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Pathak Haygriv Vishwanath Vs. Pathak Thakorlal Manilal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 633 of 1960 with Civil Appln. No. 1307 of 1963
Judge
Reported inAIR1967Guj192
ActsTransfer of Property Act, 1882 - Sections 6 and 10; Baroda Hindu Code - Sections 77 (1); Hindu Law
AppellantPathak Haygriv Vishwanath
RespondentPathak Thakorlal Manilal and ors.
Appellant Advocate N.V. Karlekar, Adv.
Respondent Advocate S.B. Vakil and; N.S. Parghi, Advs.
Cases ReferredArjan v. Karamali
Excerpt:
property - alienation - sections 6 and 10 of transfer of property act, 1882 - defendant was father of appellants - defendant no. 1 received suit house and shop as his share from ancestral property - defendant no.1 mortgaged shop in lieu of debts - sold off suit house to defendant no. 2 to pay off debts arising from business - defendant no. 1 signed deed - deed related to relinquishment of his right in lands - also contained endorsement in nature of restraint on power of alienating suit house - no recital in endorsement to conclude that partition was effected and right of defendant no. 1 came to an end in respect of house property - second part of deed put restraint on defendant no. 1 in alienating suit property of appellants - whether sale of suit property to defendant no. 2 legal -.....[1-6] xx xx xx xx xx xx xx xx xx (7) now before we consider the points raised in this court, it is essential to set out some of the undisputed or rather facts established in the case. one bohgilal had three sons - harilal, maganlal and manilal. manilal is defendant no. 1 and he is the father of plaintiffs nos. 1 to 4. bhogilal died in the year 1941 and some time after his death partition of his properties was effected between his sons first in 1941 and then in november 1942 as would appear from exs. 73 and 74 which are the certified copies of the extracts of the books of accounts produced by maganlal. ex. 65 who has filed the present suit as the next friend of the minor-plaintiffs. it appears therefrom that in partition manilal got two houses - one of them being the suit house - and.....
Judgment:

[1-6] XX XX XX XX XX XX XX XX XX

(7) Now before we consider the points raised in this Court, it is essential to set out some of the undisputed or rather facts established in the case. One Bohgilal had three sons - Harilal, Maganlal and Manilal. Manilal is defendant No. 1 and he is the father of plaintiffs Nos. 1 to 4. Bhogilal died in the year 1941 and some time after his death partition of his properties was effected between his sons first in 1941 and then in November 1942 as would appear from Exs. 73 and 74 which are the certified copies of the extracts of the books of accounts produced by Maganlal. Ex. 65 who has filed the present suit as the next friend of the minor-plaintiffs. It appears therefrom that in partition Manilal got two houses - one of them being the suit house - and another house which is referred to in evidence as his shop. He also got various lands which have been set out in details in the deed Ex. 67 passed by defendant No. 1 on 21-6-1943, in favour of his son and his wife - who was then alive. He also got some ornaments as also the outstanding from the money-lending business which was being carried on by Bhogilal during his lifetime. This Manilal was previously in service as a Secretary of Padra Municipality from which he came to be dismissed and later on for some time he worked as a Stamp Vendor. Thereafter he started a new business in tea, ghee and other miscellaneous articles. In business he incurred some debts, and land even mortgaged his shop for the same. His brother Maganlal, however, felt that his brother Manilal was out to alienate his other family properties and that way acted against the interests of his minor sons. He therefore prevailed upon Manilal to pass a deed Ex. 67 on 21-6-43. It is this deed which has to be considered and interpreted in order to determine the various questions raised before this Court. This deed was registered on 24-7-43. It is the case of the plaintiffs that by this deed, partition of the joint family properties, which Manilal had got in partition from his father's estate, was effected, and that on the suit house no right or interest of his had remained which he legitimately transfer to anyone thereafter. In case partition was not effected, there was severance of the joint family status between them, and that way, Manilal was not competent to alienate and bind their share in the ancestral family property. It need hardly be said, that if any of these points are established, as found by the learned Assistant Judge, Manilal had no authority by reason of their father acting as manager of the family to bind their shares in the property. That would be the first point to be determined. It was contended by Mr. Karlekar the learned advocate for the appellant that the learned Assistant Judge had ignored the observations made in the High Court of Bombay and has taken extraneous matters in to account, when in fact, those points had to be decided on the basis of the deed Ex. 67 in the case. There was, according to him, no ambiguity whatever, which would justify him to take into account oral and other irrelevant evidence in the case for construing the effect and nature of that document. His contention further is that the deed is neither a partition deed, nor one which creates severance of their joint family status and it merely is a deed of relinquishment of defendant No. 1's interest in the family lands referred to therein and no more.

