Stolt r:j 1'1adhy.:J 1'1adf;;h v. Ueuashankar S. K. Das j. Septen1ber 2 4. • I SUPH.ElllE COURT R~PORTS/ [1959] now be decided by the High Court on merits in accordance with law. It ~s ottly necessa~y to adr.1 that
the act complained of was committed a.s far ba~k as l9;i3 and it is desirable that. the case should be dealt with as expeditiously as possible. Appeal aUoweJ'. S. l\L JAKATI & ANOTHER
11. S. JL BORKAR & OTHERS (B. P. 81~HA, JAFER h1,n1 and J. L. KAPUf: JJ.) Hindr1 La<()-Dcbt.1' of fathcr–Pious oblt'gation uf son—I)arti- tion. if ajf1:r:fs such obligation-A\ 0yavaharika, J/raning •Jf- ·S11!r of
joint Ja1nily property-" J?ight, title and interest Qf d~Jaulter "-. Bombay Land Rcrcntte Code, 1879 (Rom. V of 1879), s. i55 . .J \\'as the 1nanaging director of a Co-operative Bc..nk getting a y•mly remuneration of I<s. 1,000. The Bank went iat~ liquida- tion and an examination of th~ affairs ha\'ing
~ho\,·l'ci that the n1011ies of the Bank ,,·ere not properly invested and that J \Vas ncglige11t in the discharge of his duties, a payment order for Rs. r5.100 wa9'rna11e by the Deputy Registrar of Co-operative Societies against him.
On .July 2i, 1942, for the realisation of the amount, an item of property belonging to the joint family of .J was attached hy the Collector and brought to sale under s. 155 of the Bombay Land Ifovenue Code, and purchased at auction hy the first respondent. This sale was held on Februuy 2. 1943, and confirmed on .June 23, i943.
In the meantime on January r5, -r943, one of the sons of J instituterl a suit for partition and separate possession of his :->hare in the joint farnily properties. and contended, i11ter alia, that the sale in favou1 of the first respondent was not binding 011 the joint family.
lhc sale \\·a3 challenged on the grounds (1) that the liability wh'eh J incurred \vas aP)'a;,•aJ1ariha and therefore the interest of his :ions could not L><' sold for the realisation of tlw debt (2) that eve·1 if J.he debt \\"as not ai·yaraharika, the institution ~f the suit for partition operated as :;cverance of status bet\\·een the
1n1~mbers of the family and, therefore, the father's power of disposition ovrr the son·~ share hari con11! to an end and, consequently, at the a.uc:tion sale the sha1'e of the. sons did not pass to the a'>ction pur- 'chaser, and (3) that what could legally ht sold under s. 155 . •,
,'-· ….. t S.C.R. >~UPREME COURT REPORTS of the Bombay ,i.,and 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 memgers 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 pro- perty 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 avya;1a- harika 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 v. Khem Chand, (r943) L. R. 70 I. A. r7r, relied on. Per Imam and Kapur JJ.-(r) The liability of the sons to d~scharge the debts of the father which are not tainted with im- morality 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 enll.
(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 ar1d did buy and what he paid for. (3) The words "right, title and interest " occurring in s. r55 of the Bombay Land Revenue Code have the same connotation as. th<j' 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 ~nd consequently there is merely a difference in the mode of enjoyment.of the property. (5) The liability of a father, 'vho is. a managing director and who draws ·a salary 01~ 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. Panlll' Lal v. Mst. Nar'fni, [r952] S.C.R. 544 aird Sudhash- war Muilherjee v. Bhubnesh11ar Prasad Narain Singh, [r954] S.C.R. r77, followed.
Khiarajmal v. Daim, (1904) L.R. 32 I.A. 23 and Sat Narain v. Das, (r936) L.R. 63 I.A. 384, distinguished'. Mi;lgu.,d Co-opqative Credit Society v. Shidlingappa Ishwa- • rappa,.A.I.R. r94r Bom. 38r, approved.
jakati v. Borkar Jakali v. SUPREME COURT HEPORTS,( [lll59] Cn•1L APPELLATE .rnusu1c·1·wx: Civil Appeal Ko. 233 of 1954. Appeal from the judg1i1Cnt and dc0ree dated August 22, 1950, of the Bombay High Court in Appeal Xo. 80
of 1946 from original decree, arising out of the judg- ment and decree dated October 10, l!J45, of the Court of Civil Judge, Se11ior Division, Dlutrwar, in Special Suit \"o. 64 of 1943.
A. V. Visu:anatha Sastri and N. S. ](, Sastri, for the appellants. A. S. H. Chari, Bann Shivchamn Sinrjh and G'o1:i1ul- saran Singh, for respondents ~ os. 2-4. 1958. September 24.
