M.C. Ponnamma and Others vs Aspinwal and Co. Ltd.

Nesaragi, J.—The defendants in O.S No.3 of 1973 in the Court of the Civil Judge. Coorg. Mereara have in this appeal challenged the correctness and legalist of the decree dated 5-2-1976 passed by the Civil Judge.

The facts that are undisputed may briefly be narrated as follows :

One Devayya had three sons Chengappa, Uttayya and Biddayya,. On 10-12-1982 Devayya and Chengappa mortgaged the suit properties to the respondent plaintiff Company under the deed Ex. P as an amount of Rs. 40,0000 or so was due to it an view of some transactions by Chengappa. The plaintiff filed O.S. No. 19of 1984 for recovery of the mortgage amount Preliminary decree was passed on 29-9-1988.

Biddayya expired in the year 1984.

As against the preliminary decree in O.S. No. 19 of 1954. Regular Appeal No 34 of 1956 was filed in this Court. Devayya expired during the pendency of the appeal. This Court passed a decree dated 10-1-1960 as per Ex. P-4 holding that half share in the suit properties belonging, to Devayya and Chengappa was liable to meet the mortgage debt. The plaintiff filed Civil Appeal No. 667 of 1963 in the Supreme Court of India. The Supreme Court dismissed the appeal with a clarification that fight, title and interest of Devayya and Chengappa were the properties mortgaged in the simple mortgage deed and not half share of those properties as held by this Court in R. A. No. 34 of 1956 (Ex. P-5). Plaintiff filed O.S. No. 56 of 1966 on the basis (4 Ex. P-5. Final decree as per Ex. P-6 was 1-assed on 3-11-1966. It executed the same in execution No. 2 of 1969. In the execution proceedings, auction of the right, title and interest of Devayya and Chengappa in the suit schedule properties was held on 5-10-1971 for recovery of the amount decreed in the final decree. In the auction, plaintiff purchased the right, title and interest of Devayya and Chengappa (Ex. P-7).

Plaintiff has now filed the suit for partition and possession of the right, title and interest of Devayya and Chengappa in the suit schedule properties claiming that, by virtue of Ex. P-7, it is entitled to two-third share in the suit properties.

Defendant-1 is the widow of Chengappa who died on 11-11-1968. Defendants-2 to 4 are the sons of late Chengappa and defendant-1. Defendants-5 to7 are the daughters of late Chengappa and defendant-1. Defendants-8 and 9 are minor children of late Chengappa and defendant-1. Defendant-10 is Uthaiah, brother of Chengappa and Biddayya.

The trial court has decreed the suit of the plaintiff in to by granting two-third share in the suit schedule properties.

So far as defendant-10 Uthaiah''s share in the suit schedule properties is concerned, it is clear that the same has been decided long back to the effect that his share in the suit schedule properties was not at all mortgaged to the plaintiff under Ex. P-2. As on the date of the mortgage viz., 10-12-1952, Uthaiah had one-fourth share in the suit schedule properties. To this extent at least his share is not subject-matter of the mortgage Ex. P-2.

The defendants contested the suit on various g1rounds including that the decree in O.S. No. 56 of 1966 and the decree passed earlier against Devayya and Chengappa were not binding on their interest as the mortgage transaction was not for the benefit of the estate or for legal necessity and so on. They also contended that they were not parties in O.S. No. 19 of 1954 and O.S. No. 56 of 1966, the decree was not binding on them and there was no pious obligation on their part to discharge the mortgage debt. Lastly, they contended that their interest in the suit schedule properties having been available to them, particularly defendants-2 to 9 on their birth, could not in law be bound by the mortgage by Devayya and Chengappa and that that liability under the mortgage decree would not further bind defendants 2 to 4.

The question that arises for consideration is whether right, title and interest of Devayya and Chengappa as decreed by the Supreme Court (Ex. P-6) -should in law be determined as available to them on 10-12-1952, the date of the mortgage (Ex. P-2) or as that right, title and interest existed on 5-10-1971, the date of auction in which the plaintiff purchased under Ex. P-7 or as it exists on the date of the present suit viz., 6-1-1973.

Sri P. P. Muthanna, the learned Advocate appearing on behalf of the defendants appellants, strenuously argued that the plaintiffs right to claim partition and possession in the suit schedule properties has arisen because of the purchase in the auction on 5-10-1971 and, as such, that would be the date pertinent for assessing what was the right, title and interest of Devayya and Chengappa as existing on that day and it would be that right, title and interest that the plaintiff could in law claim and, therefore, the plaintiffs suit for partition and possession of two-third share in the suit schedule properties ought not to have been decreed. He argued that in law the right, title and interest of Devayya and Chengappa as on 61-1973, the date of this suit, would be available to the plaintiff, but on the facts of this case there would not be any difference in this right, title and interest of Devayya and Chengappa in between the dates 5-10-1971 and 6-1-1973 as there have been no subsequent births or deaths in the family of Devayya, Chengappa, Uthaiah and Biddayya.