(8) Turning to the contents of the deed, the first part relates to the relinquishment of his right or interest in the lands referred to therein. After the deed was executed and attested, there is an endorsement there below whereby defendant No. 1 Manilal has stated that:

'he has not to create any encumbrances on the house with a Mada situated opposite to the house in which they stay and also the house situated nearby that house in which he stays and that he will not mortgage gift or sell the same.'

Below it is his signature and the attestation of two other witnesses. That was done on same day but after the previous part of the deed was written out and finished. The entire deed, however, came to be registered on 24-7-1943. This second part relates to the house property in dispute. In this respect, Mr. Karlekar contended that the endorsement relating to the suit house in the deed is in the nature of an absolute restraint on the power of alienating his property and that way, it would be void and ineffective in view of section 10 of the Transfer of Property Act. According to him the right and the authority to mortgage and sell the house in suit cannot be taken away on that account. Any such restraint can as well be said to be a permanent restraint so as to offend against public policy or general principles of law. Reliance was placed on a case of Prithmi Chand v. Sundar Das Sital Mal. AIR 1946 Pesh 12. That would be the second aspect of the case to be considered by this Court. On the other hand, it was said that what it meant was that he had lost his disposing power in respect of the house property in an arrangement arrived at between them and that consequently he had no right to either mortgage or sell the property in its entirety, and, at any rate, the right and interest of the minor-plaintiffs therein.

(9) Taking the first point made out by Mr. Karlekar, it does appear true that the learned appellate Judge has ignored the observations made in the judgment in Second Appeal No. 1019 of 1955 by the High Court of Bombay, inasmuch as he has taken into account the other oral evidence and extraneous circumstances for interpreting the character and the effect of the deed. Ex. 67 in the case. Those observations made by His Lordship Justice Shah as he then was, were to the effect that:

'oral evidence about an alleged demand for partition by the witness Maganlal could have no bearing whatever on the two interpretation of Ex. 67'.

