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Brijpal Singh and ors. Vs. Ram Sarup - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Case NumberExecution Decree Appeal No. 31 of 1947
Judge
Reported inAIR1950All704
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 60
AppellantBrijpal Singh and ors.
RespondentRam Sarup
Appellant AdvocateR.N. Shukla, Adv.
Respondent AdvocateH.N. Misra, Adv. for Respondent 1
DispositionAppeal dismissed
Excerpt:
.....to show are immoral or illegal. insolvency act, it was held that the insolvent's power to sell the joint family properties for his antecedent debts vested in the official assignee and the appeal failed in regard to the joint family properties which were not included in the bank's mortgage and which had been sold by the official assignee. the high court's direction that the division should be made only after provision for satisfaction of the remainder of the insolvent's antecedent debts, in so far as the appellants failed to show them to be illegal or immoral was further held to be right. in our opinion there is no good ground in principle why his rights in this matter should be affected by a partition to which he was naturally not a party. 277) goes further and lays down that it is the..........i. r. (13) 1926 p. c. 277) :'the father's power of sale for his debts exists only so long as the joint family property is undivided and the capacity of the official assignee must be similarly limited.'reference was also made by the learned counsel to the decision of varadachariar j. in thirumalamuthu v. subramania, a. i. r. (24) 1937 mad. 458: (170 i. c. 914) and piryashanker v. m. radheshiam : air1946all109 , govind ram dwarkadas firm, bombay v. nathulal, a. i. r. (24) 1937 nag. 45 : (i. l. r. (1938) nag. 10) and jainarain v. sonaji, a. i. r. (25) 1938 nag. 24 : (i. l. r. (1938) nag. 136).5. it must be conceded that these cases support mr. raj narain shukla's contention. hence as there is a conflict between the view taken by the full bench of the late chief court of avadh and these.....
Judgment:

1. This appeal originally came up for heating before our learned brother Ghulam Hasan J. Having regard to the importance of the question raised, and to conflict of judicial opinion on the point, ha considered it desirable that it should be decided by a Bench. The matter has accordingly been referred to us.

2. The material facts lie within a short compass.

3. Ram Sarup, respondent l, obtained a simple money decree against Tejpal Singh. Subsequent to the passing of this decree, a partition was effected in Tejpal Singh's family consisting of himself and his three sons, Brijpal Singh, Jitendrapal Singh and Rajendrapal Singh, the present appellants. In execution of his decree Ram Sarup applied for bringing on record the names of the appellants (Tejpal Singh's sons) and sought to attach and sell the property allotted to the latter on partition. The sons preferred an objection under Section 47, Civil P. C. They contended that the property allotted to them was not liable to attachment and sale because their father was alive and the pious obligation to repay the father's debts did not arise in the lifetime of the lather. The learned Munsif dismissed the objections. Tejpal Singh preferred an appeal which was disposed of by the learned Additional Civil Judge of Hardoi. It was contended before him that even if the pious obligation of the sons of a Hindu father to pay their father's debts, which are not illegal or immoral, arose in the father's lifetime, the fact that a partition was effected in the family subsequent to the passing of the decree in respect of the debt in favour of the creditor, renders the property allotted to the sons at such partition not liable to be attached and sold in execution of the father's decree. This contention was rejected by the learned Judge on the authority of R. K. Subramania v. Sabapathi Ayyar, A. I. R. (15) 1928 Mad. 657 : (51 Mad. 361 F. B.) and Jageshwar Pandey v. Mani Ram, A. I. R. (14) 1927 Oudh 180 : (2 Luck. 561). The appeal was accordingly dismissed. Dissatisfied with this decision the sons have preferred the present appeal.

4. It was not disputed that the case is covered by the decision of the Pull Bench of the late Chief Court of Oudh in Raghunandan Pershad v. Moti Ram, 6 Luck. 497 : (A. I. R. (16) 1929 Oudh 406 F. B.). But it was contended by Mr. Raj Narain Shukla, learned counsel for the appellants that the authority of that decision was considerably shaken by the following observation of their Lordships of the Judicial Committee in Sat Narain v. Sri Kishen Das, 63 I. A. 384 : (A. I. R. (13) 1926 P. C. 277) :

'The father's power of sale for his debts exists only so long as the joint family property is undivided and the capacity of the official assignee must be similarly limited.'

