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Kalappa Dyanappa and anr. Vs. Venkatesh Alias Ramachandra Ganesh Padaki and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberRegualr Appeal (B) No. 153 of 1956
Judge
ActsEvidence Act, 1872 - Sections 114
AppellantKalappa Dyanappa and anr.
RespondentVenkatesh Alias Ramachandra Ganesh Padaki and ors.
Appellant AdvocateK. Vittal Rao, Adv.
Respondent AdvocateH.B. Datar, Adv.
Cases ReferredHutcha Thimmegowda v. Dyavamma
Excerpt:
- constitution of india -- article 226; [a.s. bopanna, j] jurisdiction under held, high court will have jurisdiction regarding the statutory contracts and not a non statutory contracts. proper remedy is to work out through the competent civil court. narayana pai, j.(1) special civil suit no. 6 of 1950 on the file of the court of the civil judge, senior division, dharwar, out of which this appeal arises, was filed by the first respondent as the sole plaintiff. respondents 2 to 4, the father, the brother and the mother respectively of the first respondent, were defendants 1 to 3 in the suit. the third respondent having died after the presentation of this appeal, his mother, the fourth respondent, has been recorded as his legal representative. (2) the plaintiff sued for partition and delivery to him of his one-fourth share in the suit properties said to be joint family properties of himself and defendants 1 to 3, after declaring that the alienations made by the first defendant, his father, in favour of defendants 5 to 24 are not binding.....
Judgment:

Narayana Pai, J.

(1) Special Civil Suit No. 6 of 1950 on the file of the Court of the Civil Judge, Senior Division, Dharwar, out of which this appeal arises, was filed by the first respondent as the sole plaintiff. Respondents 2 to 4, the father, the brother and the mother respectively of the first respondent, were defendants 1 to 3 in the suit. The third respondent having died after the presentation of this appeal, his mother, the fourth respondent, has been recorded as his legal representative.

(2) The plaintiff sued for partition and delivery to him of his one-fourth share in the suit properties said to be joint family properties of himself and defendants 1 to 3, after declaring that the alienations made by the first defendant, his father, in favour of defendants 5 to 24 are not binding on his interest in the properties. In respect of the properties in which defendants 4,8 and 9 are interested, the plaintiff entered into separate compromises with them and the suit as against them was decreed in terms of the respective compromises. The suit against defendants 6,7,10, to 15 and 17 to 24 was dismissed.

(3) The fifth defendant is the purchaser of Lands comprised in R.S. No. 139 of Kamadhenu village and R.S. No. 253 of Mishrikoti village under a sale deed Ex. 208 dated the 26th of July, 1934, for Rs. 1,500/- executed by the first defendant. The sixteenth defendant purchased for Rs. 190/- the Land bearing R.S. No. 80 Mishrikoti at an auction sale held in execution of a decree obtained by the Mishrikoti co-operative society against the first defendant. In addition to claiming that the said two alienations were not supported by legal necessity or Family benefit, the plaintiff also alleged that the liabilities of this father for the discharge of which the properties went out of the family were Avyavaharika debts of his father tainted with illegality and immorality.

The trial Court held that the plaintiff had failed to prove that the debts were Avyavaharika debts or ones tainted with illegality or immorality. It also held that the consideration did pass from the alliances in respect of both the sales. The question which therefore remained to be considered was whether the alienations were for legal necessity or for the discharge of antecedent debts of the father. The sale under Ex. 208 in favour of the fifth defendant was admittedly not one for any preexisting liability but for case consideration paid at the time of the sale. Hence, the only question in respect of it was whether there was legal necessity for the sale. The trial Court held that the fifth defendant had failed to prove necessity or even bona fide enquiry leading to a reasonable belief in the existence of any necessity represented to have been existing by the father. Consequently it held that the sale under Ex. 208 was not binding on the plaintiffs interest in the property conveyed.

