TMI Blog1948 (9) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... t the execution. But, in the meanwhile, the sons who were minors brought a suit for partition against their father, and as a result of this suit they obtained a decree. The suit from which the present appeal arises was brought by the plaintiff for possession of the property which he had purchased in execution of his own decree, and to this suit he made one of the minor sons a party, the other having died prior to the filing of the suit. The respondent, the other minor son, took up a contention that the debt in respect of which the joint family property was sold was contracted by Sahebrao for an illegal and immoral purpose and the decree in that suit and the auction sale in execution were not binding on his share in the properties. He also contended that the auction sale was affected by the principle of lis pendens. Upon this point the defendant failed, and the learned trial Judge came to the conclusion that the plaintiff-appellant purchased in the execution sale only the one third interest of the father, because prior to the sale there had been effected a partition between the father on the one hand and the sons on the other by the filing of the suit. By partition, of course, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or it being assumed that there was no partition there was a debt but it was incurred for an immoral or an illegal purpose, then the sale will not bind their interest. The difference is as to what happens in case the creditor having obtained a decree against the father when the father and the sons are still joint the SONS separate after the obtaining of the decree. One view has been that in such a case the creditor must bring another suit against the sons, obtain a decree against them which would be limited to the shares allotted to them on partition, and then attach and sell the shares, unless the partition was made with intent to defraud the general body of creditors, in which case the decree may be executed against the joint family property, But the other view which, as I said above, has been established now in this Court is that if there is a partition after the decree the decree may be executed notwithstanding the partition against the whole of the family property including the sons interest therein. To an application for execution in such a case the sons are obviously proper parties, and if they are made parties and after hearing their contentions as to whether their intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a particular person, that person must be represented in the execution proceedings. That proposition will be found laid down by their Lordships of the Privy Council in the case of Khairajmal v. Dam, 32 Cal. 296 (32 I. A. 23 P. C.). It was not a case of at joint Hindu family; nor was it concerned with the case of a decree which had been obtained against the father when the sons were not represented; but what happened in that case was that the lands in that suit were held by the plaintiffs under leases granted by Government for terms of seven years, and renewed from time to time. To a suit brought in 1897 for redemption of the lands which had been mortgaged in 1878 by usufructuary mortgages, the defence was that the defendants were not mortgagees of the property but had purchased it at sales in execution of decrees in 1880-81 which could not be set aside, and that the suit was barred by lapse of time. It appeared, however, that to the proceedings as a result of which the execution sales took place certain persons who had interest in the property were not made parties. Their interest was not represented at all in those proceedings. It was held that the Court had no jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of a son in execution of a decree against a father is justified, the father would obviously have no power to exercise for his own benefit that power after partition. For example, in Firm Govindram Dwarkadas, Bombay v. Nathulal, I. L. R. (1938) Nag. 101 (A. I. R. (24) 1937 Nag, 45), it was pointed out that the creditor's power to bring to sale the property owned by the judgment-debtor or in which he has disposing interest is co-extensive with the power of the judgment-debtor to dispose of his property or property over which he has disposing power. It must follow that when the property ceases to be the property of the judgment-debtor or the judgment-debtor loses his disposing power over it, the creditor's power also comes to an end and the decree obtained by him becomes incapable of being executed against it. It is true that the case of Firm Govindram Dwarkadas, Bombay v. Nathulal, (I. L. R. (1938) Nag. 10: A. I. R. (24) 1937 Nag. 45) was concerned with the right of the creditor to execute a decree obtained by him against a Hindu father in a suit to which a son was not made a party and which had been filed after there was a partition effected between the son and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Lokur J. which I have referred to above in Surajmal Deoram v. Motiram Kalu, 41 Bom. L. R. 1177 : (A. I. R. (27) 1940 Bom. 22). Sen J. purporting to follow the case of the Madras High Court held that the members who were united at the time a joint family liability was incurred were not absolved from their liability by the fact that they became subsequently divided, A creditor is entitled to have recourse to every item of the joint family property so long as it is in the hands of the persons who are under the law liable for his debt. When they must be held to be parties to the suit, it is immaterial what the character of the property in their hands is, whether it is still un-divided property or has become separate