Jakati v. Borkar

- _I_ - •, . _Stolt r:j_ _1'1adhy.:J_ - _I_ - 1384 SUPH.ElllE COURT R~PORTS/ [1959] now be decided by the High Court on merits in accordance with law. It ~s ottly necessa~y to adr.1 that the act complained of was committed a.s far ba~k as l9;i3 and it is desirable that. the case should be dealt with as expeditiously as possible. son·~ share hari con11! to an end and, consequently, at the a.uc:tion sale the sha1'e of the. sons did not pass to the a'>ction pur'chaser, and (3) that what could legally ht sold under s. 155 . . .. - _Appeal_ _aUoweJ'._ , S. l\L JAKATI & ANOTHER _11._ S. JL BORKAR & OTHERS (B. P. 81~HA, JAFER h1,n1 and J. L. KAPUf: JJ.) _Hindr1_ _La<()-Dcbt.1'_ _of fathcr--Pious_ _oblt'gation_ _uf_ _son---I)arti-_ 0 _tion._ _if ajf1:r:fs_ _such_ obligation-A\ yavaharika, _J/raning_ _•Jf-_ _·S11!r_ _of_ _joint_ _Ja1nily_ _property-"_ _J?ight,_ _title_ _and_ _interest_ _Qf_ d~Jaulter "-. _Bombay_ _Land Rcrcntte Code,_ _1879_ _(Rom._ _V of 1879),_ _s._ _i55 ._ ' ~ ,'-· ... _1'1adf;;h_ v. _Ueuashankar_ _S. K._ _Das_ _j._ _Septen1ber 2 4._ .J \\'as the 1nanaging director of a Co-operative Bc..nk getting a y•mly remuneration of I<s. 1,000. The Bank went iat~ liquidation and an examination of th~ affairs ha\'ing ~ho\,·l'ci that the n1011ies of the Bank,,·ere not properly invested and that J \Vas ncglige11t in the discharge of his duties, a payment order for Rs. r5.100 wa9'rna11e by the Deputy Registrar of Co-operative Societies against him. On .July _2i,_ 1942, for the realisation of the amount, an item of property belonging to the joint family of .J was attached hy the Collector and brought to sale under s. 155 of the Bombay Land Ifovenue Code, and purchased at auction hy the first respondent. This sale was held on Februuy 2. 1943, and confirmed on .June _23,_ i943. In the meantime on January r5, -r943, one of the sons of J instituterl a suit for partition and separate possession of his :->hare in the joint farnily properties. and contended, i11ter alia, that the sale in favou1 of the first respondent was not binding 011 the joint family. lhc sale \\·a3 challenged on the grounds (1) that the liability wh'eh J incurred \vas _aP)'a;,•aJ1ariha_ and therefore the interest of his :ions could not L><' sold for the realisation of tlw debt (2) that eve·1 if J.he debt \\"as not _ai·yaraharika,_ the institution ~f the suit for partition operated as :;cverance of status bet\\·een the 1n1~mbers of the family and, therefore, the father's power of disposition ovrr the ..... _t_ - ' ' -' ~ #### . - [• ] S.C.R. >~UPREME COURT REPORTS 1385 of the Bombay,i.,and Revenue Code was the right, title and interest of the defaulter, i. e.~ the 'father alone, which could not include the share of the other memgers of the joint family. The evidence consisting of the notice for sale, the proclamation of sale and the sale certificate showed that the whole of the property was sold, and not the share of the father alone. _Held,_ that the liability which J incurred was _not"avyava-_ _harika_ and that the sale of the joint family property, including the share of the sons, for the discharge of the debt, was valid. _Held,_ also, that, Colebrooke's translation of the term _avya;1a-_ _harika_ as "any debt for a cause repugnant to good morals", was the nearest approach to the true concept of the term as used in the _Smrithi_ texts. _Hem Raj alias Babu Lal_ v. _Khem Chand,_ (r943) L. R. _70_ I. A. r7r, relied on. . _Per_ Imam and Kapur JJ.-(r) The liability of the sons to d~scharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the death of the father and which does not come to an end as a result of partition of the joint family property. All that results from partition is that the right of the father to make an alienation comes to an enll. (2) Where the right, title and interest of a judgment-debtor are set up for sale, as to what passes to the **auction purchaser is a question of fact in each case dependent** upon what was the estate put up for sale, what the Court intended to sell and what the, purchaser intended to buy ar1d did buy and what he paid for. (3) The words "right, title and interest " occurring in s. r55 of the Bombay Land Revenue Code have the same connotation as. th<j' had in the corresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted. (4) In **execution proceedings it is** **not_** **necessary to implead the sons** or to bring another suit if severance of status takes place pending the execution proceedings because the pious duty of the sons continues ~nd consequently there is merely a difference in the mode of enjoyment.of the property. (5) The liability of a father, **'vho** **is. a managing** **director** **and** **who** **draws ·a salary** 01~ **a** **remuneration, incurred as a result of negligence in the discharge** of his duties is not an _avyavaharika_ debt as it cannot be termed as "repugnant to good morals". Case Law discussed. _Panlll' Lal_ v. _Mst._ _Nar'fni,_ [r952] S.C.R. 544 aird _Sudhash-_ _war Muilherjee_ v. _Bhubnesh11ar Prasad Narain Singh,_ [r954] S.C.R. ... r77, followed. _Khiarajmal_ v. _Daim,_ (1904) L.R. 32 I.A. 23 and _Sat Narain_ v. _Das,_ (r936) L.R. 63 I.A. 384, distinguished'. '. - ' _Mi;lgu.,d Co-opqative Credit Society_ v. _Shidlingappa Ishwa-_ _rappa,.A.I.R._ r94r Bom. 38r, approved. . . . . . _**jakati**_ v. _**Borkar**_ - ' . ·. , r •• _**Jakali**_ _v._ ;... ## . ' - 1386 SUPREME COURT HEPORTS,( [lll59] Cn•1L APPELLATE .rnusu1c·1·wx: Civil Appeal Ko. 233 of 1954. ' Appeal from the judg1i1Cnt and dc0ree dated August 22, 1950, of the Bombay High Court in Appeal Xo. 80 of 1946 from original decree, arising out of the judgment and decree dated October 10, l!J45, of the Court of Civil Judge, Se11ior Division, Dlutrwar, in Special Suit \"o. 64 of 1943. _A._ _V._ _Visu:anatha Sastri_ and _N. S. ](, Sastri,_ for the appellants. _A. S._ _H._ _Chari, Bann Shivchamn_ _Sinrjh_ and _G'o1:i1ul-_ _saran_ _Singh,_ for respondents ~ os. 2-4. 