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Umbica Prosad Tewary and ors. Vs. Ram Sahay Lall and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal898
AppellantUmbica Prosad Tewary and ors.
RespondentRam Sahay Lall and ors.
Cases ReferredBissessur Lal Sahoo v. Maharajah Luchmessur Singh
Excerpt:
hindu law - mitakshara law--sale of joint family-property--debts legally contracted by father. - .....nos. 1 and 2, and grand-father of the plaintiff no. 3, was naturally the manager of the joint family-property, had an aurutdaree business, which was conducted for the benefit of the joint family; that, in the course of dealing regarding that business, he having become indebted to mussamut tetra and others, a suit was brought against him and a money-decree was obtained. it is also alleged that the sons, who were adults, and especially umbica prosad tewary, the plaintiff no. 1, took an active part in the management of the aurutdaree business, of which, it is stated, he was the cashier. the defendants further alleged that the whole of the family-property was sold and purchased by them. they contend that, being bon fide purchasers for value of the whole of the family-property.....
Judgment:

Mitter, J.

1. This appeal arises out of a suit instituted by Umbica Prosad and Sungthadin Tewary, sons of Thakoordeen Tewary, and Adiadin Tewary, grandson of the said Thakoordeen Tewary by a deceased son, to recover possession of a three annas share of Mouza Chuck Nyamut, out of the four annas share of the mouza, which constituted the joint family-property of these plaintiff's and Thakoordeen Tewary. The sixteen annas of Mouza Chuck Nyamut was registered in the Collector's Register as Estate No. 66. It is alleged in the plaint that a decree was obtained against Thakoordeen for money by Mussamut Tetra and others, and in execution of that decree only Thakoordeen's share in the family-property was sold on the 16th April 1877, and it was purchased by the defendants, who are the respondents before us. Then it is further alleged that, although only the interest of Thakoordeen was sold, the purchasers, the defendants--respondents in this case--under that purchase, succeeded in obtaining delivery of possession through the Court of the entire family-property, viz., a four-annas share of the aforesaid mouza, and thus dispossessed the plaintiffs, on the 27th of July 1877, of their share. The plaintiff's, therefore, brought this suit to recover possession of that share, viz., three annas, which, on partition of the entire family-property, would fall to them. The plaint was registered on the 28th August 1879. The defendants, respondents, in answer to this suit, alleged that the entire four-annas of the mouza in dispute was the self-acquired property of Thakoordeen, although it was purchased in the benamee of his father Jagadin Tewary. They further alleged in their written statement that Thakoordeen, who, being the father of the plaintiff's Nos. 1 and 2, and grand-father of the plaintiff No. 3, was naturally the manager of the joint family-property, had an aurutdaree business, which was conducted for the benefit of the joint family; that, in the course of dealing regarding that business, he having become indebted to Mussamut Tetra and others, a suit was brought against him and a money-decree was obtained. It is also alleged that the sons, who were adults, and especially Umbica Prosad Tewary, the plaintiff No. 1, took an active part in the management of the aurutdaree business, of which, it is stated, he was the cashier. The defendants further alleged that the whole of the family-property was sold and purchased by them. They contend that, being bon fide purchasers for value of the whole of the family-property which was advertised to be sold in execution of a decree against the father Thakoordeen, they were entitled to take possession of the whole of the said family-property, which they did without any objection.

2. The lower Court has held upon the evidence adduced by the parties that the entire family-property passed by this auction-sale, and accordingly dismissed the plaintiffs' suit.

