Kumaji Sare Mal Firm and partners vs Kalwa Devadattam and others

Chandra Reddy, J.—This is defendant''s appeal. The action giving (sic)e to this appeal was brought up by the respondents for setting aside the summary order passed by that Court on 12-7-1945 dismissing the (sic)im petition in execution proceedings in O. S No. 7 of 1944 on the file of the Sub Court and (sic) other incidental relief''s. The circumstances (sic)ding up to this appeal may be set out in (sic)ef.

The. appellant filed O. S. No. 18 of 1942 the District Court, Anantapur which was sub-sequently transferred to the Sub Court and numbered O. S. No. 7 of 1944. That suit was for (sic)overy of damages in a sum of Rs. 10,022-10-6 alleged breach of contract dated 28-11-1949 (sic)ereby the plaintiffs agreed to deliver to the defendants 100 bales of yarn at a price of Rs. 8-0 per bundle. The answer to the suit was (sic)t the contract was a wager and consequently enforceable. This defense found favour with (sic)trial Court But on appeal the suit was de�(sic)ed in reversal of the trial Court''s decree, (sic)s learned Judges of the Madras High Court (sic)tressed the opinion that the suit contract was not by way of wager and breach of it would give a cause of action for damages.

In execution of this decree the properties in. dispute were brought to sale. The plaintiff''s intervened by an applicable on under O. 21, R. 63. C. P. C. setting up a case that the properties had fallen to their share on the basis of the partition deed, Ex. A-1 referred to in connection with the other appeal and net liable to be attached for the debts due by their father. This claim was disallowed and the matter was carried in revision to the High Court unsuccessfully.

The basis of the suit was that the debt for the realization of which the properties were attached was an Avyavaharika debt having been incurred in connection with a speculative and hazardous trade of the father, that the partition, was true, valid and therefore, binding on all the defendants and consequently the shares of the plaintiffs were not liable for the decree debt and that lastly they were not bound by the decree as the suit was filed against their father in his individual capacity.

The suit was defended on the plea that the debt was not an Avyavaharika debt, that the partition deed relied on by the plaintiffs evidenced a sham transaction brought, about to defraud the defendants, that in any event the suit properties were the separate properties of the 6th defendant.and even otherwise they were answerable for that debt because they were all earned by the father out of his business.

The trial Court while answering the issue in regard to the nature of the debt against the plaintiffs decreed the suit as it thought that the only remedy of the defendant was by way of a suit since the properties were allotted to the shares of the plaintiff in the partition which, in its opinion, was an effective one. Dissatisfied with this judgment, the decree-holders preferred this appeal.

The finding of the trial Court as regards the binding nature of the debt was not assailed before us by the respondent except as a part of the general theme that the plaintiffs are under no obligation to discharge any of the debt of their father which were contracted for a speculative trade. We have dealt with this matter in the other appeal and this need not be considered afresh. Further, no evidence was adduced to show that this debt arose out of a wagering con-tract as suggested for the father in the earlier suit

That is obviously because there could not be any defense on that ground since the terms of the contract as culled out in the judgment of High Court establish that delivery of the goods was contemplated and in fact Nagappa the defendant therein was called upon to take delivery of the goods and it was only when he failed to comply with that demand that the goods were sold at his risk and compensation claimed by way of difference between the prices. It must therefore be taken that the debt was not vitiated in any way and consequently it could be enforced against the sons by virtue of the theory of pious obligation, not being a debt tainted with immorality or illegality even if the sons were not parties to the suit.

The plaintiffs were not economine parties to the suit, but that does not conclude the matter. A decree obtained against the manager of the joint family will bind the members of the family even if they are not specifically imp leaded in the suit nor is it essential to state in the plaint that the father was sued as the manager of the family. The circumstances may warrant the inference that the suit was laid against the family represented by the manager so, whether a suit was brought against the manager in his individual capacity or as representing the whole family, has primarily to be gathered from the nature of the transactions involved in the suit and the averments in the plaint.