1958. September 24. The judgmont of lma.m anrl Kapur JJ. was deliverer! by Kapur J, Sinha '1· agreed to the order proposed. KAP'GR J.-This is 1111 appeal againHt the judgment and decree of the High Court of Bombay varying the decree of the trial Court decreeing the plaintiff's suit for possession by partition of joint family.propert.y. The facts of the case lie in a narrow compa.ss. :\!. B. Jitkati, defendant !'io. 1, was the :\lanaging Di1;ector of Dharwar Urban Co-operative Bank Limit3d which went into liquidation, and in that capacit,Y he was receiving a yearly remuneration of Rs. 1,000. As a result of certai1t proceerlingH taken against defendant X o. 1, ?II. H.,Jakati, by the liquidat-0r of the. Bank, a payment order for Hs. 15, 100 was m1tde by the Deputy H.egistmr of Cu-operative Societies on April 21, 1942. In execution ufthis payment order a bungalo•\' belonging to M. B.,fokati, defendant \"o. 1, was 1Lttached by th~ Collector under the Bombay Land i{e1·enue Code on July 27, 1942. Xotice for sale wa~ iss1ied on ::\ovember 24, 1942, and the proclamatio11 on December 24, l!J.12. The sale was fixed for Febn,ary 2, 1943. On Januar..Y 16, 1943, !IL B. Jakati defondant Xo. I applied for postponing the sale t\'hich was rejec>icd. The n.uction sale was held on Febrlary 2, l!H3, and was confirmed on .Tune 23, l!J43,-the purcha;er was S. N. Barkar, defencl1tnt N'o. 7, now respondent No. 1. On - Februar)• fO, 1944, respondent No. l ~~old th~ property to defendants 8 to . . . 10 . who are responden:,s 2 tu . . 4. - ' ###### . ' ' . - "\ S.C.R., CiUPREME COURT REPORTS 1387 The following.pedigree table,will assist in understanding the case : ' Madhavarao Balakri~han Jakati Deft. 1 = Bhimabai,, 2 I ~~I~~ . Krishnaji,-- Shriniwas Shantibai I ndumat1 [J ] Plff. **1** Plff. l(a) daughter daughter Deft. No. 3 Deft. No. 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 charac-. terised as misfeasance " ; that the auction sale was under s. 155 of the Bombay Land Revenue Code under which only" the right, title and interest of the defaulter" could Qe sold and therefore the right, title and "interest of only the father, defendant No. 1 was sold and not that of the other members. The plaintiff claimed' 1/4 share of the prorerty and also alleged that he was not on good terms with his father who had neglected his interest; that he was staying with his mother's sister and was not being msintained by his father and mother. On January 12, 1944, appellant No. **1** filed his written statement supporting the claim for partition and claiming his own share. He supported the claim of the then plaintiff that the sale in favour of respondent No. 1 was not binding on the joint family. Defendant No. 2, now appellant No. 2, •the _**]akati**_ v. _**Borkar**_ _**Kapur**_ _**J.**_ . moth~r, also supported the plaintiff's claim and on the death of Krishnaji, she claimed his t share as his heir. After the death of the original plaintiff Krishnaji, Shriniwas appellant No. **1** was substituted as plaintiff on J UWl 28, 1944. . . _1_ The suit was mainlyt contested by respondents **1** to 4. Respondent No. 1 pleaded that plaintiff's suit for partition was collusive having be@n bi:ought a~ the instance of the defendant No. **1,** M. B. J'akati, and it was not" _bona_ _flde;_ that defendant No. **1** was mad~ .. , - _**]rJ!wli**_ v. _**lrorkar**_ #### . ' - _**r**_ 1388 SUPREME COURT REPORT&, [1959] liable at the instance of the li~uidator of.the Dharwar Crban Co-operative Bank Ltd., for misfeasance because he acted negligently in ~he discharge of his duties as managing director of the Bank; that the debt was binding on the family as defendant No. I, M. B. .fokati, had been receiving a yearly remuneration from• the Bank and the properties were sold in payment of a debt binding on the family a11d therefore the "ale in execution of the p11yment. order eould not be chal:.enged as the sons were under a pious obligation und·.~r the Hindu law to discharge the debts of their father; that the sale could only be challenged 011 proof of the debt of defendant X o. **l** being for an "immoral or i :legal" purpose. These pleadings ga,·e rise to seYcral ismes. The learned Civil Judge hclcl that the suit wa~ collusi'l'c; that the liability which defendan·; No. l incurred was _avyavaharika_ and was therefore not binding on the sons and thus appellant Xo. I would have ~' share in the joint family property, defendant ~o. I } and 11ppella.nt :No. 2 also A. He therefore. dccl11red the shiues as a.hove in the whole of 1;he joint family property including the bungalow which is the only property in which the respondents arc i!1t{,rested and which is in dispute in 'this appeal. On appeal the High Court held that the debt was not _avyavaharikia_ as t.here waR no evidence tn suppor1 the finding of the trial Court, the order of the Deputy Hcgistrar being in the nature of a. judgment to which neither the sons nor the auction purchasers wiire parties nrnl therefore it was not "evide11ce of anyth',n~ except. t.hc historical fact that it wa.s delivered". Ir: regard to thn-<juP-st.ion as to whllt interest passed to the auction purchaser on a sitle under s. lfJ5 of the Bombay ·Land RPvenuc 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 t(igh Court var~d tho decrL'C to this extent and the pb\intiffs ha.rn come up in appeal to this Court. by certificate C•f the High Comt of Bol\lba,· .