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Abdul Karim Vs. Ram Kishore and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1925All327
AppellantAbdul Karim
RespondentRam Kishore and ors.
Excerpt:
.....feature of this case, in our opinion, is that, if the question in issue had been argued before the learned judge of this court as efficiently as it has been argued before us to-day, it is not likely, and it does not appear from his own judgment, that he would have arrived at the decision that he did pronounce. we think his attention might well have been invited to the fact that the decision in sheodan singh's case had already, by the date on which he pronounced his judgment, been expressly dissented from by another bench of this court vide, mohan lal v. we make this order for the reason already indicated, namely, that we think, if this appellant's case had been efficiently represented before the single judge of this court, he would probably have been spared the necessity of filing the..........singh a.i.r. 1922 all. 323. feeling himself, apparently, constrained to follow this decision, the learned judge reversed the decree of the lower appellate court and restored that of the court of first instance. the creditor has brought this matter before us by an appeal under the letters patent. we think the learned judge of this court was undoubtedly wrong. ever since the case of karan singh v. bhup singh (1904) 27 all. 16, decided by a full bench of this court more than twenty years ago, it was regarded as settled law in this court that, if the joint ancestral property of a hindu family governed by the mitakshara law is attached in execution of a personal decree obtained against the father of the family, his sons can only secure the exemption of their interest in the said property.....
Judgment:

1. One Bahadur was the head of a joint undivided Hindu family consisting of himself and his three minor sons. Desiring to embark upon a certain business, Bahadur borrowed some money on his personal security. There is no question here of any alienation of the joint family estate in his hands, He found a creditor willing to advance the money on his personal security, and on those terms he had a perfect right to borrow. He failed to repay the money and the creditor bringing a suit obtained a simple money decree against him. In execution of this decree, the creditor attached a portion of the joint ancestral family property in the hands of Bahadur. Thereupon the suit out of which this appeal arises was filed by the three minor sons, who came into Court through their mother as their next friend. The relief Bought was a declaration that the property attached in execution, to the extent of the shares which the plaintiffs would take on partition, amounting to three-fourths of the whole was not saleable in execution of the decree obtained against Bahadur. The first Court decreed this claim. On appeal the learned District Judge, relying principally on the decision of their Lordships of the Privy Council in Sripat Singh Duqar v. Maharajah Sir Prodyot Kumar Tagore A.I.R. 1916 P.C. 220 reversed the decision of the first Court and dismissed the suit. There was a second appeal, which was heard and determined by a single Judge of this Court. His attention was drawn to the reported decision of a Division Bench of this Court in the case of Sheodan v. Bhagwan Singh A.I.R. 1922 All. 323. Feeling himself, apparently, constrained to follow this decision, the learned Judge reversed the decree of the lower appellate Court and restored that of the Court of first instance. The creditor has brought this matter before us by an appeal under the Letters Patent. We think the learned Judge of this Court was undoubtedly wrong. Ever since the case of Karan Singh v. Bhup Singh (1904) 27 All. 16, decided by a Full Bench of this Court more than twenty years ago, it was regarded as settled law in this Court that, if the joint ancestral property of a Hindu family governed by the Mitakshara law is attached in execution of a personal decree obtained against the father of the family, his sons can only secure the exemption of their interest in the said property from attachment or sale by satisfying the Court that the debt in respect of which the decree was obtained 'was tainted with immorality, or was otherwise such a debt as it could not be the pious duty of the sons to satisfy. It is quite true that the authority of this decision was understood for a time to have been unsettled by a pronouncement incidentally made by their Lordships of the Privy Council, while deciding a different matter, in the case of Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61, but as the learned District Judge remarked in the present case, it was never apparent that their Lordships intended by expressions used in their judgment in Sahu Ram Chandra's case to contravene any principle laid down by them in the case of Sripat Singh above referred to. Apart from this, however, their Lordships have themselves cleared up the matter since, and we may take it that it is not to be regarded as a correct proposition of law that the question of the pious duty of Hindu sons to satisfy a debt incurred by their father, not tainted with illegality or immorality, only arises after the death of the father. An unfortunate feature of this case, in our opinion, is that, if the question in issue had been argued before the learned Judge of this Court as efficiently as it has been argued before us to-day, it is not likely, and it does not appear from his own judgment, that he would have arrived at the decision that he did pronounce. We think his attention might well have been invited to the fact that the decision in Sheodan Singh's case had already, by the date on which he pronounced his judgment, been expressly dissented from by another Bench of this Court vide, Mohan Lal v. Bala Prasad A.I.R. 1922 All. 310 and was inconsistent with the decisions of Benches of this Court in at least two other cases: vide, Bawan Das v. C.M. Chiene A.I.R. 1922 All. 737 and Kalyan Singh v. Dharam Singh A.I.R. 1922 All. 489, We feel no hesitation in holding that the authority of the Pull Bench case of Karan Singh v. Bhup Singh (1904) 27 All. 16 must not be regarded as having been shaken by any subsequent decisions, and that we stand by the principle therein laid down. This appeal must, therefore, prevail. We set aside the decision of the learned Judge of this Court and restore that of the lower appellate Court.

2. As regards costs, the decree of the lower appellate Court will of course stand. With respect to costs in this Court, we allow the defendant, who is the appellant under the Letters Patent, one-half of his costs of both hearings in this Court, that is to say, one-half of the higher scale fee. We make this order for the reason already indicated, namely, that we think, if this appellant's case had been efficiently represented before the single Judge of this Court, he would probably have been spared the necessity of filing the present appeal.


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