Reference was also made by the learned counsel to the decision of Varadachariar J. in Thirumalamuthu v. Subramania, A. I. R. (24) 1937 Mad. 458: (170 I. C. 914) and Piryashanker v. M. Radheshiam : AIR1946All109 , Govind Ram Dwarkadas Firm, Bombay v. Nathulal, A. I. R. (24) 1937 Nag. 45 : (I. L. R. (1938) Nag. 10) and Jainarain v. Sonaji, A. I. R. (25) 1938 Nag. 24 : (I. L. R. (1938) Nag. 136).

5. It must be conceded that these cases support Mr. Raj Narain Shukla's contention. Hence as there is a conflict between the view taken by the Full Bench of the late Chief Court of Avadh and these decisions, it is necessary to examine the principle on which the creditor's right is founded and to determine which of these two views should be followed.

6. To arrive at a correct conclusion with regard to this matter we shall briefly consider the theory of liability of a Hindu son to pay his father's debts, with special reference to the question before us, and how it has developed, step by step during the last three-quarters of a century as a result of judicial decisions.

7. Brihaspati observes:

'He who, having received a sum lent or the like, does not repay it to the owner, will be born hereafter, in his creditor's house a slave, a servant, a woman,' or a quadruped' (Brihaspati, Dig. I, 228).

According to Narada,

'when a devotee, or a man who maintained a sacrificial fire, dies without having discharged his debt the whole merit of his devotions, or of his perpetual fire, belongs to his creditors' (Narada I, 9, S. B. E. Vol. XXXIII, page 44).

8. Failure to discharge a debt was considered a sin by Hindu lawyers, and the duty of relieving the debtor from this sin falls on his son, grandson and great-grandson.

9. The liability to pay the father's debt is based on the religious and moral obligations to rescue him from this sin. It does not depend upon any benefit derived by the son from the debt which he is called upon to repay. Originally the liability of the son was absolute, and the duty to pay the debt of the father, which was not illegal or immoral, was cast upon the son after the father's death. Nor did the liability depend upon his having received any assets from his father, and the debt could be enforced against the son's person as well as his property. But as a result of judicial decisions, now the law as administered in all the provinces is that the liability of the son is limited to the assets received by him. These assets may be joint family property which devolved upon the son by survivorship, or the self-acquired property of the father inherited by the son. It is interesting to recall that in Bombay Presidency where in accordance with the original rule, the personal property of the son could be taken to satisfy his father's debt, the same result was brought about by legislative enactment (Bombay Act VII [7] of 1876). It is important to bear in mind the original rule and note the modifications to which it has been subjected by judicial or legislative process.

10. What procedure was adopted in ancient times for enforcement of these liabilities is not clear, but the Judicial Committee and the British Indian Courts have established a number of propositions as corollaries from the old law. It was laid down in Girdhareelal v. Kantoo Lall, 1 I. A. 321: (14 Beng. L. R. 187 P. C.), that father could sell the joint estate of himself and his son for his debts, provided they were not illegal or immoral. The decision in Girdharee Lall v. Kantoo Lall, 1 I. A. 321 : (14 Beng. L. R. 187 P. C.) held that, at the instance of a creditor, the Court had the power to attach and sell the joint estate in execution of a money decree obtained against the father alone. Suraj Bansi v. Sheo Prasad, 6 I. A. 88: (5 Cal. 148 P. C.) established that where joint ancestral property has passed out of the joint family, either under a conveyance executed by the father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree obtained for the father's debts, his sons, by reason of their duty to pay such debts, cannot recover that property, unless they show that the debts were contracted for illegal or immoral purposes, and that the purchaser had notice that the debts were so contracted. It was further held that the purchasers at an execution sale were not bound to make any inquiry beyond what appears on the face of the proceedings.

11. These, and other cases in which effect was given to the propositions set oat above, were followed by the decision in Mt. Nanomi Babuasin v. Mudun Mohan, 13 I. A. 1: (13 Cal. 21 P.c.), in which Lord Hobhouse laid down his well known dictum the t:

'Destructive as it may be of the principle of independent coparcenary rights in the eons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against his creditors' remedies for their debts, if not tainted with immorality. On this important question of the joint estate their Lordships think that there is no conflict of authority.'

