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Judgment
273 paragraphs · 6,435 wordsM. Chockalingam, J.—The plaintiff is the appellant herein.
A judgment of the learned Subordinate Judge, Cuddalore dismissing the suit for partition filed by the appellant/plaintiff in respect of the plaint A
and B Schedule properties and also in respect of the claim for past mesne profits is under challenge.
The appellant/plaintiff sought for a preliminary decree for partition of the plaint Schedule properties on the following grounds:
The plaintiff, who was born on 10.2.1953, is the undivided son of the first defendant, while the second defendant is his mother. The plaintiff and the
first defendant are members of the joint family. All the suit properties in plaint A, B and C Schedule except a few originally belonged to his
grandfather Sadasiva Reddiar. Sadasiva Reddiar obtained most of the properties for his share in the partition between him and his brother. The suit
properties are all ancestral joint family properties belonging to the plaintiff and his father first defendant. Sadasiva Reddiar died about 20 years
back. There was no need or necessity for borrowing at any time. After the death of Sadasiva Reddiar, the first defendant was acting as the
manager of the family. The first defendant spent all the family income for his immoral habits. The first defendant borrowed money from others, and
they were all tainted with illegality and immorality. The borrowings made by the first defendant are not binding on the plaintiff. The first defendant
executed a promissory note for Rs.6,000/- in favour of the third defendant, and the said borrowing was made for his illegal purposes. On the basis
of this pronote, the third defendant instituted a suit in O.S. No. 37/62 against the first defendant on the file of Sub Court, Cuddalore, and a decree
was passed, which is fraudulent and collusive. Pursuant to the said decree, almost all the family properties described in the plaint Schedule were
attached. The properties were grossly undervalued. The properties in A Schedule were sold in court auction, and were purchased by the
defendants 3 and 4. The said sale was conducted without any publicity, and hence, the same was vitiated by fraud. The sale is therefore invalid.
What was sold in court auction was only the right, title and interest of the judgment debtor namely the undivided half share in the properties sold
and nothing more. The said sale is not binding on the plaintiff, since he was not a party to the decree. The first defendant sold B Schedule
properties to the defendants 8 to 21. The defendants 8 to 21 are not bonafide alienees for value and consideration. The defendants 3 to 5 are in
possession of A and B Schedule properties and are not entitled to remain in possession in excess of the half share of the first defendant. They are
liable to pay mesne profits at Rs.1,000/- for a period of three years prior to the date of sale. Therefore, the plaintiff''s half share in those items in A
and B Schedule should be separated. The first defendant is in possession of C Schedule properties. The plaintiff is deemed to be in joint
possession along with the first defendant of the three items of C Schedule properties. Those properties should be partitioned. The defendants are
evading for settlement. If the items 26 to 30 of C Schedule are joint family properties, the plaintiff is entitled to a half share in the same. Hence this
suit.
The defendants 3, 7 and 28 died pending the suit. The defendants 2, 11, 12, 16 to 18, 22 to 25, 38, 39 and 50 were given up by the plaintiff,
while the defendants 1, 13, 14, 19, 20,21, 26, 27, 29 to 36, 40 and 46 to 49 remained exparte.
The defendants 4, 5, 6, 7, 8, 9, 15, 28, 37 and 44 have filed separate written statements. The defendants 4 and 9 have filed additional written
statements. The defendants 9 and 10 have adopted the written statement of the 8th defendant, while the defendants 41 to 43 and 45 have adopted
the written statement of the 44th defendant.
It is contended by the fourth defendant that he is not aware of the partition between Sadasiva Reddiar and his brother; that Sadasiva Reddiar
took contract work; that from and out of such sources, he had enough income and savings; that all such businesses were done without detrimental
to the joint family properties; that the first defendant purchased properties with the income from his paddy business and not from ancestral
properties; that the mother of the first defendant bequeathed some properties under a registered Will dated 24.4.1949; that they are the separate
properties of the first defendant; that the first defendant never had immoral and illegal habits; that the decree in O.S. No. 37/62 is not a collusive
decree; that the fourth defendant purchased an extent of Ac. 2-09 out of Ac. 2-68 in S. No. 32/2 in the Court sale held on 22.6.64; that after
delivery on 22.11.1965, he sold items 9, Ac. 0-45 in item 10, and 15 to 23 of A Schedule to the 7th defendant under a registered sale deed dated
20.11.1968; that now he is in possession of items 26 and 27 of A Schedule; that items 13, 16, 17 and 24 of C Schedule did not belong to the joint
family; that in O.S. No. 37/62, the plaintiff must be deemed to be a party; that the plaintiff must discharge the decree; that having not filed a suit to
set aside the decree, he is barred from questioning the same, and hence, the suit may be dismissed with costs.
