ivil Appeal No 380 of 1980
From the Judgment and Order dated the 20111979 of the Bombay High Court in FA No 117 of 1968
44 UR Lalit Dr NM Ghatate and SV Deshpande for the Appellants
RK Garg Tripurari Ray MN Shroff and AK Sanghi for the Respondents
The Judgment of the Court was delivered by KASLJWAL J
This Civil Appeal by Special Leave has been filed by the defendants Manibhai Dhyaneshwar and Waman Rao Narayan Rao aggrieved against the Judgment and decree of Bombay High Court dated 20th November 1979
Briefly stated the facts are that one Vithoba had two sons Beni Ram and Maroti
A partition took place on 14th July 1947 by a registered document between Vithoba his son Beni Ram and two grandsons of pre deceased son Maroti
In accordance with the above partition Beni Ram got agricultur al lands survey Nos 1 3 18  19 measuring 1169 acres 0006 acres 448 acres and 840 acres respectively situate in Village Kharbi Tehsil and district Nagpur
Apart from the above agricultural lands Beni Ram also got a house No 82 situate in Telipura Itwari Nagpur
After receiving the above properties in partition Beni Ram along with his two minor sons Hemraj and Ramdass executed a deed of conditional sale on 22nd April 1948 exhibit 48 of their properties in favour of Narayan Dass for a sum of Rs5500
Thereafter by a reconveyance deed exhibit 48 dated 11th February 1953 Beni Ram Hemraj and Ramdass got the properties reconveyed in their favour by Narayan Dass
On the same day ie 11th February 1953 Beni Ram and his four minor sons executed a sale deed exhibit 40 of house property and agricultural land survey Nos 3 and 18 in favour of Manibhai the brother of Narayan Dass for a consideration of Rs5500
By another sale deed exhibit 41 of the same date Beni Ram and his four minor sons sold 1069 acres of land out of survey No 1 in favour of Vithal and his brother Vishwanath for a sum of Rs5345
Beni Ram and his minor sons then by sale deed exhibit 61 sold the remaining one acre of land of survey No 1 and 840 acres of survey No 19 for a sum of Rs3000 on 19th July 1954 in favour of the above mentioned Vithal and Vishwanath
Manibhai subsequently sold the house property in favour of Waman Rao Narayan Rao Bhujang Rao Yadav Rao Namdeo and Nago Rao
Six sons of Beni Ram alongwith their mother Sona Bai filed a suit on 10th February 1965 against Manibhar de fendant No 1 Vithal 45 and Vishwanath defendants Nos 2 and 3 Waman Rao Narayan Rao Bhujang Rao Yadav Rao Namdeo and Nago Rao defendant Nos 4 to 8 and Beni Ram defendant No 9 for a decree for possession of the agricultural lands and house which came in their share as members of Joint Hindu Family
The case of the plaintiffs as set out in the plaint was that Beni Ram father of the plaintiffs Nos 1 to 6 and husband of the plaintiff No 7 was a person given to heavy drinking and gambling and a satoria
Due to all these vices he used to spend away everything whatever he used to earn in his busi ness of grain dalali
The business of grain dalali did not require any capital
In the partition of ancestral proper ties made on 14th July
1947 Beni Ram was allotted the properties as given in para 3 of the plaint and details of which have also been mentioned above
It was further alleged in the plaint that the entire properties allotted to the share of Beni Ram in the aforesaid family partition were ancestral and the plaintiffs had acquired an interest in such properties by birth
According to the plaintiffs all these alienations in favour of the defendants were illegal and invalid and were not binding on them
Plaintiffs further alleged that none of these sales were for any legal necessity or for the benefit of the estate or for the benefit of the minors
The sales were not for preserving or recovering any part of the estate of the plaintiffs
None of the defendants Nos 1 2 and 3 made any reasonable proper or bona fide enquiries as to the existence of any necessity before entering into the afore said transactions with defendant No 9
The plaintiffs further stated that the sale proceeds were not applied for the benefit of the minors or their estate by the defendant No 9 and were squandered by him on his vices
It was further alleged in the plaint that the defendant No 1 sold a portion of the house to defendants Nos
4 to 7 vide sale deed dated 9th August 1956 and the remaining portion of the same house was sold to defendant No 8
Plaintiffs thus submitting that the defendants Nos 4 to 8 very well knew about the defendant No 9 s way of life
They also knew that the defendant No 9 is a gambler and drunkard and satoria and that he spent everything on these vices
The plaintiffs thus submitted that the sales in favour of de fendants Nos 4 to 8 were also illegal invalid and inopera tive in law since their vendor had no valid title in them
The plaintiffs in the above circumstances alleged that they were entitled to share in the joint family properties
The plaintiffs called upon the defendants to deliver possession alongwith mesne profits by their notice dated 28th October 1964
The defendants received the notice but did not deliver possession nor paid the mesne profits and 46 hence suit was filed for possession and mesne profits amounting to Rs 11470
Defendant No 1 Manibhai denied the allegations made in the plaint
He denied that the defendant No 9 was a person given to heavy drinking and gambling and satoria
He also denied that defendant No 9 used to spend away everything whatever he used to earn in the business of grain dalali
It was denied that the business of grain dalali does not re quire any capital
It was alleged that defendant No 9 was the sole owner and in possession of the properties described in Para 3 of the plaint but it was denied that defendent No 9 acquired the same under the partition deed
The plaintiffs were thus required to be put to strict proof of the same
The defendant No 1 also alleged that he had purchased the properties by registered sale deed dated 11th February 1953 from defendant No 9 and plaintiffs Nos 1 and 4 for a valuable consideration of Rs5500 and plaintiffs Nos 5 and 6 were not born till then
The sale of the property was for the legal necessity and for the benefit of the plaintiffs
