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Swaminathan Vs. V. Subramania Ayyar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil ;Property
CourtChennai
Decided On
Reported inAIR1928Mad1082
AppellantSwaminathan
RespondentV. Subramania Ayyar and anr.
Cases ReferredSrinivasa Ayyangar v. Kuppuswami Ayyangar A.I.R.
Excerpt:
.....is well settled that a money decree obtained against a hindu father can be executed against the undivided share of his son, vide brij narain v. it is well settled that in order to create a divided status in a joint family a clear intention to that effect must be expressed by the coparcener or coparceners who want to be separated or divided in interest. in a partition suit brought by the son the alienation was held not to be binding on the son and the amount which the father had to refund to the alienee by reason of the failure of consideration by the sale being set aside so far as the son's share was concerned, was not a debt binding on the son. any liability which the father may incur to the alienees on such unconditional setting aside of the alienation arises from his own immoral act..........is well settled that a money decree obtained against a hindu father can be executed against the undivided share of his son, vide brij narain v. mangal prasad a.i.r. 1924 p.c. 50 and sama rao v. lal chand a.i.r. 1923 mad. 36. though a son is not primarily liable for the debt of the father, yet if it is neither illegal nor immoral, the onus of proving which 'is on the son, he is liable to pay the debt on the ground of pious obligation and this obligation extends to his share of the family property and not to his separate property, even though the son has been exonerated in the suit brought against the father: vide zenamandra papiah v. subba sastrulu : (1914)27mlj276 , indar pal v. imperial bank [1915] 37 all. 214,. and shiam lal v. ganeshi lal [1906] 28 all. 288. the contention of mr......
Judgment:

Devadoss, J.

1. Respondent 1 obtained a decree for damages only against respondent 2 in a suit brought by him for specific performance against respondent 2 and his son, the appellant. He applied for execution of the decree against the shares of both the father and son in the family property. The appellant objected to execution against his share on the ground that there was no decree' against him. The Subordinate Judge, overruled his objection and directed execution to proceed against his share also. Hence this appeal.

2. Respondent 2 adopted the appellant on 11th April 1917 and made a gift of his property to him by an adoption deed, Ex. 12, executed on the same date. He had contracted on 8th April 1916 for the sale of his property to respondent 1 who brought a suit for specific performance of the agreement and obtained a decree in this Court for the advance paid and damages only against the father, respondent 2. Though this Court held that the son's share was not affected by the contract of sale, he now seeks to execute the decree against the share of the son as well.

3. It is well settled that a money decree obtained against a Hindu father can be executed against the undivided share of his son, vide Brij Narain v. Mangal Prasad A.I.R. 1924 P.C. 50 and Sama Rao v. Lal Chand A.I.R. 1923 Mad. 36. Though a son is not primarily liable for the debt of the father, yet if it is neither illegal nor immoral, the onus of proving which 'is on the son, he is liable to pay the debt on the ground of pious obligation and this obligation extends to his share of the family property and not to his separate property, even though the son has been exonerated in the suit brought against the father: vide Zenamandra Papiah v. Subba Sastrulu : (1914)27MLJ276 , Indar Pal v. Imperial Bank [1915] 37 All. 214,. and Shiam Lal v. Ganeshi Lal [1906] 28 All. 288. The contention of Mr. Varadachariar for the appellant is that the father was not undivided on the date' the debt was incurred and, therefore, the decree against the father cannot be executed against, the son. His argument is that the principle upon which execution is allowed against the son's 'share, is that embodied in. Section 60, Civil P.C., which says:

The following property is liable to attachment and sale in execution of a decree, namely. all other saleable property, moveable or immovable, belonging to the judgment-debtor, or over which, or the profits of which he has disposing power which he may exercise for his own benefit....

4. A Hindu father can sell the family property including the share of the son for a debt contracted by him, but after partition the father ceases to have disposing power over the son's share and so a decree against the father cannot be executed against the son's share. This argument presupposes that there has been a division between the father and the son in this case: The appellant was adopted by respondent 2 on 11th April 1917, and under Ex. 12 he made over the whole of his property to him. But it is not pleaded that there has been a division between the appellant and respondent 2. at any time. Ex. 12 which is styled 'adoption deed' under which property of the adopter is settled on the adoptee, cannot be said to amount to a partition deed, or to create a divided status between the father and son. The recitals in Ex. 12 do not make out that the father intended to be separated from his son. His giving his share in the whole family property to the son would not create a divided status between the father and the son. It is well settled that in order to create a divided status in a joint family a clear intention to that effect must be expressed by the coparcener or coparceners who want to be separated or divided in interest. It is not easy to import into Ex. 12 an intention on the part of respondent 2 to be divided from the appellant from the date of adoption. The fact that he had reserved to himself only a right to maintenance would not by itself create a divided status between him and the son. In the judgment of the learned Chief Justice and Krishnan, J., the following passage occurs:

It is, therefore, clear that the share of the son cannot be affected by the agreement and that we can pass no decree in this case which could bind the son's undivided share of the property.