12. In spite of this clear statement of the law on the subject of the competing claims of the eons who acquired a right in the joint family estate by birth on the one side, and those of his creditors who seek to make the joint estate available for satisfaction of the decrees obtained by them, the question as to the exact limits of the liability of the joint estate was often raised till the matter was finally set at rest by the Judicial Committee in Sat Narain v. Sri Kishen Das, 63 I.A. 384: (A. I. R. (13) 1926 P.C. 277). In that case Sri Kishen Das along with a number of other persons, including his sons, formed a joint Hindu family of which he was the managing member. Sri Kishen Das was adjudicated insolvent by the High Court of Bombay under the Presidency Towns Insolvency Act, 1909. After the order of adjudication, the Bank of Upper India Ltd., with whom Sri Kishen Das had mortgaged a large part of the immovable property owned by the family, instituted a suit for the recovery of their mortgage debts. Daring the pendency of the suit the minor sons of Sri Kishen Dass instituted a suit against their father, the Bank and the official assignee asking for a declaration that one half of the mortgaged property was owned by them and to the extent of their share the mortgage was not binding on them and also for an injunction to restrain the defendants from selling or alienating their one half share in the said properties. Shortly after the institution of the second suit, Sat Narain and others, who were the appellants before the Board, instituted a suit at Delhi against Sri Kishen DAS, the official assignee, the Bank and sundry purchasers of his property sold by the official assignee. By this suit they claimed partition of a half share of the immovable property belonging to the joint family, two lists of which were filed by the plaintiff, the first list setting out the mortgaged property in dispute and the second detailing the property free from the mortgage.

13. The three suits were tried together by the District Judge, He dismissed the suit for partition as also the declaratory suit brought by the sons of Sri Kishen Das. He gave a decree in the bank's suit for the sum claimed with interest, but made no order for sale, in respect that the larger portion of the mortgaged property had already been sold by the official assignee. The decrees in the declaratory suit and the partition suit were appealed against before the Punjab Chief Court. The appeal in the declaratory suit was dismissed. In the partition suit it was ordered by the High Court of Judicature at Lahore that the decree of the District Judge, Delhi, dismissing the suit be varied 'to the extent of giving the plaintiff-appellants a preliminary decree declaring their share in the unsold properties as detailed below, (here follow particulars of nine properties) to be one-halt and directing that division shall only be made after provision (or the satisfaction of the remainder of the debt due to the Bank and such other antecedent debts of Sri Rai Bahadur Kishen Das as the plaintiffs fail to show are immoral or illegal.'

14. The appeals before their Lordships were against these two decrees of the High Court. No question was raised before the Judicial Committee as to the joint family properties included in the Bank's mortgage. The appeals were confined to properties not included in the bank's mortgage. Some of it had already been sold by the official assignee while others were yet unsold. The decree of the High Court was challenged in two respects: (1) because the declaration in the appellants' favour was confined to properties so far unsold by the official assignee, and (2) regard to the direction as to the provision for the remainder of the antecedent debts. Having regard to the provisions of Section 52(2)(b). Presidency-Towns. Insolvency Act, it was held that the insolvent's power to sell the joint family properties for his antecedent debts vested in the official assignee and the appeal failed in regard to the joint family properties which were not included in the bank's mortgage and which had been sold by the official assignee.

15. As to the unsold properties not included in the bank's mortgage, the appellants' right to a preliminary decree declaring their share was upheld. The High Court's direction that the division should be made only after provision for satisfaction of the remainder of the insolvent's antecedent debts, in so far as the appellants failed to show them to be illegal or immoral was further held to be right. It was contended for the appellant that the pious obligation of the sons was an obligation not to object to the alienation of the joint estate by the father for his antecedent debts, unless they were immoral on illegal, but that these debts were not a liability of the joint estate. This contention was overruled, and Lord Thankerton who delivered the judgment of the Board held that the father's debts which were not illegal or immoral were 'no doubt a liability of the joint estate' and that it was right that provision for the discharge of this liability should be made on partition of the joint estate.

16. The question as to the liability of the estate so long as it remains joint; has thus been finally settled. But the question arises what are the rights of a creditor who obtains a decree against the father and subsequently, when a partition is effected no provision is made for satisfaction of his debts? Would the partition affect the creditor's right to attach and sell the entire family property which had now become divided and a portion of it had gone to the son? In our opinion there is no good ground in principle why his rights in this matter should be affected by a partition to which he was naturally not a party. We have seen that under the old Hindu law, there could be no doubt as to the answer to the question noted above. In these days even the personal property of a son, who had received no assets from his father, was held liable to satisfy his father's debts after the death of the father. The present law, as laid down by the Judicial Committee, is that it is the liability of the entire joint family estate to satisfy the debts of the father if they are not illegal or immoral. Sat Narain's case, 63 I. A. 384: (A. I. R. (13) 1926 P. C. 277) goes further and lays down that it is the duty of those who effect a partition of the joint family estate to make provision for the unsatisfied debts of the father which are not immoral.