The fifth defendant has stated that Sadasiva Reddiar purchased properties from and out of his business income; that the mother of the first
defendant''s wife viz. Chinnathayee executed a settlement in favour of the first defendant in respect of considerable properties; that the first
defendant had sold the same and purchased some properties; that the properties bequeathed by the mother of the first defendant under a Will
dated 24.4.1949 are the separate properties of the first defendant; that the first defendant had no bad habits; that item 12 of A Schedule did not
belong to the first defendant; that the fifth defendant purchased items 11 to 14 and Ac. 0-45 in item 25 of A Schedule from the fourth defendant
vide sale deed dated 20.11.1968; that he also purchased the remaining Ac. 0-46 in item 25 of A Schedule on 30.3.1966; that the plaintiff is not
entitled to the reliefs asked for, and hence, the suit has to be dismissed with costs.
It is the case of the sixth defendant that the first defendant did not lead an immoral way of life; that his borrowings are not tainted with illegality or
immorality; that the plaintiff is not entitled to question the various alienations, since the properties are the separate properties of the first defendant;
that the suit is barred by limitation; that the sixth defendant is entitled to items 1 to 7 and 28 of A Schedule and item 13 in B Schedule by virtue of
the registered deed of gift, executed in her favour by her husband and his father on 27.9.1966, and therefore, the suit may be dismissed with costs.
The seventh defendant has averred in his written statement that Sadasiva Reddiar had enough income and savings from his contract business;
that the first defendant had good income from his paddy business and purchased properties from such business; that the first defendant was never
involved in any immoral and illegal activity; that the seventh defendant purchased items 9, 10, 15 to 23 of A Schedule under a sale deed dated
20.11.1968 from the fourth defendant; that the suit has been filed at the instigation of the first defendant; that the 7th defendant is entitled to equity,
and hence, the suit may be dismissed with costs.
It is the case of the 8th defendant that the first defendant was a prudent manager; that the items 1, 3, 6, 7, 9, 11, 20 and 26 of B Schedule
were sold to the 8th defendant by the first defendant; that the alienees also advanced moneys after making due and bonafide enquiries about the
necessity and after satisfying about it; that the item 12 of B Schedule was sold to the defendants 9 and 10; that after sale, the defendants 9 and 10
have spent Rs.45,000/- and completed the rice mill; that the plaintiff is bound to pay the same; that the 8th defendant is entitled to equity, and
hence, the suit is liable to be dismissed with costs.
The ninth defendant has averred in his additional written statement that the first defendant deemed to have represented his son, the plaintiff in all
the transactions, sale deeds and suits; that the suit without a prayer for setting aside all the sales is not maintainable, and therefore, the suit has to be
dismissed with costs.
The 15th defendant contended that the first defendant sold items 10 and 14 of B Schedule to the 15th defendant vide sale deed dated 1.4.68;
that the sale deed is binding on the plaintiff; that the suit has been filed at the instigation of the first defendant, and thus, the suit has to be dismissed
with costs.
The 28th defendant has stated that items 31 and 32 of C Schedule were purchased by the defendants 27 and 28 from the first defendant on
1.6.1960; that the 27th defendant sold his share to the 28th defendant on 12.10.1962; that the 28th defendant is in possession of the said
properties; that the said properties are self acquired properties of the first defendant; that these properties were sold by the first defendant in lieu of
the decree in O.S. No. 135/57; that the said sale would bind the plaintiff, and hence, the suit is liable to be dismissed with costs.
Adopting the written statement of the seventh defendant in all other respects, the 37th defendant has stated that as per the terms of the Will
executed by the 7th defendant on 27.10.1975 in a sound disposing state of mind, the 37th defendant is entitled to items 9,10, 18 to 23 of A
Schedule, and hence, the suit should be dismissed with costs.
