision postulates principles vital for ascertaining the extent and scope of the authority under the Mitakshara Law of a Hindu father to deal with family property and declares that there are no such limits as are prescribed in the cases of this Court. In spite of the strict Hindu theory that the pious duty to discharge the father's debts springs up after, his death existence of the duty in the father's lifetime is stated to be well settled. Cases in which there are statements to the contrary cannot be of assistance or be cited as precedents now whatever may have been their value in the past and principles of stare decisis can have no application to these. The change wrought by the Constitution in regard to the finality of the decisions of this Court, the expansion of jurisdiction of this Court over areas in which people are accustomed to the application of Mitakshara Law as interpreted differently and need for avoiding confusion and conflict make it impossible now for this Court to steer a lonely course and adhere to opinions expressed in its former decisions.

The liability of the shares of the sons in family properties for recovery of the debt due by the father has been considered also in a case recently reported in -- : [1954]1SCR177 (P)'. The debt in that case was incurred by the father under a pronote executed by him and the creditor in execution of a decree obtained against the father alone, got the family property including the intersest of the sons sold. The question was whether the sale was effective in conveying the shares ol the sons to the purchaser when the sons were not parties to the proceedings. On the view that the father was a junior member of the family and as such had no right of disposition over the intersest of the sons and could not represent them In the proceedings the High Court held that the purchaser in the execution sale was entitled only to the share of the father.

The Supreme Court declared that this was not correct and that the purchaser acquired the intersest in family property of not merely the father but also of his sons as it was found from the execution proceedings that the creditor intended to attach and sell the interest of the sons as well and the debt was not shown to be such as the sons were not liable to pay under Hindu law. It is stated in the course of the judgment, as regards the liability of the sons' share in the property to be proceeded against for recovery of the decree debt

'The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious the interest of the sons in the coparcenary property can always be made liable for such debt..'

It is a special liability created on purely religious grounds and can only be enforced against the sons of the father and no other coparcener. The liability has therefore its basis entirely on the relationship between the father and the son .......

So far as the legal liability of the sons is concerned as the debts incurred by the father are not shown to be illegal or irreligious it must be held under the rule of Hindu law there is a legal liability on the part of the sons to discharge their debts and the creditor can enforce this liability by attachment and sale of the sons' interest in the same manner as it was a personal debt due by them. The fact that the father was not the karta or manager of the joint family or that the family did consist of other coparceners besides the father and sons does not affect the liability of the sons in any way......

Without being a karta he could as a father completely represent his branch of the coparcenary consisting of himself and his sons....''

17. Having regard, to the views expressed by the Supreme Court and the approving reference therein to -- 'AIR 1924 PC 50 (C)' and other cases, the rules governing liability of sons for debts of the father and alienations of joint family properties by the father may be stated as follows:

1. The sons have a pious duty to discharge the father's debt whether the father is dead or alive.

2. An alienation of family property by way ol mortgage or sale by the father is valid if it be for legal necessity or for discharge of an ante-cedent debt:

3. If the debt due under a mortgage by the father is not realised by Kale of the mortgaged property, the amount left due may be recovered from the shares of the sons in the family properties:

4. The liability of the sons is however subject to the law of limitation and the debt not being shown to be illegal or immoral.

18. In applying these rules. It is necessary to bear in mind the importance of examining whenever discharge of a debt is relied upon to justify the alienation, without proof of necessity or benefit for the family, whether the debt is really 'antecedent' or only set up as a cover to defraud the family. To constitute 'antecedent debt' according to -- 'Brij Narain's case (C)' 'the debt must be truly independent and not part of the transaction Impeached' and as required in -- 'Sahuram's case(B)' 'there must, to give true effect to the doctrine of antecedency in time, be also real dissociation in fact'. It may be that in some cases the family I properties are subject to the risk of being alienated) by the father for discharging debts imprudently contracted by him earlier. Such instances must, if at all, be as rare in the case of a father 'his natural relation to his children entitles him to more than ordinary confidence: his transactions may be strongly presumed to be intended for the good of the family.' (Bee pp. 595 and 596 of West and Euhler's Hindu Law).

