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Shiva Nath Prasad Vs. Tulshi Ram - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in89Ind.Cas.480
AppellantShiva Nath Prasad
RespondentTulshi Ram
Cases ReferredBrij Narain Rai v. Mangla Prasad Rai
Excerpt:
hindu law - joint family--mortgage executed by father--immoral debt--liability of sons--interest of father, whether liable. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - on behalf of the son at was pleaded that the debt was tainted with immorality and, therefore, the mortgage was bad and the son was not liable to pay the debt. absolutely no substance in the first contention, all that the court held was that in view of the finding on the question of immorality the mortgage was bad and, therefore, there had been no transfer of the property and no charge created. the previous cases referred to above, therefore, still hold good......in the property is concerned but has ordered execution against the interest of the father in the joint property. the son appeals to this court and on his behalf it is contended in the first place that the effect of the previous decision was to make the entire family property free from all liability; and in the next place it is contended that in the face of the finding that the debt was tainted with in motility it is not open to the decree-holder to attach any portion of the joint ancestral property. we think that there is; absolutely no substance in the first contention, all that the court held was that in view of the finding on the question of immorality the mortgage was bad and, therefore, there had been no transfer of the property and no charge created. it passed a simple money.....
Judgment:

1. This is an appeal by a Hindu son-from a decree parsed in execution against him. His father had made a mortgage in favour of the plaintiff-decree-holder and a suit was instituted against him, impleading his minor son. On behalf of The Son at was pleaded that the debt was tainted with immorality and, therefore, the mortgage was bad and the son was not liable to pay the debt. The Court found that the debt was proved to have been, tainted with immorality and therefore declined to pass a decree for sale on the basis of the mortgage-deed but simply passed a money-decree against the father personally. The decree-holder put the decree for money against the father in execution and attached the whole of the ancestral property including that which had been mortgaged. The Court below has allowed the objection of the son so far sis the attachment of his interest in the property is concerned but has ordered execution against the interest of the father in the joint property. The son appeals to this Court and on his behalf it is contended in the First place that the effect of the previous decision was to make the entire family property free from all liability; and in the next place it is contended that in the face of the finding that the debt was tainted with in motility it is not open to the decree-holder to attach any portion of the joint ancestral property. We think that there is; absolutely no substance in the first contention, All that the Court held was that in view of the finding on the question of immorality the mortgage was bad and, therefore, there had been no transfer of the property and no charge created. It passed a simple money decree against the father, but it did not, in any other way, hold that any ancestral property would never be liable to be sold in execution of the decree against the father.

2. The next contention also has no force. It was held by their Lordships of the Privy Council in the case of Dcendyal Lai v. Jugdeep Narain Singh 3 C. 198 : 11. A. 247 : 1 C.L.R. 49 : 3 Sar. P.C.J 730 : 3 Suth. P.C.J. 468 : 1 Ind Jur. 604 : 1 Ind Dec (N.S.) 715 (P.C). that the right, title and interest of one co-sharer in a joint ancestral estate might be attached and sold in execution to satisfy a decree against him personally under the Law of Mitakshara. This principle was re-affirmed by their Lordships in the case of Suraj Bunsi Koer v. Sheo Perahad Singh 5 C. 148. 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth P.C.J. 583 : 4 C.L.R. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 715 (P.C.), where at page 174 their Lordships observed that the previous decision had recognized the seizable character of an undivided share in a joint property. This case has been followed by this Court in the case of Lachmi Narain v. Kunji Lai 16 A 449 at pp. 455, 456 : A.W.N. (1994) 169 : 8 Lid. Dec. (N.s.) 292. arid in the case of Chandra Sen v. Ganga Ram 2 A. 899 : 1 Ind. Dec. (N.s.) 1165. It seems to us that if the interest of the father alone can be seized in execution of a decree against him the question of the immorality of the debt does not arise. The son is not called upon to pay this debt nor is his property said to be attached and sold. He is entitled to get his interest in the joint property exempted. But it does not-follow that he is also entitled to prevent the attachment and sale of the interest of his father against whom a decree is in force. In the Full Bench case of Karan Singh v. Bhup Singh 27 A. 16 : 1 A.L.J. 310 : A.W.N. (1904) 151 (F.B.), reference was made to an earlier Privy Council case and it was pointed out that if the son sought to escape from having his interest affected by the sale he had to establish that the debt he desired to be exempted from paying was of such a character that he as a Hindu son could not be under the pious obligation to discharge it. In a recent case of Abdul Karim v. Ram Kishore : AIR1925All327 . the above mentioned Full Bench case was followed.

3. It is lastly contended that the observations of their Lordships of the Privy Council in the case of Brij Narain Rai v. Mangla Prasad Rai 77 Ind. Cas. 689 : 21 A.L.J. 934 : 46 M.L.J. 23 : 5 P.L.J. 1 : 28 C.W.N. 253 : (1924) A.I.R. (P.C.) 50 : (1924) M.W.N. 68 : 19 L.W. 72 : 2 Pat. L.R. 41 : 10 O. & A.L.R. 82 : 33 M.L.T. 457 : 46 A. 95, 26 Bom. L.B. 500 : 11 0.L.J. 107 : 511. A. 129 : 1 O.W.N. 48 : 41 C.L.J. 232 (P.C.). conclude this point and make the entire estate free from liability in case the debt is contracted for immorality. We think that the propositions laid down by their Lordships do not cover the point now before us. The question whether the interest of one coparcener can be attached and sold in execution of a decree against him was not a matter before their Lordships. The previous cases referred to above, therefore, still hold good. We are of opinion that this appeal has no force. It is accordingly dismissed with costs including fees on the higher scale.


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