Appeal No 233 of 1954
Appeal from the judgment and decree dated August 22 1950 of the Bombay High Court in Appeal No 80 of 1946 from original decree arising out of the judgment and decree dated October 19 1945 of the Court of Civil Judge Senior Division Dharwar in Special Suit No 64 of 1943
A V Viswanatha Sastri and M section K Sastri for the appellants
A section R Chari Bawa Shivcharan Singh and Govindsaran Singh for respondents Nos 2 4 1958
September 24
The judgment of Imam and Kapur JJ was delivered by Kapur J Sinha J agreed to the order proposed
KAPUR J This is an appeal against 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 property
The facts of the case lie in a narrow compass
M B Jakati defendant No 1 was the Managing Director of Dharwar Urban Co operative Bank Limited which went into liquidation and in that capacity he was receiving a yearly remuneration of Rs 1000
As a result of certain proceedings taken against defendant No 1 M B Jakati by the liquidator of the Bank a payment order for Rs 15100 was made by the Deputy Registrar 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 section 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
1387 The following pedigree table will assist in understanding the case Madhavarao Balakrishan Jakati Deft 1 Bhimabai 2 Krishnaji Shriniwas Shantibai Indumati Plff
1 Plff
1a 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 characterised as misfeasance  that the auction sale was under section 155 of the Bombay Land Revenue Code under which only  the right title and interest of the defaulter  could be 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 14 share of the property 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 maintained 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 mother also supported the plaintiff s claim and on the death of Krishnaji she claimed his i share as his heir
After the death of the original plaintiff Krishnaji Shriniwas appellant No 1 was substituted as plaintiff on June 28 1944
The suit was mainly contested by respondents 1 to 4
Respondent No 1 pleaded that plaintiff s suit for partition was collusive having been brought at the instance of the defendant No 1 M B Jakati and it was not bona fide that defendant No 1 was made 1388 liable at the instance of the liquidator of the Dharwar Urban Co operative Bank Ltd for misfeasance because he acted negligently in the discharge of his duties as managing director of the Bank that the debt was binding on the family as defendant No 1 M B Jakati had been receiving a yearly remuneration from the Bank and the properties were sold in payment of a debt binding on the family and therefore the sale in execution of the payment order could not be challenged as the sons were under a pious obligation under the Hindu law to discharge the debts of their father that the sale could only be challenged on proof of the debt of defendant No 1 being for an  immoral or illegal purpose
These pleadings gave rise to several issues
The learned Civil Judge held that the suit was collusive that the liability which defendant No 1 incurred was avyavaharika and was therefore not binding on the sons and thus appellant No 1 would have 13 share in the joint family property defendant NO
1 13 and appellant No 2 also 13
He therefore declared the shares as above in the whole of the joint family property including 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 section 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 SCR 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 if the debt was not avyavaharika the institution of the suit for partition operated as severance of status between the members of the family and therefore the father s power of disposition over the son s share had come to an end and consequently in the auction sale the share of the sons did not pass to the auction purchaser and 3 that what could legally be sold under section 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 of the father was avyavaharika
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 
There is another track of decision which has 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 Lal vs Khem Chand 1 held that the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the term 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 vs District Judge of Agra 2 the Judicial Committee held that drawings of monies for unauthorised purposes which amounted to criminal breach of trust under section 405 of the Indian Penal Code were not binding on the sons but a civil debt arising on account of the receipt of monies by the father which were not accounted for could not be termed avyavaharika
In the case now before us the appellants have empted to prove that the debt fell within the term avyavaharika by relying upon the payment order and 11943 LR 70 IA 171 176
2 1934 LR 61 IA 350
1390 the findings given by the Deputy Registrar in thepayment order where the liabity was inter alia based on a breach of trust
Any opinion given in the order of the Deputy Registrar as to the nature of the liability of defendant No1 M B Jakati cannot be used as evidence in the present case to determine whether the debt was avyavaharika or otherwise
The order is not admissible to prove the truth of the facts therein stated and 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 Rs 15100 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 the monies of the Bank cannot be said to have incurred the liability for a cause  repugnant to good morals 
