Civil Appeal Nos
2084 208574
Appeals by Special Leave from the Judgment and Order dated 1011101974 of the Bombay High Court in First Appeal No 160 and 173 of 1966
U R Lalit V N Ganpule and Mrs V D Khanna for the appellant
B D Bal P H Parekh and M Mudgal for the Respondent
The Judgment of the Court was delivered by DESAI J
These two appeals by special leave arise from a suit filed by the respondents plaintiffs for recovering possession of land bearing Survey Nos
4871 to 4876 situated at Shirwal Peta Khandala from the appellant defendant
During the pendency of this suit a portion of the land in dispute was acquired under the Land Acquisition Act and as both the plaintiffs and the defendant laid a claim to compensation a reference was made under section 30 of the Land Acquisition Act for determining the eligibility for the amount of compensation
The trial Court decreed the plaintiffs  suit and First Appeal No 160 of 1966 was preferred by the defendant to the High Court of 958 Bombay
Following the decision of the trial Court the reference under section 30 of the Land Acquisition Act was answered in favour of the plaintiffs respondents and the defendant preferred First Appeal No 173 of 1966 to the High Court
Both the appeals were heard together and by its judgment dated 1011 October 1974 a Division Bench of the High Court dismissed both the appeals with costs
Thereupon the appellant preferred the present two appeals
As both the appeals arise from a common judgment they were heard together and are being disposed of by this common judgment
Facts necessary for appreciating the point of law canvassed in these appeals lie within a narrow compass
One Dattatraya Govind Kulkarni husband of plaintiff No 1 and father of plaintiffs 2 to 6 had borrowed a Tagai loan of Rs 12000 by making an application Exhibit 129 accompanied by prescribed form Ext 128 on 7th February 1949
The loan was borrowed for constructing wells in Survey Nos 167 and 170 and he offered as security the lands bearing Survey Nos 165 166 167 170 and 172
In the application Ext
129 that accompanied the prescribed form it was stated that wells have to be sunk to bring barren land under cultivation
In other words the loan was for improvement of the land
The loan was advanced and the borrower failed to repay the loan as per the stipulations
A revenue recovery proceeding was commenced and as by the sale of the land offered as security the Government could not reimburse itself the total amount outstanding a proclamation of sale was issued and ultimately the suit land was auctioned and it was purchased by the defendant and the sale in his favour was confirmed and he was put in possession on 20th May 1960
The plaintiff stated that prior to the date of auction there was a partition between the father and his sons on 6th July 1956 evidenced by Ext
53 and at this partition the suit land with its sub divisions came to the share of the plaintiffs and therefore the father had no saleable interest in the suit land and it could not have been sold at a revenue auction for recovering the personal debt of the father
So contending the plaintiffs brought an action for a declaration that the sale is not binding upon them and possession may be restored to them
The trial Court held that the suit land was joint family property consisting of Dattatraya and his sons but as there was an effective partition prior to the revenue sale and the partition being a genuine one the subsequent sale is not binding upon the plaintiffs to whose share the suit land was allotted at the partition and therefore the sale was void and the plaintiffs are entitled to be put back in possession
959 The High Court in appeal by the present appellant examined the question of the validity of the revenue sale in the context of the provisions of the  Loans Act for short and held that the auction sale of the lands at the relevant time standing in the names of the plaintiffs the land being not one in respect of which the Tagai loan was advanced or which was offered as security for that loan would not be binding upon the plaintiffs as the plaintiffs were not borrowers within the meaning of section 71 of the Loans Act and the plaintiffs  suit on this ground was rightly decreed
The submission on behalf of the defendant that Tagai loan was a debt and that it was incumbent on the sons of Dattatraya under the doctrine of pious obligation of the sons of a Hindu father to pay their father s debts which were not tainted with immorality or illegality was not accepted and the High Court held that this doctrine of pious obligation cannot be extended to the debts contracted under the Loans Act as the Act applies to all citizens of India irrespective of their religion
With these findings the appeals were dismissed
Mr U R Lalit learned counsel for the appellant urged that Tagai loan was borrowed by Dattatraya the father for improvement of lands bearing Survey Nos 167 and 170 which were joint family property and the debt represented by Tagai loan would be joint family debt incurred by the manager for the benefit of the joint family or for the benefit of the estate of the joint family and therefore the joint family property irrespective of the fact whether it was offered as security for the loan or whether it benefited by the loan would be liable for the repayment of the loan notwithstanding the fact that a partition has taken place before the suit land which again is a joint family property was brought to revenue auction
It was also urged that the partition is not genuine and that it is a sham and bogus one and in fact there was no partition in the eye of law
It was further urged that the pious obligations of the sons of a Hindu father to pay the debt incurred by the father not tainted with illegality or immorality to the extent of the joint family property in their hands would certainly apply to loan borrowed under the Loans Act and the expression borrower under the Loans Act can as well include a joint Hindu family and thereby making the entire joint family property liable for repayment of the loan
Mr Bal learned counsel for the plaintiffs respondents contended that Tagai loan was not a joint family debt nor in borrowing the loan the father was acting as Karta but was acting in his personal capacity nor the loan was for the benefit of the joint family estate
