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Narayana Prabhu and ors. Vs. Janardhana Mallan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberA.S. No. 8 of 1968
Judge
Reported inAIR1974Ker108
ActsHindu Law
AppellantNarayana Prabhu and ors.
RespondentJanardhana Mallan and ors.
Appellant Advocate T.S. Venkiteswara Iyer,; R.C. Plappally and; P.K. Balasu
Respondent Advocate M.K. Narayana Menon, Adv.
Cases ReferredNachimuthu v. Balasubramonia.
Excerpt:
(i) property - antecedent debt - impugned sale deed not supportable on plea of being for benefit of estate - not shown by evidence that debts discharged by sale of other items released were debts binding on joint family - attempt has been made to show that there were such debts and not to establish that those were debts of joint family - sale deed not executed for discharge of antecedent debt by hindu father. (ii) value of improvement - alienee effecting valuable improvements in property - decree provides for compensating alienee - court below erred in limiting value to cost of improvements in area to be ultimately surrendered to plaintiff under final decree - value of improvements assessed by value determined in accordance with accepted principles. - - this sale deed is said to be.....subramonian poti, j.1. defendants 1 to 3 in a suit for recovery of possession of property on the basis of title are the appellants in this appeal the plaintiffs claimed that their father, one deceased venkiteswara mallan, was in possession and enjoyment of the suit property when he, in conjunction with the 4th defendant, his eldest son, is said to have executed a sale deed for the suit property in favour of the first defendant that is ext. p-2 dated 24-3-1955. the plaintiff's aver that they and the 4th defendant are members of an undivided hindu mithakshara joint family, the 4th defendant is the manager and the suit items belonged to that family having been obtained in the partition of the family in the year 1951. venkiteswara mallan who was in management died in 1131 kumbham and before.....
Judgment:

Subramonian Poti, J.

1. Defendants 1 to 3 in a suit for recovery of possession of property on the basis of title are the appellants in this appeal The plaintiffs claimed that their father, one deceased Venkiteswara Mallan, was in possession and enjoyment of the suit property when he, in conjunction with the 4th defendant, his eldest son, is said to have executed a sale deed for the suit property in favour of the first defendant That is Ext. P-2 dated 24-3-1955. The plaintiff's aver that they and the 4th defendant are members of an undivided Hindu Mithakshara joint family, the 4th defendant is the manager and the suit items belonged to that family having been obtained in the partition of the family in the year 1951. Venkiteswara Mallan who was in management died in 1131 Kumbham and before his death he had sold the properties along with the 4th defendant to the first defendant for a consideration shown as of Rs. 21,000/-tand the first defendant was put in possession. This sale deed is said to be not binding on the family as being unsupported by consideration as well as necessity or benefit to the estate. It is said that the father Venkiteswara Mallan and the 4th defendant had, at any rate, no fight to transfer the interest of the plaintiffs and therefore in any event in the alternative they prayed that the plaintiff's may be allowed to recover 6/8th share in the suit properties. According to them on the date of Ext. P-2 the properties were much more valuable than the amount shown as consideration so the sale deed and even the amount so shown was not received but the entire amount was reserved with the first defendant to discharge by payment the future kuri instalments in a kuri subscribed by their father. This, it is said, could have been done from out of the income of the property sold and also of the prooerties which were in the possession of the family. The main contention raised by the first defendant was that the property never belonged to the joint family that it was separate property of the father, Venkiteswara Mallan, that it was dealt with by him as if his own property, that the 4th defendant joined the document by way of abundant caution at the instance of the first defendant and that plaintiff's have no right to challenge Ext. P-2 sale deed, it is also contended that Venkiteswara Mallan was heavily in debts on the date of Ext. P-2 and that liquidation of such debts was an urgent necessity for which purpose he had to sell items other than those which were the subject-matter of Ext. P-2 sale deed, but he could not do so because all these items were secured for the payment of future subscriptions of a kuri under Ext. P-7 kuri mortgage deed and it was in order to release items other than suit items that the sale was effected. It is said that as a result of the sale other items of properties were released so that they could be sold and that they were actually sold for discharge of the debts of the father.