Later on, he has said, that Ex. 67 in terms, refers to the relinquishment by the first defendant of his interest in the agricultural lands and does not refer either to a severance of the status between the first defendant and his sons, nor does it purport to evidence relinquishment by the first defendant of his interest in the suit house. Besides, it has been observed that the suit of Ex. 67 could only be ascertained by interpreting the language used in Ex. 67 and could not by reference to the oral evidence of Maganlal. Those observations are such which clearly lay down, as it were, that the language of Ex. 67 has alone to be considered in giving effect to it and no oral evidence as that of Maganlal or other extraneous matters were relevant for that purpose. Not only that, but they show clearly that the deed neither amounted to partition deed, nor a deed showing or suggesting any severance of their joint family status, and further, so far as agricultural lands are concerned, defendant No. 1 relinquished his right or interest in favour of plaintiffs, and not at any rate in the suit house. In spite of this background for appreciating the effect of the deed Ex. 67, if we turn to the judgment of the learned Assistant Judge, much though he expresses a feeling that no such evidence can be taken in to account while interpreting the deed. Ex. 67 as pointed out by the Court, he has in substance ignored the same and has been almost wholly guided by the oral evidence and the extraneous circumstances disclosed in the case. On a perusal of the deed Ex. 67, we find it clearly stated at the top as a '********' (a deed of relinquishment). In the body of the deed itself, it has been stated that he has been passing today the deed of relinquishment '*********' Apart from the use of such words signifying the nature of the deed that defendant No. 1 was passing, the recitals further show that all that he did thereunder was that he relinquished his right share and authority `*******' in respect of the lands referred to therein. He does so, as stated therein, out of his love for his wife and sons, and that way he has relinquished his coparcenary interest in those lands, and handed over the possession and management thereof to Maganlal who was acting on behalf of his minor sons and his wife. At no place this document in any way gives any indication whatever that he thereby partitioned the property as a result of which he gave away the lands worth about Rs.18000/- to his sons and his wife. As already stated here above, it was given up in their favour not in consideration of his getting other properties or the like, which he would, on a fair partition of the properties, but out of affection for his wife and children. Besides, in the partition that was effected between Manilal and his two brothers, after the death of their father, he had received other properties such as the shop and the house in addition to the lands referred to above as also some gold and silver ornaments and various outstanding of his father. There has been no reference in respect of any such property and at no place do we find as to the manner in which the property had come to be divided particularly by any metes and bounds. Nor do we find any recital or suggestion whereby one can legitimately infer about their having expressed a definite intention to separate from each other and have to an end. Giving up or relinquishing of his share or interest in some of the joint family properties in favour of the other coparceners in the family would not necessarily amount to any severance of status of the family, and in the present case, at any rate, there was hardly anything which would justify one to think that there existed certain circumstances which were required to be fulfilled before the minor coparceners could be justified to claim partition of the property from their father as required under section 22 (2) of the Baroda Hindu Code as was in force at that time. Thus there was neither any partition of any joint family property nor any severance of their joint family status.

(10) So far as the endorsement in the deed Ex. 67 which relates to the house in question goes, much though for the purposes of registration it may be a part of the same document, but it is difficult to agree with the learned appellate Judge when he thinks that it should be read in conjunction with the recitals relating tot the lands in the earlier part of the deed itself. The recitals relating to the lands are entirely different from the endorsement which relates to the house in question. So far, as the lands are concerned, the defendant No. 1 gives up his right, share and authority therein in favour of his wife and his sons and that way his interest comes to an end in respect of that property. But that cannot be so in respect of the house-property for the obvious reason that no such recital is found in that endorsement. On the contrary, the only conclusion that could be drawn therefrom is one of his having voluntarily given up only his right to dispose of the said property by creating a charge, or mortgage or giving away in gift or sell the same to any other person. He does not put an end to his share or interest in the same. Nor does it in any manner indicate that he expressed thereby any intention to sever the joint family status as it existed between them. In fact it is unnecessary to go into all such details particularly, when the observations in judgment in the Second Appeal No. 1019 of 1955 (Bom) clearly say that the deed Ex. 67 was nothing but a deed of relinquishment in respect of the interest in the agricultural lands and does not even purport to evidence relinquishment by him of his interest in the suit house. It does not refer either to the severance of status between defendant No. 1 and his sons, and at any rate it can never be treated as one whereby partition was effected of the joint family properties between defendant No. 1 and his sons. It is true, that when the case is remanded to the Appellate Court for rehearing, those observations may not be taken as the issue in that respect decided by the High Court, but those observations have to be kept before the mind by the learned Assistant Judge while hearing the appeal, and in particular, when it is said that no other evidence can be looked into, while considering the nature and effect of the deed Ex 67 in the case. Now the recitals of the deed Ex. 67 do not appear to be in any manner ambiguous so as to invoke the aid of the other oral and documentary evidence in the case. The consideration of the oral evidence of Maganlal was, therefore, irrelevant and the conclusions that have been arrived at by the learned Appellate Judge based on the consideration of such evidence cannot be sustained. In other words, by reason of the deed Ex. 67 dated 21st June 1943, it cannot be held that a partition was effected between defendant No. 1 and his sons or that suit house fell to the share of the plaintiffs under the sale deed. Nor can it be said that the deed establishes any severance of status between them as was sought to be made out by the learned advocate appearing for the respondents in the appeal.

