Rangayya Chetti vs Thanikachalla Mudali and Others

Subramania Ayyar, J.—The plaintiff, as purchaser under a sale deed dated 24th February 1894, executed by the Official Assignee, claims

possession of the house in dispute, which admittedly was the family property of the defendants, of whom the second defendant is the younger

brother and the other defendants sons of the first. He rests his claim on the grounds that the second defendant being a leper is not entitled to any

share in the property and that even if he was entitled, the debts with reference to which the first defendant was declared insolvent were incurred by

him for purposes binding upon all the defendants. As to the relief the plaintiff prays in the alternative, that should it be held that the plaintiff is not

entitled by his purchase to the possession of the entire property, but that he became entitled to an interest less than the whole, the same be

ascertained and that on due partition being made, such share be ordered to be delivered to him, or if that be found impracticable the whole house

be sold and such portion of the sale-proceeds as represents his interest be ordered to be paid to him.

The first and the third defendants are dead. The second defendant denies that the disease which it is now admitted he has been suffering from is

of such a character as to entail forfeiture of his rights and that the debts referred to in the plaint are binding upon him. The fourth and fifth

defendants also raise a similar contention as to the debts.

Three issues were raised. The first relates to the extent of the interest which passed under the sale and the second and the third to the second

defendant''s disease and its effect, if any, upon his right to the property in dispute.

It will be convenient to deal first with the last two. That the second defendant''s disease is leprosy is not now disputed. But that disease is

regarded by the Hindu law as a disqualification entailing forfeiture of rights only when it appears in a virulent and aggravated form. Muttuvelayuda

Pillai v. Parasakti Sudder Reports of 1860 p. 239; Janardhan Pandurang v. Gopal Pandurang 5 B.H.C.R. 145; Ananta v. Ramabai ILR 1 Bom.

554; Mohunt Bhagaban Ramanuj Das v. Mohunt Roghunundun Ramannj Das L.R. 22 IndAp 94. Consequently the plaintiff has to make out that

the disease is of that particular description which leads to loss of rights. With reference to this matter the plaintiff called as a witness Mr. Haller, a

medical practitioner, who had been in subordinate charge of Leper hospitals for many years and who appears to have made the disease a subject

of special study; the witness states that the form from which the second defendant suffers is of the slowest type, that it expends itself in the

extremities of the hands and the feet, and that it is of the least disfiguring kind. I am of opinion, therefore, that the second defendant''s disease is not

virulent and it hence does not affect his coparcenary rights.

Now as to the first which is the remaining issue and which relates to the extent of the interest acquired by the plaintiff under the sale to him, two

questions have to be considered.

The first is whether the Official Assignee was in law entitled to convey not only the interest of the first defendant the insolvent, but also that of his

coparceners the other defendants. On behalf of the plaintiff it was contended that he was, and Fakirchand Motichand v. Motichand Hurruckchand

ILR 7 Bom. 438 was referred to as a distinct authority in favour of that contention. There it was held by Latham, J., that the right which entitles a

father governed by the Mitakshara law to dispose of his son''s interest in ancestral Immovable estate for the payment of his own debts not incurred

for immoral purposes, is, on a vesting order being made on the father''s insolvency, vested, u/s 7 of the Indian Insolvent Act, in the Official

Assignee who can consequently give a good and complete title to such ancestral Immovable estate to a purchaser. The learned Judge considers

that the father''s right of disposal is not a '' power '' within the meaning of Section 30 of the said Act, which in his opinion applies to powers in the

ordinary legal sense of the term created by will or instrument inter vivos, but that it falls more appropriately within the words in Section 7 under

which all the real and personal estate and effects of the insolvent and all his future estate, right, title, interest and trust in or to any real or personal

estate or effects (with certain specified exceptions immaterial for the present) vest in the Official Assignee. To put it shortly the learned Judge''s

view amounts to saying that the son''s share in the ancestral estate is property available for the realization of the father''s debts not shown to be

immoral. A substantially similar conclusion was arrived at in Jagabhai Lalubhai v. Bhukandas Jagjivandas ILR 11 Bom. 37 where West and

Birdwood, JJ. held that the father''s right referred to above was covered by the words of Section 266 of the CPC laying down what property is

liable to attachment in execution of a decree. West, J., who delivered the judgment of the Court referring to this point observes: ""The District Judge

has relied on Section 266 of the CPC which says that the property subject to attachment must be such as the judgment-debtor could dispose of

for his own benefit. This is the direction, no doubt, but it does no more than state a general principle which, though the section is not referred to,

must have been present to the minds of the Judicial Committee. Their Lordships thought probably that the father could dispose of the family estate

for his own benefit at least prima facie and subject only to the rights on which the sons could rely in particular cases."" Jagabhai Lalubhai v.

Bhukandas Jagjivandas ILR 11 Bom. 37 . If this conclusion were erroneous, the innumerable cases including the leading decisions of the Judicial

Committee on the point, wherein the interest of sons was held to have passed by a sale in execution of decrees obtained against the father alone,

must be considered to have been wrongly decided, a contention which is impossible at all events at this time of the day. Fakirchand Hotichand v.