19. The result of applying these' principles to the two sales under Exhibits III and V in favour of the Appellants may now be considered. The executant of both documents is defendant 6, the son of the 1st plaintiff and father of the other plaintiffs, and the purpose mentioned in each is discharge of prior debts. Admittedly the properties are ancestral and there is no proof of necessity or benefit for either sale. The intersest of the sons can be affected, if at all, to the extent the purpose mentioned in the deeds is made out. This is lacking in the case of Ex. III as there is nothing more than a bare reference in the deed to a previous debt. The bulk of the consideration for Ex. V is however shown to have been applied for discharge of prior debts of defendant 6 though there is no proof of the balance of the amount having been required or utilised for any purpose binding on the family. I agree that the decree of the lower Court is to be modified as stated by my learned brother.

Vasudevamurthy, J.

20. The five plaintiffs who are the mother, two minor daughters and two minor sons respectively of defendant 6 brought a suit for a declaration that certain sales effected by defendant 6 in favour of the other defendants are not binding on their shares in the joint family properties described in the plaint schedule and for their shares Being divided off and delivered to them and for mesne profits. They pleaded that defendant 6 had been, extravagant and had incurred debts and effected alienations which were neither for legal necessity nor benefit to the family. Defendant 5 is the mother of plaintiffs 2 to 5 and defendants 1 and 4 are also closely related to the family. They were ex parte and though the alienations in their favour have been set aside by the Court below they have not appealed and their cases do not arise for consideration.

Defendants 2 and 3 contested the plaintiffs' suit. They pleaded that they were purchasers from defendant 6 of item 4 and item 2 respectively and that those alienations v/ere binding on the plaintiffs as they were made for discharging earlier debts which had been incurved by defendant 6 for family necessity and benefit and for other similar beneficial purposes. They also pleaded that neither plaintiff 1, the mother, nor plaintiffs 2 and 3, the daughters, were entitled to claim shares and that as neither of the plaintiffs 4 and 5 were born on the date of the alienations, they could not question them. The Subordinate Judge who tried the suit has held that the sales in favour of defendants 2 and 3 are not binding on the plaintiffs find has granted a decree in favour of the plaintiffs; and defendants 2 and 3 have appealed.

21. The learned Subordinate Judge has held that plaintiffs 2 and 3 who are daughters of defendant 6 cannot question the alienations and that plaintiffs 4 and 5 had been born on 2-11-43 and 28-11-45 and could therefore question the sales in favour of defendants 2 and 3. Thesefindings are not seriously questioned before us. So that we are only concerned with whether these two sales a;e binding on the plaintiffs. The sale in favour of defendant 2 is under Ex. III, a sale-deed dated 6-12-1944 for Rs. 275/- and is in respect of item 4. The reason for the sale, as recited in the sale-deed, was in order to discharge a prior hypothecation debt of Rs. 3007- due to one Koppal Boregowda under the original of Ex. XI. The original of Ex. XI has not been produced with an endorsement of discharge and Koppal Boregowda has not been examined. In fact defendant 2 examined as D. W. 7 admits that that debt has not been discharged and that defendant 6 received the purchase money himself saying he would discharge the earlier debt. In these circumstances the lower Court has rightly held that that sale has not been shown as having been made for any benefit or necessity.

It was urged for the appellants that the purchaser was not bound to see to the application to the purchase money but seeing that the sale was expressly for discharging an earlier debt and that debt has admittedly not been discharged it is difficult to accept that contention which seems rather extreme on the facts and in the circumstances of this case. If such an argument is accepted in this case, the minors and their other properties may run the risk of being still subject to the debt, while the item of property alienated would have passed out of the possession of the family. The finding of the Subordinate Judge regarding the sale in favour of defendant 2 under Ex. 3 must be affirmed; and the appeal so far as it concerns him is dismissed.

22. Defendant 6 has sold item 2, a garden, to defendant 3 by the sale-deed Ex. 5, dated 9-3-1945. The sale is for Rs. 25007- and the purpose of the sale as recited in the sale-deed, is in order to discharge three prior debts due by him, via., of Rs. 900/- due to defendant 3 himself under Ex. 4, a hypothecation deed dated 20-11-44, Rs. 300/- due to defendant 3 on an on demand pronote Ex. XII, dated 22-11-44 and Rs. 650/- due on an on demand pronote Ex. 6, executed by defendant 6 in favour of one Channegowda, and for the balance to be utilised for buying bullocks and carts for agricultural purposes, to repair the family dwelling, which is described as being in a dilapidated condition, and to meet the expenses of planting cocoanut trees. Rs. 9007- and Rs. 200/- were io be adjusted out of the purchase money. Rs. 6507-was left with the purchaser for payment to Channegowda and Rs. 750/- was received by defendant 6 before the Sub-Registrar.