The defendants 41 to 43 and 45 adopted the written statement of the 44th defendant. They have stated that since the first defendant did not
pay any amount even after the decree in O.S. No. 37/61, the properties were brought in Court auction by the third defendant, and thus, the
amount due to the third defendant was realised; that the recitals in the pronote dated 10.8.1960 are true; that it is the antecedent debt of the father,
which had been incurred for binding purposes; that the auction was held with due publication; that the suit is barred by limitation; that the item
purchased by the third defendant was allotted to the 44th defendant in the family partition, and hence, the suit is liable to be dismissed with costs.
On the above pleadings, the trial Court framed as many as 23 issues and 7 additional issues and tried the suit. On the side of the plaintiff,
P.Ws.1 and 2 were examined, and Exs.A1 to A22 were marked. D.Ws.1 to 3 were examined and Exs.B1 to B36 were marked on the side of the
defendants. After hearing the rival submissions and considering the evidence both oral and documentary, the learned Subordinate Judge while
granting the reliefs in respect of plaint C and D Schedule, has dismissed the suit in respect of A and B Schedule properties and also the past mesne
profits. Aggrieved plaintiff has brought forth this appeal.
As seen above, the appellant/plaintiff filed the instant civil action for partition claiming half share in the properties described in ''A'' to ''D''
Schedule to the plaint and for mesne profits specifically alleging that the properties mentioned in ''A'', ''B'' and ''C'' Schedule except a few originally
belonged to the plaintiff''s grandfather Sadasiva Reddiar who purchased the same from his share in the partition between him and his brother and
acquired a few with the income from those ancestral properties; that the said Sadasiva Reddiar died 20 years back; that the father of the plaintiff,
the first defendant in the suit came into the management of the properties; that the family was affluent; that there was no need for any borrowal; that
the first defendant was leading an immoral life and wasting family properties; that if there was any borrowal made by him, all were tainted with
illegality and immorality; that the immovable properties mentioned in ''A'' Schedule were sold in auction in execution proceedings, which were laid
by the third defendant pursuant to a decree obtained by him against the first defendant on the basis of a promissory note for Rs.6,000/- executed
by the first defendant; that those properties were sold in execution, but what were sold in the execution were only his father''s share and not that of
the plaintiff, and thus, they would not be binding; that insofar as all the immovable properties found in ''B'' Schedule, so many sale transactions
were executed by the first defendant, and they were all not binding the share of the plaintiff, since they were not executed for any legal necessity,
but tainted with illegality and immorality, and thus, both court auction sale and private sale transactions would not be binding on the plaintiff''s share,
and hence, he was entitled for his half share in the suit properties. The defendants 4 to 6, 8 to 10, 15, 37 and 41 to 45 who contested the suit,
interalia would state that the suit properties were not joint family properties; that the debts were not tainted with illegality or immorality; that
pursuant to a decree obtained by the third defendant in O.S. No. 37/61, all the immovable properties found in ''A'' Schedule were brought for sale;
that except item No. 8, all the properties were purchased by the 4th defendant; that the third defendant purchased the entire extent of item No. 8
of ''A'' Schedule; that on confirmation of sale, the respective purchasers in Court auction sale took delivery of the properties, and subsequently,
they have dealt with them also; that the items 1, 3, 4, 6, 7, 9 to 12, 14 and 20 of ''B'' Schedule were sold to the contesting defendants under
different sale deeds in order to satisfy the surcharge dues payable by the first defendant when he acted as the President of the Madampoondi Co-
operative Society and for his family needs; that the debts contracted by the first defendant was neither avyavaharika or illegal, and hence, both the
Court auction sale in respect of ''A'' Schedule and the other sale transactions executed by the first defendant were out of sheer family necessity;
that he has acted as the kartha of the joint family; that the plaintiff was bound by the doctrine of pious obligation, and hence, the suit was to be
dismissed.
