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Subramania Pillai Vs. Venkatarama Reddi and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1930Mad257
AppellantSubramania Pillai
RespondentVenkatarama Reddi and anr.
Cases ReferredSubba Rao v. Swamia Pillai
Excerpt:
- - where no such limitation expressly appears, all that the sons can claim is to show that the debt was illegal or immoral or that the debt never existed, and the moment they fail to prove any of the specific circumstances, their claim must fail......that the execution proceedings were against the whole of the family property and not against the father's share only. in none of the schedules attached to the proclamation was there any remark made to the effect that only the father's half share in the properties described was intended to be sold, according to a series of decisions of the privy council, where money decrees are obtained against a father and the properties attached, even when there is ambiguity in the description of the properties such as by the use of the words right, title and interest of the judgment-debtor, still it must be taken prima facie that the intention in the execution proceedings is to proceed against the whole of the interest that may be proceeded against on account of the hindu law rule that a father's.....
Judgment:

1. In this case we have got a decree against a Hindu father. There were a number of execution petitions in 1916, 1918, 1920 and 1921. In the execution proceedings of 1921 the property was sold. The sale certificate is dated 31st March 1921. The present defendant 1 was the purchaser. He sold the property to the present defendant 2 under Ex. 5 dated 19th September 1921. The present plaintiff brought this suit for the recovery of his share in the property on the ground that the execution proceedings against his father, the judgment-debtor, did not include his own share in the property. Prior to that he had put in a petition for setting aside the sale so far as his interests were concerned: vide Ex. 3 (a). It was dismissed, There was an application for review, Ex 4. That was dismissed. It is clear that all parties thought that the execution proceedings were against the whole of the family property and not against the father's share only. In none of the schedules attached to the proclamation was there any remark made to the effect that only the father's half share in the properties described was intended to be sold, According to a series of decisions of the Privy Council, where money decrees are obtained against a father and the properties attached, even when there is ambiguity in the description of the properties such as by the use of the words right, title and interest of the judgment-debtor, still it must be taken prima facie that the intention in the execution proceedings is to proceed against the whole of the interest that may be proceeded against on account of the Hindu Law rule that a father's debts may be executed against the son. There may be some special circumstances.

2. In some cases to show that the execution proceedings were limited to a particular share or interest. Where no such limitation expressly appears, all that the sons can claim is to show that the debt was illegal or immoral or that the debt never existed, and the moment they fail to prove any of the specific circumstances, their claim must fail. This is the result of the decisions in Nanomi Babuasin v. Modhun Mohun [1886] 13 Cal. 21, Minakshi Nayudu v. Immudi Kanaka Ramaya Goundan v. [1889] 12 Mad. 142, Mahabir Pershad v. Moheswar Nath Sahai [1890] 17 Cal. 584, and Simbhunath Pande v. Golap Singh [1887] 14 Cal. 572. It is perhaps putting the matter too strongly to say that the sale certificate only is conclusive on the matter. It is safer to look at the whole of the execution proceedings. Though the Judges who decided the case in Natesa Pathar v. Ganapathi Subba Pathar : AIR1927Mad311 have rested their judgment on the sale certificate only, the conclusion in the judgment is one with which we agree and they have referred to all the Privy Council cases. In the present case the learned District Judge attempts to distinguish the case in Subba Rao v. Swamia Pillai [1918] 7 M.L.W. 407 on the ground that in that case the son intervened in execution before sale and the Court disallowed his objection. It is true that no such thing happened in the present case; but the son's objection after the sale in the present case is practically similar to what happened in that case. We, therefore, think that the District Judge is wrong in thinking that only the father's share was proceeded against in the execution proceedings.

3. It is then stated that the execution petition of 1920 was really barred by limitation and though the proceedings which terminated in a sale are binding against the father the son is not precluded from showing that application was barred. We do not agree with this contention. The matter is res judicata against the father. If so, as the effect of the cases is that execution against father is effective enough to bind the son also, the res judicata is operative against the son also. Practically the father represents the son in the execution proceedings even where the suit was not framed against him as manager of the family. It is unnecessary to consider the question whether the applications of 1916 and 1918 may not be considered as steps-in-aid of execution, to prevent the application of 1920 being barred by limitation. We do not think that there is any decision which compels us to hold that they cannot be such steps-in-aid, though the execution proceedings in the Panrutti Court might have been irregular and, if objected to immediately, would not have been allowed to proceed. We allow the appeal and dismiss the plaintiff's suit with costs throughout.


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