Regarding the auction purchase made by the sixteenth defendant, though the parties at the time of the trial conceded that the debt which resulted in the decree against the first defendant was a surety ship debt on which basis the Court expressed the view that the sale in execution of a decree obtained for recovery of such debt would pass the son's interest in the property also, because the sixteenth defendant had alleged in his written statement that the property had been mortgaged by the first defendant by way of guarantee for another persons debt to the society the Court held that neither the mortgage nor the sale in execution of a decree on that mortgage would be binding on the son under the doctrine of pious obligation. It therefore held that this alienation was also not binding on the plaintiffs interest.

(4) As a result of these findings, the trial Court granted to the plaintiff a decree entitled him to recover a half share in R.S. No. 80 and 253 of Mishrikoti village and R.S. No. 139 of Kamadhenu village together with one-fourth share in certain immovable and moveable properties still remaining in possession of the first defendant and described in paragraph 1 of the plaint, with a direction that in the course of the partition, as far as possible, an attempt should be made to allot to the plaintiff unalienated properties in satisfaction of his share and the alienated properties to the share of the first defendant so that the alienees, if possible, may retain the properties sold to them.

(5) This appeal is by defendants 5 and 16. On behalf of the fifth defendant, it has been contended that the sale under Explanation 208 in his favour was actually for the necessity stated therein, viz., the expenses of the marriages of the first defendants daughters, and that in any event, the evidence on record is sufficient to prove that he did make bona fide enquires into the truth of his representation which led him to believe that the representation was true and that, therefore, his title cannot be affected by subsequent misapplication of money, if any, by the first defendant. On behalf of the sixteenth defendant, it has been contended that there is no evidence that the first defendant had mortgaged R.S. No. 80 of Mishrikoti village when he stood surety for a debt owning to the Mishrikoti Co-operative society by another person and that even if it is assumed that there was such a mortgage and that the mortgage by itself as well as the decree thereon may not be supported by an antecedent, debt of the father the sale in execution of the decree would be one for an antecedent debt, viz., the debt comprised in the mortgage and merged in the decree, and therefore binding on the son's interest also. Both of them contend that, in any event, the plaintiff having asked for only a one fourth share in the properties, the trial Court was not justified in decreeing a half share therein to him.

(6) Before examining these contentions of the appellants, it would be convenient to dispose of another point raised on behalf of the fifth defendant, viz., the properties purchased by him were not joint family properties but the self- acquisitions of the first defendant. This contention was the subject -matter of issue No. 37 in the suit. The trial Court rejected this contention and held that there was no evidence whatever to show that the first defendant either added to the family properties or had any independent source of income other than the properties and resources of the family.

(7) After the close of the evidence as well as the arguments in the suit, the plaintiff appears to have produced a document said to be a deed of partition to support his case that all the properties in suit were joint family properties. The trial Court, however, declined to receive the document in evidence because the same was produced at a very late stage in the proceedings. At the same time, it rejected the argument on behalf of the contesting defendants that an adverse inference should be drawn against the plaintiff for the non-production of any document in support of his case. Though this point has been reiterated in the grounds of appeal, the learned Counsel for the appellants did not press it with any seriousness. We think, the learned counsel is right in not pressing this contention because the plaintiff having made an attempt to produce this important document cannot be said to have suppressed it so as to support an adverse inference against him. Further, it is not obligatory on the Court to draw any such inference if there is other evidence on the basis of which it could come to a decision on the question at issue.

(8) The learned counsel has, however, pressed the fifth defendants contention that the plaintiffs case that all the suit properties are the joint family properties must be viewed with suspicion because he was failed to examine not only his father but also his mother and maternal uncle who, he states, had told him that the properties in suit were all ancestral properties which came into his fathers hands after the death of the latters father. But, this contention comes with little grace from the fifth defendant who, after making a general sweeping statement in his evidence to the effect that all the suit properties were the self- acquisitions of the first defendant who had himself purchased the same, clearly admitted that he had not inquired from whom the first defendant made the purchases and at what price, that even in respect of the Lands purchased by him he had not inquired from whom the first defendant had purchased the same, nor looked into the record of rights before making his purchase nor even asked the first defendant whether the properties were ancestral, and even confessed his inability to say whether the sale deed in his favour described the properties Association the self- Acquisitions of the first defendant.

