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Payidi Gunnam Naidu Vs. Kuna Chendri Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1933Mad839; (1933)65MLJ752
AppellantPayidi Gunnam Naidu
RespondentKuna Chendri Naidu and ors.
Cases ReferredDeendyal Lal v. Jugdeep Narain Singh
Excerpt:
- .....though not parties to the suit are bound by the sale by reason of their pious duty to pay their father's debt and they cannot recover their share of the property unless they prove (and the burden lies upon them to prove) that the debt was contracted by the father for an immoral or illegal purpose.2. in sir h.s. gour's 'the hindu code,' para. 155, it is said:in a suit by the son for the recovery of coparcenary property sold in execution of a decree against the father the son is bound to prove that the debt for which the decree was passed is not binding upon him and that the purchaser had notice thereof.3. for the counter-petitioner deendyal lal v. jugdeep narain singh was relied upon. that case has been referred to by mayne in his hindu law, 9th edition, at page 426. in para. 316 he.....
Judgment:

Pakenham Walsh, J.

1. The facts of this case are simple. The petitioner filed a suit, O.S. No. 140 of 1931, on a pro-note against the counter-petitioners (defendants) who are father and son respectively, and attached before judgment their property. The order for attachment was on 18th February, 1931. On the same day the first counter-petitioner had obtained a sale deed from the defendants and he came forward with a claim petition. The District Munsif found that the execution of the sale deed was suspicious and that on the date of the attachment the defendants continued to have possession of the property. He however dismissed the claim only as regards 2/5ths of the property because the sale deed which was taken from the two defendants also purported to be executed by three other minor sons. The petitioner contended in the proceedings that these three minors were illegitimate sons. But this point was found against him. In revision it is objected that the order is wrong on the ground that under Order 21, Rule 61, Civil Procedure Code, 1908, the defendants having been found to be in possession, the claim petition had to be disallowed in toto; that the Court was wrong in thinking that what was attached was only the share of the 1st and 2nd defendants and that the three other sons would not also be liable in execution for the decree against their father. I think all these contentions are sound. There is no doubt that the attachment of the whole property was asked for on the ground that it was in possession of the defendants in that suit. In any case, if the share of the three other sons was not attached then they have no locus standi to appear at all before the Court. In Mulla's Hindu Law at Section 294 it is laid down that

Where the father has contracted a debt for his own personal benefit the creditor may obtain a money decree against the father alone and may enforce the decree by attachment and sale of the entire coparcenary property including the sons' interest therein. The sons though not parties to the suit are bound by the sale by reason of their pious duty to pay their father's debt and they cannot recover their share of the property unless they prove (and the burden lies upon them to prove) that the debt was contracted by the father for an immoral or illegal purpose.

2. In Sir H.S. Gour's 'The Hindu Code,' para. 155, it is said:

In a suit by the son for the recovery of coparcenary property sold in execution of a decree against the father the son is bound to prove that the debt for which the decree was passed is not binding upon him and that the purchaser had notice thereof.

3. For the counter-petitioner Deendyal Lal v. Jugdeep Narain Singh was relied upon. That case has been referred to by Mayne in his Hindu Law, 9th Edition, at page 426. In para. 316 he says:

Some of the cases,' (which he quotes), 'were for some time taken by the Courts in.India as to a certain extent overruling Muddun Thakoor's case (1872) 18 W.R. 253 and as laying down a general principle that where a decree has been obtained against a father on a mere money debt it could not be executed so as to bind the rights of the sons unless they were parties to the decree. It is abundantly clear however that the Judicial Committee did not intend to overrule that decision. It was never referred to from the beginning to end of Deendyal's decision. It never seems to have occurred to anyone that it had any bearing upon the decision. Both the original Court and the High Court had accepted as an undisputed fact that the judgment-creditor chose, for reasons of his own, to sell only the right, title and interest of the father. The Privy Council adopted this finding and acted upon it.

4. It is clear in this case that, whether he knew of the existence of the minor sons or not, the petitioner-plaintiff asked for an attachment of the whole family property as being in the possession of the 1st and 2nd defendants and on the authorities he was entitled to attach and proceed against that property. The sale to the vendee having been set aside the claim should have been dismissed entirely. The revision petition is therefore allowed with costs and the attachment of the whole property confirmed.

5. I see no merits in the memo of cross-objections which is dismissed with costs.


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