2. The court below did not accept the case of the first defendant that the property was the separate property of Venkiteswara Mallan. It found thai the property was joint family property in his hands. The court found that even if Venkiteswara Mallan had other debts on the date of execution of the sale deed those debts were not binding upon the family and they have not been shown to be so binding and therefore the existence of those debts would not be a justification for Ext P-2 sale. As to the consideration for Ext P-2 court below found that there was no pressing necessity to assign the homestead leaving the entire money with the first defendant and giving him the privilege of making piecemeal payments in instalments to the Lord Krishna Bank by way of future subscriptions. It was held that payment of future subscriptions would not be a debt and therefore it could not be contended that Ext. P-2 was executed by a Hindu father for discharge of his antecedent debts and for that reason sons are not entitled to challenge the document. Of course, there is no plea that the debt is tainted by immorality or illegality, The sale is not for discharge of antecedent debts and it cannot be held to be binding on the family once it is shown that the property belonged to the family and no necessity for such execution so far as the family is concerned is shown by the evidence in the case. The court also found that considering the price of the property as determined by the Commissioner the price fixed under Ext, P-2 could not be said to be adequate. The plaintiffs who were minors on the data of Ext. P-2 were held to be competent to question the validity of the document But a decree was given only in regard to 6/8th share, This too was subject to liability to contribute 6/8th share in the kuri subscriptions made from the date of Ext, P-2. The plaintiffs were further directed to pay the costs of the improvements in the share allotted to them under the final decree,

3. Though one of the hotly debated issues in the court below was whe ther the properties comprised in Ext. P-2 belonged to Venkiteswara Mallan separately or whether it belonged to his family that is no longer in controversy here because counsel fairly concedes that such a proposition cannot be sustained in law. The property admittedly belonged to Venkiteswara Mallan's father and it is such ancestral properties that were taken by Venkiteswara Mallan and his brothers under the partition deed of 1951. Any property obtained by a person governed by the Hindu Mitakshara law from his ancestors must be ancestral property in his hands and the sons in the family will have right by birth to such property,

4. We must notice here that there is no plea that the debts which Venkiteswara Mallan is said to have incurred during the years when he carried on business were debts of the joint family There is also no case that the business carried on by him was not his business but that of the family. Possibly such a case was not pleaded because the first defendant, perhaps ill advisedly, pleaded that the property obtained by Venkiteswara Mallan in partition was not joint family property. That is what is contended by counsel for the appellant before us. But we are not concerned with the reason for not pleading a particular case but only with what the pleadings in this case are.

5. Ext P-'7 is a kuri hypothecation deed executed by Venkiteswars Mallan in favour of the Lord Krishna Bank Limited which was the foreman of a chitty. One Ramaswamy was a subscriber in that chitty and he prized tha chitty at the 4th instalment But before drawing the prize amount he sold his rights under the chitty to Venkiteswara Mallan and apparently this assignment taken by Venkiteswara Mallan was recognised by the foreman of the chitty who, it would appear, had agreed to treat Venkiteswara Mallan as the subscriber in place of Eamaswamy who was till then a subscriber in the chitty. That Is how he claimed the prize amount from the foreman and such amount after appropriate deductions was paid to Venkiteswara Mallan on his executing a security bond Ext. P-7 securing, the payment of future subscriptions. The payment had to be made by 60 future instalments and the amount to be paid was Rs. 29,891-10. The instalments had to be paid quarterly at the rate of Rs. 500/-for each instalment. The properties obtained by him in the partition in the Joint family were given as security for such payment. It appears from the evidence that till the date of Ext P-2 sale deed executed on 24-3-1955 Venkiteswara Mallan was paying the chitty subscriptions, regularly so much so, that, on the date of Ext. P-2, he was not in default. The property covered by Ext. P-2 was the house property where the plaintiffs were residing at that time. It is 1 acre 14 cents in extent and it has also come out in evidence that there were yielding cocoanut trees therein. Besides this three other items were also obtained by Venkiteswara Mallan on partition and these were in his possession even on the date of Ext. P-2. They are substantial items of properties one of them being a cocoa-nut garden 5 acres 90f cents in extent The sale deed Ext. P-2 recited that 50 instalments had to be paid in the kuri for which Ext. P-7 bond was executed and that since the debts had to be paid off that would be possible only by releasing the other items limiting the kuri security to the suit items. The deed also recited that since the vendee had agreed to undertake the entire liability of such kuri dues the sale was being executed for Rs. 21,000/- the entire amount being retained with vendee to pay instalments in future as and when they fell due. Normally future payment would take another 12 1/2 years and it was long before the expiry of that period that suit was instituted in 1963.