(11) As to the nature and effect of the endorsement in the deed Ex. 67 relating to the house in question, it was contended by Mr. Karlekar that it is an absolute restraint on the power of alienation of the joint family property which was inherent in defendant No. 1 by reason of his being the manager of the family, and that way such an absolute restraint would be void having regard to section 10 of the Transfer of Property Act. Section 10 provides that

'where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void .. .. .. '

The principle behind it is that absolute restraint on the right of the transfer of property is repugnant to the nature of the estate and that way if any such condition or limitation is imposed in the very transfer of property saying that the transferee shall not alienate the property to anyone, such a condition or limitation would be void and that the alienation effected would remain, and it would not be affected by any such condition or limitation imposed therewith. This section would apply only to cases where property is transferred and some such absolute restraint is created by imposing any condition or limitation in that transfer. The endorsement made by defendant No. 1 in the deed Ex. 67 does not create any transfer in favour of any other person and consequently section 10 has no application to cases where the act or the deed does not transfer any property. In fact, as already pointed out here above, not only there is no transfer in respect of the house property by the defendant No. 1, in favour of the plaintiff 's and their mother, but that there is no relinquishment of his right or share in the suit property. As a member of the joint Hindu family, he has as much right as any other coparcener has in the same. He does not give away his right or share in the said property and that he does by reason of this endorsement is to put a restriction on his disposing power as a manager of the family by saying that so far as this property is concerned, he will not either mortgage or sell or gift away the same. A father in the joint Hindu family vis-a-vis his sons or other coparceners in the family has certain powers to dispose of the property and it is in respect of those powers that he placed on himself certain restrictions, no doubt, for the benefit of the other coparceners of the family. They were, thus voluntary restrictions put by himself and consequently so far as his own share in the property is concerned, it may well be open to him to resile therefrom and dispose it of if he so desired, but so far as the shares of other coparceners in the family are concerned by reason of his own act whereby he imposed these restrictions on himself, he cannot mortgage or sell away the interest of other coparceners in the said property to any other person. In the circumstances of this case, it appears abundantly clear that what took place between them was in the nature of a voluntary arrangement whereby the family properties were intended to be protected from presumably the debts which were being contracted by defendant No. 1. The idea behind it was to protect the interest of his minor sons in respect of the property covered by the deed Ex. 67 in the case. Such a restriction put on himself can well be recognised in law as held in the case of Basangowda Virupagowda v. Irgowadati Kallangowda AIR 1923 Bom 276. In that case a document of compromise was arrived at between a widow and a minor and therein the widow had taken the property for the period of her life time and she had agreed to go on making Vahivat thereof and at the same had undertaken not to sell or mortgage it or give it as present or in any manner give it into the possession of any other person. It further provided that if she did so, it will not be valid, and that after her death the minor alone was the owner of the said property. The contention raised was that having regard to section 10 of the Transfer of Property Act, such a restriction put on her power of alienation was void by reason of section 10 of the Transfer of Property Act. That was negatived by saying that the deed does not expressly purport to transfer or convey anything and that, therefore, there was no such transfer as mentioned in section 10 of the Transfer of Property Act. It was in the nature of an interest in the property restricted in its enjoyment as contemplated in section 6(d) of the Transfer of Property Act. Thus, while so far as his own interest is concerned, his right and power to dispose it of remained with him, but in so far as the interest or shares of the other coparceners in the family are concerned, he had no authority to dispose of the same either by gift or sale as the case may be.