It was further submitted that even if the property was found to be ancestral one the defendant No 9 had power to sell the said properties being a manager of the joint family on behalf of the plaintiffs also
The defendant No 9 had executed a mortgage by conditional sale on 22nd April 1948 2in favour of one Narayan Dass So Kalidas Patel for a total consideration of Rs5500 mortgaging thereby all the proper ties mentioned in Para 3A and B of the plaint
It had been further alleged that the answering defendant No 1 purchased properties described in Para 3 Aii  iv and Para 3 B out of the said properties for a consideration of Rs5500 which was the market value of the said properties
On 11th February 1953 the defendant paid Rs500 towards the earnest money and the balance of Rs5500 was paid on the same day before the Sub Registrar
The defendant No 9 paid this very amount to Shri Narayan Dass to obtain deed of reconveyance
Thus the consideration paid by this defendant for the purchase of the property mentioned above has in fact been applied to make payment to Shri Narayan Dass to get all those properties released and to obtain the deed of recon veyance from him
The sale deed in favour of the defendant No 1 was therefore in fact for legal necessity ie to save a larger and valuable property from being lost to the family andor also for payment of the antecedent debts of defendant No 9 and further the defendant No 9 saved for himself and the plaintiffs
The fields mentioned in Para 3Ai and iii of the plaint which subsequently the defend ant No 9 and the plaintiffs sold to 47 defendants Nos 2 and 3 by two registered sale deeds dated 11th of February 1953 and 19th July 1954 for Rs5345 and Rs3000 respectively
Thus the plaintiffs got an advantage of Rs8345 by getting the properties from the original mortgagee Narayan Dass
It was thus submitted that though the sale deed dated 11th February 1953 executed by defend ant No 9 did not recite all these facts yet the sale deed in favour of defendant No 1 was in fact for legal necessity and for discharging the antecedent debts of defendant No 9
In the alternative it was submitted that if the business of grain dalali was found to be an ancestral one then in that event also the property sold to defendant
No 1 was for legal necessity and for the benefit of the plaintiffs
The suit brought by the plaintiffs was bogus and untenable in law to the knowledge of the plaintiffs and was liable to be dismissed with compensatory costs
It was also submitted that the suit for possession and mesne profits as framed was not maintainable
In the sale deeds dated 11th February 1953 the defendant No 9 is alleged to be the Karta of the plaintiffs  family and the plaintiffs Nos 1 to 4 were also parties to both the sale deeds in favour of the defendant No 1 as well as in favour of the defendants Nos 2 and 3
Plaintiffs Nos 5 and 6 were not born till then and plaintiff No 7 had no title or his interest in the property
Thus unless those sale deeds or transfers were not cancelled or set aside the plaintiffs could not seek possession of the properties
It was further submitted that the plaintiffs Nos 1 to 6 who were sons of defendant No 9 were under pious obligation to discharge their father s debt
The present transfers were for dis charging the father s debt due to Narayan Dass and hence the plaintiffs were bound by the transfers
The plaintiffs had no cause of action for seeking cancellation of the sale deed dated 11th February 1953
The present suit was barred by time as the claim for relief of cancellation of the sale deed dated 11th February 1953 was also barred on expiry of three years from the date of sale deed
Defendants Nos 2 and 3 filed a joint written statement and apart from denial of defendant No 9 being a gambler drunkard or satoria it was alleged that they had purchased agricultural field from defendant No 9 who sold the same for legal necessity and for valuable consideration and for the benefit of the minors
It was also made to preserve the estate and to make the repayment of the loans by the defend ant No 9
Hence the sales made in their favour were binding on the plaintiffs
The plaintiffs have filed the present suit in collusion with defendant No 9 with ulterior and mala fide intention
48 Defendants Nos 4 to 8 filed a joint written statement and took almost a similar stand as taken by defendant No 1
These defendants further pleaded that they had purchased the suit house some time in the year 1956 with the knowledge of the plaintiff Nos 1 and 2 and defendant No 9
After the purchase of the house the defendants demolished the old structure and constructed the whole house from foundation at a cost of about Rs25000
The plaintiffs Nos 1 and 2 as also defendant No 9 were in the full know of the fact of demolition of old house and new construction
They did not at any time raise any objection or claim to the house and allowed the defendants to carry out the work
They did not at any time show or commit any act as to raise any doubt in the minds of defendants regarding their title to the house in suit
Thus the defendants Nos 4 to 8 in good faith and having full belief in their own title to the suit house spent more than Rs25000 on the house and the plaintiffs and defendant No 9 allowed the defendants to carry out the work even though they had full knowledge of the said con struction work and were thus now estopped from denying the title of the defendants to the suit house
The plaintiffs and defendant No 9 having acquiesced in the above acts of the defendants could not now file the suit and challenge the title of the defendants
It was also alleged that the de fendant No 9 was heavily indebted and had in fact executed a conditional sale deed in favour of Narayan Dass son of Kalidass for a consideration of Rs5500
It was in order to redeem these properties that the defendant No 9 sold the property and utilised the money received as a consideration of the sale deed towards the satisfaction of those debts
Thus the impugned sale deeds were executed for good and valuable consideration for payment of antecedent debts and cannot be challenged by the plaintiffs