(9) The learned counsel for the fifth defendant has, however, argued that the burden lay on the plaintiff to establish in the first instance that there was adequate joint family nucleus with the aid of which properties could have been acquired and that the plaintiff having failed to adduce sufficient evidence to discharge this initial burden lying upon him, he must be held to have failed to establish his claim that the suit properties or, at any rate, the properties sold to the fifth defendant were ancestral properties. When there is no evidence what, ever of the first defendant having acquired any of the suit properties and the fifth defendant in his statement merely stated that he did not admit that the suit properties were ancestral properties and made several admissions in his oral evidence referred to above, the legal argument based on the existence or otherwise of adequate family nucleus with the aid of which properties could have been acquired does not, in our opinion, arise for consideration on the facts of this case. The question has to be decided, as the Court below has done, on the evidence adduced by the plaintiff and the probabilities suggested by the same.

(10) The plaintiff has examined three witnesses to speak to the fact that the first defendant inherited from his father about 150 acres of Land a big residential house, silver pots, gold ornaments as well as a money- lending business. They are Fakkerappa Budappa, Jivaji Bhimaji and Hanmant Krishna Bhosale. (After discussion of evidence His Lordship proceeded:)

(11) In view of all these circumstances, we see no reason to disagree with the trial Judges opinion that the probabilities suggested by proved circumstances strongly corroborate the evidence on oath of Hanmant Krishna Bhosale and his finding that all the suit properties were ancestral properties of the first defendant and hence the joint family properties of himself and his sons.

(12) The legal necessity for sale under Explanation 208 as expressed in the said sale deed and attempted to be proved in the Court below by the fifth defendant was that the money raised by sale was necessary for the expenses of the marriages of the first defendants daughters. The case for the plaintiff was that this recital as to necessity recorded in Explanation 208 was a false one and that there all reason for raising this money was to redeem certain jewels belonging to a temple dedicated to Sree Rama established by the first defendants sisters mother-law fraudulently removed from the temple and pledged with a third party by the first defendant and his sister, which they were obliged to do in consequence of a criminal prosecution instituted against them by the Panchas or Trustees of the temple.

(13- 14) (After discussion of evidence on this point His Lordship proceeded:)

(15) The case of the fifth defendant that the expenses of the marriages of any of the daughters of the first defendant constituted the necessity for the sale under Explanation 208 must be rejected.

(16) His alternative case of his having made enquires to verify the truth of the statement that money was required for the expenses of such marriages is much weaker. He states that he made enquires of one Shivmurthi Shettar Venkanna Shanbhog and Govindappa Agasal about the marriages and adds that all these three were dead at the time he gave evidence. Seeing that the marriage of the first daughter took place in 1940, two or three months after the death of the bridegroom Raghunath Waman Kulkarni's first wife, it is impossible that the said alliance could have been settled more than a couple of months before the marriage actually took place. In that view, if indeed the fifth defendant had made any enquires what ever, he could not have failed to discover that the representation was false and that no marriage was at all in prospect at that time. This clear inference available in the evidence is sufficient to disbelieve the fifth defendants case of bona fide enquires into the alleged necessity for the sale.