The judgmont of lma.m anrl Kapur JJ. was deliverer! by Kapur J, Sinha '1· agreed to the order proposed. KAP'GR J.-This is 1111 appeal againHt the judgment and decree of the High Court of Bombay varying the
decree of the trial Court decreeing the plaintiff's suit for possession by partition of joint family.propert.y. The facts of the case lie in a narrow compa.ss. :\!. B. Jitkati, defendant !'io. 1, was the :\lanaging Di1;ector of Dharwar Urban Co-operative Bank Limit3d which
went into liquidation, and in that capacit,Y he was receiving a yearly remuneration of Rs. 1,000. As a result of certai1t proceerlingH taken against defendant X o. 1, ?II. H. ,Jakati, by the liquidat-0r of the. Bank, a payment order for Hs. 15, 100 was m1tde by the Deputy
H.egistmr of Cu-operative Societies on April 21, 1942. In execution ufthis payment order a bungalo•\' belong- ing to M. B. ,fokati, defendant \"o. 1, was 1Lttached by th~ Collector under the Bombay Land i{e1·enue Code
on July 27, 1942. Xotice for sale wa~ iss1ied on ::\ovember 24, 1942, and the proclamatio11 on Decem- ber 24, l!J.12. The sale was fixed for Febn,ary 2, 1943. On Januar..Y 16, 1943, !IL B. Jakati defondant Xo. I
applied for postponing the sale t\'hich was rejec>icd. The n.uction sale was held on Febrlary 2, l!H3, and was confirmed on .Tune 23, l!J43,-the purcha;er was S. N. Barkar, defencl1tnt N'o. 7, now respondent No. 1. On
• Februar)• fO, 1944, respondent No. l ~~old th~ property to defendants 8 to 10 who are responden:,s 2 tu 4. . . . . . . ·. r ;-… S.C.R. , CiUPREME COURT REPORTS The following.pedigree table ,will assist in understand-
ing the case : Madhavarao Balakri~han Jakati Deft. 1 = Bhimabai ,, 2 Shantibai I J ndumat1 Shriniwas Krishnaji Plff. 1 Plff. l(a) daughter Deft. No. 3 daughter Deft. No. 4 On January 15, 1943, Krishnaji a son of defendant
No. 1 brought a suit for partition of the joint family property and possession of his separate share alleging inter alia that the purchase by respondent No. 1 of the bungalow was not binding on the joint family as "it
was not liable to be sold for the illegal and immoral acts on the part of defendant No. 1 which were charac-. terised as misfeasance " ; that the auction sale was under s. 155 of the Bombay Land Revenue Code under
which only" the right, title and interest of the defaul- ter" could Qe sold and therefore the right, title and "interest of only the father, defendant No. 1 was sold and not that of the other members. The plaintiff
claimed' 1/4 share of the prorerty and also alleged that he was not on good terms with his father who had neglected his interest; that he was staying with his mother's sister and was not being msintained by his
father and mother. On January 12, 1944, appellant No. 1 filed his written statement supporting the claim for partition and claiming his own share. He supported the claim of the then plaintiff that the sale in favour
of respondent No. 1 was not binding on the joint family. Defendant No. 2, now appellant No. 2, •the moth~r, also supported the plaintiff's claim and on the death of Krishnaji, she claimed his t share as his heir.
After the death of the original plaintiff Krishnaji, Shriniwas appellant No. 1 was substituted as plaintiff on J UWl 28, 1944. The suit was mainlyt contested by respondents 1 to 4.
Respondent No. 1 pleaded that plaintiff's suit for partition was collusive having be@n bi:ought a~ the instance of the defendant No. 1, M. B. J'akati, and it was not" bona flde; that defendant No. 1 was mad~
]akati v. Borkar Kapur J. ]rJ!wli v. lrorkar • • r SUPREME COURT REPORT& , [1959] liable at the instance of the li~uidator of.the Dharwar Crban Co-operative Bank Ltd., for misfeasance because
he acted negligently in ~he discharge of his duties as managing director of the Bank; that the debt was binding on the family as defendant No. I, M. B. .fokati, had been receiving a yearly remuneration from• the
Bank and the properties were sold in payment of a debt binding on the family a11d therefore the "ale in execution of the p11yment. order eould not be chal:.enged as the sons were under a pious obligation und·.~r the
Hindu law to discharge the debts of their father; that the sale could only be challenged 011 proof of the debt of defendant X o. l being for an "immoral or i :legal" purpose. These pleadings ga,·e rise to seYcral ismes.
The learned Civil Judge hclcl that the suit wa~ collusi'l'c; that the liability which defendan·; No. l incurred was avyavaharika and was therefore not binding on the sons and thus appellant Xo. I would
have ~' share in the joint family property, defendant ~o. I } and 11ppella.nt :No. 2 also A. He therefore. dccl11red the shiues as a.hove in the whole of 1;he joint family property including the bungalow which is the
only property in which the respondents arc i!1t{,rested and which is in dispute in 'this appeal. On appeal the High Court held that the debt was not avyavaharikia as t.here waR no evidence tn suppor1
the finding of the trial Court, the order of the Deputy Hcgistrar being in the nature of a. judgment to which neither the sons nor the auction purchasers wiire parties nrnl therefore it was not "evide11ce of anyth',n~ except.