The lower court after full trial has granted a preliminary decree as prayed for by the plaintiff in respect of ''C'' and ''D'' Schedule to the plaint,
which is not appealed against. Agreeing with the contentions put forth by the contesting defendants, the claim of the plaintiff in respect of ''A'' and
''B'' Schedule was negatived. ''A'' Schedule consists of 28 items, while ''B'' Schedule consists of 30 items. The plaintiff before the Court below
sought for half share in ''A'' and ''B'' Schedule properties alleging that they were ancestral properties; that the sale of ''A'' Schedule properties
under Court auction sale pursuant to the decree in O.S. No. 37/62 would not be binding on him, since he was neither a party to the suit nor his
share was sold in the Court auction. Insofar as the sale transaction in respect of ''B'' Schedule immovable properties, the same would not be
binding on his share, since they were tainted with illegality and immorality, and hence, he should be allotted half share. The lower Court after
elaborate discussion has found that all the properties both in ''A'' and ''B'' Schedule were ancestral in character, and thus, the plaintiff was not
entitled to the relief asked for in that regard.
Arguing for the appellant, the learned Counsel Senior Counsel would urge that the Court auction sale made pursuant to the decree in O.S. No.
37/62 in respect of item Nos. 1 to 28 of the plaint ''A'' Schedule would not be binding on the plaintiff for the reasons that he was not a party to the
said suit; that what was intended to be sold and what was purchased by the defendants 3 and 4 in the Court auction sale was only the half share of
his father viz. the first defendant and not the entire property; that the price paid by the Court auction purchaser was very much below half the
market value of the items brought for sale, and the same would indicate that what was sold in the Court auction was the interest of the first
defendant father and not the entirety of the properties; that the lower Court has not properly determined the question as to what the Court intended
to sell and what the purchaser understood that they bought, and hence, the judgment of the Court below in respect of ''A'' Schedule property has
got to be reversed, and a partition be ordered. Added further the learned Senior Counsel that all the private alienations in respect of ''B'' Schedule
properties were not valid because the properties were affluent; that the first defendant was leading an immoral life, and thus, all the debts
contracted by him were tainted with immorality and illegality; that it was not proved that those alienations were made for any family necessity; and
that no one of the defendants were examined to prove those alienations.
Contrary to the above, the learned Counsel appearing for the contesting respondents would submit that the trial Court was perfectly correct in
dismissing the suit in respect of the properties described in ''A'' and ''B'' Schedule; that the first defendant was not leading an immoral or illegal life;
that the properties owned by him were not joint family properties, but they are his self acquired properties; that the debt incurred by him was not
tainted with immorality or illegality; that he has every right to sell his properties; that it is pertinent to note that the plaintiff himself has abandoned his
plea that the debts contracted by the first defendant were tainted with immorality or illegality; that the plaintiff was bound by the doctrine of pious
obligation; that the non-examination of the Court auction purchasers will not in any way be helpful to the plaintiff, in view of the available
documentary evidence with regard to the sale transactions through Court auction; that the lower Court has properly considered the evidence both
oral and documentary and has rejected the case of the plaintiff; that there is nothing to interfere in the finding recorded by the lower Court in that
regard, and hence, the appeal has got to be dismissed.
Admittedly, pursuant to a decree obtained in O.S. No. 37/62 on the file of the Sub Court, Cuddalore, based on promissory notes, the decree
holder namely the third defendant brought all the items of ''A'' Schedule property for sale in execution of the decree. The third defendant decree
holder purchased the entire extent of item 8 of ''A'' Schedule. On two applications filed under Order 31 Rule 100 of CPC by the agnates of the
first defendant claiming certain portions in the said item, delivery was ordered in respect of a part namely to an extent of 2 acres and 21 cents. The
said delivery under proper receipts to the fourth defendant is not disputed by the plaintiff. Except item 8, all other 27 items were purchased by the
fourth defendant in the execution proceedings, pursuant to the said decree. Ex.B8 is a sale certificate issued to the fourth defendant, and he has
taken delivery under Exs.B9 and B10 receipts. This Court delivery of the above items of properties in ''A'' Schedule except item 8 to the fourth
defendant is also not disputed by the plaintiff. After taking delivery, the fourth defendant has executed Ex.B4 sale deed in favour of the 5th
defendant in respect of items 11 to 14, 24 and a part of 25 of ''A'' Schedule. On 27.9.1966, the 4th defendant had executed Ex.B30 gift deed in
respect of the items 1 to 7 and 28 of ''A'' Schedule along with item 13 of ''B'' Schedule in favour of his daughter-in-law the sixth defendant, in lieu
of her maintenance. The fourth defendant has also sold items 9, 10, 15 to 23 under Ex.A9 sale deed to the 7th defendant, who in turn has
executed Ex.B20 Will in favour of the 37th defendant. Thus, it would be clear that after taking delivery of ''A'' Schedule properties pursuant to the
Court auction sale, the 3rd and 4th defendants have actually dealt with the properties by way of sale, gift and bequest also. At this juncture, it is
pertinent to point out that ''A'' Schedule properties were brought for sale in E.P. No. 59/63, and they have been taken delivery in the year 1965.
