Skip to content


Bisheshar Vs. Balbhadar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All495
AppellantBisheshar
RespondentBalbhadar and ors.
Excerpt:
hindu law - joint and undivided hindu family--joint and undivided property--debts of deceased member--liability of his interest. - - and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and enjoy in severalty, although the property itself has not been actually severed and divided '(p. 88 which carried the rule somewhat further, inasmuch as it was there held that seizure by attachment in execution is sufficient to constitute, in favour of a judgment-creditor, a valid charge upon property to the extent of the joint member's undivided share and interest, and that such charge could not be defeated by his death subsequent to such attachment, though antecedently to the actual sale. in laying down this rule their lordships..........90). such being the nature of the rights and interests of a member of a joint hindu family in the joint property, it was for a long time an unsettled question, whether such rights and interests could, on the one hand, be alienated by private sale by any individual member; and on the other hand, whether they could be brought to sale for his personal debts in execution of a decree. the former part of this question would seem to be still unsettled by the highest authority, unless the ruling of the privy council in lakshman dada naik v. ramchandra dada naik i.l.r. 5 bom. 48; l.r. 7 ind. ap. 181 be taken to afford a settlement of the matter; for the lords of the privy council in phoolbas koonwur v. jogeshur sahoy i.l.r. 1 cal. 226 : l.r. 3 ind. ap. 7 only referred to it, but abstained from.....
Judgment:

Mahmood, J.

1. I may at once state that I am not at all disposed to disturb in second appeal the concurrent findings of the Courts below as to the joint and undivided nature of the family and of the property in suit. Nor do I think it is necessary for us to investigate the bond fides of the debt which the bond of purported to secure, because the case for the defence has all along been that the debt was a personal debt of Shankar, who was separate and divided from the plaintiff. There is absolutely no plea to the effect that the money was borrowed by Shankar as a managing member of a joint Hindu family, for the joint purposes of such family; and no such question having been raised, I think the learned Judge acted rightly in not entering into the merits of the bond fides of the bond, for the simple reason that the Hindu law imposes no liability upon the plaintiff to pay off the debts of his grand-uncle under such circumstances. Nor do I think it is necessary for us in this case to consider whether Musammat Suraj Bansi, the widow of Shankar, was rightly impleaded, as the representative of her deceased husband, in the suit which ended in the decree of the 8th March 1881. For I think that the whole question in the present case is, whether, after the death of Shankar, any such estate was left by him as could be made liable for the payment of his debts, such as the one for which the auction-sale of the 20th June 1884, took place.

2. In Appovier v. Rama Subha Aiyan 11 Moo. I.A. 75 Lord Westbury, in delivering the judgment of the Privy Council, observed that 'according to the true notion of and 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 Hindu family could go to the place of the 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 chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family. But when the members of an undivided family agree among themselves, with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and enjoy in severalty, although the property itself has not been actually severed and divided '(p. 90). Such being the nature of the rights and interests of a member of a joint Hindu family in the joint property, it was for a long time an unsettled question, whether such rights and interests could, on the one hand, be alienated by private sale by any individual member; and on the other hand, whether they could be brought to sale for his personal debts in execution of a decree. The former part of this question would seem to be still unsettled by the highest authority, unless the ruling of the Privy Council in Lakshman Dada Naik v. Ramchandra Dada Naik I.L.R. 5 Bom. 48; L.R. 7 Ind. Ap. 181 be taken to afford a settlement of the matter; for the Lords of the Privy Council in Phoolbas Koonwur v. Jogeshur Sahoy I.L.R. 1 Cal. 226 : L.R. 3 Ind. Ap. 7 only referred to it, but abstained from giving any ruling. The question was again referred to by their Lordships, but not determined, in Deendyal Lal v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 Ind. Ap. 247 which, however, settled the latter part of the question enunciated by me. In that case their Lordships drew a distinction between the power of private alienation possessed by a member of a joint Hindu family and the power of a Court to seize his share, at the instance of a judgment-creditor, in execution of a decree for personal debts. And I take that case to have finally decided the question in the affirmative, and to have ruled that the share of a member of a joint Hindu family possesses a seizable character for purposes of execution, and that when it is brought to sale, the purchaser at such execution-sale possesses the right of compelling the other members of the joint family to separate the debtor's share by partition. The same I understand to be the effect of a more recent ruling of their Lordships in Hardi Narain Sahu v. Ruder Perkash Misser I.L.R. 10 Cal. 626. But the case which needs special reference here is the ruling of their Lordships in Suraj Bunsi Koer v. Sheo Persad Singh I.L.R. 5 Cal. 148 : L.R. 6 Ind. Ap. 88 which carried the rule somewhat further, inasmuch as it was there held that seizure by attachment in execution is sufficient to constitute, in favour of a judgment-creditor, a valid charge upon property to the extent of the joint member's undivided share and interest, and that such charge could not be defeated by his death subsequent to such attachment, though antecedently to the actual sale. In laying down this rule their Lordships disapproved of the ruling of this Court in Goor Pershad v. Sheo Deen N.W.P.H.G. Sep. 1872 p. 137 so far as that ruling ignored the seizable character of an undivided share in joint property, which had since been established by the ruling of the Privy Council in the case of Deendyal Lal v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : L.R. 4 Ind. Ap. 247 to which I have already referred. But the exact question here is not the same as in that of Suraj Bunsi Koer I.L.R. 5 Cal. 148 : L.R. 6 Ind. Ap. 88. Here, during the lifetime of Shankar, the bond of the 11th March 1877, was never even sued upon the decree of the 8th March 1881, and the sale of the 20th June 1884, took place when Shankar was no longer in existence. And in such circumstances the exact question before us is, whether Shankar left behind him any such rights at all as could either be seized in execution or be made the subject of an execution.