23. It is not disputed before us, and it cannot be disputed, that defendant 6 owed the two amounts of Rs. 9007- and Rs. 200/- respectively to defendant 3 and Rs. 650/- to Channegowda. They are evidenced by Exs. 4, 12 and 6. Channegowda has been examined as D. W. 3 and he has deposed that the debt due to him under Ex. 6 was paid off as per Ex. 6 (b) his endorsement of discharge dated 10-3-45. The learned Subordinate Judge has held that these 3 prior or antecedent debts have not been shown to have been incurred by defendant 6 for purposes of legal necessity or benefit and that there is no evidence that the balance of Rs. 7507- was utilised for any of the purposes mentioned in Ex. 5 and that according to the rulings of this Court, beginning with -- 15 Mys CCR 233 (PB) (E)' and which has been followed in numerous later decisions viz., -- '27 Mys CCR. 155 (L)'; -- '42 Mys HCR 163 (M)'; --'49 Mys HCR 530 (N)'; -- '51 Mys HCR 112 (O)';-- Urugejjegowda v. Central Co-operative Bant Ltd.', 15 Mys LJ 230 (P), the sale under Ex, 5 cannot bind the shares of the minor sons of defendant 6. These findings are not challenged before us. Defendant 3 has let in no evidence worth the name to show that the prior debts or the sum of Rs. 7507- received by defendant 6 were incurred or utilised for any purposes of necessity or benefit.

24. As against this, it is contended by Mr. V. Krishnamurthi learned Counsel for the appellants, that the law as laid down in those cases with regard to the liability of Hindu sons for the debts of their father and during the latter's life time has to be reconsidered by this Court in view of a decision of the Supreme Court in -- : [1952]1SCR544 (A)'. He urges that under Article 141, Constitution of India the law declared by the Supreme Court is binding on all the Courts within the territory of India and must now be followed in preference to any other view which might have been taken by this Court. There is no doubt about the soundness of this contention, and we have had occasion to make a reference to it in -- 'Narayana Rao v. Karibasappa' AIR 1951 Mys 126 (Pl), while dealing with a case of the application of S. 53A, T. P. Act relating to the doctrine of 'part performance'.

In -- : [1952]1SCR544 (A)' their Lordships Sayid Fazl Ali, Mukherjee and Vivian Bose JJ. held that a son is liable even after partition for the pre-partition debts of his father, which are not immoral or illegal and for the payment of which no arrangement was made at the time of the partition. The judgment of the Court was delivered by Mukherjea J. and in the course of his judgment at p. 174 of the reports he observes as follows:

'We now come to the other two points raised by Mr. Kunzru and as they are inter-connected they can conveniently be taken up together. These points involve consideration of the somewhat vexed question relating to the liability of a son under the Hindu Law other than that of the Dayabhag School to pay the debts of his father, provided they are not tainted with immorality. In the opinion of the Hindu Smriti writers, debt is not merely a legal obligation, but non-payment of debt is a sin, the consequences of which follow the debtor even after his death. A text, which is attributed to Brihas-pathi, lays down:

'He who having received a sum lent or the like does not repay it to the owner, will be born hereafter in the creditor's house a slave, a servant, a woman or a quadruped.' There are other texts which say that a person in debt goes to hell. Hindu Law-givers therefore imposed a pious duty on the descendants of a man including his son, grandson and great grandson to pay off the debts of their ancestor and relieve him of the after death torments consequent on non-payment. In the original texts a difference has been made in regard to the obligation resting upon sons, grandsons and great grandsons in this respect. The son is bound to discharge the ancestral debt as if it was his own, together with interest and irrespective of any assets that he might have received. The liability of the grandson is much the same except that he has not to pay any interest; but in regard to the great grandson the liability arises only if he received assets from his ancestor. It is now settled by judicial decisions that there is no difference as between son, grandsonand great grandson so far as the obligation to pay the debt of the ancestor is concerned; but none of them has any personal liability in the matter irrespective of receiving any assets.

