Lachhman Dass vs Sarup Chand and Others

Harjit Singh Bedi, J.—Lachhman Dass, the present petitioner, filed a civil suit for recovery of money against Basakha Ram defendant. Basakha Ram defendant expired during the pendency of the civil suit and his sons, Sarup Chand, Mithu Ram, Lal Chand, Jagdish Rai and Ram Lal, widow Smt. Ishro Devi and daughter Pillo were substituted in his place. The suit was decreed for Rs. 19,448/- with costs and with future interest, and the appeal filed by Sarup Chand, one of the legal representatives, was also dismissed by the District Judge, Bathinda vide judgment dated 14th December, 1988. Lachhman Dass, thereafter preferred an execution application for the recovery of an amount of Rs.29,370/- and during the pendency of the application, land measuring 16 kanals comprised in Rectangle and Killa No. 15/15/3 min (9-13) and 7/2 min (6-1) situated in the area of village Kallo was attached. An application under Order 21 Rule 66 of the CPC was thereafter moved by the decree-holder for putting the said land to auction. Some of the Judgment Debtors being the LRs of Basakha Ram deceased, filed an objection petition averring that though Basakha Ram had 1/6th share in the land measuring 16 kanals that had been attached the remaining share of the land belonged to the other co-parceners, and could not be put to auction. It was that Basakha Ram had during his life time alienated the land beyond his 1/36th share out of 260 Kanals 16 Marias by way of mortgage and as such the proposed auction was not justified. The learned District Court came to the conclusion that 16 kanals of land that had been attached in the execution proceedings, had not been shown to be in the exclusive possession of Basakha Ram or his legal heirs and as such the decree holder could get attachment only with regard to the land inherited by the sons of Basakha Ram from him. It was accordingly found that attachment to the extent of 16 kanals would remain in tact whereas the remaining land could not be put to auction.

Aggrieved against this order of the executing Court, the present revision petition has been filed by the plaintiff-Decree holder Lachman Dass.

The learned counsel for the petitioner has first and foremost pointed out that it was the case of the respondents herein (who were the legal representatives of Basakha Ram), who was one of the co-parceners, that they had inherited some of the land which stood attached on the death of Basakha Ram and to that extent the executing Court was in favour of the petitioner. He also argued that as per Hindu law, it was the pious obligation of the sons of the deceased to clear his debt and in that eventuality it was for the respondents as legal heirs of the deceased as also the members of the joint family to clear the debt of the deceased. Reliance in support of this assertion has been placed on a decision of this Court in Union of India v. Rajesh Kumar and Ors., (1976)78 P.LR. 456.

As against this the learned counsel for the respondent pointed out (as was contended before the Executing Court) that Basakha Ram alongwith his sons had only 1/36 share in the joint property and any land in excess of that land could not be attached.

I have gone through the submissions of the learned counsel for the parties and the authority cited at the bar.

While construing Article 290 of Mulla''s Hindu Law it was held in Rajesh Kumar''s case supra as under:-

It is, therefore, clear that the Mitakshara Law imposes a duty upon the descendant of a person to pay the debts of the father provided they are not tainted with immorality. Under that law as it now stands, the obligation of the son is not a personal obligation existing irrespective of the receipt of any asset but a liability confined to the assets received by him as his share in joint family property or his interest in the same. The obligation exists whether the sons are majors or minors or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of his sons in the coparcenary property can always way be made liable for such debts."

It is evident from the above quoted observations that the obligations rest on the sons of the deceased whether they are major or minor to discharge the debts incurred by him to the extent they had inherited the property on his death or to the extent of their interest in the Joint Hindu family property.

In the light of the above, it is evident that the respondents who are sons of the deceased were under an obligation to discharge his debt to the petitioner to the extent of the joint family property inherited by them or from the interest which they had already in the joint family property.

In view of the above, the present petition is allowed and the impugned order dated 20.11.1990 is set aside and directions are issued to the executing Court to put the land to auction in execution of the decree. It is stated by Mr. Gupta learned counsel for the respondent that liberty should be given to the respondents/judgment debtors to pay the amount of decree so as to save the land from auction. The offer made by the learned counsel for the judgment debtors is fully justified. In case the payment is made in terms of the decree, the decree would be deemed to be satisfied, but in case the payment is not made within a period of three months from the supply of a certified copy of this order to the Executing Court by either of the parties, the Executing Court will proceed with the execution expeditiously. There will he no order as to costs.

Dasti order.