TMI Blog1953 (10) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to a 4 annas share in the schedule lands and this claim was allowed by the trial judge. The High Court held, on the other hand, that the plaintiff's title extended only to 1 anna 4 pies share in the disputed properties, and with regard to this share alone he could claim partition. It is the propriety of this decision that has been challenged before us in this appeal. 3. To appreciate the contentions that have been raised by the parties before us, it may be convenient to narrate a few material facts. The properties in suit, which are comprised in Tauzi No. 703 of the Champaran Collectorate, belonged admittedly to the defendants first party and their ancestors. Defendant No. 1, Bhubneshwar Prasad, who is the main defendant in the present litigation, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note some time before 1932. Panchanan instituted a suit in the Court of the Subordinate Judge at Motihari against Bhubneshwar for recovery of this loan and having obtained a decree, put the decree in execution in Execution Case No. 16 of 1932 of the Court of the Subordinate Judge at Motihari. In course of these proceedings the right, title and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and sell the interest of the sons as well and unless, therefore, the sons succeeded in showing that the debts were such which they were not obliged to pay under the rules of Hindu law, the fact that they were not made parties to the proceedings was altogether immaterial. The result was that the trial judge allowed the plaintiff's claim in its entirety and passed a preliminary decree declaring the plaintiff's one-fourth share in the schedule properties. The defendant No. 1 thereupon took an appeal to the High Court. The learned Judges of the High Court, who heard the appeal, were of the opinion that the decision of the trial court would have been unassailable if the defendant No. 1 was the head of a joint family consisting of himself and his sons. In such cases he could have represented the interests of his sons and the entire interest could have been sold in the execution sale. But as in this case the plaintiff himself was a junior member of the family, he had neither any right of disposition over the interests of his sons, nor could he represent them in any suit or proceeding. What the purchaser acquired by the execution sale was not any interest in specified portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts. 7. We do not find any warrant for the view that to saddle the sons with this pious obligation to pay the debts of their father, it is necessary that the father should be the manager or karta of the joint family, or that the family must be composed of the father and his sons only and no other male member. No such limitation is deducible either from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions. Whether a debt is incurred for necessity or benefit of the family, the manager, whether he be the father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts, irrespective of the fact as to who actually contracted the debts. The authority of the manager is based upon the principle of agency or implied authority which has been formulated in a text quoted by Mitakshara. Even a single individual, thus runs the text, may make a donation, mortgage or sale of imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med to be based exclusively upon the father's power of disposition over the son's interest, such rights must necessarily come to an end as soon as the father dies, or there is a partition between him and his sons. It is settled law that even after partition the sons could be made liable for the pre-partition debts of the father if there was no proper arrangement for the payment of such debt at the time when the partition was effected, although the father could have no longer any right of alienation in regard to the separated shares of the sons. 9. It is true that under the Mitakshara law, as it is administered in the State of Bihar, no coparcener can alienate, even for valuable consideration, his undivided interest in the joint property without the consent of his coparceners; but although a coparcener is incompetent to alienate voluntarily his undivided coparcenary interest, it is open to the creditor, who has obtained a decree against him personally, to attach and put up to sale his undivided interest, and after purchase to have the interest separated by a suit for partition. A personal decree obtained against the sons could certainly be executed against them by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtainly created a debt payable by him. If the debt was not tainted with immorality, it was open to the creditor to realise the dues by attachment and sale of the sons' coparcenary interest in the joint property on the principles discussed above. As has been laid down by the Judicial Committee in a series of cases, of which the case of Nanomi Babuasin v. Modun Mohun 13 I.A. 1. Also see Bhagbut Pershad v. Mst. Girja Kour, 15 I.A. 991 Minakshi Naidu v. Immudi, 16 I.A. 1; Mahabir Pershad v. Markunda 17 I.A. 11; Sripat v. Tagore 44 I.A. 1.) may be taken as a type, the creditor has an option in such cases. He can if he likes, proceed against the father's interest alone but he can, if he so chooses, put up to sale the sons' interest also and it is a 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. In the present case it has been found as a fact by the trial judge - and this finding has not been reversed in appeal - that the executing court intended to sell and did sell a four annas share in the joint property which included the undivided interest of the so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to us to be a sound view to take. It is true that in all the cases referred to above, the father was actually the head of the family but that does not make any difference in principle. If the difference is sought to be made on the basis of the father's capacity to represent the sons in any litigation, it may be said that, subject to the rights of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the rule of Hindu law, the father, even if he was not a karta, could represent the sons as effectively in the sale or execution proceedings as he could do if he was the karta himself. Without being a karta he could, as a father, completely represent his branch of the coparceners consisting of himself and his sons; and vis-a-vis his sons his position would not improve in any way by his being a karta of the family. It has been observed in a Madras case (Vide Sudanaram v. Narasimhulu I.L.R. 25 Mad. 149, 155.) and we think rightly that so long as the family remains joint, all the members of a branch or a sub-branch of the family can form a distinct and separate corporate unit within the larger unit. Of such a smaller unit co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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