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S. Subramania Gothavari and anr. Vs. K.S.G. Sivajothiammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1986)1MLJ321
AppellantS. Subramania Gothavari and anr.
RespondentK.S.G. Sivajothiammal and ors.
Excerpt:
- - this contention was negatived by the executing court on the ground that though the decree is against the sixth respondent so long as it has not been shown that the debt is an avyavaharika debt the same should bind the appellants share as well and therefore, the attachment cannot be raised......ground that the decree passed against the sixth respondent cannot bind them or their shares in the joint family properties. their case as stated in the claim petition was that after the hindu succession act has been applied to the state of pondicherry on 1st october 1963, they have acquired a right by birth in the properties held by their father and, therefore any decree passed against the sixth respondent their father cannot bind the appellants shares which they have acquired by right by birth. this contention was negatived by the executing court on the ground that though the decree is against the sixth respondent so long as it has not been shown that the debt is an avyavaharika debt the same should bind the appellants share as well and therefore, the attachment cannot be raised. the.....
Judgment:

G. Ramanujam, J.

1. In this Letters Patent Appeal the judgment of Mohan, J. in C.M.A. No. 168 of 1983 has been questioned. According to the learned Counsel for the appellants, the learned Judge has not discussed in detail the points arising in the civil miscellaneous appeal and the contentions put forward by the Counsel on either side. No doubt, the judgment is a brief one and it does not set out in detail the controversy between the parties and the points urged on both sides. However, on the ground that the judgment is a brief one it is not possible for us to come to the conclusion that the ultimate judgment of the learned single Judge is incorrect.

2. A suit was filed by respondents 1 to 5 herein against the father (sixth respondent herein) of the appellants on the basis that the sixth respondent as an agent was accountable to respondents 1 to 5. The said suit was decreed on 24th December, 1974 and there was an appeal to this Court in A.S. No. 285 of 1975. This Court by judgment dated 2nd January, 1980 affirmed the judgment and decree of the trial Court. The amount due by the sixth respondent to respondents 1 to 5 was determined at Rs. 24,000 and odd, apart from interest and costs. For realising the said decree amount respondents 1 to 5 filed E.P. No. 28 of 1982. In the said execution petition the properties held by the judgment debtor (6th respondent) were attached. At this stage, the appellants herein, who are the sons of the sixth respondent filed E.A.No. 28 of 1982 under Order 21, Rule 28, C.P. Code, for raising the attachment on the ground that the decree passed against the sixth respondent cannot bind them or their shares in the joint family properties. Their case as stated in the claim petition was that after the Hindu Succession Act has been applied to the State of Pondicherry on 1st October 1963, they have acquired a right by birth in the properties held by their father and, therefore any decree passed against the sixth respondent their father cannot bind the appellants shares which they have acquired by right by birth. This contention was negatived by the executing Court on the ground that though the decree is against the sixth respondent so long as it has not been shown that the debt is an avyavaharika debt the same should bind the appellants share as well and therefore, the attachment cannot be raised. The said order of the executing Court was challenged before Mohan, J. in C.M.A. No. 168 of 1983 and the learned Judge held that whether the appellants are parties to the decree or not, the decree obtained against the sixth respondent is binding upon the joint family and therefore the share of the appellants in the joint family properties can also be proceeded against as it has not been established that the debt was tainted with illegality or immorality and that such a contention has never been urged before the executing court. In that view the learned Judge dismissed the appeal. The correctness of the said decision of Mohan J. has been challenged in this appeal.

3. It is not possible for us to interfere with the order under appeal. It is no doubt true that after the application of the Hindu Succession Act on 1st October, 1963, to the State of Pondicherry the parties are governed by the provisions of the Hindu Succession Act, whatever be their personal law before 1st October, 1963. Even assuming that the appellants have acquired a right by birth in the properties held by their father (sixth respondent) as a kartha of the joint family still the right by birth is subject to the other rules obtaining in Hindu Law. The debt due by a kartha of a Hindu joint family binds the joint family and its members cannot resist the execution of the decree as against the properties of the joint family on the ground that the individual shares of the coparceners cannot be proceeded with. That can be done only if the debt incurred by the kartha is tainted with, illegality or immorality. In this case, the appellants have not come forward with the case that the debt incurred by their father (sixth respondent) is tainted with illegality or immorality nor was there any attempt to establish the same. Therefore, even on the basis that the doctrine of, right by birth is applicable to the appellants on or after 1st October, 1963, that will not enable the appellants to claim immunity from the execution of the decree obtained against their father. In this view of the matter the Letters Patent appeal fails and is hereby dismissed. There will however be no order as to costs.


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