The position, therefore, is that the son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation 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. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice. According to the text writers, this obligation arises normally on the death of the father; but even during the father's life-time the son is obliged to pay his father's debts in certain exceptional circumstances, e.g., when the father is afflicted with disease or has become insane or too old or has been away from his country for a long time or has suffered civil death by becoming an anchorite.

'It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead. Thus it is open to the father during his lifetime, to effect a transfer of any joint family property including the intersest of his son in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality.' It is equally open to the creditor 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 suit and obtain an adjudication from the Court that debt was a proper debt 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. These propositions can be said to be well recognized and reasonably beyond the region of controversy.'

In support of his observations, he has referred to Colebrooke's Digest I, 228. -- 'Masit Ullah v. Damudor Prasad' AIR 1926 PC 105 (Q), Mayne's Hindu Law. 11th Edition, p. 108, where it is stated 'The law is now well established that under the Hindu Law, the pious obligation of a son to pay his father's debts exists whether the lather is alive or dead.' 'AIR, 1924 PC 50 (C) - 'Gir-dharee Lall v, Kantoo Lair, 1 Ind App 321 at p. 333 (PC) (R) and -- 'Suraj Bunsi Koer v. Sheo Persad Singh', 6 Ind App 88 (PC) (S). See also Mulla's Hindu Law (10th Edn.), p, 343, para. 290 (4), where he refers to -- 'AIR 1924 PC 50 (C)' and other cases and says 'The liability of the sons to pay the father's debts exists whether the father is alive or dead' and his note at p. 349.

25. The question of the sons' liability for the debts of their father came up for consideration again before the Supreme Court in -- : [1954]1SCR177 (F)' and it was held by the Supreme Court that the question whether the sons of a judgment-debtor who was a junior member of a coparcenary are liable in law to discharge the decretal debt due by their father could be answered only with reference to the doctrine of Mitakshara Law which imposes a duty upon the descendants of a person to pay the debts of their ancestor provided they are not tainted with immorality. Mukherjea J., with whom the other two Judges agreed, observes at p. 489 of the report:

'This doctrine, as is well known, has its origin in the conception of Smriti writers who regard non-payment of debt as a positive sin, the evil consequences of which follow the undischarged debtor even in the after-world. It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their father's debts. The doctrine as formulated in the original texts, has indeed been modified in some respects by judicial decisions. Under the law, as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets; it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious the interest of the sons in the coparcenary property can always be made liable for such debts.'

26. In -- '15 Mys CCR 233 (PB) (E)' which has laid down the law now prevailing in Mysore that a Hindu son is not liable for the debts of his father so long as the father is alive unless it is shown that they were incurred for purposes of legal necessity or benefit to the family. Setlur J., who wrote the leading judgment considered the original texts, including Vijnaneswara's commentary on Yajnavalkya and referred to the rule in Mitakshara which is to the effect that when a father without discharging a debt owed by him dies or has gone to a distant country or is stricken by an incurable disease or the like, then the debt incurred by him when notified shall, by reason of their being his son and grandson, be paid by the son and grandson, even when he has left no paternal estate. He referred to the case reported In -- 'Periasami Mudaliar v. Seetharama Chettiar', 27 Mad 243 (PB) (T) and to -- '1 Ind App 321 (PC) (R)' and the uniformity of the course of decisions of the High Courts in India thereafter. He however preferred to follow the views expressed in -- '16 Mys LR 116 (FB) (D)' and of Muthuswamy Iyer J, expressed in -- 'Ponnappa Pillai v. Pappuvayyangar', 4 Mad 1 (15, 40) (FB) (U) though that view was opposed to the decision of the Privy Council in -- '1 Ind App 321 (R)'. The necessity to refer the matter to the Full Bench then arose as even in Mysore it had been held or assumed in some earlier cases, viz., -- '4 Mys CCR 26 (V)'; -- '5 Mys CCR 69 (W)'; -- '7 Mys OCR 15 (X)' and -- '10 Mys OCR 71 (Y)' that the sons were bound by an alienation which was effected to discharge an earlier debt irrespective of whether the earlier debt was incurred for family bonnet or necessity.