Trial Court after considering the oral and documentary evidence led by the parties held that the defendant No 9 Beni Ram after getting the ancestral share in the properties in 1947 remained joint with his sons ie the plaintiffs
It was also found that the properties in question were ances tral and as such the plaintiffs had acquired interest in it by birth
The Trial Court further held that Beni Ram de fendant No 9 was not indulging in any vices at the time he first mortgaged the properties by conditional sale vide exhibit 48
The sale initially was for the satisfaction of the antecedent debt due on mortgage exhibit 48
The Trial Court further held that it was a legal cause and the pur chasers were armed with proper ground to purchase the property
This being so the contention of the plaintiffs that these sales finally were for no legal necessity or for the benefit of the minors or their estate etc fell to the ground
Similarly their contention that the defendant No 9 was 49 given up to drinking and all other such bad habits and it was known to the defendant Nos 1 and 3 also did not stand proved
Trial Court also held that it was proved that the defendant No 9 was a broker and he needed cash capital of Rs4000 to Rs5000 for his business even as a broker
The evidence also satisfactorily proved that defendant No 9 had a grain shop
The Trial Court thus arrived at the conclusion that the plaintiffs had failed to prove their allegations that the defendant Nos 1 to 3 wanted these properties somehow or the other and that they managed to get the sales executed in their favour from defendant No 9 without en quiry about the legal necessity to sell
The Trial Court also found proved that the defendants Nos 4 to 8 had spent Rs25000 on the reconstruction of the house within the knowledge of the plaintiffs Nos 1 and 2 after his purchase from the defendant No 1 and still none had objected against it
The plaintiffs Nos 1 and 2 and defendant No 9 were estopped from  challenging the title of defendants Nos 4 to 8
In view of the findings recorded as mentioned above the Trial Court dismissed the suit filed by the plaintiffs
The plaintiffs aggrieved against the Judgment and decree of the Trial Court flied an appeal before the Bombay High Court
An argument was raised on behalf of the plaintiffs before the High Court that Manibhai and Narayan Dass ran a family firm of which they were owners and the execution of the conditional sale deed reconveyance deed and the subse quent sale deed of the same day were nothing but a device and were really part of one and the same transaction
The transactions were not independent of each other in the true sense of the term
If the original transaction of 22nd April 1948 of conditional sale deed with Narayan Dass was not a valid alienation and thus not binding upon the copar ceners minor sons of Beni Ram then subsequent transactions for the payment of the debt or liability due under that alienation also cannot be supported
The relationship be tween Narayan Dass and Manibhai on the one hand and Beni Ram on the other hand appeared to be that of confidence from the nature of evidence given by Narayan Bhai and Manibhai
Beni Ram seemed to have faith in the two brothers which they apparently used to their advantage
The High Court considered the above arguments and ob served that in Exhibit 48 the reason for alienation of the property had been given by Beni Ram as for the purpose of carrying out business and for household purpose
The defend ants further did not stick to this reason of alienation in the sale deed and gave evidence to show that it was with this amount that Beni Ram started new business
As to what was 50 the household purpose has nowhere been stated or clarified
There was no evidence of any kind whatsoever led to show of any enquiry having been made by the alienees in regard to the existence of legal necessity or any antecedent debt
There was no antecedent debt referred to at all in Exhibit 48 which was the commencement of the transaction
The High Court then considered Exhibit 49 which was a reconveyance deed by which Rs5500 were repaid by Beni Ram to Narayan Dass
The High Court then took into consideration Exhibits 40 41 and 426 11 and arrived at the conclusion that there was no antecedent debt nor any legal necessity nor the money was needed for any joint family or ancestral business in order to make these alienations valid
After analysing the oral evidence the High Court recorded the finding that even assuming that Beni Ram started a grain shop it was admitted by the defendants that his former business was of brokerage in grain
For a grain broker business no capital was neces sary or required
For the purpose of a grain shop which was an entirely different business experience in salesmanship and dealing in grains as well as the purchase of grain wholesale or retail would be necessary
It would involve outlay of capital and would be under the circumstances a new business
The High Court then examined the question as to whether a father can by starting a new venture expose the family ancestral property to be taken and burden it there with and alienate for that purpose
The High Court placed reliance on the following dictum laid down by Privy Council in Benares Bank Limited vs Hari Narain  Ors Vol
LIX Indian Appeals 300
 The manager of a Joint Hindu Family whether governed by the Mitakshara or the Dayabhaga has no authority to impose upon a minor member the risk and liability of a new business started by him that the manager is father of the minor makes no difference
 The High Court thus observed that in the present case the father had started new business with the alienation of the property and he had no right to impose the risk and liability upon the minor members
If the business which Beni Ram therefore started were a new business and which he had no right to start so as to expose the interest of the minor coparceners in the family property then Exhibit 48 cannot be supported on the ground either of legal necessity or benefit to the estate