Though the plaintiff attacked all the transactions either by way of sale or otherwise entered into by his father, the first defendant in respect of 30
items of ''B'' Schedule properties, he has given up his claim against the defendants 2, 11, 12, 16, 17, 18, 22, 23, 24, 25, 38, 39 and 50 and the
private alienations in respect of items 8, 13, 15, 17 to 19 and 22 to 28 namely 13 items.
The plaintiff has assailed the judgment over the denial of the relief of partition in respect of 28 items in ''A'' Schedule and items 1 to 7, 9 to 12,
14, 16, 20, 21, 29 and 30 namely 17 items in ''B'' Schedule. At this juncture it has to be pointed out that while the plaintiff has originally attacked
all the private alienations made by his father in respect of 30 items in ''B'' Schedule, under what circumstances and reasons he gave up the 13 items
referred to above is not known. The non-explanation of the same would, no doubt, affect the plaintiff''s case, since all the private alienations in
respect of the 30 items in ''B'' Schedule made by his father the first defendant are attacked on the same ground. Another circumstance which goes
strongly against the case of the plaintiff is the admission made by him stating that he did not enquire his father, the first defendant about the sales of
the immovable properties in Court auction, though he maintained the cordial relationship with his parents. He was unable to say whether the debts
contracted by his father including the one which was the subject matter in O.S. No. 37/62 were for family needs. He has categorically admitted
that he did not know either the particulars of the properties which were auctioned or the sale price for which they were sold in Court auction. He
was even unable to say out of the items in ''A'' and ''B'' Schedule, which were ancestral and which were purchased by his father, the first
defendant. It is a matter of surprise to note that though the plaintiff was living with his parents all along and came to know about the alienations both
private and through Court, he has neither taken any steps nor even issued any notice till 1983.
After careful consideration of the rival submissions and scrutiny of the available materials and the legal position on the subject, the Court is
unable to agree with the contentions put forth by the appellant''s side that what was actually intended to be sold in Court auction in ''A'' Schedule
properties and what was really purchased by the third defendant in 8th item of ''A'' Schedule and the other items by the fourth defendant was only
an undivided half share of the first defendant. A perusal of the relevant document namely Ex.B6 sale proclamation made in E.P.R. No. 59/63 in
O.S. No. 37/62 would clearly reveal that the entire properties in ''A'' Schedule describing the specific items, the survey number and the area, were
brought for sale. The appellant''s side made a feeble attempt to take advantage of the Clause in Ex.B6 stating ""bjd;dhw;fhL o!;o jpUf;nfhtpY}h;
rg;oiar; nrh;e;j jpUf;nfhtpY}h; jhY}fh khlhk;g{z;o fpuhkj;jpy; gpujpthjpf;F ghj;jpakhd"". It is pertinent to note that not only the proclamation
contained the entire 28 items of ''A'' Schedule with all necessary particulars, but also all these properties remained attached even before they were
brought for sale. The original sale certificate issued to Kumarappa Reddiar in E.P. No. 59/63 dated 17.9.1965 under Ex.B8 and the delivery
receipts under Exs.B32, 34 and 35 would clearly indicate that the items 1 to 7 and 9 to 28 of ''A'' Schedule were taken delivery by the 4th
defendant in entirety, and a part of the item 8 of ''A'' Schedule was taken delivery by the third defendant. As stated above, after the delivery of the
properties, both the 3rd and 4th defendants have effected transfers to different persons by way of sale, gift, settlement, etc. All the above would
not only indicate but also demonstrate that what were intended to be sold by the Court and what were actually purchased by the defendants 3 and
4 were the 28 items in entirety and not the undivided half of the first defendant. Nowhere it is stated either in the sale proclamation or in the sale
certificate or in the delivery receipts that the sale was in respect of the undivided half of the first defendant. Though the sale price paid by the Court
auction purchasers was below the market value of the items brought for sale, it can neither be inferred nor be a circumstance or reason to hold that
only an undivided half share of the first defendant was sold. No reason or circumstance is either noticed by the Court or shown by the appellant to
hold contrary to the tenor of the documents pertaining to Court auction sale.