On facts, Sri Muthanna argued that the Supreme Court had made it clear that Uthaiah and Biddayya''s interest or share in the suit schedule properties was not the subject matter of the mortgage and only the right, title and interest of Devayya and Chengappa constituted the mortgage property. He reasoned that this fact and further the fact that shares of Devayya and Chengappa would fluctuate by births and deaths in the family i.e. after 10-12-1952, the right, title and interest of Devayya and Chengappa would also fluctuate and the plaintiff having secured mortgage of such fluctuating interest has to take the consequences of the fluctuation and. therefore, it will be entitled to right, title and interest of Devayya and Chengappa as on the date of the suit filed by it and, if not, at least as on the date of auction 5-10-1971. He heavily relied on Muthukumara Sthapathiar Vs. Sivanarayana Pillai (deceased) and Another, rendered by a Division Bench of the Madras High Court.

It is laid down in Muthukumara''s case that when there is alienation of a coparcener ''s share in the coparcenery property, alienees right is a fluctuating one and the family property as existing on the date of suit should be taken. The two Full Bench decisions of the Madras High Court in Rangasami v. Krishnayyan ILR (1891) Mad 408 and Chinnu Pillai v. Kalimuthu Chetti ILR (1912) Mad 47 have been considered at length by the Division Bench. In Rangasami''s case the Bench consisting of the Chief Justice and three learned Judges has laid down that the share to be awarded to the plaintiff alienee should be computed with reference to the state of the joint family at the date of the suit. In Chinnu Pillai''s case, the Bench consisting of the Chief Justice and four learned Judges has adverted to '' Rangasami''s case. The simple facts before the Full Bench were that a Hindu father mortgaged certain properties of the joint family. A son was subsequently born to the said father. The Bench held that in Hindu Law the alienee of the interest of a coparcener is entitled to enforce his claim against the share to which the vendor was entitled to at the time of the alienation and hence the alienee was further entitled-to proceed against the share of the subsequently born son in the family property mortgaged by the father. The Division Bench in Muthukumara Sthapathiar Vs. Sivanarayana Pillai (deceased) and Another, has, after furnishing reasons, preferred to follow Rangasami''s case (ILR 1891 Mad 408) (FB). These three decisions have accepted the principle-laid down by the Privy Council in Suraj Bunsi Koer v. Sheo Persad Singh, (1878-79) 6 Ind App 88 that alienations of a coparcener''s share are inconsistent with Hindu law. But the fact that such alienations have been permitted to be made and have taken place for a long period of time has been taken note of. In this connection it has been also laid down that the doctrine of ''stare decisis'' would be applicable.

The Full Bench consisting of Chagla. Chief Justice; Gajendragadkar and Tendolkar, JJ. of the Bombay High Court has in Sakarchand Satidas and Others Vs. Narayan Savla Vani and Others, , considered the earlier decisions of the Bombay High Court in Pandurang Anandrav v. Bhaskar Shadashiv (1874) 11 Bom 72, Mahabalaya v. Timaya (1875) 12 Bom H CR 138, Naro Gopal Kulkarni Vs. Paragowda Basagowda, , Shantaya Kotraya Bannadnula Vs. Mallappa Basappa Shettar, and Gurlingappa v. Nandapa ILR (1897) Bom 797. The full Bench has also considered the law laid down by the Madras High Court in Muthukumara''s case Rangasami''s case and Chinnu Pillai''s case. ILR 1912 Mad 47 (FB). Thereafter, it has proceeded to observe that subsequent decisions of the Madras High Court after Muthukumara''s case have preferred the laid down by the full Bench in Chinnu ''s case and, therefore, it was more advisable for the Full Bench to consider the decision, the Bombay High Court itself. After considering the decisions, it has laid down a follows:

" this Court has taken the view that the share of the alienee is to be determined at the date of the alienation. Mr. Joshi says that this is not a logical approach to the question. Possibly he is right. But we must not overlook the fact that as it is we have deported from the strict principle of Hindu law by which a father cannot alienate except for legal necessity any portion of the Joint Hindu family property including his own undivided share. Once we depart from that principle then some workable principle has got to be accepted by which the share of the alliance had to be determined and this Court has accepted it workable principle namely, that the share of the alienee is to be determined at the date of the alienation and not at the time when the alliance asks for an equitable partition. We are impressed by the fact that in taking a contrary contrary view even if the contrary we would be upsetting a series of decisions spread over a considerably long period, and in doing so we would be offending against the doctrine of stare decisis which is always more important Land marc to be respected than and logical doctrine resulting from a particular view it,, to the strict law. Therefore we are of the opinion that Gurlingappa v Nandapa. IL.R 1897 Bom 797 to the extent that it laid (town that the share of the alienee is to be determined not at the date of the alienation but at the moment when the alienee seeks for a partition, was wrongly decided and the other Bombay decisions to which reference has been made rightly decided."