3. Fortunately this question needs no reference to original authorities, because I hold that the doctrine of the Lords of the Privy Council in the case of Suraj Bunsi Koer I.L.R. 5 Cal. 148 : L.R. 6 Ind. Ap. 88, is conclusive upon this point. Their Lordships observed: 'It seems to be clear upon the authorities that if the debt had been a mere bond debt, not binding on the sons by virtue of their liability to pay their father's debts, and no sufficient proceedings had been taken to enforce it in the father's lifetime, his interest in the property would have survived on his death to his sons, so that it could not afterwards be reached by the creditor in their hands.'

4. These observations are, in my opinion, fully applicable to this case, and, indeed, go beyond the exigencies of what we have got to determine here, the plaintiff not being a son of the deceased Shankar, for whose personal debts his share was purported to be sold on the 20th June 1884. And I hold that upon that date, Shankar having died even before the litigation which terminated in the decree of the 8th March 1881, his share had already vanished and been taken by the plaintiff by right of survivorship, without being subject to the payment of Shankar's personal debts. I may perhaps also add that the family being joint, Musammat Suraj Bansi, the widow of Shankar, could have no such rights in her husband's share as could be affected by the sale in execution of the decree against her; whilst the fact of Musammat Sawan Kali having also been impleaded in that suit, cannot, of course, help the defendants-appellants, purchasers of the execution-sale, she being the widow of Shankar's son who had pre-deceased his father.

5. For these reasons I would dismiss this appeal with costs.

Oldfield, J.

6. This suit relates to property left by one Bijai. He was. succeeded by his sons Sheo Ratan and Shankar; the plaintiff represents the former. Shankar before his death borrowed money on a simple bond from one Ram Sahai, who after the death of Shankar sued his widow and daughter-in-law, and obtained a decree against them, and in execution brought to sale Shankar's interest in the property, and it was purchased by defendant-appellant.

7. The plaintiff is the grand-nephew of Shankar, and sues to recover the' property sold at auction, on the ground that it was the joint property of Shankar and himself, and could not be taken and sold in execution of Shankar's debt.

8. The Courts have allowed the claim and the defendant has appealed.

9. The objection to the finding that the property was joint undivided property of Shankar and the plaintiff is not one which can be entertained in second appeal, the finding on this point by the Courts below being one of fact; and when it has been found that the property was undivided the appeal must fail. On the death of Shankar, his interest passed to plaintiff by survivorship, and was not liable after his death for any personal debt which he bad incurred. No charge had been made on the property, and the creditor could not recover his money from the joint property after the death of Shankar, when he had not obtained judgment against Shankar, and taken out execution by attachment against him. I may refer on this point to the case of Suraj Bunsi Koer v. Sheo Persad I.I.R. 5 Cal. 148 : L.R. 6 Ind. Ap. 88 and Bai Bai Knhm v. Bai Sita Ram I.L.R. 7 All. 731. The appeal will be dismissed with costs.


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