But, in this case the pleadings in the suit in which that decree was passed were not exhibited. We have therefore, no means by which we could judge this matter from the contents of the written statement. Mr. Chalapathi Rao invites us to hold that it was against the. father individually that the suit was instituted and not as representing the family. This argument is not altogether without force. Be that as it may, in the absence of any material we may not be justified in concluding that the decree was against the whole joint family.

We may therefore, proceed on the hypothesis that the decree was against the father alone. On this basis an argument was pressed upon us that the decree could not be executed against the shares of the sons after partition. On the other hand, the contention for the appellants was that the attachment which was effected in 1942 though raised when the suit was dismissed was revived when the suit was decreed in appeal by the High Court and consequently execution could proceed against the attached properties irrespective of the alleged partition. Support for this point was sought to be derived from a judgment of the Travancore-Cochin High Court in Muhammad Abdul Khadhir v. Padmanabha Pillai. AIR 1952 Trav-Co. 414 (FB) (A).

It is true that this ruling lends support to the point made by the appellant. But we feel we cannot share the view taken in the judgment as it is opposed to the principle enshrined in Balaraju Chettiar Vs. Masilamani Pillai and Others, It is laid down in the latter that the attachment will not revive when the appeal is allowed against the decree dismissing the suit. This was followed in a number of cases and in our opinion it contains a sound principle of law, apart from our being bound by it. The principle, therefore, is when once attachment is raised as a result of the dismissal of the suit by the trial Court it would not get automatically revived when the suit is decreed in appeal.

The position then is, there was no attachment when Ex. A-l, which purported to disrupt the family and to divide the properties by metes and bounds, came into being. If this partition was genuine one, the sons'' shares could not be reached in execution of the decree. The only remedy available to the creditors is to file a suit to enforce the liability arising from the decree against the sons'' shares but not to proceed against them in execution of the decree. But, we have found that the partition evidenced by Ex. A-1 was an ineffective one.

Does it make any difference so far as the rights of the creditors are concerned. In our judgment, it does. If there was really no partition and the properties continued to be joint family properties, the sons'' interest therein could be proceeded against even if the decree was against the father alone and the decree-holder is not per force driven to a suit to realize his decree. There is ample authority for this opinion of ours. In Maynes Hindu Law (11th Edn.) it is stated at page 412:

Even where a decree is obtained against a Hindu father after his sons who were impleads in the suit had been exonerated and dismissed there from, it can be executed against the son interest in the joint family properties.

At the foot note are cited a number of case illustrating this principle- Krishrian Naidu Somi Naidu, ILR 1940 Mad 815: AIR 1940 Ma 544 (C), Peraiswami Mudaliar V. Seetaram Chettiar, ILR 27 Mad 243 (FB;) (D), Doraiswami Nadan and Others Vs. Nagasami Naicken and Another, and Inderpal v. Imperial Bank, ILR 37 All 214: (AIR 191 All 126) (F). In the first mentioned case, it is pointed out by Sir Lionel Leach, C. J. that Rajaram v. Rajabahsh, ILR 13 Luck 61: (AIR 193 PC 7) (G), had not overruled the decision on the Full Bench AIR 1938 7 (Privy Council) Luck 61: AIR 1938 PC 7 (G), was a suit brought against the mortgagor''s sons and grant sons in which a simple money decree was pa(sic) sed against the estate of the debtor in the hand of the sons as legal representatives of the father and the suit was dismissed against the grand sons.

In these circumstances, it was decided by the Privy Council that the interests of the grand sons in the family property could not be take in execution of the decree under S. 53, C. P. C. That doctrine can have no application here The principle that governs cases of this type is that even if a decree is obtained against the father personally, that decree could be executed again the sons'' share as they are liable for the father debt. The sons could escape liability only on the ground that the debt was an immoral or illegal one.

The result is the same even if the sons we made parties to the suit originally and we exonerated. It follows that the decree-holder were entitled to proceed in execution against the interest of the sons in the properties which was have found to be joint family properties no withstanding Ex. A-l, and they need not be driven to a separate suit to satisfy their decree. In the view of the matter, the appeal is allowed with costs throughout, as the judgment of the trial Court is unsustainable and has to be set aside.