It was said that the Loans Act being a complete Code in itself and only 960 recognised borrower in his individual capacity one cannot import the concept of Karta of a joint family borrowing under the Loans Act in his representative capacity so as to make the joint family property liable for such loans
The principal contention which goes to the root of the matter is whether the Tagai loan borrowed by Dattatraya the father was borrowed in his personal capacity for his personal use or as Karta of the joint family for the benefit of the joint family or joint family estate
If the loan was borrowed by Dattatraya the father as Karta of the joint Hindu family for the benefit of the family certainly it would be a joint family debt and all the joint family property would be liable for this debt
Even if there is a subsequent partition before the debt is repaid the creditor can proceed against the joint family property in the hands of any of the coparceners because the joint family property is liable for the joint family debts
The Karta or the Manager of a joint Hindu family has implied authority to borrow money for family purposes and such debts are binding on other coparceners and the liability of the coparceners in such a case does not cease by subsequent partition See Para 240 Mulla s Hindu Law 14th Edn p 298
Where father is the Karta of a joint Hindu family and the debts are contracted by the father in his capacity as manager and head of the family for family purposes the sons as members of the joint family are bound to pay the debts to the extent of their interest in the coparcenary property
Further where the sons are joint with their father and the debts have been contracted by the father for his own personal benefit the sons are liable to pay the debts provided they were not incurred for illegal or immoral purposes
This liability arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara Law to discharge the father s debts where the debts are not tainted with immorality
This liability of the sons to pay the father s debts exists whether the father be alive or dead para 290 Mulla s Hindu Law 14th Edn p 354
A further requirement is that for an effective partition of a Mitakshara joint Hindu family a provision for the joint family debts should be made
In order to determine what property is available for partition provision must first be made for joint family debts which are payable out of the joint family property personal debts of the father not tainted with immorality maintenance of dependent female members and of disqualified heirs and for the marriage expenses of unmarried daughter
This must be so because partition is of joint family property and if joint family debts are repaid before the partition only the residue would be available for partition
Therefore if partition is effected before paying 961 the debts provision to pay the debts should be made so as to determine the residue available for partition
Having cleared the ground in law let us look at facts which have been found by the Courts on appreciation of evidence and which unless found to be utterly unconscionable this Court would not interfere with
The trial Court found that the suit property was joint family property and the High Court has not departed therefrom
In fact in an earlier suit filed by these very plaintiffs being Special Suit No 14 of 1958 it has been in terms stated that the lands described in para 1 of the plaint Ext
37 which include the suit land were originally owned by joint family of plaintiffs and Dattatraya
Therefore on plaintiffs  own admission the suit land was joint family property of plaintiffs and Dattatraya
The next important question is whether the Tagai loan was the personal debt of Dattatraya or was debt incurred by him as Karta of the joint family for the benefit of the joint family
We would only look at uncontroverted salient features of the evidence
Prescribed form of application Ext
128 with application Ext
129 would show that the loan was borrowed for constructing wells for improvement in the potentiality of the lands bearing Survey Nos 167 and 170
It was submitted that these lands for the improvement of which the loan was borrowed were not joint family property
There again a reference may be made to the admission of the plaintiffs in plaint Ext
37 which also includes lands bearing Survey Nos 167 and 170 being described by the plaintiffs themselves as joint family property
The High Court held that Dattatraya borrowed the loan for improvement of the land
Therefore Dattatraya the father borrowed loan in his capacity as the father for improvement of joint family lands and for this purpose offered as security three other pieces of land which were joint family property
In the face of this unimpeachable evidence the statement in Ext
128 the application for loan that Dattatraya was the full owner of the lands therein mentioned would not convey the idea that it was his separate property
It is not necessary that Karta acting in his capacity as Karta to describe himself as Karta to affirm his representative capacity
Whether he has acted in his personal capacity or representative capacity can be gathered from all the surrounding circumstances and in this case they are eloquent in that he mortgaged or gave as collateral security joint family property to wit land and it extends to whole of the interest of the family and is not confined to Karta s share and therefore he must be deemed to have acted in the transaction on behalf of the family see Mulla s Hindu Law 14th Edn page 313 article 251
It was however stated that agriculture 962 was not the avocation of the joint family and therefore the father as the Karta did not have the implied authority to borrow loan so to be binding on the joint family property
One has merely to look at the content of the application for loan Ext 129 made by Dattatraya to the Mamlatdar Taluka Vichitragad for advancing loan to him to dispel the contention
The application recites that applicant Dattatraya the father had undertaken extensive work to bring barren land under cultivation to raise sufficient crops as well as to improve the quality of Land and for improving the quality of agriculture he had undertaken loans should be advanced to him
Mr Bal however pointed out that Dattatraya was carrying on some business which would be evident from Ext
23 a copy of execution application No 8760 filed by Bhor State Bank Ltd against one Pandurang Krishnaji Kamble and Dattatraya Govind Kulkarni in which the occupation of Dattatraya is shown as business and Ext