• The ca~e "of the appellants is **(1)** that the d.ebt was _rtvyamharika_ and .. therefore in an at1ction sale the - **i-\** ' - S.C.R. ~ .'JUPRE~E COURT REPORTg 1389 interest of t~ ·sons and other members of the joint family did not pass to tRe auction-purchaser; (2) that even if the debt was not _avwivaharika_ the institution of the suit for partition operated as severance of status between the members of the family and therefore the fathfir's power of disposition over the son's sha.re had come to an end and consequently in the auction sale the share of the sons did not pass to the auction-pur chaser; and (3) that what could legally be sold under s. 155 of the Bombay Land Revenue Code was the right, title and interest of the defaulter i. e. of the father alone which could not include the share of the other members of the joint family. The first question for decision is whether the debt qf the father was _avyavriharika._ This term has been variously translated as being that which is not lawful or what is not just or what is not· admissible under the law or under normal conditions. Colebrooke translated it as " a debt for a cause repugnant to good morals". 'J;here is another track of decision which nas translated it as meaning "a debt which is not supported as valid by legal arguments''. The Judicial Committee of the Privy Council in _Hem Raj alias Babu_ _l,al_ v. _Khem Chand_ ( [1] ) held t'hat the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the ierm used in the _Smrithis_ texts and may well be taken to represent its correct meaning and that it did not admit of a more precise definition. In _Toshanpal Singh_ v. _District Judge_ _of Agra_ ( [2] ) the Judicial" Committee held that drawings of monies for unauthorised purposes, which amounted to criminal breach of trust under s. 405 of the Indian Penal Code, were not binding on the sons, but a ci vii debt arising on account of the receipt of monies by the father which were not accounted for could not be termed _avyavalJarika._ _1_ In the case now Jlefore us the appellants have attempted to prove that the debt fell within the term _avyavaharika_ by relying upon the payment order and _**Jakati**_ v. _**Borkar**_ _**l(apu1'**_ _**J.**_ (1) (194~) L.R. 70 I.A. I7I, 176. (2) (1934) L.R. l1 I'.A. 350. - - . . •' ~. ' _**Jak.citi**_ v. _**Bork.ar**_ _**Kapur**_ _**J.**_ . . Act the principle of which is, that judgments except0 ing those upon questions of public and general ialerest., judgment in rem or when necessary to prove the cxiskncc of a judgment, order or decree, which may be a fact in isRuc, are irrelevant. It was then submitted that the pleadings of respondent :-.;o. l himself show tlrn.t the debt was of an immoml or illegal nature. In his written statement, respondent :'\o. **l** ha.d pl1~ad­ ed that the liq uic.lator of the Bank !\ad charged defendant No. l with misfoas:rncc because he was' grossly negligent. in the discharge of his duty and responsibility as managing di11·ctor aurl tha:, •after a thorough enquiry the .r.>eputy Hegistrar held mi!tfoas1\nce proved and ordered a contribution of Hs. 15,100 b~' hini. As we have said above the translation given by Cnlehrooke of the term _avya1x1harika_ is the near.,st approach to its true concept i.e. "any debt for a ea use repugnant. to good moro.ls ". The managing direct.or of a Bank of the position of defendant !:\o. l who should ha\·e been more vigilant in im·...,sting the monies of the Bank cannot be said to have incurred the liability for a cause "n·pugnanl to good morals ". We are !1t1able to subscribe to the proposition that in the modern age with its complex institutions of !3ankH and,Joint Stock Companies gon,rncd b5· many technic:ditie\ and complex ~yst.em of laws the liability such as h;\s arisen in the present ease could b" ea!!ec.l _avya1:aha.rika._ Tl:c debt was ' - • _**r**_ 1390 Sl!JPREME COURT RF.;FORTS - • [1959] the findings given by the Deputy Il:e~istrar in tlw payment order where the1ial'llty was inter alia based on a breach of trust. A.ny opinion given in the ·Jrdcr of the Deputy J{egistrnr as lo the nature of tlw liability of drfem!ant, Xo. I, .\1. 13.,fakat.i, cannot be used <18 evi<Jence in the present case lo determine whether the debt was _avyawharika_ or otherwise. The order is not admissible to prove the trnt.h of the facts therein stated and except that it may be relevant to prc•ve the existence of the judgment itself, it will not he 1dmissible in evidence. Hection 43 of t.hc Indian E\'idence _i_ the~cfore bi11ding.on the sons. The effect: of sen>rance of stat.us brought about by "the filing of the .. suit on January 2.