t.hc historical fact that it wa.s delivered". Ir: regard to thn-<juP-st.ion as to whllt interest passed to the auction purchaser on a sitle under s. lfJ5 of the Bombay ·Land RPvenuc Code, it held that. the whole estate including
the share of the sons was sold in execution of the payment order and therefore qua that property the sons had no· interest left. The t(igh Court var~d tho decrL'C to this extent and the pb\intiffs ha.rn come up
in appeal to this Court. by certificate C•f the High Comt of Bol\lba,· .• The ca~e "of the appellants is (1) that the d.ebt was rtvyamharika and therefore in an at1ction sale the i-\ •
' • • S.C.R. ~ .'JUPRE~E COURT REPORTg interest of t~ ·sons and other members of the joint family did not pass to tRe auction-purchaser; (2) that even if the debt was not avwivaharika the institution
of the suit for partition operated as severance of status between the members of the family and therefore the fathfir's power of disposition over the son's sha.re had come to an end and consequently in the auction sale
the share of the sons did not pass to the auction-pur- chaser; and (3) that what could legally be sold under s. 155 of the Bombay Land Revenue Code was the right, title and interest of the defaulter i. e. of the father
alone which could not include the share of the other members of the joint family. The first question for decision is whether the debt qf the father was avyavriharika. This term has been
variously translated as being that which is not lawful or what is not just or what is not· admissible under the law or under normal conditions. Colebrooke translated it as " a debt for a cause repugnant to good
morals". 'J;here is another track of decision which nas translated it as meaning "a debt which is not supported as valid by legal arguments''. The Judicial Committee of the Privy Council in Hem Raj alias Babu
l,al v. Khem Chand (1) held t'hat the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the ierm used in the Smrithis texts and may well be taken to represent its
correct meaning and that it did not admit of a more precise definition. In Toshanpal Singh v. District Judge of Agra (2) the Judicial" Committee held that drawings of monies for unauthorised purposes, which amounted to criminal
breach of trust under s. 405 of the Indian Penal Code, were not binding on the sons, but a ci vii debt arising on account of the receipt of monies by the father which were not accounted for could not be termed
avyavalJarika. In the case now Jlefore us the appellants have attempted to prove that the debt fell within the term avyavaharika by relying upon the payment order and (1) (194~) L.R. 70 I.A. I7I, 176.
(2) (1934) L.R. l1 I'.A. 350. Jakati v. Borkar l(apu1' J. Jak.citi v. Bork.ar Kapur J. r Sl!JPREME COURT RF.;FORTS • • [1959] the findings given by the Deputy Il:e~istrar in tlw payment order where the1ial'llty was inter alia based
on a breach of trust. A.ny opinion given in the ·Jrdcr of the Deputy J{egistrnr as lo the nature of tlw liabi- lity of drfem!ant, Xo. I, .\1. 13. ,fakat.i, cannot be used <18 evi<Jence in the present case lo determine whether
the debt was avyawharika or otherwise. The order is not admissible to prove the trnt.h of the facts therein stated and except that it may be relevant to prc•ve the existence of the judgment itself, it will not he 1dmis-
sible in evidence. Hection 43 of t.hc Indian E\'idence Act0 the principle of which is, that judgments except- ing those upon questions of public and general ialerest., judgment in rem or when necessary to prove the
cxiskncc of a judgment, order or decree, which may be a fact in isRuc, are irrelevant. It was then submit- ted that the pleadings of respondent :-.;o. l himself show tlrn.t the debt was of an immoml or illegal nature.
In his written statement, respondent :'\o. l ha.d pl1~ad ed that the liq uic.lator of the Bank !\ad charged defendant No. l with misfoas:rncc because he was' grossly negligent. in the discharge of his duty and res-
ponsibility as managing di11·ctor aurl tha:, •after a thorough enquiry the .r.>eputy Hegistrar held mi!t- foas1\nce proved and ordered a contribution of Hs. 15,100 b~' hini. As we have said above the transla-
tion given by Cnlehrooke of the term avya1x1harika is the near.,st approach to its true concept i.e. "any debt for a ea use repugnant. to good moro.ls ". The managing direct.or of a Bank of the position of defen-
dant !:\o. l who should ha\·e been more vigilant in im·…,sting the monies of the Bank cannot be said to have incurred the liability for a cause "n·pugnanl to good morals ". We are !1t1able to subscribe to the pro-
position that in the modern age with its complex institutions of !3ankH and ,Joint Stock Companies gon,rncd b5· many technic:ditie\ and complex ~yst.em of laws the liability such as h;\s arisen in the present
ease could b" ea!!ec.l avya1:aha.rika. Tl:c debt was the~cfore bi11ding.on the sons. The effect: of sen>rance of stat.us brought about by "the filing of the suit on January 2.\ • 1943, ftas been
i ' • • S.C.R. • 'SUPREME COURT REPOR'l"S made the basts of the argmoont that only the share of the father could be seized in execution of the payment order made against him. This would necessitate an
examination into the rights and liabilities of Hindu sons in a Mitakshara coparcenary family where the fathM is the karta. In Hindu law there are two mutually destructive principles, one the principle of
independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty.of the sons to discharge their father's debts not
tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts. According to the Hindu law givers iliis pious duty to pay off the ancestors' debts and to
relieve him of the death torments consequent on non- payment was irrespective of their inheriting any property, but the courts rejected this liability arising irrespective of inheriting any property and gave to
this religiouS' duty a legal character. M asit Ullah v. Damodar Prasad (1). ]'or the payment of his debts it is open to the father to alienate the whole coparcenary estate including the share of.the sons and it is equally
open to his creditors to proceed against it; but this is subject to the sons having a right to challenge the alienation or protest against a creditor' proceeding against their shares on proof of illegal or immoral
purpose of the debt. These propositions are well settl- ed and are not within the realm of controversy. (Panna Lal v. Mst· Naraini ('); Girdharee Lal v. Kantoa Lal 1tnd Mudhan Thakaor v. Kantaa Lal('); Suraj
Bansi Kaer v. Shea Prasad Singh ('); Brij Narain v. M angla Prasad ('). In the fast mentioned case the Privy Council s1tid : " Nothing clearer could be s1tid than what was s1tid by Lord Hobhouse delivering the judgment of the
Board m Nanami Bab:f;,in v. Modun Mahun (')already quoted : " Destructive as it may be . of the principle of (1) (1926) L.R. 53 I.A. 204. (3) (1874) L.R. I I.A. 321, 333. (5) (192~ L.R. 51 I.A. 129, 136.