(17) Such being the clear effect of the evidence bearing on the alienation so far discussed by us, it is unnecessary to examine the plaintiffs case that the property was sold by the first defendant to redeem the temple jewels fraudulently pledged by him and to escape consequent prosecution. But, the learned counsel for the fifth defendant before us has sought to make use of this part of the evidence of the plaintiff relating to the alleged misappropriation of the temple jewels and the prosecution in connection with it with a view to make out a new case of necessity to support the sale under Explanation 208. He contends that on the plaintiffs own showing the first defendant can be said to have raised money by sale under Explanation 208 to defend himself against criminal prosecution and that such a purpose would be legal necessity in law. We do not think that it is possible to make out any such new case for the fifth defendant. Firstly, it is completely opposed not only to the pleadings of the fifth defendant but also to his evidence. Secondly, the evidence on behalf of the plaintiff does not support the suggestion that money was raised by the first defendant to defend himself against a prosecution in Court but to redeem the temple jewels pledged either in breach of trust or as a result of a dishonest dealing with them suggesting a tacit admission of an illegal act and an attempt to escape the consequences thereof.

(18) We are also unable to accept that the proceedings said to have been taken by the first defendant under the Bombay Agriculturists Debtors Relief Act in which he unsuccessfully contended that the sale under Explanation 208 was actually a mortgage, can in any manner affect the plaintiffs case in the present suit.

We, therefore, confirm the finding of the Court below that the dale in favour of the fifth defendant under Explanation 208 was not supported by any legal necessity and that the fifth defendant made no such enquires regarding the truth of the representation recorded in the sale deed as to be able to protect his title against the claim of the plaintiff.

(19) The facts placed on record in respect of the purchase of R.S. No. 80 of Mishrikoti by the sixteenth defendant are very few. Though the plaintiff alleged that the sale was for recovery of an Avyavaharika debt of the first defendant and the sixteenth defendant alleged that the same was for family necessity, the actual facts accepted by the Court either as established by evidence or admitted by the parties on the basis of the sale certificate Explanation 338 and a joint memorandum filed on behalf of the contending parties Explanation 346-A, are these: One Hazisab Wallad Hussainsab had borrowed some moneys from the Mishrikoti co-operative society as principal debtor and the first defendant had joined the transaction as a surety for the said Hazisab. The principal debtor having failed to discharge the debt, the society obtained an award under the co-operative societies Act and Officer called the Special Recovery Officer, Shiggaon, sold the property by public auction for recovery of the amounts due under the award, at which auction the sixteenth defendant became the purchaser. The learned trial Judge in view of the joint memorandum Explanation 346-A held that the debt for recovery of which the Land was sold was a surety ship debt of the first defendant and not an Avyavaharika debt. He was also of the view that if it could be shown that the award was in the nature of a simple money decree, the sale execution of the award would undoubtedly pass the son's interest in the property to the purchaser. There was no document or any other evidence to show whether the award was in the nature of a simple money decree or a decree on the mortgage. The learned trial Judge preferred to act on the admission contained in the written statement of the sixteenth defendant to the effect that the first defendant mortgaged R.S. No. 80 and observed that 'if the mortgaged property is ancestral, I would agree with the learned pleader for the plaintiff that the share would not be bound by the sale.' Though the learned trial Judge did not express himself clearly on the subject it can be gathered from paragraphs 29 and 30 of his judgment that he was of the opinion that the sale was on ancestral property, that the debt was clearly not for any family necessity, that a mortgage was executed by the first defendant simultaneously with the incurring of the liability and that consequently it was not possible to support the transaction of mortgage against the son, the plaintiff as one for the discharge of an antecedent debit of the first defendant.

(20) The learned counsel for the appellants does not dispute that if a mortgage is executed by a Hindu father for a debt incurred simultaneously with the mortgage, the mortgage could be supported as against the sons only if legal necessity therefor is proved and not on the basis that it is for the discharge of an antecedent debt. He also concedes that even when a decree is passed on a mortgage, the decree is in no higher position than the mortgage, itself and would not therefore bind the sons interest. But he contends that a transaction of mortgage is both an alienation of property as well as a debt and that a sale in execution of a mortgage decree would convey the interests of the son also because the same can be supported as a sale in discharge of the debt which has got merged in the decree which is antecedent to the sale in the same way as a subsequent private alienation by the father, whether by way of mortgage or by way of sale in discharge of a previous mortgage, would be binding on the son as one made in discharge of an antecedent debt, viz., the prior mortgage.

