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TMI Blog1958 (9) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of Co-operative Societies on April 21, 1942. In execution of this payment order a bungalow belonging to M. B. Jakati, defendant No. 1, was attached by the Collector under the Bombay Land Revenue Code on July 27, 1942. Notice for sale was issued on November 24, 1942, and the proclamation on December 24, 1942. The sale was fixed for February 2, 1943. On January 16, 1943, M. B. Jakati defendant No. 1 applied for postponing the sale which was rejected. The auction sale was held on February 2, 1943, and was confirmed on June 23, 1943,-the purchaser was S. N. Borkar, defendant No. 7, now respondent No. 1. On February 10, 1944, respondent No. 1 sold the property to defendants 8 to 10 who are respondents 2 to 4. On January 15, 1943, Krishnaji a son of defendant No. 1 brought a suit for partition of the joint family property and possession of his separate share alleging inter alia that the purchase by respondent No. 1 of the bungalow was not binding on the joint family as "it was not liable to be sold for the illegal and immoral acts on the part of defendant No. 1 which were characterised as misfeasance "; that the auction sale was under s. 155 of the Bombay Land Revenue Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the bungalow which is the only property in which the respondents are interested and which is in dispute in this appeal. On appeal the High Court held that the debt was not avyavaharika as there was no evidence to support the finding of the trial Court, the order of the Deputy Registrar being in the nature of a judgment to which neither the sons nor the auction purchasers were parties and therefore it was not " evidence of anything except the historical fact that it was delivered". In regard to the question as to what interest passed to the auction purchaser on a sale under s. 155 of the Bombay Land Revenue Code, it held that the whole estate including the share of the sons was sold in execution of the payment order and therefore qua that property the sons had no interest left. The High Court varied the decree to this extent and the plaintiffs have come up in appeal to this Court by certificate of the High Court of Bombay. The case of the appellants is (1) that the debt was avyavaharika and therefore in an auction sale the S.C.R. SUPREME COURT REPORTS 1389 interest of the sons and other members of the joint family did not pass to the auction-purchaser; (2) that even i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd except that it may be relevant to prove the existence of the judgment itself, it will not be admissible in evidence. Section 43 of the Indian Evidence Act, the principle of which is, that judgments excepting those upon questions of public and general interest, judgment in rem or when necessary to prove the existence of a judgment, order or decree, which may be a fact in issue, are irrelevant. It was then submitted that the pleadings of respondent No. 1 himself show that the debt was of an immoral or illegal nature. In his written statement, respondent No. 1 had pleaded that the liquidator of the Bank had charged defendant No. 1 with misfeasance because he was grossly negligent in the discharge of his duty and responsibility as managing director and that after a thorough enquiry the Deputy Registrar held misfeasance proved and ordered a contribution of ₹ 15,100 by him. As we have said above the translation given by Colebrooke of the term avyavaharika is the nearest approach to its true concept i. e. " any debt for a cause repugnant to good morals ". The managing director of a Bank of the position of defendant No. 1 who should have been more vigilant in investing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Privy Council said: "Nothing clearer could be said than what was said by Lord Hobhouse delivering the judgment of the Board in Nanomi Babusin v. Modun Mohan (1885) L.R. 13 I.A. 1, 17, 18 already quoted: " Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have for sometime established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against his creditor's remedies for their debts, if not tainted with immorality. On this important question of the liability of -the joint estate, their Lordships think that there is no conflict of authority ". There is no discrepancy of judicial opinion as to the pious duty of Hindu sons. In Panna Lal v. Mst. Naraini [1952] S.C.R. 544, 552, 553, 556, 559 this Court approved the following dictum of Suleman A. C. J. in Bankeylal v. Durga Prasad (1931) I.L.R. 53 All. 868, 896: The Hindu Law texts based the liability on the pious obligation itself and not on the father's power to sell the sons' share ". So great was the importance attached to the payment of debts that Hindu law givers gave the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich no arrangement was made at the date of the partition ". The liability of the sons is thus unaffected by partition because the pious duty of the sons to pay the debt of the father, unless it is for an immoral or illegal purpose, continues till the debt is paid off and the pious obligation incumbent on the sons to see that their father's debts are paid, prevents the sons from asserting that the family estate so far as their interest is concerned is not liable to purge that debt. Therefore even though the father's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition' the right of the judgment creditor to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons. There does not seem to be any divergence of judicial opinion in regard to the Hindu son's liability to pay the debts of his father after partition, and by the mere device of entering into partition with their father, the sons cannot get rid of this pious obligation. It has received the approval of this Court in Panna Lal v. Mst. Naraini [1952] S.C.R. 