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Maharaj Singh Minor by His Next Friend, Sarup Kuar Vs. Basa Mal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All205
AppellantMaharaj Singh Minor by His Next Friend, Sarup Kuar
RespondentBasa Mal and anr.
Excerpt:
hindu law - joint hindu family--sale of ancestral estate in execution of decree against father--effect of sale on son's rights and interests. - - but if the fact be that the purchaser has bargained and paid for the entirety, he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the execution proceedings. ' in the result, their lordships held that, as the purchaser had succeeded in showing that he bought the entirety of the estate, the suit of the plaintiffs had been rightly held to have failed. the plaintiff has failed to show that the debt for which the bond was executed was an immoral one;.....share in the joint estate co-extensive with and as large as that of all the other members of the joint family, including his father, and that it is competent for each and every member of a joint family at any time to demand partition of the ancestral property.' it has further been the rule of decision in this court see oldfield, j., in chamaili knar v. ram prasad i.l.r. 2 all. 267 and straight and brodhurst, jj. in rama nand singh v. gobind singh i.l.r. 5 all. 384 that one member of a joint and undivided hindu family cannot mortgageor sell his share of the joint property without the consent, express or implied, of his co-parceners. these rulings may be said to state the most important incidents that mark the relations of the members of the joint hindu family inter se; and we now.....
Judgment:

W. Comer Petheram, C.J. and Straight, J.

1. The circumstances of this case are set out at length in the order by which the appeal was originally referred to the Full Bench for decision, and they need not be recapitulated. The matter now has come back to us for decision, for reasons that need not be detailed, and before disposing of it, we think it desirable briefly to refer to certain decisions of their Lordships of the Privy Council, which were commented upon in the course of the arguments, as also sonre rulings of this Court, with a view to ascertain what are the clear and intelligible rules to be applied in the determination of these cases of a Hindu son seeking to avoid an alienation of joint ancestral property by his father. At the outset, and by way of introduction to the consideration of the subject, the description given by Lord Westbury of the characteristics of the joint Hindu family may he usefully quoted: 'According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property that he (that particular member) has a certain definite share. No individual member of an undivided family could go to the place of receipt of rent and claim to take from the collector or receiver of the rents a certain definite share. The proceeds of undivided property must be brought according to the theory of an undivided family, to the common chestor purse, and then dealt with according to the mode of enjoyment by the members of an undivided family'--Appovier v. Rama Subba Aiyan 11 Moo. I.A. 75. In this connection it will be convenient to refer to the principle laid down in Phul Chand v. Man Singh I.L.E. 4 All. 309 by Straight and Tyrrell, JJ., 'that every son born to the father of a joint Hindu family in possession of ancestral property acquires a positive, though undefined, share in the joint estate co-extensive with and as large as that of all the other members of the joint family, including his father, and that it is competent for each and every member of a joint family at any time to demand partition of the ancestral property.' It has further been the rule of decision in this Court see Oldfield, J., in Chamaili Knar v. Ram Prasad I.L.R. 2 All. 267 and Straight and Brodhurst, JJ. in Rama Nand Singh v. Gobind Singh I.L.R. 5 All. 384 that one member of a joint and undivided Hindu family cannot mortgageor sell his share of the joint property without the consent, express or implied, of his co-parceners. These rulings may be said to state the most important incidents that mark the relations of the members of the joint Hindu family inter se; and we now proceed to ascertain how far those relations have been touched or modified in reference to transactions between the father of the joint family, its natural head and manager, and third parties by which the joint ancestral property has been mortgaged or sold.

