ivil Appeal No 1349 of 1990 From the Judgment and Order dated 1881988 of the Kerala High Court in ESA No 23 of 1987
section Padmanabhan and RN Keshwani for the appellant
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
Special leave granted
An extent of 80 cents of land which is in dispute in this appeal was agreed to be sold in favour of the appellant under an agreement dated October 9 1978
Before the sale deed was executed a third party in execution of a decree got the property attached on November 16 1978
The sale deed was executed on November 23 1978
The question is Does the sale prevail over the attachment The High Court of Kerala in the judgment under appeal has held that the sale would be subject to attachment
This appears from the following observation The sale deed was executed at a time when the property was already under attachment
It is true that even before af fecting attachment there was an agreement for sale by Saroj ini Ramakrishnan in favour of the appellant
But the agree ment for sale will not create any interest in the property
The fact that Ext
A 12 Sale deed was executed on the basis of an agreement executed before the attachment will not place the appellant in any better position
He could take the 80 cents under Ext
A 12 only subject to the attachment
 834 The correctness of the view taken by the High Court has been called into question in this appeal
We may first draw attention to some of the relevant statutory provisions bearing on the question
Order 38 Rule 10 of the Code of Civil Procedure provides that attachment before judgment shall not affect the rights existing prior to the attachment of persons not parties to the suit
Under Section 40 of the Transfer of Property Act a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of that contract and it pro vides that that obligation may be enforced inter alia against a transferee with notice
Section 91 of the Trusts Act also recognises this principle that the transferee with notice of an existing contract of which specific performance can be enforced must hold the property for the benefit of the party to the contract
These are equitable rights though not amounting to interest in immovable property within the meaning of Section 54 of the Transfer of Property Act which declares that a contract of sale does not create an interest in the property
On this line of reasoning it has been held by the Madras High Court that the purchaser of an antecedent agreement gets good title despite attachment
See Paparaju Veeraraghavayya vs Killaru Kamala Devi  Ors AIR 1935 Mad 193 Veerappa Thevar  Ors
CS Venkataramma Aiyar  Ors AIR 1935 Mad 872 and Angu Pillai
MSM Kasiviswa nathan Chettiar There is a useful parallel from the decision of the Calcutta High Court in Purna Chandra Basak vs Daulat Ali Mollah AIR 1973 Cal
432 wherein it was observed that the attaching creditor attaches only the right title and inter est of the debtor and attachment cannot confer upon him any higher right than the judgment debtor had at the date of attachment
Hence if under a contract of sale entered into before attachment the conveyance after attachment in pursuance of the contract passes on good title inspite of the attachment
To the same effect are the decisions of the Bombay High Court in Rango Ramachandra vs Gurlingappa Chinnappa AIR 1941 Bom
198 and Yashvant Shankar Dunakhe vs Prayarji Nurji Tamboli AIR 1943 Bom
The High Court of Travancore Cochin in Kochuponchi Varughese vs Quseph Lonan AIR 1952 Travancore Cochin 467 has also adopted the same reasoning
The Punjab  Haryana High Court however has taken a con 835 trary view in Mohinder Singh and Anr
vs Nanak Singh and Anr AIR 1971 Pb  Haryana 381
It has been held that a sale in pursuance of a pre attachment agreement is a private afienation of property and must be regarded as void against the claim ot the attaching creditor
In support of this proposition Section 64 of the Code of Civil Procedure was relied upon which according to the High Court was intended to protect the attaching creditor against private aliena tion
This was also the observation of the Lahore High Court in Buta Ram  Ors
vs Sayyed Mohammad AIR 1935 Lahore 71
In our opinion the view taken by the High Courts of Madras Bombay Calcutta and Travancore Cochin in the afore said cases appears to be reasonable and could be accepted as correct
The agreement for sale indeed creates an obligation attached to the ownership of property and since the attach ing creditor is entitled to attach only the right title and interest of the judgment debtor the attachment cannot be free from the obligations incurred under the contract for sale
64 CPC no doubt was intended to protect the attaching creditor but if the subsequent conveyance is in pursuance of an agreement for sale which was before the attachment the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor
The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property
The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment debtor
We cannot there fore agree with the view taken by the Punjab and Haryana High Court in Mohinder Singh s case AIR 1971 Pb  Haryana 381
In the conclusion that we have reached this appeal must beallowed and is accordingly allowed
The order of the High Court is reversed and that of the trial court is restored
In the circumstances of the case we make no order as to costs
PSS Appeal allowed


Summary:
j was the managing director of a Co operative Bank getting a yearly remuneration of Rs 1000
The Bank went into liquidation and an examination of the affairs having showed that the monies of the Bank were not properly invested and that J was negligent in the discharge of his duties a payment order for Rs 15100 was made by the Deputy Registrar of Co operative Societies against him
On July 27 1942 for the realisation of the amount an item of property belonging to the joint family of J was attached by the Collector and brought to sale under section 155 of the Bombay Land Revenue Code and purchased at auction by the first respondent
This sale was held on February 2 1943 and confirmed on June 23 1943
In the meantime on January 15 1943 one of the sons of J instituted a suit for partition and separate possession of his share in the joint family properties and contended inter alia that the sale in favour of the first respondent was not binding on the joint family
The sale was challenged on the grounds 1 that the liability which J incurred was avyavaharika and therefore the interest of his sons could not be sold for the realisation of the debt 2 that even if the debt was not avyavaharika the institution of the suit for partition operated as severance of status between the members of the family and therefore the father s power of disposition over the son s share had come to an end and consequently at the auction sale the share of the  sons did not pass to the auction purchaser and 3 that what could legally be sold under section I55 1385 of the Bombay Land Revenue Code was the right title and interest of the defaulter i e the father alone which could not include the share of the other members of the joint family
The evidence consisting of the notice for sale the proclamation of sale and the sale certificate showed that the whole of the property was sold and not the share of the father alone
Held that the liability which J incurred was not avyava harika and that the sale of the joint family property including the share of the sons for the discharge of the debt was valid
Held also that Colebrooke s translation of the term avyavaharika as any debt for a cause repugnant to good morals was the nearest approach to the true concept of the term as used in the Smrithi texts
Hem Raj alias Babu Lal vs Khem Chand 1943 L R 70 I A 171 relied on
Per Imam and Kapur jj 1 The liability of the sons to discharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the death of the father and which does not come to an end as a result of partition of the joint family property
All that results from partition is that the right of the father to make an alienation comes to an end
2 Where the right title and interest of a judgment debtor are set up for sale as to what passes to the auction purchaser is a question of fact in each case dependent upon what was the estate put up for sale what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for
3 The words right title and interest  occurring in section I55 of the Bombay Land Revenue Code have the same connotation as they had in the corresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted
4 In execution proceedings it is not necessary to implead the sons or to bring another suit if severance of status takes place pending the execution proceedings because the pious duty of the sons continues and consequently there is merely a difference in the mode of enjoyment of the property
5 The liability of a father who is a managing director and who draws a salary or a remuneration incurred as a result of negligence in the discharge of his duties is not an avyavaharika debt as it cannot be termed as  repugnant to good morals Case Law discussed
Panna Lal vs Mst
Naraini  and Sudhashway Mukherjee vs Bhubneshwar Prasad Narain Singh 1954 SCR 177 followed
Khiarajmal vs Daim 1904 LR 32 IA 23 and Sat Narain vs Das 1936 LR 63 IA 384 distinguished
Mulgund Co operative Credit Society vs Shidlingappa Ishwa rappa AIR 1941 Bom
381 approved 1386