The High Court further observed that if Exhibit 48 therefore was a transaction which the father was not entitled to enter into and 51 expose the family property to the risk then Exhibit 48 fell and could not be held to be a valid and binding transaction then the transaction of 11th February 1953 first of a reconveyance and then of a sale evidenced by exhibits 49 and 40 also must fall and cannot be supported
The evidence went to show that Beni Ram had confidence in Manibhai and Narayan Dass
The reconveyance in favour of Narayan Dass and the immediate sale in favour of Manibhai on the same day was a mere device to support the transaction of sale Exhibit 40 in favour of Manibhai by a repayment of alleged antecedent debt
The High Court held that they had no hesitation in thinking that if the alleged antecedent debt itself was an invalid transaction was not an independent transaction but was a part of the same transaction merely because it was separated in point of time it would not support the aliena tion in favour of Manibhai
The High Court also referred the five propositions laid down in Brij Narain vs Mangala pra sad AIR 1924 Privy Council 50 and held that so far they were concerned the fourth proposition was relevant which was to the following effect Antecedent debt means antecedent in fact as well as in time ie to say that the debt must be truly independent and not part of the transaction impeached
 It was then held that applying the proposition laid down it was to be found out whether the transaction which was impeached was a truly independent transaction and the debt discharged thereby was a truly independent antecedent debt and whether it was or it was not a part of the same transac tion
According to the High Court apart from the fact that the alienation dated 22nd April 1948 was not supportable and was invalid the transaction was nothing but a mere device to clothe the debt due under Exhibit 48 with the antecedent character when Exhibit 40 on 11th February 1953 was executed
The transaction Exhibit 40 must stand or fall alongwith the liability said to have been incurred under Exhibit 48
Thus in the view taken of Exhibit 48 and the liability incurred thereunder Exhibit 40 must also fall therewith
As regards Exhibits 41 and 4261 the High Court ob served that whatever little justification there was to sustain the transaction under Exhibit 40 even that did not hold good and was not available for the alienations under Exhibits 41 and 42
There was not even a semblance of an tecedent debt existing or due from Beni Ram on 11th Febru ary 1953 after the alleged liability under the conditional sale deed was discharged so as to alienate survey No 1 or subsequently in 1954 the remaining portion of survey Nos 1 and 19
After recording the above 52 findings the High Court observed that the present suit was brought by the minors who had 67th share in the Joint family properties and had brought the suit for the purpose of possession alleging that the alienations effected by defendant No 9 thereafter were not binding upon them
In such a case the only consequence would be that the share of defendant No 9 will go to the alienees
But in such a suit the coparceners whose shares were not affected were entitled to possession and the alienees were not entitled to joint possession with them
The alienees in such a case could bring if so inclined and so advised a suit for working out their share in the family property
In such a suit the entire family properties shall be brought in and the share of the alienor coparcener worked out
Thus the plaintiffs having succeeded the alienees defendants Nos 1 to 3 can be relegated to their right and work out their rights in a separate suit than making an order for joint possession
Consequently the High Court allowed the appeal set aside and reversed the Judgment and decree passed by the Trial Court and instead a decree was passed in favour of plain tiffs Nos 1 to 6 for possession of the properties in suit
As regards the mesne profits it was held that the plaintiffs had not led any evidence and as such relief for mesne profits was denied
The plaintiffs were further held entitled to future mesne profits from the date of suit under Order 020 Rule 12 CPC Manibhai defendant No 1 Dhyaneshwar So Vithal as legal representative of defendant No 2 and Waman Rao Narayan Rao defendant No 3 have filed this appeal against the Judgment of the High Court
We have heard Learned counsel for the parties at length and have thoroughly perused the record
The properties having come in the hands of Beni Ram after partition being ancestral and the plaintiffs having share as members of coparcenary were no longer in dispute before us
The finding that the plaintiffs had not been able to prove that their father Beni Ram was a drunkard gambler and satoria and the alienation made by him were not invalid on that account was also not challenged before us
It may be mentioned at the outset that the very approach of the High Court in consider ing transaction Exhibit 48 dated 22nd April 1948 as well as all the other transactions of 11th February 1953 being part of the same transaction is not correct
It is necessary to examine each transaction independently and then to arrive at a conclusion whether such a transaction or alienation can be held to be valid or not
The High Court also committed an error in 53 examining the transaction as if the same were without con sideration and on that account treating the transactions invalid though no such plea was raised by the plaintiffs even in the plaint
The alienations were challenged by the plaintiffs only on the ground of being without legal neces sity and not for the benefit of the estate and further tainted with immorality on the ground of their father Beni Ram being indulging in the vices of drinking gambling and satoria
Mulla in Principles of Hindu Law 15th Edition in paragraph 295 has dealt with the question of sale or mort gage of coparcenary property for payment of antecedent debt as under The father of a Joint Hindu Family may sell or mortgage the joint family property including the sons  interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons pro vided a the debt was antecedent to the alienation and b it was not incurred for an immoral purpose
The validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the sons to discharge his father s debt not tainted with immorality
The mere circumstance however of a pious obligation does not validate the alienation
To validate an alienation so as to bind the son there must also be an antecedent debt
Gener ally there is no question of legal necessity in such a case
Antecedent Debt means antecedent in fact as well as in time that is to say that the debt must be truly inde pendent of and not part of the transaction impeached
A borrowing made on the occasion of the grant of a mortgage is not an antecedent debt
To constitute a debt an antecedent debt it is not necessary that the prior and subsequent creditors should be different persons
All that is necessary is that the two transactions must be dissociated in time as well as in fact
It is thus clear that where the sons are joint with their father and debts have been contracted by the father even for his own personal benefit the sons are liable to pay the debts provided they were not incurred for an immoral or illegal purpose and such debts were antecedent to the alienations impugned
The liability to pay the debts contracted by the father 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 54 father s debt where the debts are not tainted with immoral ity
In any event an alienation by the Manager of the Joint Hindu Family even without legal necessity and not tainted with immorality but for his personal benefit would be voidable and not void
Now we shall examine all the transactions which took place on 11th February 1953
So far as Exhibit 49 dated 11 th February 1953 is concerned it is a reconveyance deed by which an amount of Rs5500 was alleged to have been re turned to Narayan Dass and the possession of the properties mentioned in the conditional sale deed dated 22nd April 1948 were handed back to Beni Ram
This transaction was admittedly for the benefit of not only Beni Ram but other members of his family including the plaintiffs
Another document executed on 11th February 1953 is Exhibit 40 by which Beni Ram and his four sons sold the house property and agricultural land of survey Nos 3 and 18 in favour of Manibhai
The consideration of this sale deed is Rs5500 and it was this amount which was repaid to Narayan Dass for getting the reconveyance deed Exhibit 49
Narayan Dass being the brother of Manibhai it can be understood that no amount in fact may have reached the hands of Beni Ram by these two transactions of Exhibit 49 and Exhibit 40 but it becomes clear that the reconveyance deed Exhibit 49 could have been executed only when Rs5500 were returned to Narayan Dass and this amount could have only come by executing a sale deed Exhibit 40 in favour of Manibhai
If we took at the matter from another angle it is abundantly clear that on 22nd April 1948 when conditional sale deed was executed by Beni Ram on his own behalf and two minor sons he was paid Rs5500 by Narayan Dass
This is not the case of the plain tiffs that Exhibit 48 was without consideration or that Beni Ram did not receive Rs5500 when this transaction took place
We accept the finding of the High Court that this amount of Rs5500 was taken by Beni Ram for his business ie for his own personal benefit and not for any legal necessity or benefit of the joint family
Even then the sale transaction exhibit 40 dated 11th February 1953 for a consideration of Rs5500 in respect of house No 82 and agricultural lands Nos 3 and 18 is valid as such transac tion was made of payment of an antecedent debt of Rs5500 which was taken by Beni Ram on 22nd April 1948
Neither plaintiffs nor Beni Ram have come forward with the case that for reconveyance deed Exhibit 49 the amount of Rs5500 was repaid to Narayan Dass in any other manner except the trans action Exhibit 40 dated 11th February 1953
The transaction Exhibit 40 dated 11th February 1953 is valid and binding on the plaintiffs as it was made in order to pay the antecedent debt of Beni Ram taken on 22nd April 1948 and getting the recon 55 veyance of the property vide Exhibit 49
In Raja Brij Narain vs Mangala Prasad case supra it has been laid down that antecedent debt means antecedent in fact as well as in time ie to say that the debt must be truly independent and not part of the transaction impeached
 Applying the above dictum also to the facts of the ease in hand before us it is clear that the amount of Rs5500 taken by Beni Ram by way of transaction dated 22nd April 1948 was antecedent in fact as well as in time to the trans actions of 11th February 1953 which have been impeached by the plaintiffs
By no stretch of imagination the transaction of 22nd April 1948 can be said to be a part of the transac tion impeached
It makes no difference if Manibhai was the brother of Narayan Dass and the consideration paid by Manib hai of the transaction Exhibit 40 may have gone to Narayan Dass for getting the reconveyance deed Exhibit 49 or may have come back to Manibhai himself as Manibhai and Narayan Dass were running some business jointly in a shop from where this money may have come
Even if for argument s sake we may accept the contention of Mr RK Garg Learned counsel for the plaintiffs that no money actually came in the hands of Beni Ram while executing Exhibit 49 and Exhibit 40 on 11th February 1953 it will not make any difference in as much as Beni Ram was required to return the amount of Rs5500 taken by him on 22nd April 1948 and transactions Exhibit 49 and Exhibit 40 were truly independent transactions to pay the antecedent debt of 22nd April 1948
The High Court has unnecessarily imputed the allegation of collusion on the defendants to hold their transactions invalid
There could not have been any collusion unless Beni Ram father of the plaintiffs may have joined hands with the defendants from the very beginning ie 22nd April 1948 when he took an amount of Rs5500 as consideration for executing a condi tional sale deed
There is nothing on record to infer such conduct on the part of defendants on the other hand conduct of Beni Ram shows that he is all out in supporting his sons and to save the joint family property and to get the aliena tions declared invalid
