Sm. Jamuna Devi vs Mangal Das and Others

Manohar Lall, J.—In this appeal by the plaintiff an interesting question of Hindu law arises for consideration. The facts are these. On 7th October 1922 defendants 4 to 6 gave a reban of the disputed property to the joint family consisting of defendant 2, Naunit Lal, the father, and defendant 3, Lachmi Narain, the son. Defendant 1, Mangal Das, advanced certain sum to defendant 2 on the basis of a handnote dated 17th February 1937 and obtained a decree on the basis thereof on 13th May 1940. In execution of that decree which was started on 11th December 1940 he attached the disputed house on 11th March 1941 and became the auction-purchaser on 19th May 1941. The sale was confirmed on 19th November of that year.

On 15th April 1940 the son had instituted a suit for partition against the father in which he made the plaintiff, the wife of defendant 2, a party, because the parties being governed by Mitakshara School of Hindu law, the mother was entitled to a share on partition being actually effected. The preliminary decree was passed on 6th December 1940 and the Commissioner submitted his report as to the allocation of the properties of the joint family on 12th May 1941 and the final decree in the partition suit was made either in June or July 1941. Upon these allegations the plaintiff, Jamuna Devi, wife of Naunit Lal, instituted a suit on 29th November 1941 for a declaration that defendant 1 had no right to attach and sell the disputed property which was in the exclusive possession and occupation of the plaintiff from before the attachment in the money decree of defendant 1 as the result of a partition, and that the sale of 19th May 1941, was wholly ineffective against the plaintiff it should be stated here that defendant 1 in execution of his decree purchased the mortgagee''s rights which were vested in the joint family. The trial Court did not accept the contention of defendant 1, who was the only contesting defendant, that the partition suit and the proceedings therein were collusive and fraudulent. The effect of the allotment of the house to the plaintiff in the partition decree was thus summed up by the learned Munsif:

Until the passing of the final decree, no right o� enjoyment of ownership in the property in dispute accrued to the plaintiff. I have already stated above that the auction sale was prior to the passing of the final decree and therefore at a time when, the right of separate enjoyment of property in dispute accrued to the plaintiff, the property had already passed on to the defendant and it ceased to be a part and parcel of the joint family property which could form the subject of the partition.

He believed the case of the defendant that he was in possession of the property in dispute and that the plaintiff had not been in possession as was alleged by her. The lawyer of the defendant had urged before the trial Court that as the debt was a pre-partition debt, the plaintiff was liable for it, but the learned Munsif refused to extend the doctrine of pious obligation to the wife, although he gave the finding that the particular debt on the basis of the hand-note could not be said to be tainted with immorality or illegality. Accordingly he dismissed the plaintiff''s suit. In appeal the learned Subordinate Judge came to the same conclusion. He points out that in the plaint the validity of the decree obtained by defendant 1 in the money suit against defendant 2 was challenged on the two grounds that it was collusive and that the debt on the hand-note was contracted for immoral purposes.

On both these questions of fact the learned Subordinate Judge agreed with the trial Court so that it must be held that the loan, for the recovery of which the money suit was filed, was taken by defendant 2 as the managing member of the family, and that the decree which was obtained in the money suit was binding on all the members of the joint family, and, therefore, the disputed property which formed a part and parcel of the joint family property was liable to be sold in execution of that decree.

The learned Judge further pointed out that although this was a pre-partition debt, no provision was made for the payment of this debt in the partition decree. In this view he accepted the argument advanced on behalf of the defendant that the defendant first party was entitled to proceed against the disputed property for the realisation of his decretal dues even though the house has been allotted to the patti of the plaintiff. The learned Judge relied upon the case in Bankey Lal and Others Vs. Durga Prasad and Others , which lays down that when a simple money debt binding on the entire family remains unpaid, and the members of the family enter into a partition without making any provision for the payment of the family debt, the creditor may enforce the payment of his debt by proceeding against the properties received by partition by the several members of the family. The learned Judge goes on that in the present case the disputed property passed into the hands of the defendant first party by a court sale before the plaintiff acquired her exclusive right in it by virtue of the final decree passed in the partition suit, and, therefore, the subsequent allotment to the plaintiff would not defeat the prior title which had vested in defendant 1 by his previous auction sale. The learned Subordinate Judge refers to the decision of the Bombay High Court in Raoji Bhikaji Kondkar Vs. Anant Laxman Kondkar, , in support of the view taken by the learned Munsif and observes:

In this Bombay case one B died leaving a widow Y, a son B, and a grandson A. A brought a suit for partition and possession of his one-half share in B''s estate joining Y and b as defendants. A preliminary decree was passed holding that Y was entitled to one-third share, but Y died before any final decree could be passed. It was held that until the actual partition was effected no share in B''s estate passed to the ownership of Y and therefore the share assigned to her remained an integral part of the estate available for division among the heirs of her husband.