6. If the suit properties were ancetral then, of course, the consiedration and necessity for the sale under Ext, P-2 has to be shown by the alienee or he must show manifest advantage to the family by reason of the sale. That the consideration recited in Ext P-2 is real cannot admit of any doubt. But whether that is a consideration binding on the family and if it be, so far as the family is concerned, whether there was any pressing necessity to execute such a sale deed is a question on which the first defendant should, as we would presently show, lose in this appeal. The first defendant wants to rely on the recitals in the sale deed to indicate that the debts of venkiteswara Mallan including the kuri debt were not his personal debts but were joint family debts and it is further contended that the business run by Venkiteswara Mallan which was the cause for incurring such heavy debts by him was a joint family business. We are afraid we cannot consider such a case so long as the pleadings in the case do not justify this plea. As we have pointed out earlier, categorically the first defendant asserts that he was competent to deal with the property as his own and apparently he did not set up a case that the debts of Venkiteswara Mallan including the kuri debts were Joint family debts. This is what is stated in ground 'A' of para 6 of the written statement:

(Original in Malyalam omitted,--Ed.)

(On the date of the sale deed deceased Venkiteswara Mallan had a lot of debts), Then it goes on to recite the various debts and further mentions that he sold his properties to pay off his debts. After such categorical statement there is no doubt mention in ground 'C' in paragraph 6 that if for any reason properties are found to be not of Venkiteswara Mallan but of the family the debts are also of the family. But again it is reiterated that the amount under the hypothecation bond was used to pay off the debts of Venkiteswara Mallan. We are only stating here that there is no pleading that the business of Venkiteswara Mallan was that of joint family so much so that we cannot go into this question, nor is there any evidence to show that the business admittedly run by Venkiteswara Mallan belonged not to him but to his joint family or that the debts which were incurred by him by way of execution of pronotes subsequent to Ext. P-2 were debts of the family. In fact the case of the plaintiffs is that those pronotes are all fictitious and they are only shown as executed just to support the alienations with regard to the other items of properties which, it is said, are also under challenge. But it is not necessary to go into the genuineness of those debts. We need only notice that the first defendant's case is that Venkiteswara Mallan had borrowed a sum of Rs. 1,000/- under Ext D-16 pronote dated 32-10-1128 from D.W. 2, that he had borrowed a sum of Rs. 750/- under a pronote dated 26-1-1952, Ext. D-17, from D.W, 3. that similarly he borrowed a sum of Rs. l,500/-under Ext. D-18 dated 10-10-1952 from D.W. 4. another sum of Rs. 5,000/- under Ext D-19 dated 8-3-1954 was borrowed from D.W, 5 and a sum of Rs. 600/- evidenced by Ext. D-24 dated 2-4-1955 from D.W. 6 and a sum of Rs. 1,500/- under a pronote Ext D-26 dated 18-10-1953 from D.W. 8. It can be seen that all the dates of these debts are after Ext, P-7 data and some of them are debts after Ext. P-2 sale deed.

7. There Is no reliable evidence in support of a case that the chitty security bond was executed by Venkiteswara Mallan as joint family manager. Not that there is any such case but we are observing so because even assuming that para 6 'C' of the written statement is construed as a plea that the debts are joint family debts that will not help the first defendant as there is no evidence to substantiate it. Therefore the debt, if at all, was one for which Venkiteswara Mallan was answerable personally and it is not a debt of the family, Even assuming that it is a debt of the family it has not been shown by the evidence in the case that there was pressing necessity to execute Ext. P-2 sale deed since at that time there were very valuable properties in the possession of the manager from out of the income of which the periodical payments could have been made. Actually it was so made till the date of Ext P-2. That it was intended to release the other properties from security to the Bank is also not a contention which appeals to us. It has not been shown by the evidence in this case that there was any pressing necessity to release those items though a faint attempt has been made in the evidence to Show that Venkiteswara Mallan had other debts as we have pointed out. That by itself would not be sufficient The pressure on the estate has necessarily to be proved. There is no such indication of any such pressure in the evidence adduced in the case.

8. The main contention of counsel in an attempt to sustain Ext. P-2 sale deed as not liable to be challenged at the instance of the plaintiffs is that it is a sale deed executed by a Hindu father for the discharge of antecedent debts and if so irrespective of any question of consideration or necessity the court will have to uphold the document as binding |on the minor sons. Of course, as we pointed out earlier, in the absence of a plea that the debt was vitiated by illegality or immorality the sale deed is not liable to be challenged if it is shown that It has been executed for discharge of the antecedent debts of the father.

9. If Ext P-7 kuri bond was executed for the discharge of a debt and on the date of Ext, P-2 sale deed a part of it still remained to be discharged, then It would be an antecedent debt is not in dispute. But the main controversy with which we are concerned in this appeal relates to the question of character of the obligation incurred under Ext P-7 kuri security bond. It was contended successfully before the court below that an obligation of a prized or non-prized subscriber in a kuri to pay future instalments is not a debt and therefore when a security bond is executed charging the properties of the subscriber for the future payment of the instalments there is no question of any debt being incurred thereby. If so. when Ext. P-2 sale deed was executed the obligation of Venkiteswara Mallan to pay the future subscriptions in terms of Ext P-7 would not be a debt and hence Ext. P-2 cannot be justified as a sale for discharge of antecedent debts. This finding of the court below could be successfully challenged only if it is shown that the view taken by the court below on the nature of the obligation arising under Ext. P-7 is erroneous and that is the attempt by counsel Sri T. S. Venkiteswara lyer, appearing for the appellants in this case,

10. In this context the normal incidents of a kuri have to be noticed. The chitty foreman and the subscribers enter into a contract whereby the subscribers oblige themselves to pay subscriptions in stated instalments and the foreman obliges himself to pay the prized amount when once the chitty is prized by the subscriber at any instalment. This obligation of the subscriber arises from the stipulations in the contract. Even when he is a prized subscriber he has the same obligation to pay future subscriptions arising not by reason of the fact that he has prized the kuri but because of the contract entered into by him with the foreman to pay such subscriptions whether the kuri is prized or not. If he bids the kuri at any instalment and demands the prize money the obligation of the foreman to pay the same also arises under the contract. Future subscriptions paid by the prized subscribers are not in discharge of the liability for the prized amount because the prize amount is received by the subscriber as of right and not as a loan. The liability to pay future subscriptions in terms of the kuri variyola is only reinforced by the execution of the security bond by which the prized subscriber agrees that on default, the foreman may recover the money as against the properties secured also. Quite often the amount of the security bond may bear no relation to the prize amount The security bond is only for securing future subscriptions. It may not be right to assume that when a prized subscriber executes a security bond it is for repayment of the prize amount the said amount being treated as a loan advanced by the foreman. It is more appropriate to treat the obligation to pay the future instalments as only an obligation arising under the contract of kuri, with the further fact that by execution of the security bond the properties of the prized subscriber so secured are also made liable on default In this view, it cannot be said that there is a debt owing from the subscriber to the foreman because of the execution of the security bond. It cannot be said that the prize amount received by him is a debt due from him to the foreman. The debt would arise Only as and when the instalment falls due and remains unpaid. The security is offered to be effective in the event or contingency of such default being made. If this be the case, then, on the date of Ext. P-7 security bond, there was no debt due from Venkiteswara Mallan to the Lord Krishna Bank No liability arose thereafter until the date of the sale deed. It is agreed that all instalments were duly paid. Therefore on the date of Ext. P-2 sale deed there was no debt due from Venkiteswara Mallan to the chitty foreman. That would necessarily mean that there could not have been an antecedent debt to discharge which Ext. P-2 sale deed was executed.

11. We are aware that there is a difference of opinion between this Court and the High Court of Madras on the question whether the obligation of a prized subscriber in a kuri to pay future subscriptions is a debt. A Full Bench Of the High Court of the erstwhile State of Travancore in Easwaramoorthiya Pillai v. Naravana Vadivu. 16 Trav LT 143 (FB) had occasion to consider this question. That was in connection with the scope of the term 'debt' for the purpose of application of the Debt Relief Acts II and III of 1116. Sankarasubha lyer J. in the majority judgment of the court said that--

'The obligation on the part of a prized subscriber to pay the future subscriptions, when they fall due is one of the concomitant features of the legal relationship between them In order that this legal tie may develop or crystallise Into a debt, it is necessary that the future subscriptions must have fallen due, When each of the future instalments of subscriptions falls due. from that moment, the liability to pay becomes a debt'

in the same Judgment the learned Judge observed--

'When a prized subscriber executes security bond at the time when he receives the prize amount, the security bond is given, not for the prize amount which he has received but for the payment of future subscriptions on the due dates. In other words, the security is furnished, not for ensuring the return of the prize amount but for the payment of future subscriptions, the amount of which will in most cases never correspond with the prize amount.'

The learned Judge points out that--

'......... the analogy of an instalment bond does not hold good,'

We may notice here that this decision of the High Court of Travancore has been approved in a decision of this Court in Varkey Thomas v. Travancore Forward Bank Ltd.. 1962 Ker LT 383. A contrary view is seen expressed by the High Court of Madras in the decision in Kannan v, Subramania. AIR 1941 Mad 231. Patanjali Sastri J. observed in this judgment thus:

'Learned counsel next urged that, in any case, the liability of defendants 3 to 6 who did not join in the execution of Ext. J could be taken to have arisen only on the date of the compromise decree, namely 14th April, 1936 and should accordingly be scaled down under Section 9 of the Act. It is true that these defendants disputed the liability of their shares in the tarwad properties mortgaged under Ext. I. but the compromise obviously proceeds on the basis that Ext. I was binding on the entire properties mortgaged thereunder as contended by the decree-holder. In such circumstances, the correct view, it seems to us, is to regard the compromise as acknowledging and defining the antecedent liability of these defendants in respect of their shares of the properties mortgaged under Ext. I: see 33 All 356 at p. 357. In this view, the liability of these defendants was. according to the decision in ILR (1939) Mad 218 a debt liable to be scaled down under the Act and must further be regarded as renewed or. at all events, included in a fresh document, under the compromise on which the decree was based : see our decision C. R. P. No. 602 of 1939.

Turning now to C. R. P. No. 257 of 1939 the only question we have to decide relates to the date on which the liability of the judgment-debtors can properly be said to have been incurred. The contention for the decree-holder is that the security bond (Ext. I) only affirmed the pre-existing liability of the judgment-debtors as subscribers to the kurichitty to pay their subscriptions according to the instalments fixed in the kuri-vari, and did not change the character of such liability, that the liability to pay the future instalments of subscription Could not be deemed to have been incurred before such instalments fell due. and that the position under the security bond was in no way different Learned counsel for the judgment-debtors, on the other hand, contends that whatever might be the position with regard to the liability of a subscriber to pay the instalments of his subscription to the kuri before he bids for and receives the amount at an auction, he can thereafter be regarded only as a borrower of the sum received less the instalments already paid by him, undertaking to repay the loan in instalments that still remain to be paid, and the liability under the security bond which he executes for the due payment of such instalments is a debi-turn in praesenti solvendum in futuro, incurred on the date of the bond itself. The question is one of some difficulty not the least part of which arises from the somewhat conflicting decisions dealing with these peculiar kuri transactions which are so common in some parts of this presidency. On the whole however, we are of opinion that the judgmentdebtors' contention is supported by a preponderance of authority and must be accepted.'

We may also notice here that Varadachariar J. of the High Court of Madras had expressed a different view in Maruda Konar v. Veerammal. AIR 1936 Mad 985. The learned Judge had held that there was no present debt in that case. That was a case where the ticket holder assigned to the plaintiff the security bond executed by the successful bidder. Vara-dachariar J. observed in that case that the obligation undertaken by the security bond--

'......... is not repayment of the benefit already received (as if it were a debt) but the payment of future subscriptions.'