The decision relied on by the appellant/plaintiff and reported in ILR 13 CAL 21 (NANOMI BABUASIN V. MODHUN MOHUN) cannot
be applied to the present facts of the case, since the son who comes forward to question the auction sale that the interest of his father alone was
sold and not including his share cannot be allowed to set up his rights against the father''s alienation, if an antecedent debt was not tainted with
immorality. As stated above, the plaintiff is unable to state whether the properties were sold out of legal or family necessity. It is pertinent to point
out that his mother, who was all along with her husband, the first defendant, was well alive, and it was from her only he obtained all the documents
to file in the lower Court. The plaintiff has not chosen to examine herself as a witness, nor has he examined the first defendant. Though it was
specifically and elaborately averred by the plaintiff that the first defendant was leading an immoral life, and the debts were tainted with illegality and
immorality, no whisper was made by the plaintiff in his evidence in that regard. The lower Court has pointed out in its judgment that the plaintiff has
also not pressed the plea that his father was immoral. Thus, it would be clear that the ground of attack that the debts contracted by the first
defendant were tainted with immoral and illegal was abandoned by the plaintiff himself.
The Apex Court had an occasion to consider the liability of the son to discharge the debts of his father under a doctrine of pious obligation in a
case reported in 1959 (II) MLJ 21 (S.M.JAKATI AND ANOTHER VS. S.M.BORKAR AND OTHERS) and has held thus: ""There is no
discrepancy of judicial opinion as to the pious duty of Hindu sons. In Panna Lal v. Mst. Naraini, this Court approved the following dictum of
Suleman, A.C.J., in Bankeylal v. Durga Prasad:
The Hindu Law texts based the liability on the pious obligation itself and not in the father''s power to sell the sons'' share"".
So great was the importance attached to the payment of debts that Hindu lawgivers gave the non-payment of a debt the status of sinfulness and
such non-payment was wholly repugnant to Hindu concept of son''s rights and liabilities. In Bankeylal v. Durga Prasad, Lal Gopal Mukherji, J.,
said at page 896:-
A perusal of text books of Smriti dealing with debts will show that under the Hindu Law the non-payment of a just debt was regarded as a very
heinous sin.
The liability of the Hindu son based on his pious obligation again received the approval of this Court in Sidheshwar Mukherji v. Bhubneshwar
Prasad Narain Singh where the following observation made in Panna Lal''s case,
The father''s power of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which
the Hindu Law imposed upon the sons; or it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligation
was reiterated. And again at page 183, Mukherjea, J., (as he then was) said:-
It is a special liability created on purely religious grounds and can be enforced only against the sons of the father and no other coparcener. The
liability, therefore, has its basis entirely on the relationship between the father and the son"".
Therefore unless the son succeeds in proving that the decree 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. The necessary corollary which flows from the pious obligation 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 Pannalal''s case, where Mukherjea. J., said at page 559:-
Thus, in our opinion, 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"".
The liability of the sons is thus unaffected by partition because the pious duty of the sons to pay the debt of the father, unless it is for an immoral or
illegal purpose, continue 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 asserting 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 exists as a result of partition the right of the judgment
creditor to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligations of the sons. There does
not seem to be any divergence of judicial opinion in regard to the Hindu son''s liability to pay the debts of his father after partition and by the mere
device of entering into partition with their father, the sons cannot get rid of this pious obligation. It has received the approval of this Court in Panna
Lal v. Mst. Naraini and Sidheshwar Mukherji v. Bhubaneshwar Prasad Narain Singh where Mukherjee, J., observed in the later case, at page
184.
It is settled law that even after partition the sons could be made liable for the pre-partition debts of the father if there was no proper arrangement
for the payment of such debts at the time when the partition was affected, although the father could have no longer any right of alienation in regard
to the separated share of the sons"".
The question then arises how the liability of the sons is to be enforced. Another principle of Hindu Law is that in a coparcenary family the decree
obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit; Kishan Sarup v.