3. The lower Court mainly relies upon the Privy Council decisions in the cases of Muddun Thakoor v. Kanto Lall L.R. 1 I.A. 321; S.C. 14 B.L.R. 187 and Suraj Bunsee Koer v. Sheopershad Singh L.R. 6 I.A. 88; S.C. I.L.R. 5 Cal. 148 and considers that the present case is distinguishable from the decision passed by their Lordships of the Judicial Committee in the case of Deen Dayal Lall v. Jugdeep Narain Singh L.R. 4 I.A. 247; S.C. I.L.R. 3 Cal. 198. In this appeal before us the main contention of the plaintiff's is, that the present case is governed by their Lordships' decision in the last-mentioned case. The defendants, respondents, on the other hand, contend, that the whole of the family-property passed under the execution-sale according to the decisions of the Judicial Committee in Muddun Thakoor v. Kanto Lall L.R. 1 I.A. 321; s. c. 14 B.L.R. 187 and Suraj Bunsee Koer v. Sheopershad Singh L.R. 6 I.A. 88; S.C.I.L.R., 5 Cal., 148. We do not think that there is any foundation either in the Mitakshara law itself, or in any decision passed by the Judicial Committee, for the broad proposition that, in all cases under a sale in execution of a money, decree against the father in a joint family consisting of a father and sons, whether adults or minors, nothing but the father's share passes. On the other hand, if the leading cases on the subject, viz.; Muddun Thakoor v. Kanto Lall L.R. 1 I.A. 321; s. c 14 B.L.R. 187; Dem Dayal Lall v. Jugdeep Narain Singh L.R. 4 I.A. 247 S.C.I.L.R. 3 Cal. 198; Suraj Bunsee Koer v. Sheopershad Singh L.R. 6 I.A. 88; s.c. I.L.R. 5 Cal. 148 and Bissessur Lal Sahoo v. Maharajah Luchmessur Singh L.R. 6 I.A. 233 be carefully collated and examined, it would appear that this contention is not sound. Of the cases cited above that of Muddun Thakoor v. Kanto Lall L.R. 1 I.A. 321; s. c 14 B.L.R. 187 closely resembles the present. In Muddun Thakoor v. Kanto Lall L.R. 1 I.A. 321; s. c 14 B.L.R. 187 the defendant purchased at a sale in execution of a decree against two persons, who were fathers of the plaintiffs in that case. The Judicial Committee, after finding that the plaintiffs in that case had failed to prove that the debt, which was the basis of that decree, was contracted for immoral purposes, says: 'It appears that Muddun Mohun Thakoor purchased at a sale under an execution of a decree against the two fathers. He found that a suit had been brought against the two fathers; that a Court of Justice had given a decree against them in favour of a creditor; that the Court had given an order for the particular property to be put up for sale under the execution, and therefore, it appears to their Lordships that he was perfectly justified, within the principle of the case which has already been referred to in 6th Moore's Indian Appeal Cases Hunooman Pershad Panday v. Mussamut Babooee Munraj Koonweree 6 Moore's I.A. 433 in purchasing the property, and paying the purchasemoney bon fide for the purchase of the estate,' Then their Lordships cite the passage bearing upon this question from the report of the case mentioned above, and after setting it out in extenso they go on to observe: 'The same rule has been applied in the case of a purchaser of joint ancestral property. A purchaser under an execution is surely not bound to go back beyond the decree to ascertain whether the Court was right in giving the decree, or, having given it, in putting up the property for sale under an execution upon it. It has already been shown that if the decree was a proper one, the interest of the sons, as well as the interest of the fathers, in the property, although it was ancestral, were liable for the payment of the fathers' debts. The purchaser under that execution, it appears to their Lordships, was not bound to go further back than to see that there was a decree against those two gentlemen; that the property was properly liable to satisfy the decree, if the decree had been given properly against them; and having inquired into that, and having bon fide purchased the estate under the execution, and ban fide paid a valuable consideration for the property, the plaintiffs are not entitled to come in, and to set aside all that has been done under the decree and execution, and recover back the estate from the defendant.' In that case, therefore, it is clearly laid down that where a decree is properly obtained against the father of a Mitakshara family in his representative capacity for debts which are not proved to have been contracted for immoral purposes, and the property is sold in execution of that decree, the whole of the family-property passes. It is further laid down that if the property is purchased by a, third party, and. if there is nothing on the face of the decree or proceedings to show that the debts were contracted for immoral purposes, the purchaser need not go beyond the decree. Now it is stated that this rule, thus distinctly laid down in that case, was to a certain extent modified in the case of Deen Dayal Lall v. Jugdeep Narain Singh L.R. 4 I.A. 247; s.c. I.L.R. 3 Cal. 198. Having carefully examined this latter case, we do not think that there is any foundation for this contention. The suit in that case was brought by one Jugdeep Narain Singh, who was the son of Tofany Singh, to recover possession of a certain share of a