We are unable to subscribe to the proposition that in the modern age with its complex institutions of Banks and Joint Stock Companies governed by many technicalities and complex system of laws the liability such as has arisen in the present case could be called avyavaharika
The debt was therefore binding on the sons
The effect of severance of status brought aboutthe filing of the suit on January 25 1943 made the basis of the argument 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 father is the karta
In Hindu law there are two mutually destructive principles one the principle of independent coparceiiary 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 this 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
Masit Ullah vs Damodar Prasad 1
For the payment of his debts it is open to the father to alienate the whole coparconary 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 vs Mst
Naraini 2 Girdharee Lal vs Kantoo Lal and Mudhan Thakoor vs Kantoo Lal 3  Suraj Bansi Koer vs Sheo Prasad Singh 4 Brij Narain vs Mangla Prasad 5
In the last mentioned case the Privy Council said  Nothing clearer could be said than what was said by Lord Hobhouse delivering the judgment of the Board in Nanomi Babusin vs Modun Mohan 6 already quoted  Destructive as it may be of the principle of 1 1926 LR 53 IA 204
2   552 553 556 5 59
3 1874 LR 1 IA 321 333
4 1878 LR 6 IA 88 101
5 1923 LR 51 IA 129 136
6 1885 LR 13 IA 1 17 18
177 1392 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 vs Mst
Naraini 1 this Court approved the following dictum of Suleman A C J in Bankeylal vs Durga Prasad 2 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 non payment of a debt the status of sinfulness and such non payment was wholly repugnant to Hindu concept of son s rights and liabilities
In Bankeylal vs Durga Prasad 2 Lal Gopal Mukherji J said at p 896  A perusal of text books of Smriti dealing with debts will show that under the Hindu Law the nonpayment of a just debt was regarded as a very heinous sill
 The liability of the Hindu son based on his pious obligation again received the approval of this Court in Sudheshwar Mukherji vs Bhubneshwar Prasad Narain Singh 3 where the following observation made in Panna Lal s case 1 at p 184  The father s power of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu law imposed upon the sons or it may be one of the means of enforcing it but it is certainly not the measure of the entire obligation was reiterated
And again at p 183 Mukherjea J as he then was said  It is a special liability created on purely religious 1   552 553 556 559
2 All 868 896
3   183 184
1393 grounds and can 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 decree 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 vs Tagore 1
The necessary corollary which flows from the pious obligation 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 Pannatal s case 2 where Mukherjea J said at p 559  Thus in our opinion a son is liable even after partition for the pre partition debts of his father which are 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 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 1 1916 LR 44 IA1
2   552 553 556 559 1394 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 vs Mst
Naraini 1 and Sidheshwar Mukherji vs Bubneshwar Prasad Narain Singh 2 where Mukherjea J observed in the latter case at p 184  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 debts at the time when the partition was effected although the father could have no longer any right of alienation in regard to the separated share of the sons The question then arises how the liability of the sons is to be enforced
Another principle of Hindu law is that in a coparcenary family the decree obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit Kishan Sarup vs Brijraj Singh 3
As was pointed out in Sidheshwar Mukherji s case 2 the sons are not necessary parties to a money suit against the father who is the karta but they may be joined as defendants
The result of the partition in a joint family is nothing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and therefore attachment of the whole coparcenary estate would not be affected by the change in the mode of enjoyment because the liability of the share which the sons got on partition remains unaffected as also the attachment itself which is not ended by partition section 64 C P C is a useful guide in such circumstances
Dealing with the question as to how the interest of the sons in joint family property can be attached and sold Mukherjea J as he then was observed at p 185 in Sidheshwar Mukherji s case 2 Be that as it may the money decree passed against the father certainly created a debt payable by 1   552 553 556 559
2   183 i84
3 All 932
1395 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 vs Modun 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 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 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 precluded from setting tip 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 where the joint ancestral property including the share of the sons has 1 1885 LR 13 I A 1 17 18
1396 passed out of the family in execution of the decree on the father s debt the remedy of the sons would be to prove in appropriate proceedings taken by them the illegal 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 partition their share remains liable
Girdhareelal vs Kantoolal 1 Suraj Bansi Koer vs Sheo Prasad Narain Singh2 Mussamat Nanomi Babuasin vs Modwn Mohun 3 Chandra Deo Singh vs Mata Prasad 4 which was approved by the Privy Council in Sahu Ram Chander vs Bhup Singh 5 Pannalal vs Naraini 6 and Sidheshwar Mukherji s case 7