The trial court and the High Court both have recorded a finding against the plaintiffs that Beni Ram was not indulged in the vices of gambling drinking and satta and alienations were not invalid on that account
Hemraj PW 1 one of the plaintiffs has appeared in the witness box but he nowhere stated that exhibit 48 was ille gal in any manner
On the contrary he stated that his father had said to him that he had taken loans and had to pay the same
These loans were taken from 56 Narayan Dass
Sale deed conditional dated 22nd April 1948 was shown and he admitted that it contained his father s signature on it
Narayan Dass has appeared as DW 1 and he clearly stated that he knew defendant No 9 and he had loaned to him Rs5500 for his grain business vide Exhibit 48
It was conditional sale dated 22nd April 1948
He further paid him back the money of Rs5500 as received from Manibhai and deposited Rs3745 on 11th February 1953 out of the consideration received from Vithoba
In further cross examination he stated that the account showed that on 1021953 Rs5500 were credited in it as paid by Mahibhai on behalf of Beni Ram
This was the consideration of Manib hai s purchase of the property from Beni Ram
It is perti nent to mention that even the High Court in its Judgment observed as under As we pointed out Exhibit 48 itself is the first alienation and there is no debt which is antecedent to 28th February 1948 which can support Exhibit 48
Though Exhibit 40 dated the 11th February 1953 can be said to be an alienation for the purpose of discharging a debt or liability due under Exhibit 48 as we shall presently show if the liability created or incurred under Exhibit 48 is not binding upon the minor coparcener and sons of Beni Ram then Exhibit 48 also will not be binding upon them The High Court further observed in this regard as under In the present case as we have pointed out it is with the alienation of the property that the father has started a new business which he had no right to impose the risk and liability upon the minor members
If the business which Beni Ram therefore started were a new business and which he had no right to start so as to expose the interest of the minor coparceners in the family property then we do not see how Exhibit 48 can be supported on the ground either of legal necessity or benefit to the estate
If Exhibit 48 there fore is a transaction which the father was not entitled to enter into and expose the family property to the risk then we think that Exhibit 48 cannot be supported and is not for legal necessity
If Exhibit 48 fails and cannot be held to be a valid and binding transaction upon the alienates then the transaction of 11th February 1953 first of reconvey ance and then of a sale evidenced by Exhibits 49 and 40 also must fail and cannot be supported
 57 The above observations made by the High Court clearly go to show that the High Court was considering the validity of the transaction of Exhibit 48 itself on the touchstone of its binding nature on the basis of any legal necessity or for the benefit of the estate of the joint family
The High Court in this regard committed a clear error in assuming and treating the transaction of 22nd April 1948 as a part and parcel of transactions of 11th February 1953
As a matter of fact the transactions of Exhibit 49 and Exhibit 40 dated 11th February 1953 were independent but rather to pay the antecedent debt of 22nd April 1948
Mr Garg Learned counsel
for the plaintiff respondent contended that the transaction of conditional sale deed dated 22nd April 1948 was void for want of legal necessity in as much as starting of a new business by Beni Ram did not constitute legal necessity
It was also contended that in any case after the execution of reconveyance deed Exhibit 49 there was no antecedent debt that may have survived
The reconveyance deed Exhibit 49 does not mention receipt of money from the vendee for repayment of any antecedent debt
Exhibit 40 sale deed in favour of Manibhai was subsequent to reconveyance deed Exhibit 49 and the alleged payment by the vendee before the Registrar do not constitute payment for any independent antecedent debt which in fact and in reality existed on 11th February 1953
Strong reliance is placed on Benares Bank Limited vs Hari Narain  Ors 59 Indian Ap peals P 300
We do not find any force in the above contention of Mr Garg
We have already discussed in detail that the condi tional sale deed Exhibit 48 dated 22nd April 1948 was not void even if the amount was taken by Beni Ram for his per sonal benefit of starting a new business of grain
It was an independent transaction both in fact as well as in time to the subsequent transactions of 11th February 1953
The transaction of reconveyance deed dated 11th February 1953 vide Exhibit 49 was for the benefit of not only Beni Ram but for the entire family including the plaintiffs
There was no consideration for this reconveyance of the property except the transaction of sale made in favour of Manibhai on 11th February 1953 vide Exhibit 40
Thus sale deed Exhibit 40 was perfectly valid and was made in order to pay the an tecedent debt of Exhibit 48
So far as Benares Bank Limited vs Hari Narain case supra is concerned it did not lay down any proposition against the conclusions arrived at by us
In the above case the appellant Bank had instituted a 58 suit against the members of a joint Hindu family governed by the Mitakashara Law to recover the balance due on and mort gage of a joint family property to secure an advance of Rs28000
The mortgage deed was executed by Jagdish Narain and Raghubir Narain each on behalf of his minor sons the adult sons of Jagdish Narain were also joined in the deed
The deed recited that the advance was required to pay off two earlier mortgages and to carry on the mortgagor s busi ness
Only the respondents who were minors at the date of the mortgage appeared to defend the suit
The Trial Judge passed a preliminary decree for sale for the sum claimed
On appeal the High Court of Allahabad held that the mortgage was valid only as to Rs 18000 which sum had been used to discharge antecedent debts