17. The ancient rule in so far as it made the son liable to satisfy the debts of his father, from whom he received no assets, seemed to the modern mind to be not in accord with justice, equity and good conscience. So it was modified by judicial decisions (in Bombay by legislative process). But the liability of the joint legislative (sic) family estate for such debts, though questioned at times, was always affirmed. We are clear that in these circumstances the sons who are parties to a partition with their father should not be allowed to affect the creditor's remedy to attach and bring to sale the sons' share of the family estate because they neglected their duty to provide for these debts at the time of partition.

18. It is pertinent to note that the modification of the old Hindu law effected in the interest of the son who received no assets from his father was not intended to go further the n to save him from liability for a debt of another which was not incurred for his purpose and from which he had derived no benefit. Such a liability appeared to be harsh and unjust to the modern mind. These modifications were not intended to effect any other change in the Hindu law. The doctrine which gives a son a right by birth in his father's ancestral estate was left wholly untouched. Nor were in our opinion these modifications intended to affect in any manner the remedies of a creditor who held a decree against the father to make the entire family property, whether in the hands of the father or the son, as a result of a subsequent partition available for satisfaction of his debt. It is likely to lead us into error if we forget what the old law was and fix upon stray sentences found in decisions not dealing specifically with the question now under consideration.

19. An examination of the cases cited by Mr. Shukla shows that the two main grounds on which the view that the share which the sons receive on a partition among them and their father cannot be taken in execution of a decree obtained against the father before the partition was effected, are: (1) that the liability of the property belonging to the joint Hindu family consisting of a father and his sons to be taken in execution of a decree obtained against the father rests on the power of the father to sell such property for satisfaction of his debts. Accordingly, if the father's power to sell any portion of the family property ceases, the creditor loses his right to attach and sell the same for the satisfaction of his decree and (2) that the attachment of property in execution of a decree can be effected only under Section 60, Civil P. C. that section authorises attachment of only such property as belongs to the judgment-debtor, or over which or profits of which be has a disposing power which he may exercise for his own benefit. After the partition the property allotted to the sons ceases to belong to the judgment-debtor nor has he, since the partition, a disposing power over that property or the profits thereof which he may exercise for his own benefit. Accordingly, it cannot be attached under Section 60, Civil P. C. It is not clear whether the first of these propositions raises a ground based on substantive law or the law of procedure. If it raises a question of substantive law the answer is to be found in Sat Narain v. Sri Krishen Das, 63 I. A. 384: (A. I. R. (13) 1926 P. C. 277). that case lays down that it is the liability of the entire joint family property to satisfy the father's debt, if not immoral or illegal. It further held that if a partition is effected between the father and his sons, provision should, at the time of the partition, be made for satisfaction of such debts. As pointed out by Hasan J. in Raghunandan Pershad v. Moti Ram, 6 Luck. 497: (A. I. R. (16) 1929 Oudh 406 F. B.), it is not correct to say that the liability of the joint family property to be seized in execution is co-extensive with the power of the father to sell it for satisfaction of his debts and therefore if the latter is lost the former disappears. So far as the substantive law relating to the rights of the creditors and the liability of the joint family property is concerned there has been no modification of the old Hindu law. It would be illogical to hold that a law which made a son's personal property liable to satisfy his father's debts which were not immoral would make a part of the joint family property received by him at a partition between him and his father exempt from such liability.

20. The statement that as a father can effect a sale of joint family property in favour of the creditor which is binding on the son, so, the creditor can enforce his claim by decree and execution against the interest of both the father and the son in the joint family property does not necessarily imply that if the father's power to sell the son's share in the family property ceases as a result of partition, the creditor's remedy to attach and sell that share also ceases. The foundation of the creditor's right to attach and sell the entire joint family property, including the son's share, is the liability of the joint family estate to satisfy the debt and not the father's power to sell. As pointed out by the editor of Mayne's Hindu Law and Usage (10th Edn., p. 439), the view that the right to attach and sell in execution of a money decree against the father can only be rested on the father's power to sell for the discharge of his antecedent debts is not supported by the case of Girdharee Lall v. Kantoo Lal (l I. A. 321: 14 Beng. L. R. 187 P. C.). In that case, it was based simply on the son's obligation to pay out of ancestral property his father's debts. Their Lordships observed:

'If his father had died, and had left him as his heir and the property had come into his hands, could he have said that because this was ancestral property which descended to his father from his grand-father, it was not liable at all to pay his father's debts?'