(2) [1952] s.c.R.- 5..J4, s;2. 553, 556 .• 559. (4) ('878) LR 6 LA. 8$, 1p1. (6) (i885) LR. 13 I.A. I, 17, 18, jakafi v. Bo'rkar ]akati v. Kapicr ]. • • r 1:~02 stJPRE:IIE COURT REPORTS• • (1959]
iu~epcndent coparccnary .rigl\ts in the· sens, the deci. sions have for sometime established the principle that t.l1e sons cannot set up their rights against their father's alicm1tion for an antecedent debt., or ae.ainst
his credit-0r's remedies for their debts, if not ta.intcd with il'nmorality. On this important, quest.ion cf the liability of the joint estate, their Lordships think that there is no conflict of authority".
There is no discrepancy of judicial opinion as l.o the pious duty of Hindu sons. In Panna Lal ,._ Mst. Naraini (')this Court approved the following dictum of Suleman A. C. J. in Bankey/al v. Durga P1w1ad (') :
"Tlw ll indu Law texts based the liabilit v on the pious obligation itself aud not on the father's Jl<J1W'r to sell the sons' share". So great was the importance attached to the payment
of debts that Hindu law givers gave the non-payment of a debt the status of sinfulness and such 11011-pay. ment was wholly repugnant to Hindu concept of son's rights and liabilities. lu Bankeylal v. Durga Prasad(');
Lal Gopal :llukherji J. s>Lid at p. 896: " A perusal of text hooks of Smriti deali11g with debts will show that under the H iudu Law the n1m· payment of a just debt was regarded as <t Yery heinous
sin." The liability ~f the Hindu son based on his pious obligation again received the approval of thi~; Court in Sudheshwar Mukhe1ji v. Bhubneshwar Prnswl Xara·in Sinrth (3), where the following observation made in
l'annu I.,al's case(') (at p. 184): , "The fathe1"s power of alienaLing the family property for paymcut of his just clebts may be.one of the conserp1enccs of the pious obligati<m which the
Hindu law imposed upon the sons; ot· it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligatio~ " was reitcrat;!d. And again at.•· 18~{ :llukhcrjc~L .J. (as
he then was) said : . "It is p. special liability created on pmcly religious (1) i 195•i] ~C.H. 5·14 • .s52, 553, .5.'/1• 559· (i) (1931) l.L.H. 53 All. 868, 8')6. (j) [195,] ,.C.H. 1J7, 183. 184 .
r ,. __ t y ,i ,~-" • ' • • '"'\ S.C.R. • ~UPREME COURT REPORTS grounds and !ilan be enforced. only against the sons of the father and no other coparcener. The liability, therefore, has its basis entirely on the relationship be-
tween the father and the son ". Therefore unless the son succeeds in proving that the decrl\e was based on a debt which was for an immoral or illegal purpose the creditor's right of seizing in
execution of his decree the whole coparcenary property including the son's share remains unaffected because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the
whole estate in satisfaction of the judgment obtained against the father alone. Sripat Singh v. Tagore (1 ). The necessary corollary which flows from the pious obliga- i!iion imposed on Hindu sons is that it is not ended
by the partition of the family estate unless a . provision has been made for the payment of the just debts of the father. This again is supported by the authority of this Court in Pannakil's case (2) where
.Mukherjea J. said at p. 559: "Thus, in our opinion, a son is liable, even after partitiun for the pre-partition debts of his father which :i,r¥ not immoral or illegal. and for the payment of
which no arrangement was made at the date of the partition ". The liability of the sons is- thus unaffected by parti- tion because the pious duty of the sons to pay the debt of the father, unless it is for an immoral or illegal purpose, continues till the debt is paid off and the
pious obligation .incumbent on the sons to see that their father's debts are paid, prevents the sons from asseri.ing that the family estate so far as their interest is concerned is not liable to purge that debt. Therefore
even though the father's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition the right of the judgm~nt creditor to f seize the erstwhile coparcenary
property remains unatrected and undiminished because of the pious obligation of the sons. There does not seem to be any divergence of judiciar opin1on. in regard (r) (19!6) L.R. 44"1.A. I.