(21) He relies upon a decision of the Full Bench of the High Court of Madras in the case reported in Abdul Hameed v. Provident Investment Co. Ltd., : AIR1954Mad961 (FB). The parties to that litigation were Cutchi memons who at the relevant period were governed by Hindu Mitakshara law and the case was decided on that footing.

(22) The facts of that case were that one Haji Mohamad Ibrahim Sait executed a mortgage of certain items if property belonging to him as his sons as joint family property in favour of the Provident Investment Company Limited, Bombay, that the Investment Company obtained a decree on the said mortgage, that during the execution proceedings, the sale was got postponed by Mohamad Ibrahim given two more items of property as collateral security and that ultimately all the properties mortgaged including the two items subsequently furnished as collateral security were purchased by the decree-holder, the Investment Company. Abdul Hameed, the son of the mortgagor, subsequently filed a suit for declaration that the mortgage decree as well as the sale in execution thereof were not binding on him. It will be noticed that the mortgage was not for any antecedent debt. But, the son questioned the transaction only after a decree had been obtained on the mortgage and the property sold in execution thereof. Questions arose.

'1. Whether a mortgage decree for sale simpliciter, without any personal liability, obtained against a father alone on a mortgage of the joint family property created by him for a purpose not binding on the family, is binding on the son's share by the application of the principle of pious obligation;

2. Whether a sale held of the joint family property in execution of such a decree is binding on the son's share'.

These questions and another question relating to limitation with which we are not now concerned were referred to the Full Bench. Subba Rao, J. delivering the opinion of the Full Bench answered the first question in the negative and the second in the affirmative.

(23) In answering the questions as aforesaid, his Lordship relied principally on four rulings of the Judicial Committee of the Privy Council, viz., Girdharee Lall v. Kantoo Lall -- 1Ind App. 321, Suraj Bunsi Koer v. Sheo Proshad Singh, 6 Ind App. 88, Brij Narain v. Mangala Prasad, 51 Ind App. 129 : (AIR 1924 PC 50) and Lal Bahadur v. Ambika Prasad . The first of them is the earliest decision where their Lordship of the Privy Council examined the Hindu law doctrine of pious obligation of the son to pay the debt of his father. Their Lordships held that the said pious obligation of the son to pay the fathers debts unless they had been contracted for immoral purposes afforded in itself a sufficient answer to a suit brought by the son either to impeach the sales by a private contract for the purpose of raising money in order to satisfy pre-existing debts or to recover property sold in execution of a decree of Court. In the second case, their Lordships of the Privy Council understood the first one as laying down the following two propositions :

'1. That where joint ancestral property has passed out of joint family either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt or a sale in execution of a decree for the fathers debt, his sons by reason of their duty to pay their fathers debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes and that the purchasers had noticed that they were so contracted and

2. That purchases in an execution sale, being strangers to the suit if they have no notice that the debts were so contracted, are not bound to make an enquiry beyond what appears on the face of the proceedings'.

In Brij Narain case 51 Ind App. 129 : (AIR 1924 PC 50), their Lordships of the Privy Council laid down the following five propositions :

'1. The managing coparcener of a joint undivided estate cannot alienate or burden the estate 'qua' manager except for purposes of necessity ; but

2. If he is the father and the reversions are the sons he may, by incurring debt so long as it is not for an immoral purpose lay the estate open to be taken in execution proceedings upon a decree for payment of that debt.

3. If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.

4. Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached.

5. There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead'.

In Lal Bahadur's case it was held that the earlier mortgages executed by a father not being for immoral and illegal purposes can sustain a sale of the family property by the father on the ground that the mortgages were antecedent debts.