As to the remaining sum of Rs 10000 they found it had not been proved that the alleged debt of Rs6342 existed and that the business for the purposes of which the balance of Rs3658 had been applied was not an ancestral business and that therefore there was no authority to bind the minor members in respect of it
On further appeal their Lordships of the Privy Council held that the mortgage as regards the item of Rs6342 must be deemed to have been made for the payment of an antecedent debt of Jagdish Narain and Raghubir and it was therefore binding upon their sons
As regards the item of Rs3658 their Lordships found that this amount was borrowed for the Thika business
Their Lordships after examining the evidence in this regard held that the business was started by Jagdish Narain and Raghubir Narain as managers of the family
A business therefore cannot be said to be ancestral so as to render the minors  interest in the joint family property liable for the debt
Their Lordships did not agree with the argument that a business started by a father as manager even if new must be regarded as ancestral
Thus it was held that the mortgage as to Rs3658 being neither for a neces sity recognised by the law nor for the payment of an an tecedent debt was wholly invalid under the Mitakashara Law as applied in United Provinces and it did not pass the shares even of the alienating coparceners
Thus in the above case their Lordships considered the mortgage as not binding only to the extent of Rs3658 which amount was given by the bank by the transaction in dispute itself
In the case in hand before us the facts are entirely different and as we have already observed an amount of Rs5500 was taken by Beni Ram in 1948 and if the same was paid back by transac tion Exhibit 40 dated 11th February 1953 then it would certainly be a valid transaction for making the payment of an antecedent debt
In Irukulapati Venkateswara Rao vs Vemuri Ammayya and Others AIR 1939 Madras 561 it was held as under 59 On the above finding Exhibit A would prima facie be bind ing on defendant 2 s share as well
But it has been contend ed on his behalf that as the debts of defendant No 1 were incurred by him in connection with a trade started by him self when trade was not the normal occupation of the fami ly the debts must be held to be avyavaharik debts and as such not binding on the son
The Learned counsel for the appellant submitted that this contention was opposed to the decision in Atchutaramayya vs Ratanjee Bhootaji 211 but he argued that it is supported by the decision of the Privy Council in Benares Bank Limited vs Hari Narain  Ors 54 ALL 564
We find nothing in 54 All 564 that supports this argument
Their Lordships there decided only the question of the binding character of the mortgage as such on the footing that moneys had been bor rowed contemporaneously with the mortgage for the purpose of carrying on a trade started by the father
They declined to deal with the question of the son s liability for the debt under the pious obligation doctrine on the ground that the question had not been raised in the Court in India A Bench of three Judges of the Supreme Court in Luhar Amrit Lal Nagji vs Doshi Jayantilal Jethalal  Ors  has already held that the doctrine of pious obligation under which sons are held liable to discharge their father s debts is based only on religious considera tions
This doctrine inevitably postulates that the father s debts must be vyavaharik
If the debts are not vyavaharik or are avyavaharik the doctrine of pious obligation cannot be invoked
Their Lordships quoted with approval the five proposi tions laid down by the Privy Council in the case of Brij Narain vs Mangala Prasad supra
Dealing with Suraj Bansi Koer case 6 Indian Appeals 88 PC observed as under We have carefully considered this matter and we are not dispossessed to answer this question in favour of the appel lants
First and foremost in cases of this character the principle of stare decisis must inevitably come into opera tion
For a number of years transactions as to immovable property belonging to Hindu families have taken place and titles passed in favour of alienees on the understanding that the propositions of law laid down by the Privy Council in 60 the case of Suraj Bansi Koer 6 Indian Appeals 88 PC cor rectly represent the true position under Hindu Law in that behalf
It would we think be inexpedient to reopen this question after such a long lapse of time It was further observed in the above case
It is also well known that in dealing with questions of Hindu Law the Privy Council introduced considerations of justice equity and good conscience and the interpretation of the relevant texts sometimes was influenced by these considerations
In fact the principle about the binding character of the antecedent debts of the father and the provisions about the enquiry to be made by the creditor have all been introduced on considerations of equity and fair play
When the Privy Council laid down the two propositions in the case of Suraj Bansi Koer 6 Indian Appeals 88 PC what was really intended was to protect the bona fide alie nees against frivolous or collusive claims made by the debtor s sons challenging the transactions Since the said propositions have been laid down with the object of doing justice to the claims of bona fide alienees we do not see any justification for disturbing this well established position on academic considerations which may perhaps arise if we were to look for guidance to the ancient texts today
In our opinion if there are any anomalies in the adminis tration of this branch of Hindu Law their solution lies with the legislature and not with the courts
What the commenta tors attempted to do in the past can now be effectively achieved by the adoption of the legislative process
There fore we are not prepared to accede to the appellants  argument that we should attempt to decide the point raised by them purely in the light of ancient Sanskrit Texts In Vyankates Dhonddeo Deshpande vs Sou
Kusum Dattatraya Kulkarni  Ors   this Court clearly laid down as under Assuming we are not right in holding that the debt was for the benefit of the estate of the joint family and there fore a joint family debt and assuming that Mr pal is right in contending that it was the personal debt of the father 61 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 liabili ty has passed into the realm of law
