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Baldeo Sonar Vs. Mobarak Ali Khan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal583
AppellantBaldeo Sonar
RespondentMobarak Ali Khan
Cases ReferredDaulat Ram v. Mehr Chand
Excerpt:
hindu law - joint family--mitakshara--manager--debt contracted by a manager for trading business of the family--decree against managing member only--sale of joint-family property in execution of such decree, effect of--liability of other members not parties to the decree. - .....i. l. r. 23 bom. 372. it was held that other members of the family, though no parties to the suit on a debt contracted for family purposes, were bound by a decree passed against the managing member and sale thereunder. this view of the law has always been taken in this court, and we may refer to shea pershad singh v. saheb lal . as the last of a series of reported cases dealin(1892) i. l. r. 14 bom. 597g with the question.5. in the present case the creditor, (defendant no. 1), has been found to have advanced money for a joint-trading business of the family, and the case of daulat ram v. mehr chand (1887) i. l. r. 15 calc. 70; l. r. 14 i. a. 187. is exactly in point. the plaintiffs and defendant no. 2 are admittedly members of a joint family, and defendant no. 2 was the managing.....
Judgment:

Brett and Mitra, JJ.

1. In execution of a simple money decree against defendants Nos. 2 and 3, the property in dispute was sold and was purchased by the decree-holder, defendant No. 1. The family of the judgment-debtor, which is governed by the Mitakshara Law, consisted at the date of sale of the plaintiffs and defendants Nos. 2 and 3; plaintiff No. 1, Baldeo Sonar, being a brother, plaintiff No. 2, Mussamut Dukhi Koer, the mother, and plaintiff No. 3, Jugdeo, the son of the judgment-debtor, defendant No. 2. Defendant No. 3 is a cousin of defendant No. 2. The plaintiffs pleaded a partition of the house between themselves and defendant No. 2 on one side and defendant No. 3 on the other, and that the debt for which the sale had taken place was not binding upon them, as they were no parties to it. They had also not been made parties in the suit in which the decree was obtained against defendants, Nos. 2 and 3. It appears that plaintiff No. 1, Baldeo, was a minor at the date of sale. The Munsiff held that the family was divided as alleged by the plaintiffs, and that there had been a partition of the house, the northern portion having been allotted to the plaintiffs and defendant No. 2 and the southern portion to defendant No. 3. He further held that the sale was good as against defendants Nos. 2 and 3; and as plaintiff No. 3 was bound to pay his father's debts, he could not question the sale, unless it was shown that the debt covered by the decree under which the sale had taken place had been incurred for immoral purposes, but that was not shown in the case. He held that plaintiff No. 2, the mother, was not entitled to any share, until there was a partition amongst sons. But as to plaintiff No. 1, he found that the debt was not shown to be of such a nature as to bind him. The Munsiff, therefore, dismissed the suit of the plaintiffs other than plaintiff No. 1, and gave him a decree for a half share of the northern half of the house, confirming his possession to that extent.

2. Defendant No. 1 alone appealed, and on his appeal the Subordinate Judge held that there had been no partition of the house as pleaded by the plaintiffs; that the transactions of the plaintiffs and defendants Nes. 2 and 3 were joint; that the debt in question was valid; and that the sale relied upon by defendant No. 1 was binding on all the plaintiffs. As a consequence of these findings, the entire suit was dismissed with costs.

3. Plaintiff No. 1 (Baldeo) has appealed to this Court, and it has been contended for him that he was not bound by the decree and the sale thereunder, as he was not a party thereto, and that, even if he was bound, notwithstanding that he had not been a party, the findings of fact arrived at by the Subordinate Judge V were not sufficient for the disposal of the case.

4. The question how far a person, who is a member of a joint Hindu family, may be bound by a decree and a saw thereunder of the family property, though he is not a party, has often been discussed; and though there was some difference of opinion in the earlier eases, the later cases seem definitely to establish that he may be so bound- As regards the sons of the judgment debtors, they are certainly bound, unless the debt be proved by them to have been for immoral purposes. As regards other co-parceners, they also would be bound, if the creditor or the purchaser, as the case may be, could prove that the debt had been contracted for their benefit or the purposes of a trading business in which they were interested, and if the decree was substantially one against them, though in form it might be against the head member or members of the family. This would be especially so, if the other co-parceners were minors at the time the debt was contracted and the suit was brought. The earlier decisions of the High Court at Bombay relied on by the learned vakeel for the appellant were-overruled in Sari Vithal v. Jairam-Vithal (1890) I. L. R. 14 Bom. 597.; and in Sakharam v. Devji (1898) I. L. R. 23 Bom. 372. it was held that other members of the family, though no parties to the suit on a debt contracted for family purposes, were bound by a decree passed against the managing member and sale thereunder. This view of the law has always been taken in this Court, and we may refer to Shea Pershad Singh v. Saheb Lal . as the last of a series of reported cases dealin(1892) I. L. R. 14 Bom. 597g with the question.

5. In the present case the creditor, (defendant No. 1), has been found to have advanced money for a joint-trading business of the family, and the case of Daulat Ram v. Mehr Chand (1887) I. L. R. 15 Calc. 70; L. R. 14 I. A. 187. is exactly in point. The plaintiffs and defendant No. 2 are admittedly members of a joint family, and defendant No. 2 was the managing member along with defendant No. 8. The plaintiffs' allegation of a previous partition has been found to be false. The Subordinate Judge has also found that the debt was valid, that is, that it was contracted for the necessities of the family. The sale certificate relied on by the purchaser (defendant No. 1) shows that what was sold was the entire property and not merely a share. We think, therefore, the conclusion arrived at by the Subordinate Judge is right, and this appeal should be dismissed with costs.


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