(2) [1952] S.C.R. 544, 552, 553, 556, 559· • ] akati v. Borkar Kapur ]. :958 / ul1ali v. Bork11r A'a]'Hr ]. • • r SUPHEME COURT REPORTS., , [l!J59] to the Hindu son's liab[Iity to pay tlu~debis of his
fat.her after partition, and by the mere device ofcnter- ing into partition with their father, t.he sons cannot get rid of this pious obligation. It ha.s ree,ei,·ed the appro\'>tl of this Court in Pa11na Lal v. Jlst. Na.ra::ni (') and 8idheHhuwr
i1!11khe1ji v. B11bnesh1car l'i'Gsad Narain Singh(') where :lluklwrjra ,J, ohsez·\'ed in the latter emse at p. 184: "Jt. is settled l1tw that e:\·eiuLfter partition the SOll8 could be made liable for the: pre-partition debts <•f the
father if there was no proper arrangement for the pa,yment of snch debts at t.he time, when the partition was effected, alth<1ugh the father conld have no longer any right of 1dienation in regard t-0 the se1•a,rnted
slmre of the sons". Tht' question then arises how the liability of the sons is to be enforced. Another principle of Hinelu law is that in a, eoparcenary family the drcrce obtained
against the father is binding on the sons as they would be deenwd to h:~\-e brcu represented by t.lie father in. the suit: ]{ ishan Sarup v. Hrijmj Singh('). As was pointed out in Sidheshwar M11khe1ji's r,ase ('), the sons
a.re not. necessary p:irties to a money suit agll.ii1st the fat.her who is the ka.rta, 1n1t. they may be jDint!<l •M defc•n<lants. The result of the partition i11 a joint family is no:hi11g more than >t rhange in th·~ mode nf
enjoyment and what was held jointly is hy t.hc parti- tion held in scvernltv and therefore attachment of the whole coparcenary estate would not. he affec({!d by the change in the mode of t•njoyment, because tr.e.Jiability
of the Hhare which t.hn sons got on part.itio·~ remains urmffecte<l I" also tbe attachment it.self which is 110!. c·ndec.I by partition (8. 64 C. P. C. is a useful g11iclc in such circumstances).
Dealing with the question as to how the intcn•st of the sons in joint family property ean be attached and sold, ;\Iukherjea ,J. 1is he tlwn.,-as, observ·3rl at..p. 185 in Sidheshu:ar Mukhe;ji's case(')\:
"Be that as it may, the money decree passed agaw1st the £athen certainly cre1tted a <frht payable by <1l ~·1952t s.~.n. 544. 552. 553, 556, 559. (z) (1954] S.C.H.. 177, 183, 184. (3) (19-ft;) I.L.H. 5~ All. 932 .
.. – .) . S.C.R. , .SUPREME COURT REPOR'FS him. If the i;lebt was not tainted with immorality, it was open to the creditm~ to realise the dues by attachment and sale of the. sons' coparcenary interest
in the joint property on the principles discussed above. As has been laid down by the Judicial Committee in a serie!l of cases, of which the case of N anomi Babuasin v. Modiin Mohun (1) may be taken as a type, the
creditor has an option in such cases. He can, if he likes, proceed against the father's interest alone but he can, if he so chooses, put up to sale the sons' interest also and it is a question of fact to be determined with
reference to the circumstances of each individual case whether the smaller or the larger interest was actually sold in execution". , But it was contended that a partition after the
decree but before t;lie auction sale limited the efficacy of the sale to the share of the father even though the sale in fact was of the whole estate, including the interest of the sons, because after the partition the
.father no lo!ilger possessed the right of alienation of the whole coparcenary estate to discharge his debts. But this contention ignores the doctrine of pious obligation of the sons. The right of the pre-partition creditor to
freize the property of the "erstwhile joint family in execution of his decree is not dependent upon the father's power to alienate the share of•his-sons but on the principle of pious obligation on the part of the sons
to discharge the debt of the father. The pious obliga- tion continues to exist even though the power of the fat,her t~ alienate may come to an end as a result of partition. The consequence is that as between the
sons' right to take a vested interest jointly with their father in their ancestral estate and the remedy of the father's creditor to seize the whole of the estate for payment of his debt not contracted for immoral or
illegal purpose, the latter will prevail and the sons are preclu~ed from settit:Jg up their right and this will apply even to the divided property which, under the doctrine of pious obligation continues to be liable for
the debts of the father. Therefore- wh&re the joint ancestraJ prope~ty including the share ofth'c sons ha~ (1) (1885) L.R. 13 I. A. l, 17, 18. jakati v. Borka'I' f{apuY J- Jak1111
v. f(O/ UY J. r SUPREME COUltT REPORTS. • [1959) passed out of the family i11 execution ot \he decree on the father's debt the remedy 'of the sons would b·.~ to proye in appropriat~ p1'tJceedings titken by them the
illPgal or immoral purpose of the debt and in the absence of any such proof the sale will be screened from the sons' attack, because even after the partiit.ion their share remains liiible. Girdhareelal \". Kantoo/al (1), Suraj Bansi Koer ''· Sheo Prasad Narain Singh('),
MuBsamat Nmwrni Babuasin v. Modnn Mohi:n('), Chandra Deo Sinyh v. Jllatn Prasad(') which was approved by the Pri,·y Council in Sahu llarn Chander ,.. Bhup Singh('), Pannalal v. Naraini (')
and Sidheshwar Mukherji's wse ('). Our attention was drawn to two decisions, or:e by the High Court of Born bay in Ganpatruo v. Bhimrao (':) that in order to make the share of the sous liable after
partition they should be brought on the record and the other of the llladrns High Court in Ka.meshu:aramrna v. Venkatasubba Row(") that the creditor has to bring another suit against the Rons, obtain '' dtl4!ree a.gainst, them limited to the shares allotted to them on parti.
