Burra Ramesh vs Koppisetti Venkateswara Rao and Another

Both these appeals are being disposed of by this common judgment due to commonality of law and facts involved.

The 1st respondent had obtained one money decree in O.S. No. 322/80 and another money decree in O.S.No.334/80 against the 2nd respondent. He filed E.P. No. 14/88 in O.S.No.322/30 and E.P.No.15/88 in O.S.No.334/80. The house bearing Door No-4-15 and 4-15/A (old) and 4-13 (new) has been attached. The appellant, who is the son of the 2nd respondent judgment debtor, filed Objection 167/89 in E.P.14/88 and objection 171/89 in E.P.15/88 under Order 21, Rule 58 of the CPC alleging that the attached house had fallen to his share in the mutual partition effected in the month of December, 1984 and evidenced by registered partition deed, Ex.A1, dated 30-4-1985 and from the date of the partition he has been in possession and enjoyment of the attached house and, therefore, it is not liable to be attached and sold in execution of the decrees against his father. The decree holder - first respondent through his counter denied the claim of the appellant - objector alleging that, knowing fully that the suit then pending against the 2nd Respondent would be decreed, the appellant in collusion with father might have brought into existence the registered partition deed on 30-4-1985 with a view to defeat the claim of the 1st Respondent- decree holder. There was no need to partition the property on 30-4-1985 except with a view to avoid the payment of the debt. The alleged partition deed, Ex.A1, is a sham and collusive document which had been executed with a view to defraud and delay the realisation of the decretal amount. It is pleaded that, in the alternative, the appellant objector is obliged to discharge the debt because it is his pious obligation to do so. It is lastly pleaded that the judgment debtor-2nd Respondent has, through his son, the objector, filed the objection under Order 21 Rule 58 of the CPC to harass the 1st Respondent-decree holder and to delay the realisation of the decretal amount.

The Executing Court, on assessment of the evidence on record, taking the view that there was no need to partition the property between the judgment debtor and the objector and the document, Ex.A1, is a collusive document, which was executed to evade payment of the decretal amount, rejected the objection and dismissed E.A. 167/89 and E.A.171/89.

Feeling aggrieved by the rejection of the objections E.A.167/89 and 171/89 through a common order, the objector has preferred C.M.A. No.1133/90 and C.M.A. No.1134/90 respectively.

No representation was made on behalf of the 1st respondent decree holder inspite of service of notice of appeal.

Relying on Pannalal and another v. Mst. Naraini and other (1952)Vol.3 SCR 544, it is argued on behalf of the appellant that the Executing Court has erred in not relying on the registered partition deed, Ex. A4, dated 21-7-1971 through which agricultural lands had been partitioned between the 2nd Respondent-judgment debtor and the appellant, who is his son, though he was a minor at that time. With the registered partition deed, the Joint Hindu Family consisting of these two persons had disrupted and the 2nd Respondent-father has ceased to be the Karta of the Joint Hindu Family. Admittedly, the 2nd Respondent-judgment debtor had raised the loan from the 1st Respondent-decree holder subsequent thereto and, therefore, the son, who is the appellant, is not obliged to pay the post partition debt, the 2nd partition deed which is a registered instrument and is at Ex.A1 was effected during the pendency of the civil suits and the attached house had been allotted to the appellant. Under these circumstances, the decree holder should have followed the properties that were allotted to him in the second partition done in the month of December, 1984, and evidenced by the registered partition deed, Ex.A1. Even if it is held that the son is obliged under pious duty to pay the debt, the 1st respondent decree holder can proceed to recover the debt from him only when his remedy against the 2nd Respondent-judgment debtor is exhausted. The Executing Court has wrongly assessed the evidence on record and, therefore, has fallen in error in holding that the partition deed, Ex.A1, is a sham and nominal document. Therefore, the order of the Executing Court is liable to be reversed and the attached property deserves to be released from the attachment in both the execution cases.

In Pannalal''s case (supra), it is held that sons are liable to pay the pre-partition debts of the father even after partition unless there is an arrangement for payment of these debts at the time when the partition took place. A son is liable even after partition for the pre-partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition. After partition, the share that goes to the son does not belong to the father and the father has no disposing power over it. A son can be made liable for his father''s debt, in such circumstances, if he had become a surety and he can be made liable under the pious obligation rule. But in neither of these cases, his liability could take the form of having his property seized in execution and sold without any prior proceedings brought against him, leaving him to raise the questing whether his liability as surety or under the pious obligation rule precluded him from claiming in execution. Dealing with the question as to what is meant by an arrangement for payment of debts, the Apex Court held that, the expressions "bona fide" and " mala fide" partition seem to have been frequently used in this connection in various decided cases. The use of such expression far from being useful does not unoften 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 still remain. 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 there of. That may also be considered to be a proper arrangement for payment of the creditor 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. Of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside.

Keeping in view the principles laid down in the case of Pannalal (supra) by the Apex Court, I shall proceed to re-assess the evidence on record.