\ • 1943, ftas been - ... ' - • S.C.R. • 'SUPREME COURT REPOR'l"S 1391 # ' 0 made the basts 0 of the argmoont that only the share of the father could be seized in execution of the payment order made against him. This would necessitate an examination into the rights and liabilities of Hindu sons in a _Mitakshara_ coparcenary family where the fathM is the _karta._ In Hindu law there are two mutually destructive principles, one the principle of independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty.of the sons to discharge their father's debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts. According to the Hindu law givers iliis pious duty to pay off the ancestors' debts and to relieve him of the death torments consequent on nonpayment was irrespective of their inheriting any property, but the courts rejected this liability arising irrespective of inheriting any property and gave to this religiouS' duty a legal character. _M asit Ullah v._ _Damodar Prasad_ ( [1] ). ]'or the payment of his debts it is open _to_ the father to alienate the whole coparcenary estate including the share of.the sons and it is equally open to his creditors to proceed against it; but this is subject to the sons having a right to challenge the alienation or protest against a creditor' proceeding against their shares on proof of illegal or immoral purpose of the debt. These propositions are well settled and are not within the realm of controversy. _(Panna Lal v. Mst· Naraini_ ('); _Girdharee Lal v. Kantoa_ _Lal_ 1tnd _Mudhan Thakaor v. Kantaa_ _Lal(');_ _Suraj_ _Bansi Kaer v. Shea Prasad Singh_ ('); _Brij_ _Narain v._ _M angla Prasad_ ('). In the fast mentioned case the Privy Council s1tid : made the basts _jakafi_ v. _Bo'rkar_ " Nothing clearer could be s1tid than what was s1tid by Lord Hobhouse delivering the judgment of the Board m _Nanami Bab:f;,in v. Modun Mahun_ (')already quoted : " Destructive as it may be . of the principle of (1) (1926) L.R. 53 I.A. 204. (3) (1874) L.R. I I.A. 321, 333. (5) (192~ L.R. _51_ I.A. 129, 136. _177_ (2) [1952] s.c.R.- 5..J4, s;2. 553, 556 .• 559. (4) ('878) LR 6 LA. 8$, 1p1. (6) (i885) LR. 13 I.A. I, 17, 18, (i885) LR. 13 I.A. . . ' - _**r**_ 1:~02 stJPRE:IIE COURT REPORTS• • (1959] iu~epcndent coparccnary .rigl\ts in the· sens, the deci. sions have for sometime established the principle that t.l1e sons cannot set up their rights against their father's alicm1tion for an antecedent debt., or ae.ainst his credit-0r's remedies for their debts, if not ta.intcd with il'nmorality. On this important, quest.ion cf the liability of the joint estate, their Lordships think that there is no conflict of authority". There is no discrepancy of judicial opinion as l.o the pious duty of Hindu sons. In _Panna Lal_,._ _Mst._ _Naraini_ (')this Court approved the following dictum of Suleman A. C. J. in _Bankey/al_ v. _Durga_ _P1w1ad_ (') : "Tlw ll indu Law texts based the liabilit v on 0 the pious obligation itself aud not on the father's Jl<J1W'r to pious obligation itself aud not on the father's 0 Jl<J1W'r to sell the sons' share". So great was the importance attached to the payment of debts that Hindu law givers gave the non-payment of a debt the status of sinfulness and such 11011-pay. ment was wholly repugnant to Hindu concept of son's rights and liabilities. _lu_ _Bankeylal_ v. _Durga_ _Prasad(');_ Lal Gopal :llukherji J. s>Lid at p. 896: " A perusal of text hooks of Smriti deali11g with debts will show that under the H iudu Law the n1m· payment of a just debt was regarded as <t Yery heinous **sin."** The liability ~f the Hindu son based on his pious obligation again received the approval of thi~; Court in _Sudheshwar Mukhe1ji_ v. _Bhubneshwar Prnswl Xara·in_ _Sinrth_ (3), where the following observation made in _l'annu_ _I.,al's case(')_ (at p. 184): , "The fathe1"s power of alienaLing the family property for paymcut of his just clebts may be.one of the conserp1enccs of the pious obligati<m which the Hindu law imposed upon the sons; ot· it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligatio~ " was reitcrat;!d. And again 18~{ :llukhcrjc~L .J. (as at.•· he then was) said : _**]akati**_ v. _**Kapicr**_ _]._ . "It is p. special liability created on pmcly religious . . ,· , r ,. __ t **(1)** **i** **195•i]** ~C.H. **5·14 •** .s52, **553,** .5.'/ [1] - 559· (i) (1931) l.L.H. 53 All. 868, 8')6. (j) [195,],.C.H. _1J7,_ 183. 184 . - - y _**,i**_ ,~-" ' - '"'\ S.C.R. - ~UPREME COURT REPORTS 1393 (r) _(19!6)_ L.R. 44"1.A. I. (2) [1952] S.C.R. 544, 552, 553, 556, 559· • . . - grounds and !ilan be enforced. only against the sons of the father and no other coparcener. The liability, therefore, has its basis entirely on the relationship between the father and the son ". Therefore unless the son succeeds in proving that the decrl\e was based on a debt which was for an immoral or illegal purpose the creditor's right of seizing in execution of his decree the whole coparcenary property including the son's share remains unaffected because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in satisfaction of the judgment obtained against the father alone. _Sripat Singh v. Tagore_ (1 ). The necessary corollary which flows from the pious obligai!iion imposed on Hindu sons is that it is not ended by the partition of the family estate unless a . provision has been made for the payment of the just debts of the father. This again is supported by the authority of this Court