22 being a copy of Execution Application No 9257 in which his occupation is shown as general agent and Ext
120 a copy of the decree in Special Civil Suit No 249 wherein the occupation of Dattatraya is shown as business and which further shows that Dattatraya had running account with one Raghunath Shridhar Phadke in which Dattatraya had withdrawn Rs 56800 and had credited Rs 41000 and after adding interest leaving a debit balance of Rs 19238 14 00
It was urged that if all these aspects are taken into consideration it would appear that agriculture was not the occupation of the joint family
Now as against this one may also refer to Ext
24 a copy of the BADR Execution Application No 29456 for executing an Award made under the Bombay Agricultural Debtors  Relief Act against Dattatraya which would show that Dattatraya was an agriculturist by occupation and his debts were adjusted by the Courts set up under the Bombay Agriculture Debtors  Relief Act and this could have only been done if his principal occupation was agriculture
Therefore mere description of Dattatraya s avocation in Exts 22 23 and 120 is hardly determinative of the occupation of Dattatraya or his family
It may be that over and above agriculture Dattatraya may have been carrying on some side business but if his application Ext
129 shows that he had on his own showing 160 bighas of land most of which are admittedly shown to be joint family property it cannot be denied that agriculture was one of the occupations of Dattatraya and he was carrying on that avocation as Karta of the joint family consisting of himself and his minor sons
Now if agriculture was one of the occupations of the joint family and if loan was borrowed for the purpose of improving the joint family lands the loan would ipso facto be for legal necessity and it would be joint family debt for which all the joint family property would be liable
963 If thus the loan for the recovery of which the suit property was brought to auction was joint family debt and if the suit property was joint family property certainly it would be liable to be sold for recovery of joint family debt
The question however is does the subsequent partition make any difference in respect of the liability of the joint family property for the joint family debts  That would necessitate examination of the circumstances in which the partition was brought about though we are not inclined to examine the question whether the partition was a sham or bogus transaction or was a motivated one with a view to defeating the creditors of the joint family
The partition is evidenced by a registered deed Ext
79 dated 6th July 1956
Partition is between father and his minor sons
There is no dispute that on that date the debt of Tagai loan was outstanding as well as there were certain other debts
In the partition deed Ext
79 there is no express or implied provision for the repayment of joint family debts or even outstanding debts of Dattatraya the father
There was some suggestion that the property which was allotted to Dattatraya was sufficient for discharging the debts outstanding on the date of partition
That at least is not borne out by the partition deed nor has Dattatraya gone into the witness box to say that such was the position
Therefore taking into consideration the recitals in the partition deed as well as the relevant evidence on record the position is clear that no provision was made at the time of partition for the joint family debts or alternatively outstanding debts incurred by the father
It is not for a moment suggested that on this account the partition is bogus and sham an argument which was put forward before the High Court and negatived
The substance of the matter is that if at a partition amongst the members of the joint family no provision is made for joint family debts then despite the partition and allotment of shares to different coparceners the joint family property in their hands which they acquired by partition would still be liable for the joint family debts
The Judicial Committee in Sat Narain vs Das1 pointed out that when the family estate is divided it is necessary to take account of both the assets and the debts for which the undivided estate is liable
After affirming this ratio this Court in Pannalal  Anr
vs Mst Naraini  Ors2 observed as under  the right thing to do was to make provision for discharge of such liability when there was partition of the 964 joint estate
If there is no such provision the debts are to be paid severally by all the sons according to their shares of inheritance as enjoined by Vishnu Vishnu Chap
6 verse 36
In our opinion this is the proper view to take regarding the liability of the sons under Hindu law for the pre partition debts of the father
The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place
This is substantially the view taken by the Allahabad High Court in the Full Bench case referred to above and it seems to us to be perfectly in accord with the principles of equity and justice
If thus the partition makes no provision for repayment of just debts payable out of the joint family property the joint family property in the hands of coparceners acquired on partition as well as the pious obligation of the sons to pay the debts of the father will still remain
This position of law was reaffirmed in Vriddhachalam Pillai vs Shaldean Syriam Bank Ltd  Anr1
The only effect of partition is that after the disruption of joint family status by partition the father has no right to deal with the property by sale or mortgage even to discharge an antecedent debt nor is the son under a legal obligation to discharge the post partition debts of the father
Assuming we are not right in holding that the debt was for the benefit of the estate of the joint family and therefore a joint family debt and assuming that Mr Bal is right in contending that it was the personal debt of the father yet the doctrine of pious obligation of the son to pay the father s debt would still permit the creditor to bring the whole joint family property to auction for recovery of such debts
Where the sons are joint with their father and debts have been contracted by the father for his personal benefit the sons are liable to pay the debts provided they were not incurred for an illegal or immoral purpose
This liability to pay the debt has been described as pious obligation of the son to pay the father s debt not tainted with illegality or immorality
