Case: Pannalal and Anr Vs. Mst. Naraini and Ors

1. This appeal is on behalf of the judgment debtor in a proceeding for execution of a money decree and it is directed against the judgment of a Letters Patent Bench of the Punjab High Court dated 18-5-1949, by which the learned Judges affirmed in appeal, a decision of a single Judge of that Court dated 29-10-1946. The original order against which the appeal was taken to the High Court was made by the Senior Subordinate Judge, Ambala, in Execution Case No. 18 of 1945 dismissing the objections preferred by the appellants under S.>2. To appreciate the contentions that have been raised in this appeal, it would be necessary to give a short narrative of the material events in their chronological order. On 30-9-1925 Baldev Das, the father of the appellants, who was, at that time the manager of a joint Hindu family, consisting of himself and his sons, executed a mortgage bond in favour of Mt. Naraini, the original respondent 1, and another person named Talok Chand, by which certain movable properties belonging to the joint family were hypothecated to secure a loan of Rs. 16,000. On 16-4-1928 the appellants along with a minor brother of theirs named Sumer Chand filed a suit - being Suit No. 23 of 1923 - in the Court of the Subordinate Judge of Shahjahanpur against their father Baldev Das for partition of the joint family properties. The suit culminated in a final decree for partition on 20 7-1928 and the joint family properties were divided by metes and bounds and separate possession was taken by the father and the sons.On 29-9-1934 Mt. Naraini filed a suit in the Court of the Senior Subordinate Judge, Ambala, against Baldev Das for recovery of a sum of Rs.12,500 only on the basis of the mortgage bond referred to above. It was stated in the plaint that the money was borrowed by the defendant as manager of a joint Hindu family and the plaintiff prayed for a decree against the mortgaged property as well as against the joint family. On 18 12 1934 the appellants made an application before the Subordinate Judge under O.1, R. 10 and O. 34 R.Civil P. C. praying that they might be added as parties defendants to the suit and he points in issue arising therein might be decided in their presence. It was asserted in the petition that Baldev Das was not the manager of a joint family and that the family properties had been partitioned by a decree of the Court, as a result of which the properties alleged to be the subject-matter of the mortgage were allotted to the share of the petitioners.In reply to this petition, the plaintiffs counsel stated in Court 7-2-1935 that his client would give up the claim for a mortgage decree against the properties in suit and would be satisfied only with a money decree against Baldev Das personally. The plaint was amended accordingly, deleting all reference to the joint family and abandoning the claim against the mortgaged property. Upon this the appellants withdrew their application for being made parties to the suit and reserved their right to take proper legal action if and when necessary. On 17-4-1935, Baldav Das died and on 2nd September following the appellants as well as their mother, who figures as respondent 5 in this appeal, were brought on the record as legal representatives of Baldev Das. On 9-10-1935 the appellants filed a written statement in which a number of pleas were taken in answer to the plaintiffs claim and it was asserted in para 10 of the written statement that Baldev Das dealt in Badra or speculative transactions and if any money was due to the plaintiff at all in connection with such transactions the debt was illegal and immoral and not binding on the family property.On the same day the Court recorded an order to the effect that as the plaintiff had given up her claim for a mortgage decree, the legal representatives of the deceased could not, be allowed to raise pleas relating to the validity or otherwise of the mortgage. On 20-11-1935 the parties arrived at a compromise and on the basis of the same, a simple money decree was passed in favour of the plaintiff for the full amount claimed in the suit together with half costs amounting to Rs. 425 annas odd against the estates of Baldev Das in the hands of his legal representatives After certain attempts at execution of this decree which did not prove successful, the present application for execution was filed by the decree-holder on 13-3-1945 in the Court of the Senior Subordinate Judge, Ambala and in accordance with the prayer contained therein, the Court directed the attachment of certain immovable properties consisting of a number of shops in possession of the appellants and situated at a place called Abdullapur.On 23-4-1945, the appellants filed objections under S.Civil P. C., and they opposed the attachment of the properties substantially on the ground that these properties did not belong to Baldev Das but were the separate and exclusive properties of the objectors which they obtained on partition with their father long before the decree was passed. It was asserted that these properties could not be made liable for the satisfaction of the decretal dues which had to be realised under the terms of the decree itself from the estate left by Baldev Das.After hearing the parties and the evidence adduced by them the Subordinate Judge came to the conclusion that there was in fact a partition between Baldev Das and his sons in the year 1928 and as a result of the same, the properties, which were attached at the instance of the decree holder, were allotted to the share of the sons. The decree sought to be executed was obtained after the partition, but it was in respect of a debt which was contracted by the father prior to it. It was held in these circumstances that the separate share of the sons which they obtained on partition was liable under the Hindu Law for the prepartition debt of their father if it was not immoral and under S. 53, Civil P. C., the decree-holder was entitled to execute the decree against such properties.As no point was raised by the objectors in their petition alleging that the debt covered by the decree was tainted with immorality, the objections under S. 47, Civil P. C., were dismissed. The objectors thereupon took an appeal to the High Court of East Punjab which was heard by Rahman J. sitting singly. The learned Judge dismissed the appeal and affirmed the decision of the Subordinate Judge. A further appeal taken to a Division Bench under the Letters Patent was also dismissed and it is the propriety of the judgment of the Letters Patent Bench that has been challenged before us in this appeal.