(12) Reliance was, however, placed by Mr. Karlekar on a case of AIR 1946 Pesh 12, to say that even apart from section 10 of the Transfer of Property Act, it being an absolute restraint on alienation, it is repugnant to public policy and would be invalid and unenforceable on general, principles of law. In that case, the plaintiffs had filed a suit for declaration that the house in suit was not liable to sale in execution of a mortgage decree obtained by defendant No. 1. Sunder Das against defendant No. 2 Chandu Mal, the father of plaintiff No. 1 and grand father of plaintiffs Nos. 2 and 3 on the ground that Chandu Mal defendant No. 2 had no power to alienate it in any form. The contention was based on a condition contained in a deed dated 19-7-1915, embodying a family settlement to which Chandu Mal, his father Keshan Das, and his son Bhagwan Das were parties. The condition was to the effect that he shall enjoy the income of the property allotted to him under the family arrangement and that he shall have no power to alienate it by sale or mortgage. The mortgage was also challenged on the ground that it was not for any necessity or benefit of the joint family of plaintiffs, and defendant No.2, to whom the house mortgaged belonged. The main contention was with regard to the validity of condition in the family settlement imposing restriction on the alienation and after observing that a Hindu father if he is the manager may alienate property for family necessity or benefit and that he as father has the additional privilege of alienating family property for an antecedent debt neither illegal nor immoral in character, it was observed, that even if no antecedent debt existed, the mortgage would have been enforceable against the family property, if the mortgage debt was not immoral in character. That was based on the theory of the pious obligation of the son and grandsons, extending equally to secured and unsecured debts, provided they were not for illegal or immoral purposes. Then with regard to the question of restraint created by a condition of the family settlement under which he held the property in suit along with other property, it was contended that the mortgage was, therefore, void since the mortgagor had no disposing power over the same. It was then observed that section 10 of the Transfer of Property Act applies to transfers and family settlements are not covered by the expression 'transfer' the Court held that while the condition of the family settlement which prohibits alienation altogether is surely not hit by section 10 of the Transfer of Property Act but creating as it does an absolute restraint on alienation, it is repugnant to public policy and would be invalid and unenforceable on general principles of law, and stated that this view of the matter finds support from AIR 1922 Oudh 236, Nageshar Sahai v. Mata Prasad. As to what general principles of law are violated or as to how such a restraint, as we have in the present case, would be repugnant to public policy do not appear to have been made clear and, at any rate, none discussed in the case. If we turn to the case of AIR 1922 Oudh 236, at p. 244 we find the same thing saying that while section 10 is not strictly applicable to such a case when there has been a compromise entered into between the widows and the reversionary heirs by which the property was vested in the latter, but it was agreed that the reversionary heirs should have no right to transfer the property during the life-time of the widows, it being a restraint embodied in a compromise by way of family settlement, but apart from section 10, it was observed, 'that they entertained no doubt that the condition was invalid on general principles of law.' What those general principles of law are violated we are unable to know therefrom and the question then is as to whether any such restriction can be said to be in the nature of an absolute restraint on the power of alienation to an extent that it can be said to be against public policy or against general principles of law. I may incidentally observe that the Bombay Case referred to hereabove was referred to in the Peshawar Case decided and it was distinguished on the ground that the question whether the condition was invalid on the ground that it was opposed to general principles of law was not raised or considered in that Bombay Case and it was that way that the Bombay Case was not approved of in that case. The position that remains is the same inasmuch as the Peshawar Case was decided by a single Judge who based his conclusion on the Oudh case which again in terms refers in general about such a restriction being invalid on the ground that it was against general principles of law. What those general principles of law had remained to be defined or considered in any of these decisions and none also pointed out by Mr. Karlekar before this Court. Certain agreements are said to be unlawful as contemplated in section 23 of the Contract Act and as provided therein, the consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature, that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. It is in respect of such cases that the consideration or object of an agreement is said to be unlawful and every agreement of which the object or consideration is unlawful can be said to be void. It is difficult to say and, at any rate, it is not pointed out how the consideration or object of this endorsement in relation to the house property in Ex. 67 can be said to be unlawful, for, in my opinion, it cannot be said to be such in respect of which the consideration or object is forbidden by law or that it would defeat the provisions of any law. Obviously it cannot be fraudulent or in any way immoral or opposed to public policy when a person chooses to voluntarily put certain restrictions in respect of his powers which he holds vis-a-vis his sons as a father being manager of a joint Hindu family. The condition or restriction imposed in that endorsement in Ex. 67 by defendant No. 1 on himself in respect of the house property cannot be said to be in any way illegal or unlawful so as to be hold as invalid. It is thus clear so far as the defendant's own share in the suit house is concerned, it was open to him to disregard the restriction and bind himself by alienating his share in the property, but at any rate, so far as the shares of the plaintiffs are concerned, the authority to bind them had ceased by his own act and, therefore, he cannot transfer their shares in the suit house in favour of any other person by reason of his being their father and that way a manager of the family.

(13) It is further essential to consider as to the effect that it would lend to the sale effected in respect of the property in favour of defendant No. 2 under the deed Ex. 86 in the case. Now, it is clear that the amount taken under the deed was partly for paying up the mortgage dues as per Ex. 78 dated 11-2-44 in respect of the same property, and in fact an amount of Rs. 1051 was paid up by defendant No. 2 to the mortgagee Ambalal Jeshang and redeemed the property on 12-8-45. The rest of the amount was paid by defendant No. 2 to defendant No. 1 for paying the miscellaneous debts as also for meeting the household expenses. As to the amount obtained by defendant No. 1 under the deed Ex. 86 there has been thus no dispute. Nor can it be said that the amount was obtained by him for illegal or immoral purposes. The family continued to be joint and there was no severance of status as already observed hereafter by reason of the release-deed Ex. 67 in the case. Defendant No. 1 was the father of the plaintiffs, and the plaintiffs were minors at the time when the transfer Ex. 86 had taken place. It makes no difference whether the debts were contracted in respect of a new business started by him, or for any other purpose, as long as it was not for illegal or unlawful purposes as any such liabilities contracted by the father would liable to be met out of the joint family property. That has been the settled position of law and it is from that point of view that it is necessary to consider as to whether the plaintiffs who happen to be the sons of defendant No. 1 could be burdened with the liability of the amount to the extent of their shares in that property which has been unauthorisedly sold by their father, to defendant no. 2 so far as their shares therein are concerned. The learned Judges there below, however, had considered the question about the binding character of the sale transaction on the shares of the plaintiffs and found that plaintiffs' shares in the property would not be liable as according to them, under section 77(1) of the Baroda Hindu Code, they could not be held liable unless by a decree obtained in a property Court. The contention in that respect, which found favour with the learned Assistant Judge, was that section 77 nowhere says that the ancestral property of the undivided family shall be alienated i.e. mortgaged or sold for discharging any such debts, as it was under section 18 of the old Act, 1867, and that, therefore, the liability of the minor sons in the family would not arise. The learned Assistant Judge does not appear to have properly appreciated the effect of section 77(1) of the Baroda Hindu Code, and the cases relied upon in that respect. Now, before I refer to section 77 (1) of the Baroda Hindu Code (Act 37 of 1937), I would refer to section 18 of the Act 6 of Samvat Year 1967, which lays down that 'ancestral properties of the joint family will be liable to be used in discharging the debt incurred or liability undertaken by the father, though not for family purposes, in the following cases such as ... ... debts not being immoral or illegal.'

(14) Now section 77 (1) of the Baroda Hindu Code which undisputedly governs the rights of the parties provides as under:-

'77. (1) The ancestral property of the undivided family shall be liable for discharging the following:

(a) debts, and

(b) liabilities incurred by the father although they may not be in the interest of the undivided family:-

(1) (a) (i) xxxx xxx x

(ii) xx xx xx

(b) xx xx xx

(i) xx xx xx

(ii) xx xx xx

(2) xx xx xx xx

(3) Debts that are not immoral or illegal

(4) xx xx xx

(a) xx xx xx

(b) xx xx xx'