Our attention was drawn to two decisions one by the High Court of Bombay in Ganpatrao vs Bhimrao 8 that in order to make the share of the sons liable after partition they should be brought on the record and the other of the Madras High Court in Kameshwaramma vs Venkatasubba Row9 that the creditor has to bring another suit against the sons obtain a decree against them limited to the shares allotted to them on partition and then attach and sell their share unless the partition was not bona fide in which case the decree could be executed against the joint family property
But the decision in these cases must be confined to their own facts
It is true that the right of the father to alienate for payment of personal debt is ended by the partition but as we have said above it does not affect the pious duty of the sons to discharge the debt of their father
Therefore where after attachment and a proper notice of sale the whole estate including the sons  share which was attached is sold and the purchaser buys it intending it to be the whole coparcenary estate the presence 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 1 1874 LR i IA 321
2 1878 LR 6 IA 88 101
3 1885 LR 13 IA Y 4 All 176 196
5 1916 LR 44 IA 1
6   552 553 556 559
7   183 Bom
9 Mad
1397 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 vs 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 the 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 was 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 vs Das 2 is 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 power 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 in controversy
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 LR 32 IA 23
2 1936 LR 63 IA 384
1398 In cases where the sons do not challenge the liability of their interest in the execution of the decree against the father and the Court after attachment and proper notice of sale sells the whole estate and the auction purchaser purchases and pays for the whole estate the mere fact that the sons were eo nomine not brought on the record would not be sufficient to defeat the rights of the auction purchaser or put an end to the pious obligation of the sons
As was pointed out by Lord Hobhouse in Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa 1  Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters even if lie knows the facts and that if he is to be held bound to enquire into the accuracy of the Court s conduct of its own business no purchaser at a Court sale would be safe
Strancers to a suit are justified in believing that the Court has done that which by the directions of the Court it ought to do
 In Mussamat Nanomi Babuasia vs Modun Mohun Lord Hobhouse said at 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 vs Golab Singh3 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 1 1900 LR 27 IA 216 225
2 1885 LR 13 IA i 3 1887 LR 14 IA 77
1399 right and interest was intended to pass to the auction purchaser
In Meenakshi Naidu vs Immudi Kanaka Rammaya Kounden1 which 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 vs Modun Mohun 2 supra Bhagbut Persad vs Mussamat Girja Koer 3 Meenakshi Naidu vs Immudi Rammaya Kounden 1 and Rai Babu Mahabir Persad vs Rai Markunda Nath Sahai 4 and Daulat Ram vs Mehr Chand 5
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 issued on November 24 1942 and was published under sections 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 13000 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 16000 and there was a mortgage of Rs 2000 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 measuring 6 acres and one guntha the sale price being Rs 13025
There is little doubt therefore that what was put up for auction sale was the whole bungalow 206 1 1888 LR 16 IA i 3 1888 LR 15 IA 99
5 1889 LR 14 IA 187
178 2 1885 LR 13 IA i 4 1889 LR 17 IA 11 16
1400 and what the auction purchaser purported to buy and paid for was also the whole bungalow and not any fractional share in it
It is a case where not only was the payment order passed before the partition but 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 Collector or the judgment creditor of the filing of the suit for partition
In such a case respondent No 1 is entitled to defend his title upon the grounds which would have justified the sale had the appellants been brought on record in execution 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 vs Modun Mohun 1
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 ie 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 in Suraj Bansi Koer vs Sheo Prasad Singh 2  Moti Lal vs Karrabuldin 3 Ragunath Das vs Sundar Das Khetri 4 Ananta Padmanabha Swami vs Official Receiver Secunderabad 5
1 1885 LR 13 IA i 3 1897 LR 24 IA 170
2 1878 LR 6 IA 88 101
4 1914 LR 41 IA 251
5 1933 LR 60 IA 167 174 5
1401 The argument based on the interpretation of the words I right title and interest of the defaulter  in section 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 and 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 Decem ber 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 in section 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 decree
In Rai Babu Mahabir Prasad vs Markunda Nath Sahai 1 Lord Hobhouse observed as follows at p 16   It is a question of fact in each case and in this case their Lordships think that the transactions of the 4th and 5th of January 1875 and the description of the property in the sale certificate are conclusive to shew that the entire corpus of the estate was sold
