Ram Swaroop Mahto and Another vs Durga Mahto and Others

Ravi Nandan Sahay, J.—In the suit out of which this Second Appeal has arisen, the Appellants were Plaintiffs and Respondents were Defendants and in that suit the two material issues were, first, whether the auction sale dated 7.3.1975 and delivery of possession dated 25.8.1977 are legally invalid and not binding on the Plaintiffs, and secondly, whether the Plaintiffs had title and possession over the disputed suit land.

The salient facts of the case are not in dispute. The only question raised is purely question of law-the maintainability of the action brought by the Plaintiffs who have been non-suited by the trial Court and decree affirmed by the Court of appeal.

The facts of the case are as follows. Bhageru Mahto, father of the Appellants in the capacity of karta of joint family property, brought Title Suit No. 94 of 1948 in the Court of Munsif, Biharsharif for declaration of title and recovery of possession in respect of 0.03 acres of land forming part of plot No. 1616 of village Balb-hadrasarai. The suit was decreed with costs. The Decree holder levied Execution Case No. 54 of 1974 for the execution of cost awarded by the appellate Court and in execution 0.28 acres of land of joint family were auction sold and purchased by the Decree-holder. On 2.6.1975 sale certificate was issued. The Appellants (Sons of judgment debtor) filed an application under Order 21 Rule 90 of the CPC for setting aside the auction sale. The Executing Court directed the Defendants to deposit 12-1/2 percent of the sale money which he failed to deposit. The application under Order 21 Rule 90 CPC was dismissed for default. The appeal was filed against the said order which was held to be not maintainable. The sale was affirmed and delivery of possession was effected to the Decree-holder. The Respondents are sons and grand sons of auction purchaser, Faujdari Mahto.

In the present suit the Appellants impugned the competence of their father to bring Title Suit No. 94 of 1948 referred to above in which portion of co-parcencery property was sold. They contended that the father fought a litigation which was not for the benefit of joint family and in any view the auction purchaser could not be given delivery of possession without first obtaining a decree for partition.

The Defendants contended that the suit was barred by limitation. They further contended that even if suit was contested as karta the cost incurred in litigation was a legal debt Which the Appellants were bound to discharge and the same was binding.

The Court of appeal below found that the previous suit was to protect/defend joint ancestral property. The cost incurred could not be characterised immoral. The decree was binding on the heirs of judgment debtor. The Appellants, in my opinion, did not effectively raise the question whether the previous suit was really intended to protect the joint family property or was a useless litigation. If the suit itself was not for legal necessity, cost incurred could not be said to be legal necessity and there is no pious obligation of the sons to discharge the debt. Another question exists as to whether the cost can be said to be debt.

Mr. Indu Shekhar Prasad Singh, learned Sr. Counsel for the Appellants has strenuously put forward the case of the Plaintiffs and submitted that the delivery of possession to the auction purchaser was absolutely invalid because it was incumbent upon the decree holder first to bring a suit for partition of his share in the coparcenery properties. This contention is no doubt supported by large number of authorities.

In Baboo Hurdey Narain Sahu v. Baboo Rooder Perkash Missir, 11 Indian Appeals, 26, the Judicial Committee of the Privy Council ruled that even if an auction purchaser had taken possession of any part of the joint family property following his purchase in the execution case undivided interest in the joint family property of the judgment debtor co-parcener, he (auction purchaser) can be thrown out of possession of that property at the instance of other co-parceners, possession can only be taken by the auction purchaser afther the share of the judgment debtor Co-parceners is determined in partition. Their Lordships referred elaborately in the case of Deendyal Lal v. Jagdeep Narain Singh, 4 Indian Appeals, 247, where it was held that the member of a Hindu Joint family other than judgment debtor can recover possession of the entire property including the share of the judgment debtor co-parcener from the auction purchaser, though the auction purchaser is duly entitled to partition and then possession of the judgment debtors share in the property. This view was re-affirmed in the case of Medni Prasad Singh v. Nand Keshwar Prasad Singh 2 ILR Pat 356 and Nanjaya Mudali and Ors. v. Shanmuya Mudali and Ors. AIR 1914 Mad 440. In an unreported decision of this Court in S.A. No. 492 of 1966 (Bindeshwar Prasad Garain v. Kedar Singh decided on 16.1.1969, Mahapatra, J. in an identical situation allowed the claim of the Plaintiff for recovery of possession of the entire suit property from the Defendants-auction purchaser and gave liberty to the auction purchaser to bring a suit for partition.

Mr. Vidya Sagar, learned Counsel for the Defendants has argued that the Plaintiffs'' suit was bound to fail because admittedly they are out of possession and in the plaint there is no prayer for recovery of possession. He has referred to Section 34 of the Specific Relief Act and Ram Saran and Another Vs. Smt. Ganga Devi, .