The law laid down in -- '15 Mys CCR 233 (PB) (E)' has been followed in Mysore in later cases and it is unnecessary to refer to all of them. I might, however, refer to a case decided more recently and reported In -- '15 Mys LJ 230 (P)'. In that case the plaintiff, which was a co-operative bank, advanced certain sums of money to a defendant, the father of a joint Hindu family. A portion of the money advanced was used to pay off previous mortgages, Reilly C. J. and Sreenivasa RBO J. held that the plaintiff though one stage removed from the debts under the original mortgages cannot be let off more lightly in the matter of showing necessity or benefit for the money advanced so as to make payments under the deed binding upon the junior members of the defendant's family and that the plaintiff must show that those previous debts so paid off were bindingon the junior members of the defendants' familybefore he can make his own advances bindingupon those junior members.

The principle laid down in this decision has been applied quite strictly in later cases by some of the Judges who have called upon a creditor to prove that the earlier debts which might have been incurred long before the alienation were also for legal necessity or benefit. They have also often expressed in those cases that the recitals in the document regarding the purposes for which the loans were borrowed may not be of much use and cannot be strongly relied upon by the creditor though of course in other cases it has been laid down that such recitals, particularly in old documents, must be given due weight. The strict application of this rule has, it must be admitted, led to considerable collusive litigation by junior members either during their minority or just after their attaining majority and often times after quite a long time had elapsed after the alienations to bring suits to question them.

27. This hardship to the alienees was recognized and led to the view which has been taken in some cases, e.g., -- '21 Mys COR 145 (Z)' and -- 'Channabasavegowda v. Rangegowda' AIR 1951 Mys 38 (FB) (Z1) that if all the adult male members of a family join in making an alienation it may bs presumed that it was for family benefit or necessity thereby attempting to somewhat lighten the burden on the alienee to prove that each one of the previous debts or (he purposes mentioned in the documents were trite. The father in such cases' is usually ex parte and not examined as a witness for the plaintiffs and it has been found that the creditor or the alienee finds it extremely difficult to prove such legal necessity or benefit though the alienations have gone to discharge old, real and bona fide debts which there was little reason to suspect were incurred by the father imprudently or otherwise than in the usual course of family management. The question now arises whether we should still consider ourselves bound by the decisions of this Court or are bound to apply the law which the Supreme Court have now declared as the law of the country. I am of opinion that the interpretation of the Hindu Law texts and law as laid down by the Supreme Court (I have extracted above) is fully binding on us according to the Constitution and must be followed in Mysore also.

28. There are also other circumstances which render such a course both necessary and desirable. The area now known as the Civil Station in Bangalore District and which was formerly known as C. and M. Station had been acceded to British India under a treaty by the Maharaja of Mysore. The Hindu Law which was being applied in that area was the law as laid down by the Privy Council and which was current in Madras which of course is the same as now stated by Mukherjea J. After the British left, that area is now ceded to Mysore. The Mysore High Court has now jurisdiction over Coorg under the Mysore High Court Amendment Act and in Coorg which was a Chief Commissioner's province before the Constitution, the law, as laid down by the Privy Council, was of course the prevailing law. Recently a large part of the Bellary District, which was a part of the Madras State has been ceded to Mysore and the law prevailing there also was the law laid down by the Privy Council.

It would be very difficult and anomalous end lead to great confusion in mercantile transactions and in respect of titles to property if the inter-, petition of Mitakshara law relating to debts andalienations is to be applied differently in different parts of Mysore. It is necessary that as far as possible there should be uniform law in these vital matters in the whole of India. Debts may be incurred or alienations made of properties situate say in Madras and in Mysore, the consideration being the discharge either partially or wholly of an antecedent debt, and in a suit arising for recovery of monies charged on such property or for declaration of rights in respect of such property it can easily be imagined what difficulties would arise if suits or other proceedings which may come to be filed either in Madras or in Mysore, different interpretations of the same Hindu Law texts are to be applied.

29. Under Art. 261(3) of the Constitution of India:

'Final judgments or orders delivered or passed by civil Courts in any part of the territory Of India shall be capable of execution anywhere within that territory according to law.'

The rapid advancement of trade and commerce throughout the country requires a common rule in respect of such vital matters of every day interest. It may be argued that the rights of minor sons in a joint Hindu family might thereby be jeopardised; but if that is the law that is prevailing all over India and has been accepted from the date of 1 Ind App 321 (PC) (R) as proper and binding, it is difficult to see any reason why we should not also come into line with that law and why it should be thought or considered that only a Hindu father in Mysore cannot be trusted to be either prudent or capable of looking after his own intersest and those of his sons during the course of the management or the family property. We felt that as the law as laid down in 15 Mys CCR 233 (FB) (E) had been in force for such a long time in Mysore, it was desirable that the question which has now arisen should be considered by a Full Bench and accordingly the matter has been heard by the Full Bench.