in _Pannakil's_ _case_ ( [2] ) where .Mukherjea J. said at p. 559: _]_ _**akati**_ v. _**Borkar**_ _Kapur_ _]._ "Thus, in our opinion, a son is liable, even after partitiun for the pre-partition debts of his father which :i,r¥ not immoral or illegal. and for the payment of which 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 asseri.ing 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 judgm~nt creditor to _**f**_ seize the erstwhile coparcenary property remains unatrected and undiminished because of the pious obligation of the sons. There does not seem to be any divergence of judiciar opin1on. in regard .. \. , 1394 ' - • _**r**_ SUPHEME COURT REPORTS.,, [l!J59] to the Hindu son's liab[Iity to pay tlu~debis of his fat.her after partition, and by the mere device ofcntering into partition with their father, t.he sons cannot get rid of this pious obligation. It ha.s ree,ei,·ed the appro\'>tl of this Court in _Pa11na_ _Lal_ v. _Jlst._ Na.ra::ni (') and _8idheHhuwr_ _i1!11khe1ji_ v. _B11bnesh1car_ _l'i'Gsad_ _Narain Singh(')_ where :lluklwrjra,J, ohsez·\'ed in the latter emse at p. 184: "Jt. is settled l1tw that e:\·eiuLfter partition the SOll8 could be made liable for the: pre-partition debts <•f the father if there was no proper arrangement for the pa,yment of snch debts at t.he time, when the partition was effected, alth<1ugh the father conld have no longer any right of 1dienation in regard t-0 the se1•a,rnted slmre of the sons". Tht' question then arises how the liability of the sons is to be enforced. Another principle of Hinelu law is that in a, eoparcenary family the drcrce obtained against the father is binding on the sons as they would be deenwd to h:~\-e brcu represented by t.lie father in. the suit: _]{ ishan_ _Sarup_ v. _Hrijmj_ _Singh(')._ As was pointed out in _Sidheshwar_ _M11khe1ji's_ _r,ase_ ('), the sons a.re not. necessary p:irties to a money suit agll.ii1st the fat.her who is the _ka.rta,_ 1n1t. they may be jDint!<l •M defc•n<lants. The result of the partition i11 a joint family is no:hi11g more than >t rhange in th·~ mode nf enjoyment and what was held jointly is hy t.hc partition held in scvernltv and therefore attachment of the whole coparcenary estate would not. he affec({!d by the change in the mode of t•njoyment, because tr.e.Jiability of the Hhare which t.hn sons got on part.itio·~ remains urmffecte<l I" also tbe attachment it.self which is 110!. c·ndec.I by partition (8. 64 C. P. C. is a useful g11iclc in such circumstances). Dealing with the question as to how the intcn•st of the sons in joint family property ean be attached and sold, ;\Iukherjea **,J.** 1is he tlwn.,-as, observ·3rl at..p. 185 in _Sidheshu:ar Mukhe;ji's case(')\:_ "Be that as it may, the money decree passed agaw1st the £athen certainly cre1tted a <frht payable by **<1l** ~·1952t s.~.n. **544. 552. 553, 556, 559.** - **(z)** **(1954] S.C.H.. 177, 183, 184.** **(3)** **(19-ft;)** **I.L.H.** 5~ **All. 932 .** . . - _**:958**_ / _**ul1ali**_ _v._ _**Bork11r**_ _**A'a]'Hr**_ _]._ _.)_ ###### . ., - S.C.R., **.SUPREME** COURT REPOR'FS 1395 ### ' him. If the i;lebt was not tainted with immorality, it was open to the creditm~ 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 serie!l of cases, of which the case of _N anomi Babuasin_ v. _Modiin Mohun_ ( [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". , But it was contended that a partition after the decree but before t;lie 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 lo!ilger 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 freize 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 fat,her t~ 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 the remedy of the father's creditor to seize the whole of the estate for payment of his debt not contracted for immoral or illegal purpose, the latter will prevail and the sons are _**jakati**_ v. _**Borka'I'**_ _**f{apuY**_ _**J-**_ preclu~ed from settit:Jg up their right and this will apply even to the divided property which, under the doctrine of pious obligation continues to be liable for the debts of the father. Therefore- wh&re the joint ancestraJ prope~ty including the share ofth'c sons ha~ (1) (1885) L.R. 13 I. A. l, _17,_ 18. - - •• - - _r_ 1396 SUPREME COUltT REPORTS. - [1959) '• . ·-II r11) (18.-i5) L.J~. 13 I.'\. 1. (4) (1909) l.L.H. 31 All. 171), JC)&. (5) (1916~ L.•H .. '4·1 I.A. I. (6) l1952} ~.C.R. 544, _55i,_ 55.l. 556, 559 - (i) ~1951] s.C.H. _'7i._ 183. 184. (SJ l.L.H. 1950 ~1n. 1 r4. (9) (1914) I.L.H.. 38 ~lad. 1120. . . . . - passed out of the family i11 execution ot \he decree on the father's debt the remedy 'of the sons would b·.~ to proye in appropriat~ p1'tJceedings titken by them the illPgal or immoral purpose of the debt and in the absence of any such proof the sale will be screened from the sons' attack, because even after the partiit.ion their share remains liiible. _Girdhareelal_ \". _Kantoo/al_ (1), _Suraj Bansi_ _Koer_ ''· _Sheo_ _Prasad Narain Singh('),_ _1958_ _Jak1111_ v. _f(O/_ _UY_ _J._ _MuBsamat_ _Nmwrni Babuasin_ v. _Modnn Mohi:n('),_ _Chandra_ _Deo_ _Sinyh_ v. _Jllatn_ _Prasad(')_ which was approved by the Pri,·y Council in _Sahu llarn Chander_ ,.. _Bhup_ _Singh('), Pannalal_ v. _Naraini_ (') and _Sidheshwar Mukherji's wse_ ('). Our attention was drawn to two decisions, or:e by the High Court of Born bay in _Ganpatruo_ v. _Bhimrao_ (':) that in order to make the share of the sous liable after partition they should be brought on the record and the other of the llladrns High Court in _Ka.meshu:aramrna_ v. _Venkatasubba Row(")_ that the creditor has to bring another suit against the Rons, obtain '' dtl4!ree a.gainst, them limited to the shares allotted to them on parti. tion and then attach and sell their Hhare unless the partition 1rn:i not _bona_ .fi~e in which case the decree could be executed against the joint family propertt. Bnt the decision in these cascR must be confined to their own faf-ts.