tion and then attach and sell their Hhare unless the partition 1rn:i not bona .fi~e in which case the decree could be executed against the joint family propertt. Bnt the decision in these cascR must be confined to
their own faf-ts.· It is true that the right of th•) father to tdienate for payment of personal debt is ended by the partition, but t>S we h<we said above, it does not affPct t.he pious duty of the .quns to discharge ·.he debt of their father. Therefore where after attachm•mt and
a proper notice of sale thc whole estate including the so1ts' share, whic:h was attached, 1s sold ;i,nd th" purchaser buyR it intending it to be the whole coparce. 1i:ir~- estat<J, the presence of the .-;ons w nom :ne is not 1wcess•>ry because they st ill have the right to ·~hallenge the sale on showing the immoral or illegal purpose of
the debt. 0 ln our opinion whe1'l the pious obl.igation exists and partition t<tkes phtc8 after the decree and (tJ :1s74) LR. 1 I.:\. 3~1. 333. (2) {18j8) L.H. ()I.A. t;f, 101. r11) (18.-i5) L.J~. 13 I.'\. 1.
(4) (1909) l.L.H. 31 All. 171), JC)&. (5) (1916~ L.•H .. '4·1 I.A. I. (6) l1952} ~.C.R. 544, 55i, 55.l. 556, 559 (i) ~1951] s.C.H. '7i. 183. 184. (SJ l.L.H. 1950 ~1n. 1 r4. (9) (1914) I.L.H.. 38 ~lad. 1120.
. '• ·-II ' • • S.C.R. • tlUPREME COURT REPOR'.PS pending execvtion proce~dinis as in the present case, the sale of the whole estate in execution of the decree cannot be challenged except ori proof by the sons of the
immoral or illegal purpose of the debt and p·artition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a m~ans of reducing the efficacy of the attachment or impair the
rights of the creditor. Reliance is placed on the judgment in Khiarajmal v. Daim (1) where the Privy Council held that the sale cannot be treated as void on the ground of mere irregularity but the Court has no jurisdiction to sell the property of persons " not parties to the proceedings or
properly represented on the record". There two such persons were Alibux and Naurex. As against Alibux there was no decree. He was not a party to the suit; and it was held by the Privy Council that his interest
in the ·property "seems to have been ignored altoge- ther". He was not even mentioned as a debtor in the .award on tlie basis of which the decree, which was executed was made. Similarly Naurez was not repre-
sented in either of the suits and therefore there was no decree 'against him and the sale of his property also wits -therefore without jurisdiction and null and void. This case cannot apply to sons in a joint Hindu family
where a father represents the family and the decree is executable against the shares of the sons while the coparcenary continues and the liability of their shares continues after partition. Sat Narain v. Das (2) 1s
equally _inapplicable to the present case. There the Privy Council was dealing with the father's power of disposal of property before and after partition which powel' vests in the Official Assignee on his bankruptcy,
the question of the right of the judgment-creditor to proceed in execution against the divided shares of sons which had been attached before partition was not a point i.J. controversy. 1 There was no decision on the
powers of an executing court to proceed against the shares of the sons but the question related to volun- tary alienations by a father for payment.of his debts not incurred for an immoral or illegal purpose.
(1) (1904) L.R. 32 I.A. 23. (2) (1936) L.R. 63 I.A. 384. j ahati v. Borkar Kapur ]. jflkati v. JJ01kar Kapt" /. • • r OOPRg!llE COURT REPORTS. • [1959] Jn cases where the sons. rlo pot. chaliP11g" t.Jie liabi-
lity of their interest in tlw rxecution of th•) decree ag~1inst the father and' the Court after atfachment and pf·oper not.ice of sale sells the whob eAtate :111d the auction-purchaser purchasPs and pays for the
whole •est att>, the mere fact that the sons •were eu nominc not brought on the record woulJ not be sufficient to defeat the rights of the anetio11-j.•urchaser or put an end to the pious obligat.ion of the rnns.
As was pointed out by Loni Hobhousc in Jialkurjun Bin Shirlramappu l'a8ure v . .Varhari Bin Shimpp1. ('): "Their Lordships agree with the Yiew of t.he learned Chit.f Justice that a purchaser ca11not possibly
judge of such matters, even if he knows the facts; and that if he i:; to be held bound to enquirt' into the accuracy of the Court's conduct of its own husines1<, no purchaser at :t Court sale would he •;afr.
Stmngcrn to a suit are justified in belieYing that the Cour•, bn.s done tlmt which by the directions of the Court it ought to do. ,, In :l!ussamat .Ynnmni Babuasia \'. Modun Jl!ohun (')
Loi'<! Hobhouse said n.t p. 18 : "llut if the fad be tlmt the purchaser has _b~r. gained and paid for the Pntircty, he llll•Y dearly defond his title ~o it upon any ground which would
havt' justified a sale if the sons had been brought in to oppose the cx"cuting proceedings." The question which assumes importance in an auction sale of this kintl therefore is what did the C•lUrt intend t<> sell and did sell and what did the auctio11 pim:haser
purport. to buy n.nd did buy and wlrnt did he ptiy fl!r . One trnck of rlecision of which Sharnbu Natli PunJcy v. Oolab Singh C) is an instance, shows when the father's shtire alone passes.