 Similarly in Meenakshi Naidu vs Immudi Kanaka Rammaya Kounden 2 the whole interest of the coparcenary was held to be sold taking into consideration the evidence which had been placed on the record
Lord FitzGerald at p 5 pointed out the difference where only the father s interest was intended to pass In Hurdey Narain s case Hurdey Narain vs Rooder Perkash 3  all the documents shewed that the Court intended 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 entirely upon the ground 1 1889 LR 17 IA 11 16
2 1888 LR 16 IA i 3 1883 L R 11 I A 26 29 1402 that everything shewed that the thing sold was whatever rights and interests the said judgment debtor had in the property  and nothing else 
In Sripat Singh vs Tagore 1 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 vs Golab Singh2 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 vs Shidlingappa Ishwarappa 3 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 similar ie  the right title and interest of the defaulter  in one case and  of the judgment debtor  in the other
This is supported by the observation of the Privy Council in Rai Babu Mahabir Prasad vs Markunda Nath Sahai 4 and as to what passed under the sale does not become any different merely because the sale is held under section 155 of the Bombay Land Revenue Code rather than the Code of Civil Procedure
The effect in both cases is the same
We hold therefore 1 that the liability of the sons to discharge 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 i 1916 LR 44 IA i 3 AIR 194i Bom
2 1887 LR 14 IA 77
4 1880 LR 17 IA 11 16
1403 alienation comes to an end
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 and did buy and what he paid for
3 The words di right title and interest  occurring in section 155 of the Bombay Land Revenue Code have the same connotation as 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 takes 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 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 
In the result the appeal fails and is dismissed with costs
SINHA J
I agree to the order proposed
Appeal dismissed


Summary:
On an application flied by the respondent landlord in March 1973 for eviction of the appellant tenant on the ground that for a continuous period of more than four months the appellant had ceased to occupy the shop during 1969 71 the Rent Controller passed a decree for eviction under Section 132v of the East Punjab Rent Restriction Act 1949
The appellate authority affirmed the decree
The High Court rejected the tenant s appeal
In the appeal before this Court the appellant tenant contended that though the shop had remained closed for a temporary period it Was in his effective control and that since the non occupation did not continue when the eviction petition was filed the ground mentioned in Section 132v had not been made out
On behalf of respondent landlord it was contended that since in a number of Rent Acts the ground specifically required such nonoccupation for a period immediately preced ing the date on which the ejectment application was filed the Act which did not use identical language should be interpreted differently
Allowing the appeal this Court HELD 11 If a tenant stops the business which he is carrying on in a shop and closes the premises continuously for a period of four months without a reasonable cause he will be liable for eviction
However the non occupation of the premises by a tenant must continue till the date of
filing of application for his eviction on the ground covered by section 132v
739D 737 12 The reason of including clause v in section 132 is to ensure that buildings which are scarce in number specially in the towns necessitating rent control legislation do not remain unused at the instance of tenants who do not actually need them
A tenant who is in possession of a building in the legal sense only cannot be said to be in occupation thereof for the purpose ors
132v otherwise a question of his eviction as envisaged in that section would not arise
The section by making provisions for his ejectment assumes that he is in possession but still includes cessa tion of occupation as one of the grounds
The clause there fore has to be interpreted in this background and it must take colour from the context
739B C However the use of present perfect tense in the words has ceased to occupy  contemplates a period even connecting in some way with the present time
741A Goppulal vs Thakurji Shriji Shriji Dwarkadheeshji  Anr   relied on
V Dhanpal Chettiar vs Yesodai Ammal  and Gajanan Dattatraya vs Sheroani Hosang Patel  Ors 1976 1 SCR 535 referred to
13 Though a comparison of the language of the Act with that of other Rent Acts specifically indicating that the period of non occupation should be one immediately preceding the suit supports the view that the period of non occupation need not subsist at the date of the suit that alone does not outweigh the other relevant circumstances
If on the other hand provisions of several other Acts are examined it would be seen that the Section has been framed in such a way which avoids use of present perfect tense
Besides compar ing statutes of different States is not to be commended because similarity or variation in the laws of different States is not necessarily indicating
of a kindered or different intention
741 B D Nathia Agarwalla and Another vs Musst
Jahanara Begum and Others   followed
In the circumstances the decision of the courts below that the tenant is liable to be ejected is set aside
741G