Ramtahal Thakur vs Jagtanand Jha and Others

Das, J.—In this suit the plaintiff claims to recover possession of 34 bighas of raiyati lands on the allegation that he purchased these lands on the 3rd September, 1&24, at a Court sale held in execution of a rent decree obtained by defendant No. 2 against defendant No. 3 and was dispossessed therefrom in April, 1925, by defendant No. h The Courts below have decreed the plaintiff''s suit and the defendant No, 1 appeals to this Court.

Shortly stated the facts are these: Defendant No. 4 was undoubtedly the landlord qua the disputed land; and defendant No. 3 was the tenant under the landlord. On the 8th September, 1913, defendant No. 4 executed a mortgage in favour of defendant No. 2 in respect of his gemindari interest in the mauza. The mortgagee sued on the mortgage, obtained a decree in due course and on the 7th May, 1920, purchased the mortgaged properties at the sale held in execution of his own decree. He obtained delivery of possession on the 6th July, 1920. Thereafter he instituted a rent suit against defendant No. 3. He obtained a decree in due course and caused the disputed 34 bighas of raiyali lands to be put up for sale, On the 3rd September, 1924, the plaintiff purchased these 34 bighas at the rent sale and he says that in March, 1925, he obtained delivery of possession of these lands. Defendant No. 1 is the son of defendant No. 4 the original proprietor and he dispossessed the plaintiff in April, 1925.

Upon the facts stated there is no defence which defendant No. 1 can possibly offer except that the debt incurred by his father was an immoral or an illegal debt and was, therefore, not binding on him. He did not however, contest the suit on that ground but he contested the suit substantially on the ground that there was no legal necessity to support the transaction of the 8th; September, 1913. We are, however, not concerned in this litigation with the transaction of the 6th September, 1913. Much has happened since then and one of the most important events that has happened is that the property has definitely gone out of the possession of the joint family and that the plaintiff has purchased those properties at the sale held in execution of a rent decrees. In fact there have been two sales (1) in. execution of the mortgage-decree obtained by defendant No. 2, and (2) in execution of a rent-decree obtained by defendant No. 2; The defendant-appellant insists that he is still entitled to raise the question of legal necessity in this litigation.

It was laid down in Suraj Bunsi Kuer v. Sheo Pershad Singh 5 C. 148 : 4 C.L.R. (Sic) 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 debt, cannot recover that property unless they show that the debts were contracted for immoral purposes, and that the. purchasers had notice that they were so contracted. In the later case of Nanomi Babuasin v. Modhun Mohan (sic) the whole question was investigated with great care by Lord Hobhouseand he pointed out that "Destructive as it may be of the principle of independent co-parcenary rights in the sons, the decisions have for sometime established the principle that the sons cannot set up their right against their father''s alienation for an antecedent debt or against his creditor''s remedies for their debts, if not tainted with immorality."

Mr. C.C. Das appearing on behalf of the defendant-appellant contends that the proposition as laid down in Lord Hobhouse''s judgment only applies where a stranger purchases the disputed properties. Now this concession is in favour of the case of the plaintiff for qua the purchase by defendant No. 2 at the sale held in execution of his mortgage-decree, the present plaintiff is a stranger. The plaintiff has no notice whatever of the transaction of the 8th. September, 15513, which culminated in the decree passed in the mortgage action. He purchased the disputed properties subsequently; that is to say, at the sale held in execution of the rent-decree obtained by defendant No. 2 against defendant No. 3 so that it must follow that the plaintiff has no notice whatever as to the nature of the transaction of the 8th September, 1913.

But, in my opinion, the question really does not arise, It is established by numerous decisions that if the debt be one which the son is under a pious obligation to pay, and it is not disputed that the son is under a pious obligation to discharge every debt contracted by the father unless it is an immoral debt or an illegal debt, the son cannot set up his rights against the alienation made by the father to by off those debts. Mr. C.C. Das, very ingeniously contends that in this litigation he is not setting up his rights as against the debt contracted by the father but that he is setting up his right as against the alienation made by the father. In my opinion the argument is not entitled to succeed. It is conceded that if the debt was one which was binding upon the son the father might have alienated the property to pay off that debt and the son would have no remedy whatever'' as against the purchaser. It is conceded that if the mortgagee had framed his suit in such a way that it left it open to have to proceed on the debt as against the entire joint family properties including the mortgaged properties the present defendant as the son of defendant No. 4 would have no remedy whatever. But it is contended that because the suit was one to enforce the mortgage it is still open to the defendant to raise the question in the form in which he has raised it. For the reasons which I have given, I do not, think that the defence is available to the defendant.

I would dismiss this appeal with costs.

Wort, J.

I agree.