Jn that case the fathe:: alone was made a party U> the proceedings. The mortgage, the snit of the eteditor and t.hc decyc ancl the sal•;. certi- lieate all purported to <Lffcct the, rigilt." of the fat.her and his inkrest; alone. It was therefore hdd that
what-eve1· th!' nature of the debt, only the father's (I) ltQoOJ L.R·. 27 I.A . .::16, 2.:5. (2) {1885) L.H. I~ I.A. l. …………. (3) (1b87) L.I<. I.I I.A. 77. lll S.C.R. , J3UPREfy[E COURT REPORTS
right and int11rest was intended to pass to the auction- purchaser. In Meenakshi Naidu v. Immudi Kanaka Rammaya Kounden (1) whiclr represents •the other track of decision, the Privy Council held that upon
the documents the court intended to sell and did sell the whole of the coparcenary interest and not any partial interest. The query in decided cases has been as to what was put up for sale and was sold and what
the purchaser had reason to think he was buying in execution of the decree. Mussamat Nanomi Babuasin·v. Modun Mohun (')(supra), Bhagbut Persad v. Mussa. mat Girjci Koer ('), Meenakshi Naidu v. Immudi Ram-
maya Kounden (1) and Rai Babu Mahabir Persad v. Rai Markunda Nath Sakai(') and Daulat Ram v. Mehr {)hand('). In the present case the payment order was made by the Deputy Registrar on April 21, 1942, and after the
order had been sent to the Collector for recovery, the property was attached on April 24, 1942, and notice of • sale was iiisued on November 24, 1942, and was published under ss. 165 and 166 of the Bombay Land
Revenue Code. The proclamation of sale was dated December 12, 1942. • •The property put up for sale was plot No. 36-D measuring 6 acres and one guntha and its value was specified as 13,000 rupees. There. was a note
added: " No guarantee is given of the title of the said defendant or of the validity of any of the rights, charges. or interests claimed by third parties ". The order confirming the sale also shows that the
whole bungalow was sold. It was valued at Rs. 16,000 and there was a mortgage of Rs. 2,000 against it and what was sold and confirmed by this order was the whole bungalow. The sale certificate was in regard to
the whole bungalow i.e. · City SurveY. No. 67-D measi.ring 6 acres antl one guntha the sale price being Rs. 13,025. There is little doubt therefore that what was put up for auction sale was the whole bungalow
(•) (•888) L.R. 16 I.A. I. (2) (1885? L.R. "3 I.A. L (3) (1888) L.R. •5 I.A. 99. (4) (<889) L.R. 1f!.l!. n, <6. (5) (1889) L.R. 14 I.A. 187. •78 jakati v. Borkar Kapur ]. ]akati v.
Borkar Kof'ur ]. • • ,- S'BPREME COURT REPORTS. ,, [1959) and what the auction-purchaser purporte~ to buy and paid for was also the wl;olc 'bungalow am.I not any fractional share in it. It is a case whore not onlv was
the payment order passed before the partition b~t the attachment was made and the sale proclamation was issued before the suit for partition was filed and· the sale took place of the whole property without any
protest or challenge by the sons and without any notice to the Collect-Or or the judgment-creditor of the filing of the suit for partition. In such a case re8pon- dent !\o. l is entitled to defend his title upon the
grounds which would have justified the sale had the appellants bG>en brought on record in execution pro- ceedings. The binding nature of the decree passed on the father's debts not tainted with immorality
o~ illegality, and the piou8 obligation imposed on the sons under the Jlitakshara li~w would be sufficient to sustain the sale and defeat the sons' suit in the same way and on the same grounds as in the case of execu-
tion proceedings. Nanmni Babuasin .v. Jlfodun. Jlfohun ('). Consequent.ly whether the sons were made parties to the execution proceedings or brought a suit challenging the sale of their shares the points f'Or deci- sion are the same-the nature of the debts and liabi-'
litv of the sons under Hindu law, and these a.re t.hc determining .fa~tors in both the cases 1.c. the sons being parties to the execution proceedings or their suit challenging the sale of their shares .
The effect of attachment on the severance of status by the filing of a suit by one of the members of the copa.rcenary whose share was liable in execution of the decree has not been debated at the bar and ho.w
exactly it would affect the rights of the parties •need not therefore be decided in this case. As a conse- quence it would not be necessary to discuss the pro- nouncements of the Privy Council in Suraj JJansi
Kaer v. Shed Prasad Singh('); Jfoti Lal v. J(~rabul din ("); Ragunath Das v. Swular Das Khetri ('); Ananta Pmlmanahha Swami v. Official Receiver, Secun- dera9ad ('). (1) (1885) 'L.JI. 13 I.A. I.