family-property, which belonged to Jugdeep and his father Tofany. From the printed record before the Privy Council it appears, that Tofany, the father, whether at the time of the sale or not, it does not appear clear, but at one time, was joint in estate with his two uncles, and the particular share which was the subject-matter of suit in that case was the share which belonged to Tofany and his son Jugdeep. The Court of First Instance, finding that there was no legal necessity for contracting the debts which formed the basis of the decree passed against the father, held, that the right, title, and interest of the father alone were sold. On appeal the District Judge came to the conclusion that there was legal necessity proved, and upon that ground held, that the whole of the family-property passed by the auction sale. The District Judge accordingly dismissed the plaintiff's suit. The case came up before this Court in Special Appeal, and a Division Bench of this Court held, upon the construction of the sale proceedings, that only the interest of the father passed by the auction-sale. In these proceedings the property that was brought to sale was described as 'the rights and proprietary and mokurari title and share of Tofany Singh,' the judgment-debtor. The Court, therefore held, that the purchaser under that sale could not, under any circumstances, acquire anything more than the interest of the father; but they, being further of opinion, that such interest was not saleable according to the Mitakshara law, decreed the plaintiffs claim. On appeal to the Judicial Committee, the learned. Counsel who appeared before them for the defendant, purchaser, mainly raised the question whether such interest as that of a father in a Mitakshara family was saleable in execution of a decree or not. Therefore the only question which the Judicial Committee had to consider in deciding that case was, whether the interest of a member of a joint Hindu family under the Mitakshara law was saleable in execution of a decree or not. Their Lordships observe (page 251) 'that the first and principal question that arises on the appeal is, whether the appellant acquired a good title even to the right, title, and interest of the father.' There is, however, one passage in the judgment (to which I shall presently refer) which has been generally considered to have laid down this proposition of law, viz., that where a decree is obtained against a father in a joint Hindu family governed by the Mitakshara law without making the sons defendants, all that can be sold in execution of the decree against the father is the father's interest only. The passage to which I refer is to the following effect: 'This issue, however, seems to their Lordships to be immaterial in the present suit, because whatever may have been the nature of the debt, the appellant cannot be taken to have acquired by the execution sale more than the right, title, and interest of the judgment-debtor. If he had sought to go further, and to enforce his debt against the whole property, and the co-sharers therein, who were not parties to the bond, he ought to have framed his suit accordingly, and have made those co-sharers parties to it. By the proceedings which he took he could not get more than what was seized and sold in execution, viz., the right, title, and interest of the father. If any authority be required for this proposition, it is sufficient to refer to the cases of Nogender Chunder Ghose v. Sreemutty Kaminee Dassee 11 Moore's I.A. 241 and Baijun Doobey v. Brij Bhookun Lal Awasti L.R. 2 I.A. 275.' Now these observations were made with reference to the particular facts of that case; their Lordships say that if he,' that is to say the creditor, 'had chosen to go further and to enforce his debt against the whole property and the co-sharers therein, he ought to have framed his suit accordingly.' If this observation referred to Jugdeep and his father only, their Lordships of the Judicial Committee would not have used the words 'and the co-sharers therein,' because there would be only one co-sharer, viz., the son. It has been already stated that there wore other co-sharers, viz., the uncles of the father, as appears from the record. It seems to me that their Lordships, in the passage cited, were referring to the question whether by the sale the whole of the family-property belonging to the father and his uncles passed or not. And they say that if it was the object to bring the whole of the family-property to sale, the plaintiff in the first suit should have made the co-sharers, namely, the uncles of Tofany, parties to the suit. Therefore there is no foundation for the contention that the passage above cited lays down generally this proposition of law, namely, that where a decree is obtained against the father alone in a joint Mitakshara family consisting of the father and sons, under no circumstances could anything more than the interest of the father be brought to sale in execution. The decision, therefore, of their Lordships of the Judicial Committee in the case of Deen Dayal Lall v. Jugdeep Narain Singh L.R. 4 I.A. 247; s.c. I.L.R. 3 Cal. 198 in no way conflicts with the principle laid down in the case of Muddun Thakoor v. Kanto Lall L.R. 1 I.A. 321; s.c 14 B.L.R. 187. That is also evident from the fact that the