A Division Bench of this Court was in Karappa v. Venkatesh AIR 1962 Mys 160 considering the following simple facts:

A Hindu father executed a mortgage of joint family property as a surety for the discharge of a debt due to a cooperative society from a stranger. The principal debtor having failed to pay the debt the Society obtained an award under the Co-operative Societies Act and the property was sold by public auction for amounts due under the award. Ina suit for partition the son claimed .a share therein on the ground that the sale as not binding on his share.

The Bench laid down as follows

A mortgage decree for sale simpliciter without any personal liability, obtained against a father alone on a mortgage of the joint family property created by him for it purpose not binding on the family. is not binding on the son''s share by the application of the principle of pious obligation: but sale held of the joint family property in execution of such a decree is binding on the son''s share. The reason is that the transaction of mortgage, is not merely an alienation but also debt and consequently a decree on the mortgage would also comprise the debt included in the mortgage. If a mortgage by a fat her can be an antecedent debt to sustain a Subsequent sale of the property by the father to discharge the mortgage conveying not only his own but also his son''s interest therein, there could be no difficulty either in logic or on principle in a mortgage decree being antecedent debt to sustain a subsequent sale in execution thereof to discharge the decree debt conveying the interests of both the Judgment-debtor father and his son. It is on this basis that the word debt occurring in the second proposition laid down in Brij Nararain''s case AIR 1924 PC 50 would comprise not merely a simple money debt but also a mortgage debt."

A Full Bench consisting of Satyanarayana Rao, Panchapagesa Sastri, Viswanatha Sastri, Raghava Rao and Panchapakesa Avyar, JJ. has, in K. Peramanayakam Pillai Vs. S.T. Sivaraman and Another, considered the two earlier Full Bench decisions of the Madras High Court and laid down as follows

The share or in other words the fraction of the share which the alliance acquires is unalterably fixed on the date of the alienation and. is not subject to fluctuation either by subsequent births or deaths in the family and, in all respects his rights must be determined arid equities worked out as on the date of the alienation."

This Full Bench has considered the judgments rendered by the Bombay High Court, the earlier decisions of the Madras High Court and the decisions of the other High Courts.

The affricated decision of the Full Bench of the Madras High Court has been followed by a Division Bench of this Court consisting of Bhimiah, J. and Venkataramiah, J. as he then was in Mahadeva Bhat v. Govind Bhatta, R.F.A. No. 74 of 197 1, disposed of on 7- 11- 1973. It is clearly laid down that the share of the alienee in the property alienated is unalterably fixed as on the date of the alienation and is not subject to fluctuations by subsequent births.

What is clear is that all the eminent Judies who have been parfiiesi6 the decision the affricated cases have borne in, mind the observations made by the Privy Council in Suraj Bunsi Koer''s case ((1878 6 Ind App 88) that an alienation by a coparcener of his interest in joint family properties is inconsistent with strict theory of joint and undivided Hindu family-and also the fact that this theory or principle has been departed from and that departure has held tic field in view of - the decisions spread over a considerably long period.

The Full Bench of the Madras High Court has in K. Peramanayakam Pillai Vs. S.T. Sivaraman and Another, disagreed with the law laid down in Muthukumara Sthapathiar Vs. Sivanarayana Pillai (deceased) and Another,

We have not found any sound reason to depart from the law laid down by two Division Benches of this Court in Karappa''s case (AIR 1962 Mys 260) and Mahadeva Bhat''s case (R.F. A. No. 74-of 1971).

At this stage, Sri Muthanna pointed out that as on the date of the mortgage 10- 12-1952, not only Biddayya was alive, but Chengappa also had his Wife and his sons defendants 2 to 4 were also born. Therefore, even as on the date of the mortgage, Chengappa''s right, title and interest ought to have been calculated on this basis bearing in mind that defendants-2 to 4 had already got their interest in the joint family properties which are the suit schedule properties. This argument of Sri Muthanna is based on the ages of defendants-2, 3 and 4 as provided by the plaintiff in the cause-title to the plaint. On the other hand, Sri B. V. Acharya pointed out that defendant-4 would have been born only in the year 1954 and not earlier as his age is shown as 19 years in the plaint.

Defendant-1 widow of Chengappa was not at all entitled to a share in the coparcenery property as on 10- 12-1952. Only defendants-2 and 3 who appear to have been born in the year 1948 and in the year 1949 respectively would have their interest in the coparcenery property i.e. the suit schedule properties. We see no reason why this aspect of the matter should not be taken into consideration when the plaintiff has provided the necessary material in the plaint. When worked out, Chengappa''s right, title and interest in the suit properties as on 10-12-1952 would be one-twelfth. Devayya''s right, title and interest as on that date would be one-fourth. The plaintiff would be entitled to partition and possession of one-third share in the suit schedule properties.