property by division. In doing so he followed, as I have said above, the view of the Madras High Court in the case of Venkatanarayana v. Somaraju, I. L. B. (1937) Mad. 880 : (A. I. R. (24) 1937 Mad. 610 (F.B.)). Now, it appears to us with respect that the case before Sen J, did not present any very formidable difficulty. The case was a case upon mortgage deed; the mortgage decree was obtained at a time when the father and the sons were joint. It is well established again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the foot of that purchase filed a suit against A, B and C to recover possession of the property and mesne profits. On the plea raised by B and C that they ceased to have any interest in the property by virtue of a partition effected in the joint family in and by which the property fell to the share of A, they were exonerated from the suit. At the said partition A obtained the said property for himself and on behalf of another son, D (a minor), with whom he continued to remain joint. The trial Court dismissed the suit, but the High Court, on appeal, pronounced judgment on 3rd May 1933, decreeing possession to the plaintiff and directing the ascertainment of mesne profits. A decree for mesne profits was ultimately passed on 3rd April 1935. Two months later A died and in February 1936 an application was filed to recover the amount by sale of the other properties in D's hands. D resisted the suit on the ground that, during the pendency of the above mentioned appeal in the High Court, there was a partition between him and his father A, in and by which the suit property fell to the share of his father, and by reason of the said partition the properties which fell to his share cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from this that the question as to whether a partition made any difference or not was answered by Venkatasubba Rao J. by reference to the passage in Mayne quoted, which, however has merely a reference to the question as to whether if family property is liable for a debt incurred by the family while joint, the liability is affected by a partition. It has no reference to the question whether even if the property is liable it is necessary to obtain after partition another decree against the persons who were not either eo nomine or otherwise parties to the decree obtained by the creditor. That was one of the grounds upon which in Kameswaramma v. Venkata Subba Row, 88 Mad. 1120 ; (A. I. R. (1) 1914 Mad. 328), the view has been taken that the creditor must bring another suit against the sons, obtain a decree against them and then attach and sell the property which has gone to their shares, the other ground being that owing to the partition at the date of the attachment the father has no power to sell the interest of the son. 9. On the other hand, Venkataramana Rao J. while pointing out that the suit having been properly constituted, any severance of status among the several membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when ultimately the Court consented in the year 1937 in passing the decree in the minor's suit that the partition should be effected, and in that case, he contends that the sale which in this case took place in 1935 was binding upon the sons because they must be treated as joint with their father at the time of the sale. We find, however, that so far as this aspect of the case is concerned, we are bound by two decisions of this Court, both of division benches. The first decision will be found in Ramsing v. Fakira, 41 Bom. L. R. 195 : (A. I. R. (26) 1939 Bom. 169), which was followed subsequently in Bammanagouda v. Shankargouda, 45 Bom. L. R. 1021 : (A. I. R. (31) 1944 Bom. 67). The reason of the rule was placed in the earlier case on the ground of the minor being capable through his next friend of making up his mind whether there should be a severance of his interest or not when instituting the suit provided that the discretion exercised by the next friend on his behalf was approved by the Court. With respect we are in agreement with the reasoning of the case, which in any case is binding upon us. Mr. Chitale contends, however, that even so, even if it could be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 64, Civil P. C., says that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. The partition in this case was effected as a result of a suit which had been filed by the minors against their father. One possible answer, therefore, to Section 64, Civil P. C., is that the partition in this case did not amount to a private transfer. Mr. Chitale says that the partition in this case took place not as a result of the decree of the Court, though under the decree the family properties were divided between the father and the sons; but the partition took place when the minor sons filed a suit after having made up their mind outside the Court to separate. He says that the suit was a judicial proceeding; but the filing of the plaint was not an act which could take away the character of a private transfer from the partition effected by the filing. Now, in our view, it is not necessary to go into this question for the purpose of the present appeal, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to recover from their joint family property the debts due to them are entitled to avoid the transfer ; but even then it does not mean that the creditors are able to say that there has been no severance of the status of the joint Hindu family ; it is the choice of the members of the family whether they should remain joint or whether they should separate. If they want to separate, they are not entitled to make a partition of the property in such a manner as to defraud the creditors of the joint