same principle is laid down again in the still later case of Suraj Bunsee Koer v. Sheopershad Singh L.R. 6 I.A. 88; s.c I.L.R. 5 Cal. 148 and it appears from the report of the last-mentioned case that the case of Deen Dayal Lall v. Jugdeep Narain Singh L.R. 4 I.A. 247; s.c I.L.R. 3 Cal. 198 was referred to and considered. In the case of Suraj Bunsee Koer v. Sheopershad Singh L.R. 6 I.A. 88; s.c I.L.R. 5 Cal. 148 after citing a decision of the Sadr Dewany Adawlut of the year 1861, their Lordships observe: 'The judgment, moreover, and this is the portion of it that is chiefly material to the determination of the present appeal, affirms the principle laid down in the judgment of the Sadr Dewany Adawlut, that a purchaser under an execution is not bound to go further back than to see that there was a decree against the father; and that the property was properly liable to satisfy the decree, if the decree had boon given properly against the father. In such a case, one who has bon fide purchased the estate under the execution, and bon fide paid a valuable consideration for it, is protected against the suit of the sons seeking to set aside all that has been done under the decree and execution, and to recover back the estate as joint ancestral property.' Their Lordships acted upon the same principle in the case of Bissessur Lal Sahoo v. Maharajah Luchmessur Singh (L.R., 6 I.A. 233). There three decrees were obtained on account of debts contracted by one Nath Dass. Upon the finding of the Judicial Committee in concurrence with that of the High Court, it appears that Nath Dass and his son Ram Nath Dass were members of a joint Hindu family. The decrees were obtained after the deaths of both Nath Dass and Ram Nath Dass, one against Mosaheb Dass, one of the sons of Ram Nath Dass, and the others against the guardian of Mosaheb Dass; and the questions which their Lordships had to determine was, whether, in execution-sales held under these decrees, the entire family property belonging to the joint family, consisting of Nath Dass, Ram Nath Dass and his sons, or only the right, title, and interest of Mosaheb Dass passed to the purchaser. Referring to one of these decrees passed against Mosaheb Dass the Judicial Committee observe: 'It appears to their Lordships that, acting on the principle which follows from their finding that this family was joint, it must be assumed that Mosaheb Dass is sued as a representative of the family, and that it must further be assumed that Nath Dass, in taking the lease of the mouza here referred to, Ramnuggur, in respect of which the rent was due, must be assumed to have taken it on behalf of the family, and that the debt must be deemed to be a debt from the family.' It may be mentioned here that the original debt, the basis of these decrees, was contracted by Nath Dass for the purpose of obtaining a mostajaree lease taken from the defendants, and it is to that lease that their Lordships refer here. Then they go onto observe with reference to the decree framed in the suit that 'the fair construction of it, though it may not be drawn up with much accuracy, is, that the decree is not to be executed against the self-acquired property of Mosaheb, but against the family-property, which is there described as that left by Nath Dass for the purpose of distinguishing it from the separate property which may have belonged to Mosaheb. The only difficulty with reference to the second and third decrees arises from a certain informality with which they have been drawn up. It appears to their Lordships that, looking to the substance of the case, this second decree is a decree against the representative of the family in respect of a family debt, and that it is one which could be properly executed against the joint property of the family, and that Muddunpore was a part of that joint property.' Then again: 'Their Lordships have, therefore, come to the conclusion that although there may have been some irregularity in drawing up these decrees, they are substantially decrees in respect of a joint debt of the family and against the representative of the family, and may be properly executed against the joint family-property.' These passages leave no room for doubt that a decree properly obtained against the father of a joint Hindu family under the Mitakshara law, acting as manager of the family, would bind all the sons who are members of that family; and that if the entire family-property be sold in execution of that decree, and if it be purchased by a bon fide purchaser for value, the whole of the family-property would pass. The result of the examination of those cases is, that in each case the question as to what was sold in execution must be first determined: the more circumstance that a decree was obtained against the father alone is not conclusive upon the point. It would be a material question for enquiry, viz., whether the father was sued in his representative character or not. If it be found that he was not sued in his representative character, no further question would arise; but if on the other hand this question be found in favour of the purchaser, then a further question would arise whether the sons are entitled to set aside the sale qua their shares. We must then examine the facts of this case in order to determine these questions.