2. The first important decision of the Privy Council on the question of the power of the father of such a family to deal with the joint ancestral estate is to be found in the case of Girdharee Lall v. Kantoo Lall 14 B.L.R. 187 : 22 W.R. 56 : L.R. 1 Ind. Ap. 321. This was an action by a son in the lifetime of his father and uncle to set aside a sale of ancestral property made by them, on the ground that a sale by one member of an undivided property passes no interest in it whatever, and that any other member of the family can set it aside and bring the property back into the family. The Privy Council dismissed the suit, on the ground that ancestral property, which descends to a father under the Mitakshara law, is not exempted from liability to pay his debts because a son is born to him. It would be a pious duty on the part of the son to pay his father's debts, and it being the pious duty of the son to pay his father's debts, the ancestral property in which the son, as the son of his father, acquires an interest by birth, is liable to the father's debts. The next case is that of Deendyal Lall v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 Ind. Ap. 247. That was a suit by a son to recover possession of ancestral property which had been taken possession of by an auction-purchaser of 'the rights and proprietary and mokurrari title and share of Tufani Singh, the judgment-debtor,' who was the father of the plaintiff. The Privy Council decreed the claim, on the ground that possession of the undivided property could not be taken under a sale of one undivid share, but gave the defendant a declaration that he was entitled to stand in the shoes of Tufani Singh, and to obtain a share of the property by bringing a suit for partition. The judgment contains an expression of opinion that only the undivided share of the father can be sold in a suit to which he only is made a defendant; but inasmuch as the defendant in that suit had only bought the interest of the father, the point was not necessary for the decision of the case. The next case is that of Suraj Bunsi Koer v. Sheo Persad Singh I.L.R. 5 Cal. 148 : L.R. 6 Ind. Ap. 88. A family, consisting of a father and his minor sons, was in possession of an ancestral estate, and the father mortgaged the estate to secure a sum of Rs. 13,000 and interest, which he had himself borrowed for and spent in immoral purposes. The Privy Council held, on the authority of the case of Deendyal Lall I.L.R. 3 Cal. 198 : L.R. 4 Ind. Ap. 247, that the purchases under a decree on the mortgage security after the death of the father were cancelled as against the surviving sons, who had a right to have the estate partitioned and to obtain possession of the share of the father, and that the mortgage and the decree upon it would not affect the undivided share of the other members of the family because the money was borrowed and spent for N immoral purposes. In the course of the judgment, they affirmed the following propositions as being established by the case of Kantoo Lall 14 B.L.R. 187 : 22 W.R. 56 : L.R. 1 Ind. Ap. 321: 'first, that where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay of an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted; and secondly, that the purchasers at an execution sale, being strangers to the suit, if they have not had notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceeding.'

3. The case of Bissessur Lall Sahu v. Maharajah Luchmessur Singh 5 Cal. L.R. 477 : I.R. 6 Ind. Ap. 233 has been referred to, but on examination does not appear to have any bearing on the questions. In that case, an undivided family acquired, in 1847, the property which was in question, and afterwards decrees were obtained against various members of the family for debts which were undoubtedly debts for which the whole family was liable, and for which they might have been sued, and the family property been sold, had proper proceedings been taken. The Privy Council held in that case that the Court might look behind the decrees to ascertain whether the defendant was sued in his individual character or as the representative of the entire family, and that the execution should be in accordance with the real facts, and not necessarily against the property of the apparent defendant only. The next case in order is that of Muttayan Chetti v. Sangili Vira Pandia Chinnatambiar I.L.R. 6 Mad. 1 : L.R. 9 Ind. Ap. 128. The facts of that case are complicated, and it is not easy to gather from the report exactly what they were; but it is clear that the main question was, whether a property (that at the time of the mortgage was in the possession of a family which consisted of a father and son) mortgaged by the father alone could be sold after the death of the father under a decree obtained against him alone upon the mortgage. The Privy Council held that it could, the reasons given being that the whole zamindari, or at least the interest which the defendant, the son, took therein by heritage, was liable as assets by descent in the hands of the defendant as the heir of his father for the payment of his father's debts, and the Committee re-affirmed the doctrine laid down in Girdharee hall's Case. The next and last decision of the Privy Council on the subject is contained in the case of Hurdey Narain Sahu v. Rooder Perkash Misser I.L.R. 10 Cal. 626 : L.R. 11 Ind. Ap. 26. In that case an ancestral property was in the possession of a family which consisted of a father and son. It appeared that the father was indebted to the defendant in the suit of Hurdey Narain, partly on account of a mortgage and partly for further advances, and that Hurdey Narain brought a suit against him in order to recover the debt, and on the 4th of March 1873, obtained a common money-decree against him, and that the ancestral property was afterwards attached and sold under the decree, and purchased by Hurdey Narain, the judgment-creditor.