Though the learned Judses who decided the case in AIR 1941 Mad 231 noticed that such a different note had been struck by Varadachariar J., it appears that they were of the view that the observation of the learned Judge was obiter. In the Full Bench decision of the High Court of Travancore in 16 Trav LT 143 to which we have already adverted, this decision of the High Court of Madras in AIR 1941 Mad 231 was referred to and the court did not agree with the theory that the subscriber who prized the chitty became a borrower of the sum received less the instalments already paid by him and that he undertook to repay the loan in instalments that still remained to be paid. The learned Judges of the Full Bench were of the opinion that this view was vitiated by a fundamental misconception since the undertaking on the part of the prized subscriber was not to repay any loan but only to pay the future subscriptions as and when they fall due With great respect to the learned Judges of the Madras High Court we think we should adopt the view that in the case of a prized subscriber the payment of future subscriptions is not repayment of the prize amount and consequently there is no debt arising merely by reason of the obligation to pay future subscriptions. Though the decision of the Full Bench of the High Court of Travancore related to a case of a 'debt' as the term is understood in the Debt Relief Act, the principles equally well apply to the concept of a 'debt' said to be incurred by a Hindu father by reason of Ms prizing a kuri,

12. It has been urged with considerable force by counsel Sri T. S. Venkiteswara lyer that the scope of the term 'debt' as understood in relation to the theory of pious obligation of a Hindu son to discharge the debts of his father is much wider in scope than the meaning of that term understood in a narrow or limited sense. The term 'debt' is used in this context in English Texts on Hindu Law as a synonym for the word 'rina' in the original Sanskrit Texts of Hindu Law. It is true that the term 'rina' is incapable of an exact translation into the English language like the terms 'sathya' or 'dharma'. When used in the context of pious obligation of a son under Hindu law this term is understood not merely as 'what is taken under a promise to pay' nor is the term understood with the technical limitations of that term in the common law of England. Any liability of a Hindu father would be comprehended within the term 'rina' or debt. May be that he has to pay arrears of rent of properties or that he is answer able for mesne profits or is accountable for money under a contract. All these cases, where liability has been incurred, though it is not by way of taking any money under a promise to pay, are cases of debts of the father and therefore where these debts are antecedent alienations in discharge of such debts could not be attacked by the sons. But that would not be thecase where no liability has been incurred so much so it could not be said that the father has become a debtor. We are referring to this aspect because counsel for the appellant relied on the decision of the Madras High Court in Nachimuthu v. Balasubramonia. AIR 1939 Mad 450 in support of his stand. We are afraid counsel would not derive any help from the Madras decision. That case concerned only the scope of the term 'debt' and as we observed earlier the court was of the view that it would not be limited to a debt strictly so-called in the sense, an obligation to repay on account of borrowals made, but liabilities arising otherwise also. But certainly the learned Judges did not purport to lay down any rule that it would cover cases where no liability has been incurred and no debt has arisen. It should be shown that the debt has been incurred by the father so as to apply the rule of pious obligation,

13. In the light of our discussion we have to hold that Ext P-2 sale deed cannot be supported as one executed for discharge of antecedent debt by a Hindu father.

14. We have already held that sale deed impugned is not supportable on the plea that it was for the benefit of the Estate. As we have pointed out it has not been shown by the evidence In the case that the debts said to have been discharged by sale of other items released by the chitty foreman by reason of Ext. P-2, were debts binding on the joint family. The attempt in the evidence

has been only to show that there were such debts and not to establish that those were debts of the joint family. Therefore the challenge to Ext P-2 must fail.

15. There is another point raised which, of course, deserves serious notice. That the alienee has been effecting valuable improvements in the property has been found by the court below and the decree provides for compensating the alienee on this account. But it is said that the court below was in error in limiting the value to the cost of improvements in the area which is to be ultimately surrendered to the plaintiff's under the final decree. We see force in this contention. Value of improvements is normally assessed not on the basis of cost of improvements but value determined in accordance with the accepted principles. We make it clear that what defendants 1 to 3 would be entitled to on account of improvements for the area to be surrendered towards the 6/8th share of the plaintiffs would not be merely the 'cost' of improvements, but as wa said, their value.

In the result the appeal Is dismissed excepting for the modification regarding improvements which we have mentioned here. Parties are directed to suffer costs in this appeal.


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