Umakant Rai vs Jitendra Narain and Another

Sinha, J.—This appeal is directed against the orders of the learned Subordinate Judge of Darbhanga, dated 28th October 1914, passed in a proceeding to set aside a sale, u/s 47 and Rule 90 of Order 81, Civil P.C.

It is necessary to state in some detail the facts of the case leading up to this appeal. It appears that one Bharat Narain Rai died in or about the year 1934, leaving him surviving his son, Jogendra Narain, his other son, Prithibindra, having predeceased him. Jogendra has a son, Umakant, who is the appellant in this case. In 1989, the son of Prithibindra aforesaid, a minor under the guardianship of his mother, instituted a suit for partition, impleading Jogendra as defendant l, his minor son as defendant 2, and Mt. Parbati, widow of Bharat Narain, as defendant 3. It is not necessary to state the other parties to the suit. Umakant, the minor defendant 2, was represented by a pleader guardian ad litem in the action, and not by his father, defendant 1. The suit was contested by defendant 1 alone, though formal written statements were filed by other defendants also. The chief ground of defence, inter alia, was that this suit for partition was not in the interest of the minor plaintiff, and that some enemy of the family had instigated the institution of the suit in order to ruin the family, particularly the interest of the minor plaintiff. During the pendency of the suit, the Court directed defendant l, who was apparently the karta of the joint family and in possession of the joint family funds, to make certain payments to the minor''s mother on account of maintenance and, presumably, to meet the costs of the litigation. The amount thus directed to be paid by defendant 1 was not paid by him to the minor''s mother, with the result that the order of the Court was executed as a decree, and one anna fifteen gandas odd in tauzi No. 16768, which belonged entirely to the joint family aforesaid, was put up to sale, and purchased by the decree-holder himself. Ultimately, the suit itself was decreed in respect of the plaintiff''s one-third share. As regards costs, the direction of the Court was that the plaintiff would recover the same from defendant 1. This decree for costs against defendant 1 was put into execution in Execution case No. 17 of 1941. In the application for execution, all the defendants to the suit were, in ordinary course, named as the judgment-debtors, but, in column 9 meant for showing the name of the person against whom the decree was to be executed, defendant 1 was named. Defendant l''s branch had a one-third share in the estate, tauzi No. 16768, and that one-third share minus the 1 anna IS gandas, already sold as aforesaid, was put to sale and purchased by the decree-holder himself on 8th July 1941. On 21st August 1943, an application u/s 47 and Rule 90 of Order 21, Civil P.C. was filed by Jogendra Narayan, defendant 1, as also on behalf of Umakant, the minor son of Jogendra Narain under the guardianship of his father. Jogendra Narain died during the pendency of this proceeding for setting aside the sale, and the minor Umakant was then placed under the guardianship of his mother. The sale was attacked on a number of grounds, of which it is only necessary to mention two: (1) that the entire execution proceedings had been vitiated by fraudulent suppression of processes, and (2) that in any case the 8 annas interest of the minor defendant 2, namely, 2 annas 13 gandas odd, could not be affected by the sale, as he was not the judgment-debtor against whom the decree for costs could have been executed.

This application was contested by the decree-holder auction purchaser who alleged that the processes had all been duly served, and that defendant 2, the minor, who is the appellant in this Court, was also liable to pay the decree for costs, Sis it was his pious obligation to pay his father''s debts. As against the last contention of the judgment-debtor, it was contended on behalf of the applicant that, the decree for costs haviag been occasioned by the improvident act of the father in so far as he contested the suit in which no defence was apparently open, the debt was an avyavaharik debt.

The learned Subordinate Judge dismissed the application, holding that the processes had all been regularly and properly served; that the share of the minor Umakant was also liable, inasmuch as be also was substantially a judgment-debtor, and the decree could be interpreted as meaning that the minor was exonerated from personal liability only, and not from his liability to the extent of his interest in the joint family properties; and, finally, "that the debt could not be said to be an avyavaharik debt.

Learned counsel for the appellant has contended, in the first instance, that the processes had not been properly and regularly served; but, realising that the application had been made more than thirty days after the date of the sale, he did not persist in his arguments on that question. He concentrated on the other question, namely, in so far as the sale did or did not affect the interest of the minor defendant 2. He relied upon the decision of a Division Bench of this Court in Prahlad Das Vs. Dasarathi Satpathi and Others, and the decision of their Lordships of the Judicial Committee of the Privy Council in the case of Raja Ram v. Raja Bakhsh Singh A.I.R.1938 P.G. 7 which has been relied upon by their Lordships who decided the other case. On the other hand, counsel for the respondents relied upon the decision of their Lordships of the Judicial Committee in Mt. Namomi Babuasin v. Modun Mohun 18 I.A. 1. Hence, the only substantial controversy between the parties is whether or not the interest of the minor defendant 2, who is the appellant in this Court, could have been affected by the sale held in execution of the decree for costs passed in the partition suit as aforesaid.