To begin from the beginning, it is pertinment to note that the appellant has not pleaded in his objections that a partition in relation to the agricultural lands had been mutually effected at any time in the year 1971. It is too settled that no amount of evidence can be looked into in the absence of pleadings. The appellant has examined himself as PW1. He has testified that he had separated from his father in the year 1971. At that time, they had partitioned their lands and cash and the partition deed was registered. In cross-examination, he has stated that he was the only son of his parents. At the relevant time his age appears to be only six years. In cross-examination, he has state that there is no documentary evidence to show that there was a partition between his father and himself No arrangement had been made to discharge the debt of his father. In re-examination, he has stated that he is filing the certified copy of the registration extract dated 21-7-1971 of partition deed with regard to the lands partitioned between his father and himself and further stated that the original deed was in the bank which he would produce later, but in cross-examination he has stated about his ignorance as to whether the original document, Ex.A4, was in the bank or not. His evidence is contradicted by the evidence of PW3, who has stated in cross-examination that there is no documentary evidence to show that in the year 1971, there was a partition. This witness is the maternal uncle of the objector. PW2, who is the brother-in-law of the judgment debtor, that is to say, the uncle of the appellant, has also stated about the partition of 1971. It is pertinent to note that these witnesses are not the attestors of the alleged partition deed, Ex.A1. It is apposite to mention that the original partition deed has not seen the light of the day of the Executing Court. No foundation has been laid for adducing secondary evidence. Under these circumstances, no value can be attached to the alleged certified copy of the registration extract, Ex.A4, or to the claim of PWs 1, 2, and 3 that a partition was effected through a registered instrument in the year 1971 between the appellant and his fattier, particularly when the father, that is to say, the 2nd Respondent-judgment debtor did not enter into the witness box and it is a fit case in which adverse inference should be drawn for withholding the best evidence.

PW1 has stated that in the month of December, 1984, his father and himself had partitioned the remaining immovable property and both the attached houses had fallen to his share. This was evidenced by a registered partition deed, Ex.A1, From that time he has started paying cist and the tax receipts are at Ex.A2 and Ex.A3, His statement is corroborated by the evidence of PWs 2 and3, while PW4 has been examined to establish the possession of the appellant.

In cross-examination, PW1, has stated that he was unable to supply correctly the details of the properties belonging to his family. On attaining majority, he had raised a dispute some time in the year 1983. By that time, there was Joint Hindu family properties. He did not give notice to his father demanding partition. At that time, the debts which were payable by his father were also ascertained, but earlier he had shown ignorance regarding the debts of his father.

He has stated that his father and himself had partitioned the property equally. The house under attachment was valued at Rs.1 lakh by elders. The house at Kakinada had been valued at Rs. 8 lakh. The house situated in Mallam and Kakinada had fallen to his share. His statement is contradicted by the recitals in the partition deed, Ex. A1. A look at the partition deed, Ex.A1, reveals that l/12th share in Items No.1 to 17 and full share in Item No, 18 of the "B" Schedule Property valued at Rs. 3,822.33 had been allotted to the second respondent -judgment debtor while ''C'' Schedule Property worth Rs.59,822.33 had been allotted to the appellant. In ''A'' Schedule Property, worth Rs.2,29,000/- life interest of the 2nd Respondent judgment debtor and his wife had been created and after them, it has to become the property of the appellant. It is pertinent to note that the 2nd Respondent-father and his wife have no disposing power by way of gift, mortgage, and sale etc., even during their life time. In other words, they have been prohibited to effect gift, mortgage, sale etc. Thus, it appears that virtually property worth Rs.2,89,822.33 had been allotted to the appellant while property worth only Rs.3,822.33 had been allotted to the appellant. The appellant is the only son of the second respondent. He was about 19 years age at the time of this partition. There appears to be no earthly reason for effecting that partition without any dispute worth the name between the father and the son who was a school going boy. There is also no evidence on record that the appellant and his father, that is the second respondent, were staying separately at that time. On his own showing, the debts of the 2nd Respondent had not been ascertained at that time, though admittedly these two money suits were pending against him. The properties allotted to the 2nd Respondent appear to be wholly insufficient to satisfy the decretal amounts and it also appears very difficult to sell l/12th share of the 2nd respondent in the said properties, because, the possibility of raising objections and claims by the other co-sharers cannot be ruled out and, therefore, auction purchasers may be reluctant to bid.

It is not out of place to mention that PWs 2 and 3, who are close relations of the appellant, have shown their ignorance regarding the registered partition deed, Ex.A1. It appears that they have spoken in favour of the appellant just to oblige him as also the second respondent who did not enter into the witness box to support the say of the appellant.

It is settled law that in civil cases, the preponderance of probability constitutes a sufficient ground for decision if the facts and circumstances are such that no reasonable man would draw a particular inference from them or if the degree of probability in the case is such that as to include any hypothesis besides the one to be proved then the party who relies on a particular theory cannot be said to have discharged onus of proof of establishing that theory. But, if there is evidence strongly prepondering in favour any one of the two theories set up, the Court is entitled to act upon it.

Judged on the principle laid down in the case of Pannalal (supra), the facts and circumstances discussed above strongly proponder in favour of the 1st Respondent and against the appellant that the partition between him and the 2nd Respondent alleged to have been done in the month of December, 1984 and evidenced through a registered instrument, Ex. A1, is a sham and colourable transaction which was done with a view to defeat the claim of the 1st respondent-decree holder and to avoid the pre-partition debt liability of the appellant.

For the foregoing reasons, the order passed by the Executing Court so far as the objections of the appellant are concerned, is confirmed, but for the reasons stated above. Consequently, both the appeals fail and are hereby dismissed with costs.