544, 552, 553, 556, 55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of fact to be determined with reference to the circumstances of each individual case whether the smaller or the larger interest was actually sold in execution ". But it has contended that a partition after the decree but before the auction sale limited the efficacy of the sale to the share of the father even though the sale in fact was of the whole estate, including the interest of the sons, because after the partition the father no longer possessed the right of alienation of the whole coparcenary estate to discharge his debts. But this contention ignores the doctrine of pious obligation of the sons. The right of the pre-partition creditor to seize the property of the erstwhile joint family in execution of his decree is not dependent upon the father's power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition. The consequence is that as between the sons' right to take a vested interest' jointly with their father in their ancestral estate and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resence of the sons eonomine is not necessary because they still have the right to challenge the sale on showing the immoral or illegal purpose of the debt. In our opinion where the pious obligation exists and partition takes place after the decree and pending execution proceedings as in the present case, the sale of the whole estate in execution of the decree cannot be challenged except on proof by the sons of the immoral or illegal purpose of the debt and partition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a means of reducing the efficacy of tile attachment or impair the rights of the creditor. Reliance is placed on the judgment in Khiarajmal v. Daim (1904) L.R. 32 I.A. 23 where the Privy Council held that the sale cannot be treated as void on the ground of mere irregularity but the Court has no jurisdiction to sell the property of persons " not parties to the proceedings or properly represented on the record ". There two such persons were Alibux and Naurex. As against Alibux there was no decree. He was not a party to the suit, and it was held by the Privy Council that his interest in the property " seems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t p. 18: "But if the fact be that the purchaser has bargained and paid for the entirely, he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the executing proceedings." The question which assumes importance in an auction sale of this kind therefore is what did the court intend to sell and did sell and what did the auction purchaser purport to buy and did buy and what did he pay for. One track of decision of which Shambu Nath Pandey v. Golab Singh (1887) L.R. 14 I.A. 77 is an instance, shows when the father's share alone passes. In that case the father alone was made a party to the proceedings. The mortgage, the suit of the creditor and the decree and the sale certificate all purported to affect the rights of the father and his interest alone. It was therefore held that whatever the nature of the debt, only the father's right and interest was intended to pass to the auction- purchaser. In Meenakshi Naidu v. Immudi Kanaka Rammaya Kounden (1888) L.R. 16 I.A. i which represents the other track of decision, the Privy Council held that upon the documents the court intended to sell and did s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution proceedings. The binding nature of the decree passed on the father's debts not tainted with immorality or illegality, and the pious obligation imposed on the sons under the Mitakshara law would be sufficient to sustain the sale and defeat the sons' suit in the same way and on the same grounds as in the case of execution proceedings. Nanomi Babuasin v. Modun Mohun (1885) L.R. 13 I.A. i. Consequently whether the sons were made parties to the execution proceedings or brought a suit challenging the sale of their shares the points for decision are the same-the nature of the debts and liability of the sons under Hindu law, and these are the determining factors in both the cases i.e. the sons being parties to the execution proceedings or their suit challenging the sale of their shares. The effect of attachment on the severance of status by the filing of a suit by one of the members of the coparcenary whose share was liable in execution of the decree has not been debated at the bar and how exactly it would affect the rights of the parties need not therefore be decided in this case. As a consequence it would not be necessary to discuss the pronouncements of the Privy Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er rights and interests, the said judgment debtor had in the property " and nothing else ". In Sripat Singh v. Tagore (1916) L.R. 44 I.A. i. the "right, title and interest of the judgment debtor" were sold and there also it was held to convey the whole coparcenary estate and it was remarked that it was of the utmost importance that the substance and not merely the technicality of the transaction should be regarded. What is to be seen is what was put up for sale what the court intended to sell and what the purchaser was intending to buy and what he purported to buy. Counsel for the appellants relied on Shambu Nath Panday v. Golab Singh (1887) L.R. 14 I.A. 77 where it was held that right and interest of the father meant personal interest but in that case as we have pointed out, the documents produced all showed that the father's interest alone was intended to pass. In Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa A.I.R. 194i Bom. 385 it was held that the sale under the Bombay Land Revenue Code has the same effect as the sale by the Civil Court. The language used in the Bombay Land Revenue Code and the then existing Civil Procedure Code is sim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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