The argument of Sri Acharya is that the plaintiff has, in the plaint averments, specifically made out that it is entitled to two-third share in the plaint schedule properties and that substantial averments had not been denied by the defendants and, therefore, it would not lie in their mouth to contend otherwise. In our considered opinion, it is sufficient to state that we are not impressed by this argument as the conclusion is to be reached by considering the law on the question and not on the principles governing averments and denials in the pleadings.

Sri Muthanna''s contention that plaintiff has on 5-10-1971, purchased, in public auction, right, title and interest of Devayya and Chengappa and, therefore, has become the owner of that property from that date under Ex. P-7. Its rights as mortgage and the liability of Devayya and Chengappa as mortgagors ceased to exist by that date when the mortgage transaction evidenced by Ex. P 2 got wiped out and, therefore, the law that the right, title and interest of Devayya and Chengappa as on 10-12-1952 was the property mortgaged, would be of no avail to the plaintiff to secure even one-third share in the suit schedule properties.

How we understand this argument of Sri Muthanna is that the alienation of right, title and interest of Devayya and Chengappa as it took place on the date of auction 5-10-1971 is to be taken into consideration and not the alienation by way of mortgage on 10-12-1952 and the law as accepted by the two Division Benches of this Court has to apply with reference to the date 5- 10-1971 and not 10-12-1952.

Sri B. V. Acharya countered this argument by urging that the property sold in the auction on 5-10-1971 was the mortgaged property and that mortgaged property has been settled by the Supreme Court as right, title and interest of Devayya and Chengappa and, therefore, -the right, title and interest of Devayya and Chengappa as available on 10-12-1952 was sold and it is that property that was purchased by the plaintiff.

The Supreme Court in S.M. Jakati and Another Vs. S.M. Borkar and Others, , has, on the question what passes at a Court sale, held as follows:

"Where the right, title and interest of a judgment-debtor are set up for sale in execution of a decree 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 and did buy and what he paid for."

It is on the same lines that the Supreme Court has again laid down in Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, . The facts relevant for our purpose are that one Sivayya purchased at an auction sale the share of the four sons of Narasimhaswami in the joint family properties. At the date of the auction sale that share which was originally four-fifth had been reduced to two-third because of the birth of another son Venugopal to Narasimhaswami. This Venugopal had not been made a party either to the suit or the execution proceedings. The Supreme Court laid down as follows:

"It is irrelevant to enquire whether after his birth the fifth son''s share could be proceeded against in the execution of the decree in suit No. 9 of 1933. It is enough to say that that was not in fact done. What was purchased at the execution sale was only the shares of Venugopal''s four brothers at the date of the sale and this was 2/3rd. That being so, we think Sivayya was not entitled to get Venugopal''s 1/6th share also allotted to him in the partition suit."

Now, it is to be decided what, in fact, was sold by auction on 5-10-1971. It is undisputed that right, title and interest of Devayya and Chengappa was sold and purchased by the plaintiff. The property brought to sale was the property in regard to which a decree was passed in O.S. No. 56 of 1966 (Ex. P-6). That property has been identified as the property mortgaged on 10-12-1952 by Devayya and Chengappa to the plaintiff. The Supreme Court has, as per Ex. P-5, held that the property so mortgaged under Ex. P-2 was right, title and interest of Devayya and Chengappa. Therefore, there is no difficulty in finding out what was the property that was sold by public auction on 5-10-1971. The property sold was the property mortgaged by Devayya and Chengappa on 10-12-1952. In, view of this, the date of alienation that has to be taken into consideration is 10-12-1952 and not 5-10-1971.

The Privy Council has stated the law on this question as follows in AIR 1940 11 (Privy Council) "While the purchaser at an execution sale under a mere money decree gets no more than the right, title and interest of the judgment-debtor at the date of the sale the purchaser under a mortgage decree gets the right, title and interest in the mortgaged subjects which the mortgagor had at the date of the mortgage and charged thereby. Buying the mortgaged property free from incumbrances he gets, as it is sometimes put, the titles both of the mortgage and of those interested in the equity of redemption. He is not a mere successor-in- interest of the owner of the equity of redemption at the date of the sale.

In the result, the decree passed by the trial Court has to be modified considerably. Hence, this appeal is partly allowed. The decree passed by the trial Court is modified only to the extent that the plaintiff is entitled to partition and possession of one-third share in the suit schedule properties and to future manse profits on this share from the date of suit till the date of delivery of possession to be enquired into separately under Order 20, Rule 12, C.P.C. In the facts and circumstances of this case, each party to bear his/its own costs throughout.

Appeal partly allowed.