This section makes it abundantly clear about the liability of the sons in respect of certain debts referred to therein provided they are not immoral or illegal and that for discharging such debts the ancestral property of the undivided family shall be liable. The distinction drawn is that the former words are 'liable to used' as against the words 'are liable' only in Section 77 (1) of the Code and therefore, while section 18 gave power to the father to alienate the property whereas no such power is contemplated in section 77(1) of the Code. I see no substance in that distinction for the meaning that could be given to the words is just the same as one of making the joint family property liable for the debts or liabilities incurred by a father provided they were neither illegal nor immoral. What is contemplated is the availability or liability of the property and when that is so, the father has a right to make joint family property liable for his debts and if he therefore mortgaged or sold such property, the sons cannot challenge it unless on the ground of the debt being immoral or illegal. Besides, it is unnecessary to ready (sic) anything more than what those words indicate viz.,. 'shall be liable for discharging the following debts' as sought to be done by the learned Judge herebelow. It nowhere says that the property shall be liable provided the creditor seeks to enforce any liability by having recourse to any Court of law i.e. by obtaining a decree and taking out execution proceedings. The words on the contrary are too wide enough to cover the discharge of the debts or liabilities out of the ancestral property of the undivided family whether they are secured or unsecured debts, or that the property is sold for meeting debts provided they are not immoral or illegal. It need not be in the interest of family. The scope of section 77 (1) is made wider than what it was under section 18 of the old Act referred to in the judgment. It may be true to say that the decision of Baroda High Court may not bind this Court as observed by the learned Assistant Judge, but it is difficult to ignore the same when this very section 77 (1) which prevailed then in the Baroda State, has been explained and interpreted by the High Court of Baroda in the case of Chhotalal Chunilal v. Dave Prahladji Maganlal, 57 Baroda LR 25. In that case, a sale-deed passed for a sum of Rs. 500 received by the father, was challenged by his sons. The debt was neither antecedent nor for family necessity. It was also not for illegal or immoral purpose. On a consideration of section 77 of the Baroda Hindu Code, it was held by the High Court that the whole of the joint family property was responsible for a debt incurred by a father or any liability incurred by him, though that debt or liability may not be for the joint family. The exceptions to this principle are mentioned in the same section. There is no mention that the debt or liability should be antecedent. A careful perusal of 48 Baroda LR 619 at page 625 convinces one that the legislation in the Baroda State differs from the principles in British India on the point of antecedent debt or antecedent liability. Then they have said that 'there is no contention that the document Ex. 46 is without consideration'. It is not contended that the consideration was for an immoral or illegal purpose. The father received a cash sum of five hundred rupees and passed a document of sale. The transaction of sale is a transaction which has created a liability or responsibility for the father. It may not be for a purpose of the family or the benefit of the family. The father has incurred some legal liability and the son has got no right to challenge it.' That decision was again followed in Arjan v. Karamali 57 Baroda LR 270. These authorities are clear enough to cover a case before us and thus it is plain that the liability in respect of the debt, if not contracted for illegal or immoral purposes, would be co-extensive with the ancestral property in the hands of the coparceners such as the minor sons. The learned Assistant judge was, therefore, not right in interpreting section 77(1) of the Baroda Hindu Code, as saying that the debts or liabilities cannot be met unless a creditor obtains a decree and executes the same, even though, the debts or liabilities are not on account of immoral or illegal purposes. On that basis, therefore, the transaction of safe as per Ex. 86 would bind the shares of the plaintiffs in the suit property. But as already found hereabove, since defendant No. 1 had no disposing power to alienate the said property so far as the shares of the plaintiffs are concerned, and to that extent, no right is created in that property in defendant No. 2. But as to the amount under the deed Ex. 86, it cannot go away and that liability on the part of the plaintiffs remains, inasmuch as it was neither illegal nor immoral, and it is therefore clear that while property would not be bound for the said debt, the plaintiffs would be entitled to get back the property, provided they meet the liability arising thereunder viz., the proportionate share in respect of the consideration under the sale-deed Ex. 86. That is a legitimate claim of defendant No. 2 against the plaintiffs' shares in the joint family property which they must bear before they get their shares in the suit house back from defendant No. 2. To that extent the decree passed by the learned Assistant Judge shall be varied. The cross objections shall also stand dismissed.

(15) Appeal partly allowed.


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