In the conclusion the learned Subordinate Judge dismissed the appeal. Hence the second appeal to this Court. The learned advocate on behalf of the appellant was not in a position to challenge the correctness of the view adopted by the Courts below where they placed reliance upon the principle of Raoji Bhikaji Kondkar Vs. Anant Laxman Kondkar, , which followed the decision of the Allahabad High Court in Beti Kunwar v. Janki Kunwar (11) 33 All. 118. These two decisions were approved by the Judicial Committee as correctly representing the Mitakshara law on the matter now under consideration in AIR 1936 20 (Privy Council) . The learned advocate, however, sought to distinguish this decision of their Lordships which expressly approved of the case in Sheo Dyal Tewaree v. Judoo Nath (68) 9 W.R. 61, decided by Mitter J. in 1868 by urging that in the case before their Lordships no actual division of the joint family property had been made at the relevant date and, therefore, Dhanbati did not become the owner of the share then in dispute. I am unable to agree that any such distinction can be made, although the argument of the learned advocate is to some extent supported by the decision of the Calcutta High Court in Jogendra Chunder Ghose v. Ful Kumari Dassi (1900) 27 Cal. 77. In that case the learned Chief Justice and Banerji J. held that the mother had an inchoate or quasi, contingent right which ripened into an absolute right if and when the partition actually took place. A perusal of the judgment of the Division Bench shows that they were not inclined to approve of the decision given by Mitter J. in Sheo Dyal Tewaree v. Judoo Nath (68) 9 W.R. 61 , but as their Lordships of the Judicial Committee in AIR 1936 20 (Privy Council) have now expressly accepted the correctness of that decision, the observations in Jogendra Chunder Ghose v. Ful Kumari Dassi (1900) 27 Cal. 77 have lost their weight. Moreover at p. 82 the learned Chief Justice himself states:

If there existed in the mother any such ownership, must not a purchaser from a son of his share--I am not speaking of a sale for the payment of the father''s debts--purchase subject to that right?

In the present case the sale to defendant 1 was a sale for the payment of the debts validly binding on the joint family. But there is a further answer to the contention raised by the appellant. In AIR 1936 20 (Privy Council) their Lordships observed at p. 45 that "Dhanbati at that time was not the owner of any share in the joint property and had no right of redemption." It is clear, therefore, that the crucial date for consideration is the date when the property has passed to the stranger auction-purchaser. It is obvious, and indeed it is conceded, that on 19th May 1941 the right in the disputed property had passed out to defendant 1 and Jamuna Devi was not the owner on that date of any share in the joint property. If this critical date is kept in view, the distinction sought to be drawn disappears. The house was attached on 11th March 1941 and no alienation after that date, whether voluntary or involuntary, will affect the auction-purchaser if he later on purchases that house.

But it was argued that as there has been a final allotment in this case, even though it was in June or July 1941 it should be held that in the eye of law the title in this house vested in the mother not from the date when the final decree was passed but on 6th December 1940 when the preliminary decree was passed entitling her to a share. Now this is the same argument over again and is negatived by the weighty observations of Mitter J. which have been cited with approval by their Lordships at page 44:

Suppose that Gulaba instead of appearing as an intervener in the lower Court, as she did, u/s 73 of the Procedure Code had brought an action against them both for the arrears of her maintenance which would have accrued subsequent to the decree of the lower Court down to the present date. What answer could they have given to such a claim? Surely they could not have pleaded she was not entitled to be maintained out of the estate, because they were going to make over to her a share of it. Such a plea would be absurd on the very face of it. She is not to starve until the assignment is actually made.

The words underlined (here italicized) in this quotation were shown in italics in the Privy Council judgment of their Lordships. The argument of the learned advocate merely amounts to urging that on 6th December 1940 it had been agreed either voluntarily or as a result of the decision in the partition suit that the son and the father were "going to make over" to Jamuna Devi a share in the joint family property. But it is authoritatively held now that before the assignment is actually made no title passes to her as she is not the owner of any share in the joint family property. Now, when was the assignment actually made in the present case? Obviously, on or after June or July 1941. It was also sought to be argued that the sale was confirmed on 19th November 1941 after the date of the final decree in the partition suit, and, therefore, no title passed to defendant 1. But the short answer to this contention is that u/s 65, Civil P.C., title vests in the auction-purchaser not from the date when the sale is confirmed but on and from the date when the sale is actually made, namely 19th May 1941 in the present case, provided the sale is subsequently confirmed. For these reasons I must overrule this contention and I am in agreement with the views taken by the Courts below.

It was then argued that the transfer in favour of defendant 1 as a result of the involuntary sale is hit by the rule of lis pendens enunciated u/s 52, T.P. Act, and reliance was placed for this upon the case in Jogendra Chunder Ghose v. Ful Kumari Dassi (1900) 27 Cal. 77 , noticed above. It is true that this aspect of the matter has not been dealt with by their Lordships of the Judicial Committee in AIR 1936 20 (Privy Council) but in my view the provisions of Section 52, T.P. Act, are of no avail to the appellant. It may be assumed as well settled now that a partition suit operates as lis pendens with the result that the purchaser of an undivided share pending a suit takes only that property which is allotted on partition to his vendor--the contrary view which prevailed at one time in the Calcutta High Court is not correct. But in the present case it has been found by the Courts below that the due''s of defendant 1 were a prepartition debt, and no provision had been made in the partition decree for the payment of that debt, and, therefore, defendant 1 was entitled to proceed against the entire joint family property which, on the date on which he proceeded to sell it, was not vested in the plaintiff to any extent. Defendant 1 has not been found in the present case to have been aware of the institution of the partition suit--indeed the argument under the Transfer of Property Act was not advanced in either of the Courts below--and it is impossible to conceive in these circumstances as to how defendant 1 in execution of his decree which he obtained on 13th May 1940 could have joined the mother as a defendant either in the main suit or in the execution proceedings.

It may also be added that in this case the right of the joint family in the house in question is merely that of a mortgagee''s right to retain possession so long as the mortgagors, defendants 4 to 6, did not choose to be redeemed. It is doubtful if in such a case even the principle enunciated in Sheo Dyal Tewaree v. Judoo Nath (68) 9 W.R. 61 will have any application, But it is unnecessary to decide this point. A later decision of the Calcutta High Court in Baldeo Das Bajoria and Others Vs. Sorojini Dasi and Others, , confirms me in my view.

I would, therefore, overrule the second contention also.

The result is that I would dismiss this appeal with costs.

Das, J.

I agree.