Case: Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narainsingh And Others

I.A.all that the son can claim in such cases is that not being made party to the sale or execution proceeding, he ought not to be barred from trying the nature of the debt or his liability to pay the same in any suit or proceeding started by him or to which he might be made a party. He could raise the point either by way of objection in the execution proceeding itself or he could himself file a suit for a declaration that the debt was not binding on him. He could also raise it by way of defence when the auction purchaser seeks to have his rights defined and demarcated in a partition suit.23. In the case before us, the sons, who were made defendants to the partition suit, had that opportunity given to them. Unfor- tunately, however, they did not choose to avail themselves of this opportunity. Defendant No. 2, the major son of defendant No. 1, did not file any written statement or contest the suit at all. A written statement was indeed filed on behalf of the minor sons, defendants 3 and 4, who were represented by a pleader guardian and there this point was specifically raised. But it appears from the records that they did not invite the court to frame any issue on the point, nor did they lead any evidence upon it. They failed to show, therefore, that the debt was one which they were not obliged to pay under the rule of Hindu law.24. It may be further noted that although the trial courts decision was against the sons, they did not choose to challenge the decree by way of an appeal. The appeal was filed only by their father and they were made respondents; and it was only at a very late stage that the appellate court transferred them to the category of appellants.25. The learned Judges of the High Court seem to be of the opinion that the principle enunciated by the Judicial Committee in Nanomi Babuasins case 13 I.A 1.or the other cases that followed it could apply only when the father was the head of the family and in that capacity could represent his sons in the suit or the execution proceeding. But if the father was not the karta, this principle, it is said, would not apply and the purchaser could only acquire the right, title and interest of the father alone even though the court purported to sell the interest of the sons as well. This does not seem to us to be a sound view to take. It is true that in all the cases referred to above, the father was actually the head of the family but that does not make any difference in principle. If the difference is sought to be made on the basis of the fathers capacity to represent the sons in any litigation, it may be said that, subject to the rights of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the rule of Hindu law, the father even if he was not a karta, could represent the sons as effectively in the sale or execution proceedings as he could do if he was the karta himself. Without being a karta he could, as a father, completely represent his branch of the coparceners consisting of himself and his sons; and vis-a-vis his sons his position would not improve in any way by his being a karta of the family.26. It has been observed in a Madras case Vide Sudarsaram v. Narasimhulu, I.L.R. 25 Mad.149, 155, and we think rightly that so long as the family remains joint, all the members of a branch or a sub-branch of the family can form a distinct and separate corporate unit within the larger unit. Of such a smaller unit consisting of the father and his sons, the father would undoubtedly be the head and legal representative, although he is not the head of the larger unit. In our opinion, therefore, the High Court was not right in holding that the plaintiff could not claim 4 annas share in the property on the strength of the purchase by his predecessor in the execution sale simply because the father was not the manager or karta of the joint family at that time. The result is that this appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored. The plaintiff will have costs of this court as well as of the court below.Civil Appeals Nos. 54 and 55 of 1951.27. Coming now to the money appeals, the point for consideration is a short one. The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not find any warrant for the view that to saddle the sons with this pious obligation to pay the debts of their father, it is necessary that the father should be the manager or karta of the joint family, or that the family must be composed of the father and his sons only and no other male member. No such limitation is deducible either from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions. Where a debt is incurred for necessity or benefit of the family, the manager, whether he be the father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts, irrespective of the fact as to who actually contracted thelearned Judges of the High Court laid great stress on the fact that the defendant No. 1 in the present case was a junior member and not the karta of the family and consequently had no rights of disposal over his own interest or the interest of his sons in the joint property. The idea seems to be that if the father was incompetent to alienate the coparcenary rights of his sons for satisfaction of his own debts, the creditor of the father could not claim to occupy a better position. This way of approach does not seem to us to be correct. It cannot be laid down as a pro- position of law that the creditors power of proceeding against the sons share in the joint estate for recovery of the debt due by the father is co-extensive with the fathers power of disposal over suchthe case before us, the sons, who were made defendants to the partition suit, had that opportunity given to them. Unfor- tunately, however, they did not choose to avail themselves of this opportunity. Defendant No. 2, the major son of defendant No. 1, did not file any written statement or contest the suit at all. A written statement was indeed filed on behalf of the minor sons, defendants 3 and 4, who were represented by a pleader guardian and there this point was specifically raised. But it appears from the records that they did not invite the court to frame any issue on the point, nor did they lead any evidence upon it. They failed to show, therefore, that the debt was one which they were not obliged to pay under the rule of Hindumay be further noted that although the trial courts decision was against the sons, they did not choose to challenge the decree by way of an appeal. The appeal was filed only by their father and they were made respondents; and it was only at a very late stage that the appellate court transferred them to the category oflearned Judges of the High Court seem to be of the opinion that the principle enunciated by the Judicial Committee in Nanomi Babuasins case 13 I.A 1.or the other cases that followed it could apply only when the father was the head of the family and in that capacity could represent his sons in the suit or the execution proceeding. But if the father was not the karta, this principle, it is said, would not apply and the purchaser could only acquire the right, title and interest of the father alone even though the court purported to sell the interest of the sons as well. This does not seem to us to be a sound view to take. It is true that in all the cases referred to above, the father was actually the head of the family but that does not make any difference in principle. If the difference is sought to be made on the basis of the fathers capacity to represent the sons in any litigation, it may be said that, subject to the rights of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the rule of Hindu law, the father even if he was not a karta, could represent the sons as effectively in the sale or execution proceedings as he could do if he was the karta himself. Without being a karta he could, as a father, completely represent his branch of the coparceners consisting of himself and his sons; and vis-a-vis his sons his position would not improve in any way by his being a karta of the family.In our opinion, therefore, the High Court was not right in holding that the plaintiff could not claim 4 annas share in the property on the strength of the purchase by his predecessor in the execution sale simply because the father was not the manager or karta of the joint family at that time. The result is that this appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored. The plaintiff will have costs of this court as well as of the court below.Civil Appeals Nos. 54 and 55 ofnow to the money appeals, the point for consideration is a short one. The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase.