Case: Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narainsingh And Others

Civil Appeal No. 53 ofThis appeal is on behalf of the plaintiff and is directed against a judgment and decree of a Division Bench of the Patna High Court, dated the 8th of September, 1948, modifying those of the Additional Subordinate Judge, Motihari, passed in Partition Suit No. 108/6 of 1943/46. There were two money suits between the same parties which were tried along with the suit for partition and both of them were decreed by the trial judge, but dismissed by the High Court on appeal. Civil Appeals Nos. 54 and 55 of this court arise out of these appeals and we will deal with themfar as the main appeal is concerned, the material facts are uncontroverted and the dispute centres round one short point, which relates to the extent of share in the disputed properties to which the plaintiff can be said to have acquired a legal title. The plaintiff averred that he was entitled to a 4 annas share in the schedule lands and this claim was allowed by the trial judge. The High Court held, on the other band, that the plaintiffs title extended only to 1 anna 4 pies share in the disputed properties, and with regard to this share alone he could claim partition. It is the propriety of this decision that has been challenged before us in thisappreciate the contentions that have been raised by the parties before us, it may be convenient to narrate a few material facts. The properties in suit, which are comprised in Tauzi No. 703 of the Champaran Collectorate, belonged admittedly to the defendants first party and their ancestors. Defendant No. 1, Bhubneshwar Prasad, who is the main defendant in the present litigation, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note some time beforeinstituted a suit in the Court of the Subordinate Judge at Motihari against Bhubneshwar for recovery of this loan and having obtained a decree, put the decree in execution in Execution Case No. 16 of 1932 of the Court of the Subordinate Judge at Motihari. In course of these proceedings, the right, title and interest of the judgment-debtor in the properties in suit, which was described as amounting to 4 annas share in the same, was put up to sale and purchased by the decreeholder himself on 7th of September,The purchaser got delivery of possession on January 25,is admitted that at the time of the sale, Bhubneshwar along with his grand-father Bishun Prakash, his father Lachmi Prasad and his two sons who are defendants 2 and 3 in the suit, constituted an undivided Hindu family, of which apparently his grand-father was the karta; and it is not disputed that if a partition had taken place at that time, Bhubneshwar Prasad along with his sons would have got 4 annas share in the joint ancestralsold the interest purchased by him at the execution sale to the plaintiff by a conveyance dated the 1st of February, 1935, and it is on the strength of this conveyance that the plaintiff instituted the present suit claiming specific allotment of a 4 annas share in the suit properties. Bhubneshwar and his three son&, to wit, defendants 2, 3 and 4, are the main defendants in the suit and it is not disputed that at the present moment they own the remaining 12 annas share in the suit properties. The defendants 5, 6 and 7 were impleaded as parties defendants on the allegation that they held different portions of the joint properties as zarpeshgidars under the 12 annassuit was contested primarily by defendant No. 1 and the substantial contention put forward by him was that as the money suit was instituted by Panchanan against him alone and his sons were not made parties either to the suit or the execution proceeding, his own undivided interest in the joint family properties and not that of his sons passed by the sale. Consequently, the execution creditor could not by his purchase acquire more than 1 anna 4 pies share in the suit properties and to this share alone the plaintiff could legitimately lay acontention was repelled by the Subordinate Judge who took the view that as the debt contracted by Bhubneshwar was not for immoral purposes, it was open to his creditor to realise his dues not merely from the fathers undivided coparcenary interest in the ancestral property but from the entire interest of the father and the sons in the same. The execution proceedings showed that the creditor intended to attach and sell the interest of the sons as well and unless, therefore, the sons succeeded in showing that the debts were such which they were not obliged to pay under the rules of Hindu law, the fact that they were not made parties to the proceedings was altogetherresult was that the trial judge allowed the plaintiffs claim in its entirety and passed a preliminary decree declaring the plaintiffs one-fourth share in the schedule properties. The defendant No. 1 thereupon took an appeal to the High Court.

Reasoning:
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.