· It is true that the right of th•) father to tdienate for payment of personal debt is ended by the partition, but t>S we h<we said above, it does not affPct t.he pious duty of the .quns to discharge ·.he debt of their father. Therefore where after attachm•mt and a proper notice of sale thc whole estate including the so1ts' share, whic:h was attached, 1s sold ;i,nd th" purchaser buyR it intending it to be the whole coparce. 1i:ir~- estat<J, the presence of the .-;ons _w_ _nom :ne_ is not 1wcess•>ry because they st ill have the right to ·~hallenge the the sale on showing the immoral or illegal purpose debt. 0 ln our opinion whe1'l the pious obl.igation of the debt. 0 ln our opinion whe1'l the pious obl.igation exists and partition t<tkes phtc8 after the decree and (tJ :1s74) LR. 1 _I.:\._ 3~1. 333. (2) {18j8) L.H. ()I.A. t;f, 101. _$_ ' ' - S.C.R. • tlUPREME COURT REPOR'.PS 1397 #### ' _**j ahati**_ v. _**Borkar**_ _Kapur_ _]._ , pending execvtion proce~dinis as in the present case, the sale of the whole estate in execution of the decree cannot be challenged except ori proof by the sons of the immoral or illegal purpose of the debt and p·artition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a m~ans of reducing the efficacy of the attachment or impair the rights of the creditor. Reliance is placed on the judgment in _Khiarajmal_ v. _Daim_ ( [1] ) 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 to have been ignored altogether". He was not even mentioned as a debtor in the .award on tlie basis of which the decree, which was executed was made. Similarly Naurez was not represented in either of the suits and therefore there was no decree 'against him and the sale of his property also wits -therefore without jurisdiction and null and void. This case cannot apply to sons in a joint Hindu family where a father represents the family and the decree is executable against the shares of the sons while the coparcenary continues and the liability of their shares continues after partition. _Sat Narain_ v. _Das_ (2) 1s equally _inapplicable to the present case. There the Privy Council was dealing with the father's power of disposal of property before and after partition which powel' vests in the Official Assignee on his bankruptcy, the question of the right of the judgment-creditor to proceed in execution against the divided shares of sons which had been attached before partition was not a point i.J. controversy. **1** There was no decision on the powers of an executing court to proceed against the shares of the sons but the question related to voluntary alienations by a father for payment.of his debts not incurred for an immoral or illegal purpose. - (1) (1904) L.R. 32 I.A. 23. (2) (1936) L.R. 63 I.A. 384. - .. - - . . _**jflkati**_ v. _**JJ01kar**_ - _**r**_ 1398 OOPRg!llE COURT REPORTS. • [1959] Jn cases where the sons. rlo pot. chaliP11g" t.Jie liability of their interest in tlw rxecution of th•) decree ag~1inst the father and' the Court after atfachment and pf·oper not.ice of sale sells the whob eAtate :111d the auction-purchaser purchasPs and pays for the whole •est att>, the mere fact that the sons •were _eu_ _nominc_ not brought on the record woulJ not be sufficient to defeat the rights of the anetio11-j.•urchaser or put an end to the pious obligat.ion of the rnns. As was pointed out by Loni Hobhousc in _Jialkurjun Bin_ _Shirlramappu l'a8ure_ v . _.Varhari_ _Bin Shimpp1._ ('): "Their Lordships agree with the Yiew of t.he learned Chit.f Justice that a purchaser ca11not possibly judge of such matters, even if he knows the facts; and that if he i:; to be held bound to enquirt' into the accuracy of the Court's conduct of its own husines1<, no purchaser at _:t_ Court sale would he •;afr. Stmngcrn to a suit are justified in belieYing that the Cour•, bn.s done tlmt which by the directions of the Court it ought **to do.**,, In _:l!ussamat .Ynnmni Babuasia_ \'. _Modun Jl!ohun_ (') Loi'<! Hobhouse said n.t p. 18 : "llut if the fad be tlmt the purchaser has _b~r. gained and paid for the Pntircty, he llll•Y dearly defond his title ~o it upon any ground which would havt' justified a sale if the sons had been brought in to oppose the cx"cuting proceedings." The question which assumes importance in an auction sale of this kintl therefore is what did the C•lUrt intend t<> sell and did sell and what did the auctio11 pim:haser purport. to buy n.nd did buy and wlrnt did he ptiy fl!r . One trnck of rlecision of which _Sharnbu Natli PunJcy_ v. _Oolab_ _Singh_ C) is an instance, shows when the father's shtire alone passes. Jn that case the fathe:: alone was made a party _U>_ the proceedings. The mortgage, the snit of the eteditor and t.hc decyc ancl the sal•;. certilieate all purported to <Lffcct the, rigilt." of the fat.her and his inkrest; alone. It was therefore hdd that what-eve1· th!' nature of the debt, only the father's **(I)** ltQoOJ **L.R·.** _27_ I.A . .::16, 2.:5. (2) **{1885)** **L.H.** I~ **I.A.** **l.** ............. - (3) (1b87) L.I<. I.I I.A. _77._ - **lll** - • - - ' _**Kapt"**_ /. .. ~. _>_ ' - ~ S.C.R., J3UPREfy[E COURT REPORTS 1399 right and int11rest was intended to pass to the auctionpurchaser. In _Meenakshi Naidu v._ _Immudi_ _Kanaka_ _Rammaya Kounden_ ( [1] ) whiclr represents •the other track of decision, the Privy Council held that upon the documents the court intended to sell and did sell the whole of the coparcenary interest and not any partial interest. The query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree. _Mussamat Nanomi Babuasin·v._ _Modun Mohun_ (')(supra), _Bhagbut Persad v. Mussa._ _mat Girjci_ _Koer_ ('), _Meenakshi_ _Naidu v. Immudi_ _Ram-_ _maya Kounden_ (1) and _Rai Babu Mahabir Persad v. Rai_ _Markunda Nath Sakai(')_ and _Daulat Ram v. Mehr_ _{)hand(')._ In the present case the payment order was made by the Deputy Registrar on April 21, 1942, and after the order had been sent to the Collector for recovery, the property was attached on April 24, 1942, and notice of - sale was iiisued on November 24, 1942, and was published under ss. 165 and 166 of the Bombay Land Revenue Code. The proclamation of sale was dated December 12, 1942. - •The property put up for sale was plot No. 36-D measuring 6 acres and one guntha and its value was specified as 13,000 rupees. There. was a note added: " No guarantee is given of the title of the said defendant or of the validity of any of the rights, charges. or interests claimed by third parties ". The order confirming the sale also shows that the whole bungalow was sold. It was valued at Rs. 16,000 and there was a mortgage of Rs. 2,000 against it and what was sold and confirmed by this order was the whole bungalow. The sale certificate was in regard to the whole bungalow i.e. - City SurveY. No. 67-D measi.ring 6 acres antl one guntha the sale price being Rs. 13,025. There is little doubt therefore that what was put up for auction sale was the whole bungalow _**jakati**_ v. _**Borkar**_ _Kapur_ _]._ (•) (•888) L.R. 16 I.A. I. (2) (1885? L.R. "3 I.A. L (3) (1888) L.R. _•5_ I.A. 99. (4) (<889) L.R. 1f!.l!. n, <6. - - **(5) (1889) L.R.** **14** **I.A. 187.** _•78_ - - • - - .. ·-.. . - -, 1400 S'BPREME COURT REPORTS.,, [1959) and what the auction-purchaser purporte~ to buy and paid for was also the wl;olc 'bungalow am.I not any fractional share in it. It is a case whore not onlv was the payment order passed before the partition b~t the attachment was made and the sale proclamation was issued before the suit for partition was filed and· the sale took place of the whole property without any protest or challenge by the sons and without any notice to the Collect-Or or the judgment-creditor of the filing of the suit for partition. In such a case re8pondent _!\o._ l is entitled to defend his title upon the grounds which would have justified the sale had the appellants bG>en brought on record in execution proceedings. The binding nature of the decree passed on the father's debts not tainted with immorality o~ illegality, and the piou8 obligation imposed on the sons under the Jlitakshara li~w 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. _Nanmni Babuasin_ .v. _Jlfodun._ _Jlfohun_ ('). Consequent.ly whether the sons were made parties to the execution proceedings or brought a suit challenging the sale of their shares the points f'Or decision are the same-the nature of the debts and liabi-' litv of the sons under Hindu law, and these a.re t.hc determining .fa~tors in both the cases 1.c. 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 copa.rcenary whose share was liable in execution of the decree has not been debated at the bar and ho.w 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 in _Suraj JJansi_ _Kaer_ v. _Shed_ _Prasad_ Singh('); _Jfoti_ _Lal_ v. J(~rabul­ _din_ ("); _Ragunath Das_ v. _Swular Das_ _Khetri_ ('); _Ananta Pmlmanahha Swami_ v. _Official_ _Receiver, Secun-_ _dera9ad_ ('). (1) (1885) 'L.JI. 13 I.A. I. (2) (1S78) L.R. 6 l.A. 88, IOI. - (3) (1897) I. R. 24 I.A. 170. (4) (1914) l.~R 41 l.A, '251. , (.'il (19~3) L,H. 6~ I.A. 167. 174-5 . I _1958_ _**]akati**_ v. _**Borkar**_ _**Kof'ur**_ _]._ .. ~· ' The arguJ:Jteflt based on the interpretation of the words ' right, title and interest of the defaulter ' in s. 155 of the Bombay Land Revenue Code was that it was only the share of the defaulter himself which was and could be put up for auction sale. That the whole of the property was put up for sale, was sold a!J.d' was purchased as such is shown by the documents to which reference has already been made viz., the notice of November 24, 1942, proclamation of sale of December 24, 1942, the order of confirmation of sale dated June· 28, 1943, and the sale certificate issued by the Collector. The Civil Procedure Code at the time of the enactment of the Bombay Land Revenue Code required that the property sold in execution should be described as " right, title and interest of the judgment debtor" and the same words have been used ins. 155 of the Bombay Land Revenue Code. It is a question of fact in each case as to what was sold in execution of the decre1<. In _Rai Babu Mahabir Prasad_ v. _Mar-_ _0kunda Nath