4. We find that in this case it is well proved that Thakoordeen Tewary was the manager of the joint Hindu family; that he was carrying on an aurutdaree business for the benefit of the family; that in that business one of the plaintiff's in this case, viz., Umbica Prosad, materially assisted him and acted in the capacity of cashier. We also find from the plaint which was filed by Mussamut Tetra and others against Thakoordeen that the latter became indebted to the extent of Rs. 1,151-10-3 in the course of his dealings connected with the aurutdaree business. A suit was brought against him on the 9th July 1875. In that suit the defence of Thakoordeen Tewary was, that the claim of the plaintiffs was very much exaggerated, and that he was indebted to the extent of Rs. 134 only. In support of this defence Umbica Prosad, the plaintiff No. 1 in this case, was examined. The Court before which that case came on for decision on the 10th January 1876 passed a decree in favour of the plaintiffs. On the 14th March 1876, the decree-holders applied to execute that decree, and the petition, which was filed for the purpose of obtaining an order for execution, prayed that the Court would be pleased 'to seize and attach the properties specified below, and to sell the same and pay off the amount due under the decree'; and one of the properties specified below.' was No. 66 of Towzee, four annas of the entire sixteen annas, the milkiut and malguzari rights of the debtor in Mouza Chuck Nyamut. Thereupon an order was made by the Court on the 15th March 1876, directing the proper officer of the Court to attach the four annas milkiut right in Mouza Chuck Nyamut, and in accordance with that order the attachment was effected. Before the property was sold, Thakoordeen preferred an appeal against the decree, and that appeal was dismissed on the 15th November 1876. After that appeal was dismissed, a notification of the sale of the property attached was issued, and it ran in the following words: 'Notification of sale of the rights and interests in the undermentioned properties for the realization of the amount of the decree, dated 10th January 1876'; and one of 'the undermentioned properties' was No. 66 of Towzee Chuck Nyamut out of the area of Abgela. Then there were certain conditions of sale, the first of which was that, 'with the exception of the right and title of the debtor, the right and interest of no one else in the property in question will be sold '; and on the 17th May 1877 the sale was confirmed. The rubakary confirming the sale, after reciting that the property No. 2, as per detail below, to wit, No. 1, four annas of the entire sixteen annas, the milkiut and malguzari property of the debtor in Mouza Chuck Nyamut, out of the area of Abgela, Pargana Azimabad, Zilla Patna, bearing Towzee No. 66, and paying Government revenue Rs. 175-8, the right and interest of the debtor, was on the appointed day, that is to say, on the 16th April 1877, sold in the Court of the Judge of Patna, concludes in these terms: 'That the sale of property No. 2,--that is to say, four annas of the entire sixteen annas, the milkiut and malguzari right and interest of the debtor in Mouza Chuck Nyamut out of the area of Abgela, Pargana Azimabad, Zilla Patna, bearing Towzee No. 66, and paying Government revenue Rs. 175-8, held on the 16th April 1877, be confirmed in the name of the auction-purchasers.' Then, on the 7th of July 1877, a purwanna was issued by the Court to deliver possession to the purchasers of the entire four annas, the milkiut and malguzari property, the right and share of the debtor in Mouza Chuck Nyamut. It appears to us from the documents mentioned above that, in execution of the decree, which was obtained by Mussamut Tetra and others, the entire four annas, which constituted the family property, was sold. No doubt, in the sale-proclamation, one of the conditions of sale was, that, with the exception of the right and title of the debtor, the right and interest of no one else in the property in question would be sold; but this is one of the usual conditions of sale which are inserted in all notifications. Moreover, if, upon the evidence we come to the conclusion that Thakoordeen was sued in his representative capacity, that is to say, that he represented all the members of the family, then it must be considered that the real debtors in the decree were all the members of the family. Having regard to the circumstances under which the original debt was contracted, and having regard to the circumstance that the adult sons, or at least one of them, assisted the father in carrying on the trade in the course of the dealings of which the debt was contracted, and to the fact that in the sale-proceedings the entire family-property was described as the property to be sold, we feel no hesitation in coming to the conclusion that the whole family-property was brought to sale.

5. We are, therefore, of opinion that the decree of the lower Court is correct, and we dismiss the appeal with costs.


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