(24) On the strength of all these propositions, there could be no difficulty nor was any doubt entertained that in the case of a simple money debt incurred by the father so long as it is not for any illegal or immoral purposes, the son's share in the joint family property would be liable, entitling the father to alienate the joint estate inclusive of his son's interest for the discharge of those debts and empowering the creditor to realise his debt by enforcing it in a Court of law bringing the joint family estate including the son's interest to sale through Court. In regard to mortgages executed by a father against debts incurred simultaneously with the mortgage, doubts as to the manner in which the doctrine of pious obligation should apply to them have arisen by reason of the fact that a mortgage is an alienation of property and as such alienation it could be supported as against the son's interest either on the ground of the legal necessity or on the basis that the same was for the discharge of an antecedent debt of a father not being one for illegal or immoral purposes. If a mortgage as a mortgage is not binding on the son's interest in the property, a decree thereon as a mortgage decree would equally not be binding on the son's interest because it could be equated to no more than a mortgage itself. His Lordship Subba Rao, J. Has resolved this difficulty or doubt regarding the mortgage debts of a father by pointing out that the transaction of mortgage is not merely an alienation but also a debt and consequently a decree on the mortgage would also comprise the debt included in the mortgage. If, as pointed out in Lal Bahadur's case, a mortgage by a father can be an antecedent debt to sustain a subsequent sale of the property by the father to discharge the mortgage conveying not only his own but also his son's interest therein, there could be a difficulty either in logic or on principle in a mortgage decree being an antecedent debt to sustain a subsequent sale in execution thereof to discharge the decree debt conveying the interests of both the judgment -debtor father and of his son. It is on this basis that Subba Rao, J. points out that the word 'debt' occurring in the second proposition laid down in Brij Narain's case would comprise not merely a simple money debt but also a mortgage debt.

(25) It will be noticed that the effect of the Privy Counsel's decisions as stated by his Lordship Subba Rao, J. results in two clear propositions :

(1) as an antecedent debt to support a subsequent sale or other alienation of property by a Hindu father there is no distinction in principle between an unsecured debt and a secured debt, and

(2) a compulsory sale in execution of a decree in enforcement of a debt of a father stands on the same footing as a private sale or other alienation by a father in discharge of an antecedent debt of his.

The second of these propositions has also been stated in the same form by Gajendragadkar, J. in Amrit Lal v. Jayanthilal, : [1960]3SCR842 . At page 971 of the Report, his Lordship says :

'The propositions in question (that is, those stated in Suraj Bunsi Koer's case) treated an alienation made for the payment of the father's antecedent debt on the same footing as an alienation made in execution of a decree passed against him and in both cases the principle enunciated is that in order to succeed in their challenge the sons must prove the immoral character of the antecedent debt and the knowledge of the alliance'.

(26) It has been urged on behalf of the plaintiff- first respondent that a different view has been taken by the High Court of Bombay as well as by the .....erstwhile High Court of Mysore.

(27) The decisions of the Bombay High Court relied upon are Bharmappa v. Hanmantappa, AIR 1943 Bom 451 and Puttappa v. Banappa, AIR 1944 Bom 344. In the former case, there are observations to the effect that a mortgage decree against the father qua mortgage decree binds only the father's interest and that the son's interest could be sold only if there is a personal decree against the father for payment of the amount and not merely a decree for payment of the debt by sale of the mortgaged property. The son's suit considered in that case was one brought after a mortgage decree had been passed but b a sale took place. It is, however, worthy of note that Beaumont C.J., who delivered the judgment of the Bench therein, expressed the definite view that the word 'debt in the second proposition laid down in Brij Narain's case, 51 Ind App 129 : (AIR 1924 PC 50) covers all forms of debt including secured debts. This latter opinion was accepted in the second case also mentioned above. In that case, the suit had been brought after sale in execution of a mortgage decree. The decree provided for payment of the mortgage money in certain installments and for sale of the mortgaged property in default of payment of two installments and further provided that if there was any deficit after sale, it was to be recovered personally from the mortgagor father. His Lordship Divatia J. Delivering the judgment of the Bench interpreted this decree as involving a personal liability of the father and confirmed the dismissal of the son's suit to set aside the sale as correct. His Lordship observed that instead of having two sales, i.e., the first sale of the father's interest in the mortgaged property and a subsequent sale of the son's interest in the remaining property, there is no reason why the whole property, there is no reason why the whole property cannot be sold in one sale when it is not established that the debt was not binding on the son. In neither of these cases did their Lordships consider the proposition that a mortgage transaction is both an alienation and a debt, and if we may say so with respect, their Lordships having taken the view that the terms 'debt' in the second proposition in Brij Narain's case included also a secured debt, there could have been no difficulty in taking the next step in the line reasoning and holding that the debt included in the mortgage would necessarily get merged in the mortgage decree as a debt and would Constitute an antecedent debt so as to convey the son's interest in the property also under a sale in execution of the decree. That such a view is not only possible but is necessarily involved in the propositions laid down from time to time by the Privy counsel is clear from the extract we have given above from the judgment of Gajendragadkar, J. in : [1960]3SCR842 .