Brijraj Singh. As was pointed out in Sidheshwar Mukherji''s case, the sons are not necessary parties to a money suit against the father who is the
karta, but they may be joined as defendants. The result of the partition in a joint family is nothing more than a change in the mode of enjoyment and
what was held jointly is by the partition held in severalty and therefore attachment of the whole coparcenary estate would not be affected by the
change in the mode of enjoyment, because the liability of the share which the sons got on partition remains unaffected as also the attachment itself
which is not ended by partition. (Section 64, Civil Procedure Code, is a useful guide in such circumstances).
A very reading of the above judicial pronouncement wherein the earlier decisions of the Apex Court are referred to, would make it clear that
unless the plaintiff was able to show that the decree was an outcome of a debt, which was for an immoral and illegal purpose, the right of the
decree holder in bringing the whole of the coparcenary property including the son''s share would remain unaffected, and it was always open to the
execution creditor to sell the whole estate in satisfaction of the judgment obtained against the father alone. If the debt was not tainted with
immorality or illegality, the liability of the son remains unaffected by partition, since the pious duty of the son in a Hindu coparcenary to pay the debt
of the father continues till the debt is paid off. Applying the said principles to the present facts of the case, without any hesitation it can be held that
the decree in O.S. No. 37/62 pursuant to which ''A'' Schedule properties were sold in Court auction and the sale transaction in respect of ''B''
Schedule properties would be, no doubt, very well binding on the plaintiff''s share. Therefore, in the instant case, the plaintiff cannot escape from
the debts incurred by his father, the first defendant, in view of his pious obligation to discharge the debts of his father, and he cannot be permitted
to say that the sale transactions through Court auction and private would not be binding on him.
It has been held by the High Court of Andhra Pradesh in a case reported in 1966 II A.W.R. 393 (PEDDI CHANDARAYYA VS. PEDDI
SAMBAYYA AND OTHERS) as follows:
If initially the taking itself is a criminal act, the sons will be exempt, but if it is not, the subsequent criminal act of the father in misappropriating the
amounts does not absolve the sons of their liability for payment of the debt. In this case, the father, the President of the Co-operative Society, had
every legal right to collect the amounts from the debtors, as also from the Central Co-operative Bank. Having done so, he subsequently
misappropriated it. In the circumstances the sons cannot claim exemption, and they are liable for the debt.
There is no presumption that the amount which was misappropriated was spent for gambling purposes. Notwithstanding the fact that the father
might have been addicted to the vice of gambling and that he was in the habit of gambling by selling or disposing of his property, the burden of
proving that the particular amount was spent for gambling rests upon the person who sets up that plea. Where the burden lies on a person to
establish that debts for the payment of which an alienation is effected, are contracted for immoral purposes, it is not sufficient if he establishes a
general charge of immorality on the part of the alienor; but he must establish the connection between the loan and the alleged immorality of the
borrower.
In the instant case, from the available materials it could be seen that number of items of ''B'' Schedule properties were sold by the first defendant
for payment of surcharges levied on him in connection with the management of the Cooperative Society. Hence, those debts could not be
construed as avyavaharika debts, and the son''s share is also liable on the principles of pious obligation.
Much comment was made by the learned Senior Counsel for the appellant that the Court auction purchasers namely the defendants 3 and 4
were not examined to speak about the fact what were the actual share of the extent of the property which they purchased in the Court auction sale.
It is true that they have not examined themselves as witnesses. In a case where the plaintiff is unable to prove his case that what was sold in Court
auction was only the share of his father and not the entire property and in particular where all the acts and circumstances would clearly indicate and
demonstrate that the property what was sold in Court auction was in entirety, the non-examination of the Court auction purchasers will not in any
way strengthen the case of the plaintiff. Mere non-examination of the Court auction purchasers as witnesses would not lead to the conclusion that
the property what was sold under the Court auction was less than, what was proclaimed to be and actually sold as evidenced by the documents.
For the foregoing reasons, the Court is of the view that the Court below was perfectly correct in rejecting the request of the plaintiff for
partition of ''A'' and ''B'' Schedule properties and mesne profits thereon. The Court is unable to notice any merit in all or anyone of the contentions
put forth by the appellant''s side so as to call for an interference, and the appeal is liable to be dismissed.
In the result, this appeal suit is dismissed leaving the parties to bear their own costs.