5. The appellant evidently contended in the suit that the plaintiff could not successfully maintain a suit for specific performance against the undivided share of the son. It does not appear that Ex.12 was relied upon as settling the property upon the appellant before adoption; for such a contention would have been fatal to the appellant's case; as a gift would not defeat the respondent 1's right under the contract, and the only fact relied upon as giving a title to the half-share of the family property was the adoption. When the title to property did not rest upon the document, but upon the adoption, it cannot be said that by reason of Ex. 12 the son became divided from his father. The position of the appellant is not higher than that of an aurasa son and if a father makes over his share to his son by a gift deed, unless there are express words in the document to show that from the data of the deed he becomes divided in status from the son, the mere gift of the father's share to the son would not create a divided status between the father and the son. We have no hesitation in holding that on the date of the decree the appellant was not divided from his father, respondent 2. In this view it is unnecessary to consider the cases relied .upon by Mr. Varadachariar, to show that a decree obtained against the father could not be executed against the son's share after partition.

6. It was contended that the debt was contracted only on the date of the decree of the High Court, and, therefore, the debt was not binding upon the appellant as it was incurred after division. In the view we have taken of this case it is unnecessary to discuss this point at length. Granting for argument's sake that the appellant became divided on the date of Ex. 12 it cannot be said that the debt was incurred only on the date this Court passed the decree in respondent 1's favour. The contract of sale was on 8th April 1916, a year before the adoption of the appellant. Under that agreement respondent 2 received a sum of money as advance. The obligation to perform the contract or to pay back the amount arose before the date of adoption, and if a son is born after an obligation has been incurred which obligation by reason of non-performance results in a debt, it cannot be said to be a debt incurred after the birth of the son. Though in certain circumstances it might not result in a debt, yet if the obligation was incurred before the birth of a son, or as in this ease, before the adoption, it is not open to the son to dispute the liability of the whole family property for the debt which resulted from an obligation incurred by the father before the date of adoption. We are not prepared to hold that the debt of the father was incurred only on the date this Court passed the decree in favour of respondent 1 as the obligation which was incurred before adoption of the appellant continued right through till this Court converted the obligation into a money decree. If this view is correct the ruling of the Full Bench in Subramania Ayyar v. Sabapathi Ayyar A.I.R. 1928 Mad. 657, would apply to the case. In that case the Full Bench answered the question, whether a simple creditor of a father in a joint Hindu family is entitled to recover She debt from the shares of the sons after a bona fide partition has taken place between the father and the sons in the affirmative.

7. The question whether the son can be proceeded against in execution or can be proceeded against only in a separate suit is not of much importance in this case as the appellant was a party to the suit and any objection by 'him to execution against his share could be enquired into under Section 47, Civil P.C. Under Clause 2, Section 47,

the Court may, subject to any objection as to limitation or jurisdiction treat a proceeding under this section as a suit or a suit as a proceeding and may; if necessary, order payment of any additional Court-fees.

8. The debt of the father is neither illegal nor immoral, for the decree against the respondent 2 is for the amount paid by respondent 1 as advance and for damages. It is difficult to see how a decree for money advanced and for damages for breach of contract could be said to be an immoral or illegal debt. The case in Srinivasa Ayyangar v. Kuppuswami Ayyangar A.I.R. 1921 Mad. 447, is distinguishable on the facts. In that case the father alienated the son's share also. In a partition suit brought by the son the alienation was held not to be binding on the son and the amount which the father had to refund to the alienee by reason of the failure of consideration by the sale being set aside so far as the son's share was concerned, was not a debt binding on the son. Wallis, C.J., observed:

Any liability which the father may incur to the alienees on such unconditional setting aside of the alienation arises from his own immoral act in making the alienation in the first in-stance, in breach of the duty which he owed to his son as manager of the joint family property, and I do not think the sons can properly be held to be under any pious obligation to relieve him from the consequences of his unsuccessful attempt to defraud them.

9. This observation cannot apply to the present case, for the contract of sale was before the coming into existence of a son, the appellant; and, therefore, it cannot be said that on the date when he contracted to sell the 'property he intended to defraud anyone. The son is therefore clearly liable to pay the father's debt on the ground of pious obligation, as it is neither illegal nor immoral. In the result, the appeal fails and is dismissed with costs.


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