Court's reasoning:
It is now settled by judicial decisions that there is no difference as between son, grandson and great grandson so far as the obligation to pay the debts of the ancestor is concerned; but none of them has any personal liability in the matter irrespective of receiving any assets, vide Masitullah v. Damodar Prasad,53 Ind Ap. 204 P. C. The position, therefore, is that the son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self-acquisitions. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice. According to the text writers, this obligation arises normally on the death of the father; but even during the fathers life-time the son is obliged to pay his fathers debts in certain exceptional circumstances, e. g. when the father is afflicted with disease or has become insane or too old or has been away from his country for a long time or has suffered civil death by becoming an anchorite, vide Maynes Hindu Law, Edn.11 p. 408.It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead, vide Brij Narain v. Mangla Prasad,51 Ind. App 129 P. C. Thus it is open to the father, during his lifetime, to effect a transfer of any joint family property including the interests of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the fathers but also the sons interest in the joint estate. The creditor can make the sons parties to such suit and obtain an adjudication from the Court that the debt was a proper debt payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. These propositions can be said to be well recognised and reasonably beyond the region of controversy, vide Girdharee Lall v. Kantoo Lall,1 Ind. App 321:Madan Thakoor v. Kantoo Lall,1 Ind. App. 333 F. N. ;Suraj Bunsi v. Sheo Prasad,6 Ind. App. 88 P. C.; Brij Narain v. Mangla Prasad,51 Ind. App 129 (P.is true that the partition contemplated in these passages is one after the death of the father, but whenever the partition might take place, the view of the Hindu law-givers undoubtedly is that the binding debts on the family property would have to be satisfied or provided for before the coparceners can divide the property. InSat Narain v. Sri Kishen Das.63 Ind App 384 (P. C.), the Judicial Committee 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. It was argued in that case on behalf of the appellants that the pious obligation of the sons was an obligation not to object to the alienation of the joint estate by the father for his antecedent debts unless they were immoral or illegal, but these debts were not a liability on the joint estate for which provision was required to be made before partition. This contention did not find favour with the Judicial Committee and in their opinion, as they expressed in the judgment, the right thing to do was to make provision for discharge of such liability when there was partition of the 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 andexpressions "bona fide" and "mala fide" partition seem to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful does not un often lead to error and confusion. If by mala fide partition is meant a partition the object of which is to delay and defeat the creditors who have claims upon the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appropriate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors; if it makes no arrangement or provision for the payment of the just debts payable out of the joint family property, the liability of the sons for payment of the pre-partition debts of the father will stilldesire only to point out that an arrangement for payment of debts does not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors. Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case. We can conceive of cases where the property allotted to the father in his own legitimate share was considered more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in respect thereof. That may also be considered to be a proper arrangement for payment of the creditors in the circumstances of a particular case.After all the primary liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose. If the arrangement made at the time of partition is reasonable and proper, an unsecured creditor cannot have any reason to complain. The fact that he is no party to such arrangement is, in our opinion, immaterial. Of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he has no charge or lien is diminished for purposes of realization of his dues.Thus, in our opinion, a son is liable, even after partition for the prepartition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of theposition has been correctly stated by the Nagpur High Court in JAINARAYAN v. SONAJI, AIR 1938 Nag 24 at p. 29 - in the followingsay a son is under a pious obligation to pay certain debts is one thing; to say his property can be taken in execution is another. In our view, property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold. What that is, is found by looking atis undoubtedly true that no liability can be enforced against the sons unless they are given an opportunity to show that they are not liable for debts under Hindu law; but this opportunity can certainly be given to them in execution proceedings as well. A decree against a father alone during his lifetime cannot possibly be executed against his sons as his legal representatives. As we have said already, the decree against the father after the partition could not be taken to be a decree against, the sons and no attachment and sale of the sons separated shares would be permissible under S. 60, Civil P. C. The position, however, would be materially different if the sons are made parties to the suits as legal representatives of their father and a decree is passed against them limited to the assets of the deceased defendant in their hands. A proceeding for execution of such a decree would attract the operation of S. 47, Civil P. C., under which all questions relating to execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed or their representatives would have to be decided in execution proceedings and not by a separateour opinion, the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of ATUL KRISHNA v. LALA NANDANJI, 14 Pat 732 decided by the Patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that S. 47, Civil P. C., could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under Ss. 50 and 52, Civil P. C. on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under S. 47, Civil P.High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on partition with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit. It is not disputed before us that the debt which is covered by the decree in the present case is a pre-partition debt. The sons, therefore would be liable to pay the decretal amount provided the debt was not immoral or illegal and no arrangement was made for payment, of this debt at the time when the partition took place. Neither of these questions has been investigated by the Courts below. As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under S. 47, Civil P. C. the validity of the partition again was challenged in a way by the decree-holder in his reply to the objections of the appellants but the Courts below did not advert to the real point that requires consideration in such cases. The partition was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement or payment of the just debts of theour opinion, the case should be reheard by the trial Judge and both the points referred to above should be properly investigated. The appellants did raise a point regarding their non-liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father. The Court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompetent to put forward any defence which the father himself could not have taken. Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings. We think that they should now be given an opportunity to do so.