It was once believed that the liability of the son to pay the debts contracted by the father though for his own benefit arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara law to discharge the father s debts where the debts are not tainted with immorality yet in course of time this liability has passed into the realm of law
965 In Anthonyswamy vs M R Chinnaswamy Koundan dead by lrs  Ors1 following the decision in Muttayan vs Zamindar of Sivagiri2 this Court held that this obligation of the son to pay the father s debt not tained with illegality or immorality was not religious but a legal obligation and the rule would operate not only after the father s death but even in the father s life time and the pertinent observation is as under It is evident therefore that the doctrine of pious obligation is not merely a religious doctrine but has passed into the realm of law
The doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property and both these conceptions are correlated
The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu law but is a salutary counter balance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property
It is not the case of the plaintiffs that the debt contracted by the father for which the property was sold was tainted with illegality or immorality or that it was ayyravaharik in the sense opposed to good morals
Therefore even assuming that there was a partition the debt being antecedent debt for which no provision was made in the partition and the debt having not been shown to be tainted with illegality or immorality the sons were liable to pay this debt to the extent the joint family property came in their hands
Viewed from either angle the property sold was liable for the discharge of the debt of Dattatraya the father and even if it came in the hands of the sons on partition the debt admittedly being a pre partition debt not shown to be tainted with illegality or immorality could be recovered from the joint family property in the hands of the sons
Mr Bal however raised an interesting contention that if the joint family property which came in the hands of the sons on partition was to be sold for recovery of the debt of the father after partition a suit would have to be filed by the creditor and if the property in the hands of the son was to be made liable for discharge of the debt the sons ought to be joined as parties to the suit because only in such an event the sons could set up the defence of the debt being tainted 966 with illegality or immorality
Where a revenue sale takes place it was said the sons would have no opportunity to contest the character of the debt and therefore any sale in such circumstances of the property that has fallen to the shares of the sons at a partition subsequent to the partition would be void as against the sons
In support of the submission reliance was placed on an observation in Pannallal s case supra that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the sons and that a separate and independent suit must be filed against the sons before their shares can be reached
After observing that a son is liable even after partition for the pre partition debts of his father which are not immoral or illegal this Court proceeded to examine the question as to how this liability is to be enforced by the creditor either during the life time of the father or after his death
After taking note of a large number of decisions in which it was held that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allocated to the sons on partition and a separate and independent suit must be instituted against the sons before their shares can be reached it was held that the principle underlying these decisions is sound
This Court approved the decision in Jagnarayan vs Somaji 1
It may be noted that decree for the pre partition debt was made after partition when in the suit father after partition could not represent the sons
This very question again came up before this Court in section M Jakati  Anr
vs section M Borkar  Ors2 In that case the Deputy Registrar of Co operative Societies had made an order against Mr Jakati for realisation of the amount and an item of property belonging to the joint family of Jakati was attached by the Collector and duly brought to sale under section 155 of the Bombay Land Revenue Code
The sale was held on 2nd February 1943 and confirmed on 23rd June 1943
In the meantime
On January 15 1943 one of the sons of Jakati instituted a suit for partition and separate possession of his share in the joint family property and contended inter alia that the sale in favour of the first respondent was not binding on the joint family
If the order of the Deputy Registrar was to be treated as a decree the sale under section 155 of the Bombay Land Revenue Act being execution of that decree was after the institution of the suit for partition and therefore it was 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 was of a whole estate including the interest of the sons because after the partition the 967 father no longer possessed the power to sell the shares of sons to discharge his debts
Negativing this contention it was held as under 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 dependant 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 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 where the joint ancestral property including the share of the sons has 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
The High Court while examining the ratio in Jakati s supra case observed that even though Ganpatrao Vishwanathappa Barjibhe vs Bhimrao Sahibrao Patil1 was referred to therein it was not specifically overruled and therefore the trial Court was right in relying upon it and incidentally itself relied on it
In that case it was held that in order to make the share of sons liable after partition they should be brought on record
This Court referring to Ganpatrao 1 observed that the decision should be confined to the facts of that case and further observed as under  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 eo nomine is not necessary because they still have the right 968 to challenge the sale on showing the immoral or illegal purpose of the debt
In our opinion where the pious obligation exists and partition takes place after the decree and pending execution proceedings as in the present case the sale of the whole estate in execution of the decree cannot be challenged except on proof by the sons of the immoral or illegal purpose of the debt and partition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a means of reducing the efficacy of the attachment or impair the rights of the creditor
 The binding ratio would be one laid down in Jakati s supra case and it cannot be ignored by merely observing that a different approach in Ganpatrao supra case holds the field for the High Court as it was not overruled in Jakati s case
It is thus crystal clear that the pious obligation of the sons continues to be effective even after partition and if the creditor in execution of a decree obtained prior to partition seizes the property in execution without making sons parties to the suit and the property is sold at an auction and the purchaser is put in possession and the property thus passes out of the family in execution of the decree on the father s debt the remedy of the sons would be to challenge the character of the debt in an appropriate proceeding brought by them
The sale cannot be voided on the only ground that the sale of the property took place after partition and the property sold was one which was allotted to the sons on partition once the property is liable to be sold for recovery of debt of the father incurred prior to partition and which is not tainted with illegality or immorality
Partition in such a situation merely provides a different mode of enjoyment of property without affecting its liability for discharge of pre partition debts
In the present case the sons have filed the suit and in this suit issue No 6 framed by the learned trial judge was whether the Tagai loan of Rs 12000 was incurred by Dattatraya as manager of the family for legal necessity and the family has benefited by it and this issue was answered in the affirmative meaning the debt is not shown to be tainted with illegality or immorality
No submission was made to us by Mr Bal on behalf of the respondents that the debt was tainted with illegality or immorality
In such a situation unless in this suit the sons challenged the character of the debt and established to the satisfaction of the Court that the debt was tainted with illegality or immorality they cannot obtain any relief against the purchaser who purchased the property at an auction held by the Civil Court or by the revenue authorities for recovering the debt of the father which the sons 969 were under a pious obligation to pay
Therefore even if the plaintiffs were not parties to the proceedings held by revenue authorities for sale of the land involved in this dispute once the sale took place and it was confirmed and purchaser was put in possession the sons can successfully challenge the sale by establishing the character of the debt thereby showing that they were not bound to pay it and therefore their share in the property cannot be sold to discharge the debt
They cannot succeed merely by showing as is sought to be done in this case that as the sale took place subsequent to partition and as they were not parties to the proceedings the sale is not binding on them
This clearly merges by reading Pannalal and Jakati cases supra together
The loan sought to be recovered was a Tagai loan advanced under the Loans Act
The amount can be recovered as arrears of land revenue
Chapter XI of the Bombay Land Revenue Code provides procedure for realisation of land revenue recovery to be made as if they are arrears of land revenue and other revenue demands
Section 150 provides that an arrear of land revenue may be recovered inter alia by sale of the defaulter s immovable property under section 155
Section 155 provides that the Collector may cause the right title or interest of the defaulter in any immovable property other than the land on which the arrear is due to be sold
The sale is subject to sanction and confirmation
The first contention is that the Collector is authorised to cause the right title or interest of the defaulter in any immovable property which is sought to be sold in a revenue auction and in this case as the sale was after the partition the defaulter Dattatraya had no interest in the property brought to auction and therefore no title passed to the auction purchaser
This submission overlooks again the pious duty of the sons to pay the father s debt as also the right of the creditor to recover debts from the joint family property in the hands of the coparceners
In Jakati s case supra this was the exact contention and after comparing the parallel provision in the Code of Civil Procedure viz the right title or interest of the judgment debtor this Court held that it is a question of fact in each case as to what was sold in execution of the decree
This Court affirmed the ratio in Rai Babu Mahabir Prasad vs Rai Markunda Nath Sahai1 that it is a question of fact in each case as to what was sold viz whether the right title or interest of the debtor or defaulter was sold or the whole of the property was put up for sale and was sold and purchased
It 970 was concluded that where the right title and interest of the judgment debtor are set up for sale as to what passed 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
There is not the slightest doubt that the whole of the property was sold in the instant case and that was intended to be sold and the purchaser purchased the whole of the property and the certificate was issued in respect of sale of the property and therefore it is futile to say that only the right title and interest of Dattatraya was sold and that as he had no interest in the property sold on the date of auction sale nothing passed to the purchaser
Assuming for a moment that if the sale takes place after the partition to such a proceeding the sons should be a party before the liability arising out of the doctrine of pious obligation to pay the father s debt is enforced against the joint family property in the hands of the sons evidence reveals that the sons were fully aware of the intended sale and not only they knew of the intended sale but possession was taken from them by the purchaser after notice to them
Proceedings for the recovery of the amount of Tagai loan of Rs 12000 were commenced much prior to 25th April 1955 because the first proclamation of sale in respect of four pieces of land was issued on 25th April 1955
79 would show that no bid was received whereupon the Kamgar Patil offered a nominal bid of Re 1 for four pieces of land