 Thus we also hold that even if any loan is taken by the father for his personal benefit which is found as vyavaharik debt and not avyavaharik the sons are liable to discharge their father s debts under the doctrine of pious obligation and in this view of the matter if any alienation of the joint family property is subsequently made to discharge such antecedent debt or loan of the father such alienation would be binding on the sons
Now so far as the house property is concerned the same was subsequently sold by Manibhai to defendants Nos
4 to 8
The defendants Nos 4 to 8 demolished the house and by spending an amount of Rs25000 constructed a new house much before the filing of the present suit
The issue No 10 was framed in this regard and the Trial Court gave a categorical finding that the defendants Nos 4 8 had proved that they had spent Rs25000 on the reconstruction of the house within the knowledge of the plaintiffs Nos 1 and 2 after his purchase from the defendant No 1 and still none had objected or noticed them against it
In this view the plain tiffs Nos 1 and 2 and the defendant No 9 would be estopped from challenging the title of defendants Nos 4 to 8 now
The High Court also did not set aside the above finding and as such we uphold the finding of the Trial Court in this regard
Now so far as the transactions Exhibit 41 and Exhibit 4261 are concerned they stand on a different footing altogether
By Exhibit 41 part of agricultural field survey No 1 measuring 1069 acres has been 62 sold by Beni Ram and his four sons to Vishwanath and Vithal Rao for a sum of Rs5345
By another transaction vide Exhibit 4261 Beni Ram and his sons sold one acre of agri cultural land of survey No 1 and 840 acresof survey No 19 in favour of Vithal Rao and Vishwanath for a sum of Rs3000 on 19th July 1954
The High Court in this regard has recorded a clear finding that the aforesaid alienations were made neither for any legal necessity nor for the bene fit of the estate nor for payment of any antecedent debt
We have also gone through the evidence in this regard and we are fully convinced that the aforesaid transactions  had no connection with Exhibit 48 or to pay any other antecedent debt and we agree with the finding of the High Court in this regard
The net result of the above discussion is that this appeal is allowed in part
The Judgment and decree passed by the High Court is set aside to the extent of granting a decree for possession of the house property and agricultural land survey Nos 3 and 18 sold in favour of Manibhai vide Exhibit 40 dated 11th February 1953 and the suit with regard to these properties is dismissed
The rest of the Judgment and decree of the High Court in respect of agricul tural lands survey Nos 1 and 19 which were alienated in favour of Vithal Rao and Vishwanath defendants Nos 2 and 3 vide Exhibits 41 and 4261 is maintained and the suit of the plaintiffs for possession with regard to these proper ties stands decreed
In the facts and circumstances of the case the parties shall bear their own costs
TNA Appeal allowed


Summary:
In order to confer permanent status to workmen in var ious industrial establishments who have put in a continuous service for a period of 480 days in a period of 24 calendar months the Tamil Nadu Industrial Establishments Conferment of Permanent Status to Workmen Act 1981 was passed by the State Government
The constitutional validity of the Act was challenged before the High Court by various industrial establishments by way of writ petitions
The High Court allowed the writ petitions in part striking down some portions of section 3 of the Act
The State Government preferred appeals against the judgment of the High Court
Meanwhile the Appellant State amended the Act in the light of the High Court s judgment
On behalf of the appellant it was contended that the view taken by the High Court as to the scope of section 32 has to be determined notwithstanding theamendments made
The contention of the respondents was that the legisla ture while amending the Act with retrospective effect has accepted the judgment of the High Court since the amendment has not given a different meaning to section 32 from the one asserted by the High Court
Dismissing the appeals this Court HELD 1
When an Act has been judicially interpreted Courts 34 may study the subsequent action or inaction of the legisla ture for clues as to legislative approval or disapproval of the judicial interpretation
After the statute has been judicially interpreted in a certain way and if the legisla ture by taking note of the judgment amended the statute appropriately so as to give it a different meaning from the one asserted by the Courts or not giving any different meaning from the view taken by the Court it may be argued with some justification that the legislature has expressly or by implication ratified the judicial interpretation
38G H 39A 2
In the instant case the legislature has expressly taken note of the High Court verdict and removed the practi cal difficulties caused thereby in implementing the provi sions of the Act by appropriate amendments
No provision however was inserted to re write and validate the portion which was struck down by the High Court
It could there fore be reasonably held that the legislature has accepted the judgment of the High Court to the extent indicated
39A B 3
The view taken by the High Court in striking down a portion of sub section 2 of section 3 of the Act cannot be found fault with
The word non employment  would include retrenchment as well and a person whose services have been terminated or discharged albeit illegal cannot at all be said to be a person in service much less in continuous service
Therefore the period of non employment or the period after discharge cannot be accounted for the purpose of giving continuity of service
If the discharge is set aside and workmen is reinstated by process known to law the workman automatically gets continuity of service
No special provision is necessary for such purposes
39C E F