(2) (1S78) L.R. 6 l.A. 88, IOI. (3) (1897) I. R. 24 I.A. 170. (4) (1914) l.~R 41 l.A, '251. , (.'il (19~3) L,H. 6~ I.A. 167. 174-5 . . ·-.. S.C.R. • .SUPRE¥E COURT REPOR'.CS The arguJ:Jteflt based on the interpretation of the
words ' right, title and interest of the defaulter ' in s. 155 of the Bombay Land Revenue Code was that it was only the share of the defaulter himself which was and could be put up for auction sale. That the whole
of the property was put up for sale, was sold a!J.d' was purchased as such is shown by the documents to which reference has already been made viz., the notice of November 24, 1942, proclamation of sale of Decem-
ber 24, 1942, the order of confirmation of sale dated June· 28, 1943, and the sale certificate issued by the Collector. The Civil Procedure Code at the time of the enact- ment of the Bombay Land Revenue Code required
that the property sold in execution should be des- cribed as " right, title and interest of the judgment debtor" and the same words have been used ins. 155 of the Bombay Land Revenue Code. It is a question
of fact in each case as to what was sold in execution of the decre1<. In Rai Babu Mahabir Prasad v. Mar- 0kunda Nath Sakai (1 ) Lord Hobhouse observed as follows at p. 16 : " 1't is a question of fact in each case, and in this
eao!e their Lordships think that the transactions of the 4th and 5th of January, 1875, and the description of the property in the sale certificate, a:i;e conclusive to shew that the entire corpus of the estate
0was sold. " Similarly in Meenakshi Naidu v. lmmudi Kanaka Rammaya Kounden (2) the whole interest of the copar. cenary was held to be sold taking into consideration the evidence which had been placed on the record.
LDrd FitzGerald at p. 5 pointed out the differ<mce where only the father's interest was intended to pass: "In Hurdey Narain's case" (Hurdey Narain v. Rooder Perkash (')) " all the documents shewed that the Court
intendiid to sell, and that it did sell nothing but the father's share-the share and interest that he would take on partition, and nothing beyond it-and this tribunal in that case puts it entirel:ii upo,n the ground
(1) (188 .. ) L.R. 17 I.A. 11, 16, (2) (1888) L.R'. 16 I.A. l . • (3) (1883) L.R. II I.A. 26, 29. jakati v. Borkar Kapur ]. j aka ti v. IJorkar Kapur ]. • • , . SUPREME COURT RF;:PORTS • • [1959]
that everything shewed that the th~g sold was "whatever rights and intc1~ests', the said judgment deb- t-Or had in the property ".and nothing else''. …. In Sripat Singh v. 1'agore (')the "right, title and
interest oft he judgment debtor" were sold and there also it ~rns held to convey the whole coparcenary e~tate and it was remarked that it was of the utmost import. a.nee that the substance
and not merely the technicality of the transaction should be regarded. What is to be seen is what was put 11 p for sale what the court intended t-0 sell and what the purchase!: was
intending to bny and what he purported to buy. Counsel for the appellants relied on Shambu Nath Panday v. Golab Singh(') where it was held that right and interest of the father meant personal interest bu1
in that case as we ha,·e pointed out, the documents produced all showed that the father's intercRt alone was intended to pass. In .Mulgund Co.operative Credit Society v. Shid- lingappa l shwarappa (') it was held that tl\,e sale under the Bombay Land Hernnue Code has the same effect"
as the sale by the Civil Court. The language used in the Bombay Land gevcnue Code and the then (!xi~ting Civil Procedure Code is si~ilar i.e. " the right, title atHi interest of the defaulter " in one case and " of the
judgment d(jhtQr " in the other. This is supported by the observation of the Privy Council Ill Rai Babu Mahabir Prasad v . .Markunda Nath Sahai (') and :is to what passed under the sa.lc does not become any
different merely because the sale is held under s. I ii5 of the Bombay Land Revenue Code rather than ihe Code of Civil Procedure. The effect in both cases is t.he same . We hold therefore (I) that the liability of the sons
to discharge t.he 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 dooth of the fat~r and
which does not come to an end aH a result of partition of the joint family property. All that resultA from partition is ~hat ,the right of the father to make an (1) (1916)-L.ft. 44 I.A. r.
(3) A.LR. 1911 Hom. 385 • (2) (1887) L.H. 14 I.A. 77. (4) (18h9T L.H. 17 I~A. II, 16. ….. S.C.R. • ~UPREJ\j:E COURT REPORT.S alienation Coples to an end. (2) Where the right, title
and interest of a judgm;nt-cfebtor are set up for sale as to what passes to the auction-purchaser is a ques- tion 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 b~ and did buy and what he paid for. (3) The words " right, title and interest" occurring in s. 155 of the Bombay Land Revenue Code have the same connota-
tion a,s 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 t.jtkes 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 _remuneratiou, incurred as a result of negligence in the discharge of his duties is not an avyavaharilca debt ·as
it cannot be termed as" repugnant to good morals". In th 0e result the appeal fails and is dismissed with <lo~ts. SINHA J.-I agree to the order proposed. Appeal dismissed. SRI BARU RAM
v. SHRIMATI PRASANNI & OTHERS (VENKATARAMA AIYAR, GAJENDRAGADKAR and A. K. SARKAR JJ.). Ele~ion Petition-Cor'rupt practice-Procuring• assistance of Government servant by appointing as polling agent-Proof-Nomi- nation paper, rejection of-Failure to produce copy of electoral roll -If rejection improper-Representation of th, PcoPie Act, r99 (43 of r95r), ss. 2(c), 33, 36, 46 and r23(7).
The ll.rst respdl:tdent filed an election petition against tht!' Jakati v. Borkar Kapur ]. Sinha J. September 30.