It may here be mentioned that this sale was challenged by none other than Dattatraya and it was quashed and he had taken back the land included in the proclamation Ext
Thus the recovery of the loan started prior to partition which took place on 6th July 1956
Where a loan is taken under the Loans Act and it is being recovered as arrears of land revenue the order of the revenue authority to recover the amount would tantamount to a decree and when a proclamation of sale is issued it amounts to execution of the decree to borrow the phraseology of the Code of Civil Procedure
It is thus clear that execution started prior to the partition
Undoubtedly the proclamation for sale of suit land was issued on 22nd January 1957 as per Ext
80 and that was subsequent to the partition but when different properties are brought to auction by different sale proclamations it is nonetheless an execution proceeding
The sale proclamation was issued under the provisions of the land revenue code
Amongst others the proclamation of sale is to be fixed on the property which is to be auctioned
After the sale was confirmed the purchaser was required to be put in possession
The plaintiff claimed to be in possession and yet the revenue officer on 20th May 1960 as per Ext
82 handed over possession of 971 the land involved in the dispute to the purchaser
It would be advantageous to point out here that the plaintiffs served notice dated 2nd February 1957 which would mean that the notice was served prior to the date of the auction
The plaintiffs therein referred to the proclamation of sale for the land involved in dispute and they also referred to the proclamation of sale for the land involved in dispute and they also referred to the attachment of the land
They also referred to the date of intended auction sale and they called upon the Collector not to proceed with the sale
The plaintiffs thereafter filed their first suit being Special Suit No 1458 certified copy of the plaint of which is Ext
37 which would show that it was filed on 6th April 1957
In this plaint they sought a declaration that the sale held on 26th May 1955 and 6th April 1957 be declared illegal
It was alleged in the plaint that Dattatraya was a drunkard and was in bad company and had borrowed the Tagai loan for his own vices and in collaboration with the concerned officers of the revenue department and the loan could never be said to be a Tagai loan
Amongst others the State of Bombay was impleaded as party defendant
Subsequently this suit was withdrawn and the present suit was filed deleting State of Bombay as party
From this narration of facts it clearly emerges that the plaintiffs had the knowledge of the proclamation of sale and yet no attempt was made by them either to appear before the Collector who had issued the proclamation or as was now sought to be urged offered to repay the loan
If after this specific knowledge that proceeding for recovery of Tagai loan had commenced and during its pendency the partition was brought about and yet on the subsequent sale the revenue authority sold the whole of the property and the purchaser intended to buy the whole of the property the only way the sons can challenge this sale is by establishing the character of the debt as being tainted with illegality or immorality and the purchaser would be entitled to defend his purchase and possession on all the contentions which would negative the plaintiffs  case including the one about the pious obligation of the sons to pay the father s debt
Therefore there is no force in the contention that as the plaintiffs were not parties to the recovery proceedings the sale is not binding on them
That brings us to the last contention which has found favour with the High Court
The contention is that a loan borrowed under the provisions of the Loans Act could always be in the individual and personal capacity of the borrower and the Loans Act being applicable to all the communities in this country it does not admit of a person borrowing loan in his representative capacity as Karta of the joint family and thereby making joint family property liable for the discharge 972 of the debt
Section 5 prescribes the mode of dealing with the applications for loans and section 6 provides for the period for repayment of loans
Then comes section 7 which is material
It provides for the mode of recovery of the loans borrowed under the Act
Section 7 reads as under 7
1 Subject to such rules as may be made under section 10 all loans granted under this Act all interest if any chargeable thereon and costs if any incurred in making the same shall when they become due be recoverable by the Collector in all or any of the following modes namely a from the borrower as if they were arrears of land revenue due by him b from his surety if any as if they were arrears of land revenue due by him c out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land d out of the property comprised in the collateral security if any according to the procedure for the realisation of land revenue by the sale of immovable property other than the land on which that revenue is due Provided that no proceeding in respect of any land under clause c shall affect any interest in that land which existed before the date of the order granting the loan other than the interest of the borrower and of mortgages of or persons having charges on that interest and where the loan is granted under section 4 with the consent of another person the interest of that person and of mortgagees of or persons having charges on that interest
2 When any sum due on account of any such loan interest or costs is paid to the Collector by a surety or an owner of property comprised in any collateral security or is recovered under sub section 1 by the Collector from a surety or out of any such property the Collector shall on the application of the surety or the owner of that property as the case may be recover that sum on his behalf from the borrower or out of the land for the benefit of which the loan has been granted in manner provided by sub section 1
3 It shall be in the discretion of a Collector acting under this section to determine the order in which he will resort to the various modes of recovery permitted by it