Sakai_ ( [1 ] ) Lord Hobhouse observed as follows at p. 16 : - • ., S.C.R. • .SUPRE¥E COURT REPOR'.CS **1401** " 1't is a question of fact in each case, and in this eao!e their Lordships think that the transactions of the 4th and 5th of January, 1875, and the description of shew the property in that the entire corpus the sale certificate, of the estate a:i;e conclusive to 0was sold. " shew that the entire corpus of the estate 0was sold. " Similarly in _Meenakshi Naidu_ v. _lmmudi_ _Kanaka_ _Rammaya Kounden_ ( [2] ) the whole interest of the copar. cenary was held to be sold taking into consideration the evidence which had been placed on the record. LDrd FitzGerald at p. 5 pointed out the differ<mce where only the father's interest was intended to pass: , _**jakati**_ v. _**Borkar**_ _Kapur_ _]._ "In _Hurdey Narain's case" (Hurdey Narain v. Rooder_ _Perkash_ (')) " all the documents shewed that the Court intendiid to sell, and that it did sell nothing but the father's share-the share and interest that he would take on partition, and nothing beyond it-and this tribunal in that case puts it entirel:ii upo,n the ground that case puts it entirel:ii upo,n the ground (1) (188 .. ) L.R. _17_ I.A. 11, 16, (2) (1888) L.R'. 16 I.A. l . - (3) (1883) L.R. II I.A. 26, 29. .. .. - .. - .... ' _**j**_ _**aka ti**_ _v._ _**IJorkar**_ _**Kapur**_ _]._ .. - , . 1402 SUPREME COURT RF;:PORTS • • [1959] that everything shewed that the th~g sold was "whatever rights and intc1~ests', the said judgment deb t-Or had in the property ".and nothing else''. In _Sripat_ _Singh_ v. _1'agore_ (')the "right, title and interest oft he judgment debtor" were sold and there also it ~rns held to convey the whole coparcenary e~tate and it was remarked that it was of the utmost import. a.nee that the substance and not merely the 'technicality of the transaction should be regarded. What is to be seen is what was put 11 p for sale what the court intended t-0 sell and what the purchase!: was intending to bny and what he purported to buy. Counsel for the appellants relied on _Shambu Nath_ _Panday_ v. _Golab_ _Singh(')_ where it was held that right and interest of the father meant personal interest bu1 in that case as we ha,·e pointed out, the documents produced all showed that the father's intercRt alone was intended to pass. In _.Mulgund Co.operative Credit Society_ _v._ _Shid-_ _lingappa_ _l_ _shwarappa_ (') it was held that tl\,e sale under the Bombay Land Hernnue Code has the same effect" as the sale by the Civil Court. The language used in the Bombay Land gevcnue Code and the then (!xi~ting Civil Procedure Code is si~ilar i.e. " the right, title atHi interest of the defaulter " in one case and " of the judgment d(jhtQr " in the other. This is supported by the observation of the Privy Council Ill _Rai_ _Babu_ _Mahabir Prasad_ v . _.Markunda Nath Sahai_ (') and :is to what passed under the sa.lc does not become any different merely because the sale is held under s. I ii5 of the Bombay Land Revenue Code rather than ihe Code of Civil Procedure. The effect in both cases is t.he same . We hold therefore (I) that the liability of the sons to discharge t.he debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the dooth of the fat~r and which does not come to an end aH a result of partition of the joint family property. All that resultA from partition is ~hat,the right of the father to make an ..... (2) (1887) L.H. 14 I.A. 77. **(4) (18h9T L.H.** **17** I~A. II, **16.** (1) (1916)-L.ft. 44 I.A. r. (3) A.LR. 1911 Hom. _385 •_ .. - • S.C.R. • ~UPREJ\j:E COURT REPORT.S 1403 _>_ alienation Coples to an end. _(2)_ Where the right, title and interest of a judgm;nt-cfebtor are set up for sale as to what passes to the auction-purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell .and what the purchaser intended to b~ and did buy and what he paid for. (3) The words " right, title and interest" occurring in s. 155 of the Bombay Land Revenue Code have the same connotation a,s they had in the corresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted. (4) In execution proceedings it is not necessary to implead the sons or to bring another suit if severance of status t.jtkes place pending the execution proceedings because the pious duty of the sons continues and consequently there is merely a difference in the mode of enjoyment of the property. (5) The liability of a father, who is a managing director and who draws a salary or ·a _remuneratiou, incurred as a result of negligence in the discharge of his duties is not an _avyavaharilca_ debt ·as it cannot be termed as" repugnant to good morals". \ In th 0e result the appeal fails and is dismissed with _**Jakati**_ v. _**Borkar**_ _Kapur_ _]._ _**Sinha**_ _**J.**_ _**September 30.**_ - . . <lo~ts. SINHA J.-I agree to the order proposed. ' _Appeal dismissed._ SRI BARU RAM - _v._ SHRIMATI PRASANNI & OTHERS (VENKATARAMA AIYAR, GAJENDRAGADKAR and A. K. SARKAR JJ.). Ele~ion _**Petition-Cor'rupt practice-Procuring• assistance of**_ _Government servant_ _by_ _appointing_ _as_ _polling_ _agent-Proof-Nomi-_ _nation paper, rejection_ _of-Failure to_ _produce_ _copy_ _of_ _electoral_ _roll_ _-If rejection improper-Representation of th,_ _PcoPie_ _Act,_ _r99 (43_ _of_ _r95r),_ _ss._ _2(c),_ _33,_ _36,_ _46_ _and_ _r23(7)._ The ll.rst respdl:tdent filed an election petition against tht!' .. -