We agree with the view expressed by the learned editor of the latest edition, p. 440, that no principle of Hindu law would seem to re. quire a creditor to bring a separate suit against the sons after partition when a decree for a debt made against the father before he became divided with his sons is, as a decree, binding upon them so far as their shares in the joint estate are concerned.

21. In our system of law there can be found instances where property which the judgment-debtor cannot sell for his own purposes can be sold in execution of a money decree obtained against him (U. P. Tenancy Act, Section 251).

22. If the question raised is one pertaining to the law of procedure, it is covered by the second ground and will be dealt with under that head.

23. As regards the objection raised on the language of Section 60, we are of opinion that it 'doss not present any insuperable obstacle to the execution of decree. There can be no doubt that if there is a right, a remedy must be found to enforce it. That the creditor has a right to make, the entire joint family property available for satisfaction of his debt, even after a partition cannot be disputed. Before partition the decree could admittedly be executed against the entire joint family property, including that part of it which was allotted to the sons at division. It is objected, however, that after the partition the decree became incapable of execution against that portion of the joint family property which is allotted to the sons because the father has ceased to have the power to dispose of it for his own purposes.. There has been no change in the rights and obligations of the parties as arising under the substantive law. It is contended, however, that it is the law of procedure which stands in the way of the execution of decree against the share of the family property allotted to the sons.

24. Though the sons were not impleaded as defendants in the suit which terminated in the decree sought to be executed, there can be no doubt that they were bound to pay it as much as the father, and the property to which they laid claim at partition was as much liable to satisfy the decree as any other portion of the joint family property. According to the dictum of Lord Hobhouse in Mt. Nanomi Babuasin v. Mudun Mohan, 13 I. A. 1 : (13 Cal. 21 P. c.), the sons cannot set up their rights against their father's alienation for an antecedent debt or against his creditor's remedies for their debts, if not tainted with immorality. To accept the appellant's contention would be to go against this enunciation of the law relating to the rights of the creditor of a Hindu father. It might be objected that the observations of Lord Hobhouse were meant to apply to oases where the family was still joint. But in view of the decision of their Lordships of the Judicial Committee in Sat Narain v. Sri Krishen Das, 63 I. A. 384: (A. I. R. (13) 1926 P. C. 277) a partition in the family should not affect the remedies available to the creditor for enforcement of his decree. It is true that Sat Narain's case (63 I. A. 384: A. I. R. (13) 1926 P. C. 277) did not decide any point pertaining to the law of procedure, but Lord Thankerton made it clear that at the time of the partition provision should be made for the unsatisfied debts of the father which are not illegal or immoral. If this is the extent of the liability of the joint family property, it would be anomalous in the highest degree to refuse to execute the decree against the son's share after a partition is effected.

25. The technical difficulty arising out of the language of Section 60, Civil P. C., can be easily got over by construing the word 'judgment-debtor' in that section so as to include the sons of a Hindu father against whom a decree has been obtained. 'Judgment-debtor,' as de-fined in Section 2(10), Civil P. C., is a person against whom a decree has been passed or an order capable of execution has been made. It is true that the names of the sons do not appear in the decree as they are not parties to the litigation and in that sense they are not technically 'judgment-debtors.' But in view of the fact that not only the property which they owned is joint family property, but even property which they got at division was liable to satisfy the debts due to the decree-holder, it is doing no violence to the language of Section 60 to construe the word 'judgment-debtor' so as to include the sons.

26. A reference to the provisions of Section 53, Civil P. C., shows that if a Hindu father, against whom a money decree has been obtained, dies and the entire joint family property devolves on his sons by right of survivorship, the decree can be executed against his property in the hands of his sons. Thus, there is nothing in principle which would militate against the view taken by us that the word 'judgment-debtor' in Section 60 should be construed so as to include the sons of Hindu father against whom a decree for a debt has been obtained. Disagreeing, therefore, with the view taken in the Madras oases, and accepting that expressed in Raghunandan Pershad v. Moti Ram, 6 Luck. 497: (A. I. R. (16) 1929 Oudh 406 F. B.), we hold that the learned Judge in the Court below came to a correct conclusion in dismissing the sons' objection and allowing execution to proceed against the share that was allotted to them at the partition. The appeal is accordingly dismissed with costs.


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