Mr. Indu Shekhar Prasad Singh, learned senior counsel for the Plaintiffs has referred to para-6 of the written statement which is in Urdu and submitted that the Plaintiffs had prayed for recovery of possession although the Court fee had not been paid on the valuation of the suit property but only declaratory Court fee had been paid.

The effect of sale of coparcenary property in execution of decree against father alone was first expounded by the Privy Council in Muddan Thakoor v. Kantoo Lall, 1 I.A. 321. The judgment in that case was summarized by their Lordships in Suraj Bunsi Koer v. Sheo Prasad 6 I.A. 88 in the following terms:

(a) That where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt or under a sale in execution of a decree for the father''s debt his sons, by reason of their duty to pay their father''s debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes, and that the purchaser had notice that the debts were so contracted; and (b) that the purchasers at an execution sale, being strangers to the suit, if they have not notice that the debts were so contracted, are not bound to make enquiry beyond what appears on the face of the proceedings.

The following passage from the judgment of the Privy Council in Mst. Nanomi Babuasin v. Modhun Mohun, 13 I.A. 1, has now become classical:

Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father''s alienation for an antecedent debt, or against his creditors'' remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate their Lordships think that there is now no conflict of authority.

Mulla has dealt with this topic in para-294A of Principles of Hindu Law Fifteenth Edition as under:

...The sons being under a pious obligation to pay the father''s debt, cannot object to the attachement of their interest in the property on the ground that the debt was not for the benefit of the family. Nor can they object on the ground that they were not parties to the suit in which the decree was passed. Prima facie a decree obtained against A cannot be executed by attachment and sale of B''s property. But the position of sons in a joint Hindu family is, by reason of their pious duty to pay their father''s debt, very different from that of an ordinary third party. The sons being under a pious obligation to pay the father''s debt, the entire joint family property is liable to be attached and sold in execution of the decree against the father, unless they show that the debt for which the decree was passed was incurred by the father for an immoral or illegal purpose or successfully challenge the existence of the debt on which the decree is based.

There are two courses open to the sons. They may come in under Order 21, Rule 58 of the Code of Civil Procedure, 1908, and object to the attachment and sale on either of the grounds mentioned above. The party against whom the order is made will then, under Order 21, Rule 63, be entitled to bring a suit in which the whole question as to whether there was a debt or not, or whether it was immoral or not, will be determined. If no such suit is filed within one year from the date of the order, the order will be conclusive. The sons, however, are not bound to proceed under Order 21, Rule 58. They may bring a suit against the decree-holder for a declaration that they are not bound by the decree and for an injunction restraining the decree-holder from selling the entire property, but their share will not be released from attachment, unless they show that the debt for which the decree was obtained was tainted with immorality. And in such a suit ad valorem Court fees must be paid....

The controversy in the present case is concluded by the decision of the Supreme Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, . B.K. Mukherjea, J. as His Lordship then was, speaking for the Court laid down the laws as follows:

(6) so far as the first point is concerned, the question whether the sons of Defendant No. 1 were liable in law to discharge the decretal debt due by their father could be answered only with reference to the doctrine of Mitak-shara law which imposes a duty upon the descendants of a person to pay the debts of their ancestor provided they are not tainted with immorality.

This doctrine, as is well-known, has its origin in the conception of Smriti writers who regard non-payment of debt as a positive sin, the evil consequences of which follow the undischarged debtor even in the after-world. It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their father''s debts. The doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions. Under the law, as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets; it is liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor 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 the sons in the coparcenary property can always be made liable for such debts.

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Such family debt, however, stands on quite a different footing from a personal debt, contracted by the father which does not benefit the family. The liability of his sons to pay such debt does not rest on the principle indicated above, according to which the junior members of a family are made to pay the family debts. 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. There is no authority to show that it is in any way dependent upon the constitution of the family either at the time when the debt was contracted or when the obligation is sought to be enforced. On the other hand, the subject of debts has been dealt with by the author of Mitakshara quite separately and it has apparently no connection with the provisions made by the author relating to inheritance and constitution of the family....

It was further held as follows:

...Be that as it may, the money decree passed against the father certainly created a debt payable by him. If the debt was not tainted with immorality it was open to the creditor to realise the dues by attachment and sale of the sons coparcenary interest in the joint property on the principles discussed above....

Mr. Indu Shekhar Prasad Singh, learned Counsel for the Appellants has based his arguments with reference to para 11 of the report that all that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his rights to possession would date from the period when a specific allotment was made in his favour. This case, however, was decided on the basis of decision in the earlier part of the judgment of the Supreme Court as discussed above.

The Appellants have not paid ad valorem Court fee and hence they are not entitled to decree for recovery of possession as brought in the plaint. The suit is also barred by limitation.

In the result, this appeal must fail and is accordingly dismissed but without costs.