Motichand Hurruckchand ILR 7 Bom. 438 relied upon on behalf of the plaintiff is therefore a direct authority in favour of his contention, so far as

the third and fifth defendants, the surviving sons of the late first defendant, are concerned. Nor as to the second defendant am I able to see any

sound distinction in principle between his case and that of the other defendants just referred to. For if the son''s share is property which the father

has power to dispose of for his own benefit in the restricted sense explained by West, J., in the passage quoted above, how can the share of any

other undivided coparcener, which the managing member can convey for debts incurred by him for legal necessity, be treated differently? No

doubt there is difference in the proof to be adduced as to the character of the debt in the two instances. But the essential element that the shares

other than that of the transferee are liable to be proceeded against for the transferor''s debt is common to both the cases. I must therefore hold that

the Official Assignee has in law power to transfer not only the share of the insolvent, but also those of his coparceners, whether they be his sons or

brothers or other collaterals, provided of course the debts for which the property is disposed of are shown to have been incurred for purposes

binding upon them.

The second question, therefore, to be considered with reference to the issue under discussion is, were the debts incurred for such purposes?

The case of the third and the fifth defendants is easily disposed of, as they have failed to prove that any of the debts which led to their father being

adjudicated an insolvent was incurred for immoral purposes. It is quite true that the evidence of Baggyam called by the defendants satisfactorily

establishes that the late first defendant kept her for nearly ten years from 1885 up to his death, and spent upon her considerable sums of money.

By such proof alone, however, the said defendants cannot be said to have discharged the onus thrown on them by law as they should connect the

particular debt, about which the dispute exists, with the immorality of the father. In this case not only has that not been shown, but there is positive

evidence on behalf of the plaintiff which proves that the debts in question had nothing to do with the immoral life of the late first defendant. The

second defendant''s case, of course, rests on a different ground. As to him, unlike the case of the sons, the burden of proof as already suggested is

on the plaintiff who must affirmatively make out that the debts were incurred for the necessary purposes of the family. Has this been shown? Before

considering this question, I ought to notice the contention urged by the plaintiff''s vakil in his reply to the effect that the second defendant, not having

expressly traversed the averments in the plaint as to the character of the debts, is not now entitled to say they are not binding upon him. This

contention is clearly untenable. In the first place there is nothing to show that the defendant admitted that the debts were incurred for family

purposes. Secondly, the first issue is wide enough to raise the point, and in fact the whole trial proceeded upon the distinct footing that this question

was one of the points to be established by the plaintiff who accordingly adduced evidence on it. Now in the evidence thus adduced only three

debts are referred to. The first is a sum of money lent by the plaintiff to the first defendant. Theruvengada, plaintiff''s second witness, states that the

first defendant became a surety for one Shanmuga Mudali with reference to certain moneys borrowed by the latter from the Bank of Madras and

as Shanmugam failed to pay the Bank, the first defendant incurred the debt in question to enable him to discharge his obligation to the Bank.

Whether in the interests of the family it was necessary for the first defendant to become Shanmugam''s surety has not been shown, and the debt in

question cannot therefore be held to be binding on the second defendant. The two remaining debts are similar in character and the circumstances

connected with them are these. The first defendant Theruvengada referred to above and Virasami, plaintiff''s first witness, jointly executed about

1888 certain works under the Public Works Department and made profits. But as the first defendant received the whole of the profits and withheld

from Theruvengada and Virasami their shares thereof, they sued and obtained against him decrees for the sums so due to them. Beyond the oral

testimony of these two persons, there is no evidence on the point. No portion of the record in the suits in which the said decrees were passed has

been exhibited in this case. Nor does it appear why Virasami and Theruvengada allowed the first defendant to take away moneys due to them. The

evidence shows that from 1886, i.e., a considerable time before the three became partners in connection with the said works, the first defendant

ceased to live with the other members of the family including the second defendant and had been residing elsewhere with his concubine Baggyam

already referred to. That the first defendant lived not only an immoral, but an extravagant life from the time he took the said woman into his keeping

in 1885 seems tolerably clear from her evidence. And even though I am not prepared to say that no share of his earnings as a contractor under the

Public Works Department went to the support of his children and the second defendant, who remained in the family house, I am unable to hold

that the debts due to the two individuals in question arose from family necessity. Baggyam says that during all this time Theruvengada lived with the

first defendant in the same place in which he and she resided. I cannot treat one in such a position as a bond fide creditor in respect of a sum of

money which he ought never to have allowed the first defendant to appropriate to his own use especially as against the second defendant from

whom the first defendant was living separately without any fault on the part of the former (second defendant). The case of Virasami is not the same

as that of Theruvengada in this respect, but at the same time as against him also, 1 fail to see why the second defendant should be held responsible

for moneys which are not shown to have been appropriated for the purposes of his family and towards the misapplication of which by his elder

brother, he in no way contributed. I must therefore hold that the plaintiff has failed to establish that any of the debts relied on by the plaintiff is

binding upon the second defendant, whose interest in the house in dispute, therefore, remains unaffected by the sale to the plaintiff.

The result is there must be a decree in favour of the plaintiff for a moiety of the house which will be sold and (she plaintiff''s moiety of the sale-

proceeds paid to him. Both parties are permitted to bid for the property at the sale. The rest of the claim is disallowed. The plaintiff must pay the

second defendant''s costs, and the third and fifth defendants will pay those of the plaintiff.