It is settled law that, where a joint Hindu Mitakshara family is concerned as a whole, the karta for the time being represents the entire joint family not only in transactions affecting the joint family but also in litigations in which the family may be interested. Hence, where a decree has been passed against the father as karta, that is to say, as representing the entire family, that decree can be executed against the interest of not only the father, who is the judgment-debtor, but also against the interest of the sons, who may not have been named as parties, and who are, therefore, not eo nomine judgment-debtors in the decree to be executed. But in the present case the position is different. The minor appellant was suedalong with his father, Jogendra; but the decree for costs was passed only against Jogendra and not against the family as represented by Jogendra because in that case the decree would not have specified that the decree for costs would be executable only against Jogendra. Mr. Misra, appearing on behalf of the respondents, contended, on the-authority of the decision of their Lordships of the Judicial Committee in the case referred to above, that is to say, Mt. Namomi Babuasin v. Modun Mohun 13 I.A. 1 that the decree against the father alone, unless it is proved to have been incurred for purpose to which the doctrine of pious obligation is note attracted, could be executed against the interest'' of the sons also, though they are not named m judgment-debtors. There is no controversy about that matter in this'' case: the controversy in this case is whether a decree for costs passed against the father alone, even when the son has been sued along with the father, could be executed against the interest of the son also. No authority-has been cite before us in support of the contention raised by Mr. Misra on behalf of the respondents that the interest of the minor appellant also was affected by the decree passed against Jogendra alone the other hand, we have the Division Bench ruling of this Court-already referred to, namely, the case of Prahlad Das 18 Pat. 783: A.I.R.1940 Pat. 117 which has held in similar circumstances that the decree could not be executed against the interest of the son who was not a, judgment-debtor and who had been exonerated from liability. For that proposition, their Lordships relied upon the decision of the Judicial Committee in the case of AIR 1938 7 (Privy Council) . Mr. Misra contended that in those cases the son had been specifically exonerated from all liability by the decree which was passed against the father alone. But in the present case also the suit was against the father, and the son both, and, where the Court directed that the decree for costs would be executed only against the father, it is tantamount to saying that it will not be executed against the son, inasmuch as, where a relief is prayed for and is granted in terms limited to one of the several, judgment-debtors, it cannot be contended that the other judgment-debtors, who may be the sons-of the one judgment-debtor who has been made liable under the decree, were also intended to be made liable with reference to the doctrine of pious obligation. The doctrine of pious obligation. is available to a creditor of the father, but that liability has got to be enforced against the son-by obtaining a decree specifically against him or against the father as representing the whole family including the son or the sons of the father who may have been sued in his representative capacity. In the present case Jogendra was not sued in his representative capacity, inasmuch as his minor son also was named as a defendant, and was represented by another guardian. The Court appointed for him a pleader guardian ad litem to represent his interests in the litigation either because the father was not prepared to represent the interests of the son also or because the Court thought it fit to appoint another guardian ad litem for thai purpose. For these reasons, in my opinion, the decision of their Lordships of the Judicial Committee in the case of Mt. Namomi Babuasin v. Modun Mohun 13 I.A.I 1 does not affect the controversy in the present case. It must, therefore, be held that the decision of the learned Subordinate Judge that the son also was liable to pay the costs decreed against the father is erroneous in law.

But then the further question arises whether 2 annas 13 gandas odd, which is said to be the interest of the minor appellant in the joint family properties, could be said to be out of the reach of the judgment-creditor. Mr. R.K. Chaudhury on behalf of the appellant contended that, out of the sixteen annas interest of the whole family in the estate in question, nafflely, tauzi NO. 16768, Jogendra had one third interest, namely 5 anna odd. His contention further is that, under the terms of the decree, 1 anna 15 gandas odd, which had been sold previously in execution of the Court''s order upon Jogendra to pay allowance to the plaintiff''s mother, must be deemed to have come out of Jogendra''s moiety share in the 5 annas odd gandas in the entire estate. If that is so, what will be available to the decree-holder in the present execution case would be Jogendra''s moiety share in the 5 annas odd gandas in the estate minus 1 anna 15 gandas odd which had already been sold. This is a question which has not been determined by the learned Subordinate Judge in this case, and it was not necessary for him to determine that question in the view that he took of the liability of the minor appellant. But in the view that we have taken of the liability of the minor appellant, as already indicated, it now becomes necessary that the Court below should determine that question also. As we do not have before us all the materials for determining that question, it is necessary that the case should be remanded for a fresh decision in the light of the observations made above.

The appeal is accordingly allowed to the extent indicated above, and the case remanded for a fresh decision by the executing Court It will be open to the parties, if they are so advised, to lead such further evidence as may be necessary for the determination of the question that now arises for decision. The appellant; is entitled to his costs in this Court; hearing fee two gold mohurs. Each party will bear its own costs in the Court below, incurred so far.

MahabirPrasad J.

I agree.