30. Another point which was raised before us for the respondents was that the debt due under Ex. 6 was a mortgage debt and not a simple debt and that it has been laid down in some cases of this court that a mortgage is an alienation and not a debt, and that the mortgagee must establish the legal necessity or benefit if the mortgage is to be upheld. Sitting as a single Judge I had occasion to consider this matter recently in S. A. No. 499 of 1851-52 (Mys) (Z2) then came to the conclusion that a debt must be held to include both simple and mortgage debts and have referred to a case reported in -- 'Hiralal v. Puran Chand' : AIR1949All685 where Misra J. observes at p. 687 :

'A debt secured by a mortgage, it seems almost axiomatic, is as much a debt of the father as an unsecured debt and considered in the light of the spiritual need which the doctrine of pious obligation was designed to meet, there would in principle, be scarcely any difference between the two transactions. The security would merely provide a means of recovery, and if the payment of a debt is obligatory on the debtor, and therefore on his sons, the payment of a mort-gage debt is also morally and religiously obligatory.'

This view is also supported by -- 'Arumugam Chetty v. Muthu Koundan' AIR 1919 Mad 75 (FB) (Z4); -- 'Venkanna v. Sreenivasa' AIR 1919 Mad 1175 (Z5); -- 'Mathura Misra v. Rajkumar Misra' AIR 1921 Pat 417 (FB) (Z6); -- 'Hari Prasad Singha v. Sourendra Mohan' AIR 1922 Pat 450(Z7) and 'AIR 1924 P.C. 50 (C)'. The cases of this Court reported in -- 'Nanjaiya v. Chowde-gowda', 14 Mys LJ 510 (Z8); & -- 'Bank of Mysore Ltd., Banglore City v. Mayakonda Veerappa', 18 Mys LJ 113 (Z9) and -- 'Rudrappa Setty v. Rangojee Rao', 18 mys LJ 133 (Z10), which have followed that decision are all cases where a Mortgagee sued and sought to obtain a mortgage decree against specific property mortgaged to him. But those cases do not lay down that a mortgage debt is not an antecedent debt which can support later alienations and have no bearing on the question now before us. In this view of the law it must be held that the alienation under Ex. 5 is binding on the shares of plaintiffs 4 and 5 in the joint family property to the extent of Rs. 1,750/- as it has gone to discharge the antecedent debts of the father though he is still alive.

31. The next question that arises for consideration is what is the relief which should be granted to the plaintiffs. The sale was for Rs. 2,500/- and a major part of the consideration has been held to be for purposes binding on the minors. The property sold is a cocoanut garden. Defendant 3 claims to have improved the property and though the learned Subordinate Judge has not accepted his evidence in this matter I think there might be some truth in that statement because defendant 6 was running into debts and could not have looked after the cocoanut garden efficiently and it is quite likely that he had allowed it to deteriorate for want of proper attention. The 1st plaintiff never appears to have claimed any interest in this property. It also appears from her conduct as if she had waived her rights to this item and allowed defendant G to deal with it as ho pleased. From the evidence it is not also clear that defendant 6 was the sole surviving coparcener of the joint family when her husband died. The plaintiff's have nowhere suggested that the price of Rs. 2,500/-was not the proper market value at the time.

In these circumstances I think the plaintiffs ought not to be given a share in item 2 and that defendant 3 should be directed to pay them a part of the purchase money which, it has been held, was not for purposes binding on minor plaintiffs 4 and 5. The counsel for defendant 3 has agreed before us that defendant 3 will pay Rs. 1,000/- instead of Rs. 750/- to plaintiffs 4 and 5 which may be taken to cover Rs. 750/- plus interest and costs of this litigation. Accordingly I direct that defendant 3 should pay this amount into Court within six months from this date. There will be a charge for this sum on item 2.

32. The parties will bear their own costs both here and in the Court below. The Court-fee payable to Government by the plaintiffs will be recoverable from them and will be a charge on the property which has been decreed in their favour.

33. Order accordingly.


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