4. Under these circumstances the Privy Council say that the question which arises is, what was the right or interest in the ancestral property which Hurdey Narain acquired by his purchase at the sale in execution of the decree, and upon the authority of Deendyal's Case they held that as the decree was against the father alone, and was a money-decree only, such interest was confined to that of the judgment-debtor, the father, only and did not transfer the entire property to the purchaser. There is yet one more case recently decided by their Lordships, and not yet reported, namely, Nanomi Babuasin v. Modun Mohun decided the 18th December 1885 on appeal from Calcutta. There two sons sued to avoid a sale of the ancestral property held in execution of a decree against their father. The Subordinate Judge in whose Court the suit was tried found that all that had passed at the auction-sale to the purchaser was the right, title, and interest of the father, and he therefore gave the plaintiffs a decree for the ancestral property minus the father's share. On appeal the High Court reversed the decision of the Subordinate Judge, holding that the auction-purchaser bought the whole property, including the interests of the plaintiffs. The latter then appealed to the Privy Council, and their Lordships, after referring Co Deendyal Lall's Case, observed: 'If the expressions by which the estate is conveyed to the purchaser are susceptible of application either to the entirety or to the father's co-parcenary interest alone, the absence of the sons from the proceeding may be one material consideration. But if the fact be that the purchaser has bargained and paid for the entirety, he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the execution proceedings.' In the result, their Lordships held that, as the purchaser had succeeded in showing that he bought the entirety of the estate, the suit of the plaintiffs had been rightly held to have failed.

5. We now come to the cases which have been considered in the High Court of these Provinces. That of Ram Narain Lal v. Bhawani Prasad I.L.R. 3 All. 443 was decided by the Full Bench of this Court on the 24th January 1881, that is to say, after that of Bissessur Lall Sahu and before that of Hurdey Narain Sahu v. Booder Perkash Misser I.L.R. 10 Cal. 626 : L.R. 11 Ind. Ap. 26. In that case the facts were that an ancestral estate was in the possession of an undivided family which consisted of a father and four sons. The father borrowed a sum of money, and as security gave a bond by which he hypothecated a portion of the ancestral estate, describing it as his own. The lender afterwards sued the father on the bond and obtained a decree against him personally and for the sale of the mortgaged property. A sale took place under the decree, and the question was what passed to the purchaser. The majority of the Court (Stuart, C.J., Pearson, Spankie, and Oldfield, JJ.) held on the authority of Bissessur Lall Sahu's Case, that it was competent for the Court to go behind the decree, and to ascertain whether the money was borrowed for family purposes, and, upon its appearing that such was the case, to sell the family property under it. Straight, J., thought that as the decree was against the father alone, his share only could be sold under it. Another case is that of Gaura v. Nannie Chand Weekly Notes. 1883 p. 194 and Weekly Notes. 1884 p. 23. The only question in that case was on whom the burden of proof rested, when it was alleged that the property had been parted with by the father for unauthorized purposes, and the Court held that the burden of proving the assertion was on the person who made it; in other words, that the transaction would be presumed to be a legal and proper one until the contrary appeared.

6. It seems to us that two broad rules are deducible from the foregoing authorities, and they are these: First, that when a decree has been made against the father and manager of a joint Hindu family in reference to a transaction by which he has professed to charge or sell the joint ancestral property, and a sale has taken place in execution of such decree of the joint ancestral property without any limitation as to the rights and interests sold, the rights and interests of all the co-parceners are to be assumed to have passed to the purchaser, and they are bound by the sale, unless and until they establish that the debt incurred by the father, and in respect of which the decree was obtained against him, was a debt incurred for immoral purposes of the kind mentioned by Yajnavalkya, Chapter I, Section 48, and Manu, Chapter VIII, sloka 159, and one which it would not be their pious duty as sons to discharge. Next, that if, however, the decree, from the form of the suit, the character of the debt recovered by it, and its terms, is to be interpreted as a decree against the father alone and personal to himself, and all that is put up and sold thereunder in execution is his right and interest in the joint ancestral estate, then the auction-purchaser acquires no more than that right and interest, i.e., the right to demand partition to the extent of the father's share. In this last mentioned case, the co-parceners can successfully resist any attempt on the part of the auction-purchaser to obtain possession of the whole of the joint ancestral estate, or, if he obtains possession, may maintain a suit for ejectment to the extent of their shares upon the basis of the terms of the decree obtained against the father and the limited nature of the rights passed by the sale thereunder.

7. Applying these rules to this appeal, we are of opinion that it must succeed, and that the decree of the Subordinate Judge cannot stand. That the 21/2 biswas share of Mughalpur was sold at the execution-sale under the decree obtained against Sheoraj Singh and purchased by the defendants is clear from the terms of the decree and of the sale-certificate, and there can be no doubt that the entirety of the interest passed to them. The plaintiff has failed to show that the debt for which the bond was executed was an immoral one; indeed, a considerable proportion of the money borrowed was used for the purpose of paying arrears of Revenue. We decree the appeal and dismiss the cross-objection, and, reversing the decree of the Subordinate Judge, we dismiss the suit with costs in all Courts.


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