family. At a partition provision must be made for the payment of the debts which are due to the joint family, and the partition will be avoided by the creditors as fraudulent if it is shown that no provision is made for debts due to the joint family and the partition was effected in order to defraud the cerditors. But as was pointed out by the Madras High Court in K. S. R. M. Firm v. Subbiah, even when the creditors can avoid a partition under Section 53, T. P. Act, and proceed against what would be the proper share in the family properties of the father (it being the Madras view that a decree obtained by the father alone cannot be executed against the son's interest after partition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entation of his interest. It has been well pointed out before now that a creditor is after all not without a remedy. The law merely permits him to sue a father alone for the debt incurred by him, It similarly permits him in execution of a decree brought against the father when the father was joint with the sons to bring to sale without adding as parties the sons the interest of the father as well as the sons. But if the creditor is apprehensive of a partition after the filing of the execution proceedings, it is open to him where the debt is binding upon the sons, to make parties not only the father but the sons. If he does not do so, he takes a risk, and when we remember that after all what is being enforced against the sons is a pious obligation to pay their father's debts, we see no reason why we should encourage the use of the doctrine further than is absolutely necessary. 16. The view, therefore, which has been taken by Lokur J., in Surajmal Deoram v. Motiram Kalu, 41 Bom. L. R. 1177 : (A. I. R. (27) 1940 Bom. 22), namely, that in case a creditor wishes to proceed against the interest of the son after partition in execution he must make the son a party, is the correct vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the father and his two sons and not the interest of the father alone. The sons contended that pending the execution proceedings there was a partition in the family, and that they were not brought on record in the execution proceedings, and as they were not made parties, the properties allotted to their share could not be sold in execution of the decree. This contention was accepted, and it was held that the plaintiff purchased only one-third share in the property which belonged to the defendant and his father. That decree was confirmed in appeal by the District Judge, Jalgaon. He followed the ruling in Surajmal Deoram v. Motiram Kalu, 41 Bom. L. R. 1177 : (A. I. R. (27) 1940 Bom, 22). In that ease Lokur J., had laid down six propositions, and proposition no. 5 is relevant for the purposes of this case : Proposition No. 5 : If such a decree is to be executed after the son has separated from his father, the son must be made a party to the execution proceedings, if his separated share is to be proceeded against. Otherwise, its sale will not be binding on the son. 20. In second appeal it is contended that this ruling of Lokur J., has not been followed in Tammanji Govind v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properly represented on the record. As against such persons the decrees or sales under them were void without any proceedings to set them aside. The interest, therefore, that passed to the auction-purchaser in the sale was one-third only as the sons were not made parties to the execution proceedings. If the sons had been made parties to the execution proceedings, there is no doubt that the entire interest in the joint family property would have passed to the decree-holder in the sale that was held in 1935. 21. The facts in Tammanji Govind, v. Abdul Rahim, 47 Bom. L. R. 884 : A. I. R. (33) 1946 Bom. 105), were somewhat different. There the father had executed a mortgage of the joint family property, and the decree-holder had obtained a mortgage decree against the father. After the date of the decree and before execution was taken out, there was a partition between the father and sons. But he filed a darkhast against the father alone to execute the decree by the sale of the mortgaged property and an order for sale of the mortgaged property was also passed. After the order was passed, but before the sale was held the father died and his sons were brought on record. There, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by Sen J. is met by the observations of Varadachariar J. in Thirumalamuthu v. Subramania A.I.R. (24) 1937 Mad. 458 : (170 I. C. 914). There his Lordship has observed (p. 460) : The law provides ways in which the creditor can avoid any injurious consequences arising therefrom, namely by impleading the sons in the action that he may bring against the father, because it is now well established...in nearly all the Courts that a partition will not defeat the rights of the creditor, though it may have some bearing on the procedure to be followed by him for the realisation of the debt. So it would be always safe for the creditor to make all the members of the coparcenary parties to both the suit and the execution proceedings, so that he may not be met with a situation that a decree obtained against the manager or the father will not avail him against the interest of the sons or other members of the coparcenary on account of the partition between the members of the joint family of which he may not be aware. We, therefore, prefer to follow the view adopted by Lokur J. in Surajmal's case, 41 Bom. L. R. 1177 ; (A. I. R. (27) 1940 Bom. 22). 22. The appeal, therefore, fails ..... X X X X Extracts X X X X X X X X Extracts X X X X
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