(28) The ruling of the erstwhile High Court of Mysore relied upon by the learned counsel for the plaintiff -first respondent is that reported in Nanjaiya v. Chowdegowda 4 Mysore LJ 510, in which it is held that a mortgage is an alienation of interest in the mortgaged property and not a mere debt and that the doctrine of pious obligation which applies only to money debts and not to alienations is not applicable to mortgage debts. But, this decision proceeded upon the view of the law taken by earlier cases of the erstwhile High Court of Mysore strictly in accordance with the original Smriti texts bearing on the topic, according to which the pious duty of sons for payment of father's debt did not arise during the life time of the father and after his death the obligation of the sons arose with respect to simple money debts which were not Avyavaharika debts but not with respect to mortgage debts. That view must be taken to have been overruled by the decisions of the Supreme Court in Pannalal v. Mst. Naraini, : [1952]1SCR544 and Sidheshwar v. Bhubneshwar Prasad, : [1954]1SCR177 , as pointed out by a Full Bench of the Mysore High Court in the case reported in Hutcha Thimmegowda v. Dyavamma, 32 Mysore LJ 33 : (AIR 1954 Mysore 1993) (FB).

(29) We, therefore, respectfully agree with the view expressed by Subba Rao, J. in the Full Bench case reported in : AIR1954Mad961 as correctly representing the effect of the rulings of the judicial Committee of the Privy Counsel as well as of the Supreme Court of India.

(30) We hold therefore that the sale of R.S. No. 80 of Mishrikoti village in execution of he award decree against the first defendant at which the sixteenth defendant became the purchaser cannot be impeached by the plaintiff.

(31) There remains to consider whether the trial Court was right in decreeing a half share to the plaintiff in the properties purchased by the fifth and the sixteenth defendants when in his plaint he had claimed only a one-fourth share. The learned counsel for the first respondent- plaintiff has sought to support the decree on the ground that, although the plaintiff claimed only a one-fourth share, the additional one fourth decreed by the Court below may be attributed to the share of the plaintiffs mother who also is entitled to impeach the sales. But, she does not appear to have impeached the sales or claimed that her share be delivered to her in the suit. In fact, all the first three defendants remained ex parte. In the circumstances, we do not think that a decree in excess of the share claimed by the plaintiff can be supported.

(32) The result is that the suit against the sixteenth defendant in respect of R.S. No. 80 of Mishrikoti village will stand dismissed, and the decree against the fifth defendant in respect of R.S. No. 253 of Mishrikoti village and R.S. No. 139 of Kamadhenu village will be modified by showing that the plaintiff would be entitled only to a one-fourth share therein instead of a half share as stated in the decree of the Court below. The direction given by the Court below to the effect that the plaintiffs share should, as far as possible, be allotted to him out of the unalienated properties and that the Lands sold to the 5th defendant be allotted to the share of the first defendant so as not to disturb the fifth defendants possession thereof, if possible, will remain undisturbed. The result to be parties. The parties will bear their own costs in this appeal and pay and receive proportionate costs in the Court below.

(33) Decree modified.


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