 973 The loan can be recovered from the borrower as if it were an arrear of land revenue due by him or from his surety by the same procedure or out of the land for the benefit of which the loan has been granted by following the same procedure or out of the property comprising as collateral security if any according to the procedure for realisation of land revenue by sale of immovable property or by the sale of immovable property other than the land on which the land revenue is due
Now the word borrower  is not defined
Could it be said that a borrower for the purpose of section 7 can be an individual and no other person  The High Court observed that the Act is applicable to all communities in India and not merely to Hindus and there are many communities which do not have the system of joint family and if the legislature intended to include in the word borrower  manager of a family it should have said so in express terms
There is nothing in the language of section 7 which would show that the borrower must always and of necessity be an individual
Even if the Act applies to other communities which do not have the system of joint family that by itself would not exclude the manager of a joint Hindu family from becoming a borrower under section 7
If the construction as suggested by the High Court is accepted it would put joint Hindu family at a disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family if he has no separate property of his own and if he cannot borrow the loan in his representative capacity has no security to offer nor could he take advantage of the beneficial provision of the Act for improving the land belonging to the joint Hindu family
We see no justification for restricting the word borrower  to be an individual alone
In fact the Act itself contemplates joint borrowers
Section 9 provides for joint and several liability of joint borrowers
A Karta of a joint Hindu family therefore can be a borrower in his representative capacity
If the Karta of a joint Hindu family is considered eligible for becoming a borrower would it run counter to the position of other communities in which there is no concept of a joint family and joint family properties  In the absence of any such concept a borrower other than a Hindu can offer all the property at his disposal even if he has not sons as security for the loan to be borrowed because in other communities governed by their personal laws the son does not acquire interest in the ancestral properties in the hand of the father from the time of his birth
But in Hindu law there are two seemingly contrary but really complimentary 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 974 which lays open the whole estate to be seized for the payment of such debts see Jakati s case Supra
Now if the sons of a Hindu father take interest in the ancestral property in the hands of the father by the incident of birth they also incur the corresponding obligation of discharging the debts incurred by the father either for his own benefit or for the benefit of the joint family from the property in which the sons take interest by birth
Such a concept being absent in communities not governed by Hindu law in this behalf the father would be free to encumber the property and the sons in such communities would neither get interest by birth nor the liability to pay the father s debt and would not be able to challenge the sale or property for discharge of the debt incurred by the father
Therefore the expression borrower  in section 7 need not be given a restricted meaning merely because the Act applies to all communities
Hence a father who is the Karta of the joint family consisting of himself and his sons can become a borrower in his capacity as Karta and if the loan is for legal necessity or for the benefit of the joint family estate he would render the joint family property liable for such debt and if it is for his personal benefit the joint family property even in the hands of the sons would be liable if the debt is not tainted with illegality or immorality
The High Court said that such liability which arises from the obligation of religion and piety cannot be extended to the loans borrowed under the Loans Act because there is no such obligation in other communities to which the Act applies
In reaching this conclusion the High Court overlooked the principle that this doctrine of pious obligation is not merely a religious duty but has passed into the realm of law see Anthonyswamy supra
On the facts of that case this principle was applied to parties belonging to Tamil Vannian Christians
Viewed from this angle the High Court was in error in holding that Dharmashastras of Hindus never contemplated improvement loans being given by the Governments of the day which were usually monarchies and therefore a debt of the kind which is contemplated under the Loans Act could never have been under the contemplation of the writers like Brihaspati and Narada in whose texts the pious liability is imposed on the sons and others
It is not possible to subscribe to this view for the reasons hereinbefore mentioned
The decisions in Sankaran Nambudripad vs Ramaswami Ayyar1 and Chinnasami Mudaliar vs Tirumalai Pillai2 do not touch the question herein raised and are of no assistance in the matter
It therefore clearly transpires that Dattatraya had borrowed a loan from the Government under the Loans Act for the benefit of 975 joint family property
It was being recovered as arrears of land revenue
The property which is the subject matter of dispute in this proceeding was joint family property
It was sold at a revenue auction and the whole of the property was sold and the whole of it was purchased by the purchaser
The debt of Tagai loan for which the property was sold is not shown to be tainted with illegality or immorality or avyavaharik
Therefore the suit property was liable to be sold at court auction for two reasons one that the debt was joint family debt for the benefit of the joint family estate and therefore all segments of the joint family property were liable for the discharge of the debt and secondly under the doctrine of pious obligation of the sons to pay the father s debt
In the present proceedings no attempt was made to establish that the debt was tainted with illegality or immorality
Therefore the sale is valid and the purchaser acquired a full and complete title to the property
The sale is not void
Part of the property is acquired and the compensation is taken by the plaintiffs subject to the orders of the Court
Accordingly both these appeals are allowed and the plaintiffs  suit is dismissed but in the facts and circumstances of this case with no order as to costs throughout
NVK Appeals allowed


Summary:
The respondents  father took a Tagai loan from the Government for the purpose of digging wells in his land by offering his land as security for the loan
When he failed to repay the loan the suit land was auctioned under the revenue recovery proceeding and it was purchased by the appellants
In a suit for recovery of possession the respondents alleged that their father had no saleable interest in the land because prior to the date of auction
in the partition between themselves and their father the suit land came to their share and therefore the land which belonged to them could not have been sold in an auction for recovering a personal debt of their father
The trial court declared the sale as void
The High Court affirmed the trial Court s order
In appeal to this Court the respondents contended that the debt was not a joint family debt neither was the father acting as Karta of the joint family nor was the loan for the benefit of the joint family and therefore the joint family property could not be made liable for such loan
Allowing the appeals the Court  HELD 1 a The suit land was joint family property of the respondents and their father
961C b If the loan for the recovery of which the suit property was brought to auction was joint family debt and if the suit property was joint family property it would be liable to be sold for recovery of joint family debt
963A c Whether the Karta acted in his personal capacity or representative capacity has to be gathered from all the surrounding circumstances
The father borrowed the loan in his capacity as Karta of the joint family for improvement of the joint family lands and for this purpose he offered as security the land which was joint family property
It is not necessary that the Karta acting in his capacity as Karta should describe himself as Karta to affirm his representative capacity
Therefore he must be deemed to have acted in the transaction on behalf of the family
961G H 956 d Agriculture was one of the occupations which the father was carrying on as Karta of the joint family
If agriculture was one of the occupations of the joint family and if the loan was borrowed for the purpose of improving the joint family lands the loan would ipso facto be for legal necessity and it would be joint family debt
962H e Where the sons are joint with their father and debts have been contracted by the father for his personal benefit the sons are liable to pay the debts provided they were not incurred for illegal or immoral purpose
This liability to pay the debt had been described as pious obligation of the son to pay the father s debt if it is not tainted with illegality or immorality
960F Muttayan vs Jamindar of Sivagiri 1883 9 IA 128 Anthonyswmy vs M R Chinnaswamy Koundan dead by L Rs Ors
  referred to
f If at a partition amongst the members of the joint family no provision was made for joint family debts then despite the partition and allotment of shares to different coparceners the joint family property acquired by partition would still be liable for the joint family debts
964D Sat Narain vs Das 1936 63 IA 384 Pannalal  Anr
vs Mst
Naraini  Ors
 at 558 Vriddhachalam Pillai vs Shaldean Syrian Bank Ltd  Anr   referred to g In the instant case the property sold was liable for the discharge of the father s debt
The debt being a pre partition debt which was not shown to be tainted with illegality or immorality could be recovered from the joint family property in the hands of the sons
965F h The pious obligation of the sons continues to be effective even after partition
If the creditor in execution of a decree obtained prior to partition seizes the property in execution without making the sons parties to the suit and the property was sold at an auction and the purchaser was put in possession the remedy of the sons would be to challenge the character of the debt in an appropriate proceeding
The sale cannot be voided on the only ground that it took place after partition and the property sold was one which was allotted to the sons on partition
Partition in such a situation merely provides a different mode of enjoyment of property without affecting the joint family s liability for discharge of pre partition debts
968D F section M Jakati  Sons  Anr
vs section M Barkar  Ors referred to
i In the instant case the debt was not shown to be tainted with illegality or immorality
Therefore even if the respondents were not parties to the proceeding held by the Revenue Authorities once the sale was confirmed and the purchaser was put in possession the sons can challenge the sale only by establishing the character of the debt
968G 969A 2 The loan sought to be recovered being Tagai loan advanced under the Loans Act it can be recovered as arrears of land revenue
The Bombay land Revenue Code provides procedure for realisation of land revenue recovery of which could be made as if it was arrears of land revenue and other revenue demands
969C 957 3 When a loan was taken under the Loans Act and was being recovered as arrears of land revenue the order of the Revenue Authority would tantamount to a decree and when a proclamation of sale was issued it amounted to execution of the decree
970F 4 a The High Court was wrong in holding that since the Act was applicable to all communities in India and not merely to the Hindus if it legislature intended to include manager of a family in the word borrower  it should have said so in express terms
There is nothing in the language of section 7 of the Loans Act to show that the borrower must always and of necessity be an individual
If the construction suggested by the High Court is accepted it would put the joint Hindu family at disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family if he has no separate property of his own and if he cannot borrow the loan in his representative capacity has no security to offer
Nor would he be able to take advantage of the beneficial provision of the Act for improving the land belonging to the joint Hindu family
973C E b Moreover there is no justification for restricting the word borrower  to be an individual alone
The Act itself contemplates joint borrowers
A Karta of a joint Hindu family can be a borrower in his representative capacity
973F Sankaran Nambudripad vs Ramaswami Ayyar Madras 691 Chinnaswami Mudaliar vs Trimalai Pillai Madras 572 inapplicable