Madras High Court
Perumal Gounder vs Prakasam And Ors on 26 February, 1999
Equivalent citations: (1999)3MLJ457
JUDGMENT E. Padmanabhan, J.
1. As per the orders of the Hon'ble Chief Justice, the above four matters were listed together and taken by us for hearing. All the four matters could be disposed of jointly as the parties are common and the points that arise for consideration are one and the same.
2. Second Appeal No. 654 of 1995 has been preferred by the first defendant being aggrieved by the judgment and decree of the learned Subordinate Judge made in A.S.No. 129 of 1991 in reversing the judgment and decree of the District Munsif Court, Gobichettipalayam made in O.S.No. 296 of 1988.
3. For convenience the parties will be referred as arrayed before the trial court in the suit.
4. At the time of admission, the following substantial question of law was framed by this Court:
Whether the first appellate court was justified in law in reversing the judgment and decree of the trial court holding that the suit properties were joint family properties of the judgment-debtor and his sons in the absence of any specific pleading to that effect?
5. C.R.P.No. 2349 of 1995 has been preferred by the said Perumal Gounder appellant in the second appeal being aggrieved by the fair and decretal order made in R.A.No. 377 of 1989 in E.P.No. 104 of 1986 on the file of the District Munsif Court, Bhavani which is an execution application under Order 21, Rule 90, C.P.C. taken out to set aside the ex parte auction sale. As the execution application has been allowed at the instance of the third parties, who are the sons of the original judgment-debtors, the revision has been preferred.
6. C.R.P.No. 2350 of 1995 has been preferred by the name Perumal Gounder who is the appellant and revision petitioner in C.R.P.No. 2340 of 1995 being aggrieved by the fair and decretal order dated 21.4.1995 made in E.A.No. 392 of 1995 in E.P.No. 104 of 1986 praying to record full satisfaction of the decree passed in O.S.No. 296 of 1988 on the file of the said court.
7. As the second appeal, cross objections, and the two revision petitions arose between the same parties out of the same decree and execution thereof, at the joint request of the parties, the four matters were consolidated and taken up together for hearing and being disposed by this common judgment.
8. The ultimate judgment in the Second Appeal No. 654 of 1995 will have a bearing on the two civil revision petitions.
9. The first defendant in O.S.No. 296 of 1988, who had succeeded before the trial court and partly lost before the first appellate court is the appellant. The plaintiffs instituted the suit for declaration of their title to the suit property and for consequential permanent injunction.
10. The factual matrix could be summarised briefly:
The plaintiffs are the sons of one Shanmugham. The joint family of Shanmugham and his sons Prakasam and Vadivelu by Ex.A-1 a deed of partition dated 16.9.1971 effected division among themselves in respect of the admitted joint family ancestral properties. According to Ex.A-1 partition the father Shanmugham has the right to be in enjoyment of the properties during his life time without power of alienation and thereafter the properties to vest on the plaintiffs absolutely. It is further pleaded that whereabouts of the father Shanmugham is not known for more than 7 years and he is presumed to have died. The father Shanmugham even before partition admittedly availed a loan from the first defendant on 25.5.1970 under a promissory note. As the said promissory note was not discharged the first defendant instituted the suit O.S.No. 204 of 1974 on the file of the District Munsif Court, Gobichettipalayam for recovery of the amount due. The suit was decreed. In execution of the said decree, the suit properties were attached proclaimed and sold in court auction on 27.4.1988 and the auction purchaser had deposited the bid amount.
11. The second defendant is the auction purchaser. It is the main plea of the plaintiffs that' the debt incurred by the father Shanmugham is an Avyavaharika debt that the father was leading an immoral life, that the debt incurred is not binding on the plaintiffs, nor the properties are liable to be proceeded, nor the suit properties could be sold in pubic auction as there had been a division as seen from Ex.A-1 dated 16.9.1971. The plaintiffs mainly pleaded that the debt incurred by the father is not binding on them nor they are liable to discharge the decree debt, nor the properties allotted to them could be proceeded.
12. Per contra, the defendants pleaded that the father Shanmugham is alive and the plea that the father is presumed to be dead is not true, that the father Shanmugham was not leading an immoral life, that for binding necessity the debt was incurred for which the suit instituted in O.S.No. 294 of 1974 was decreed on 10.8.1974 in favour of the first defendant, that the sale proclamation has been signed by the plaintiffs, that the suit properties are liable to be proceeded as it is a pre-partition debt and the decree holder is entitled to proceed against the entire joint family ancestral property despite division under Ex.A-1 dated 16.9.1971.
13. On the above pleadings the parties went to trial. The plaintiffs marked Exs.A-1 to A-12 while the defendants marked Exs.B-1 to B-7 The plaintiffs examined P.Ws.1 to 5 while the defendant examined P.Ws.1 to 3.
14. The trial court after consideration of oral and documentary evidence dismissed the suit in it entirety. The trial court rendered the following findings.
(a) Shanmugham, the father is alive and the plea that he is presumed to be dead has not been established by the plaintiffs.
(b) The decree debt incurred for the joint family father manager Shanmugham was much prior to the partition deed dated 16.9.1971 and its is binding and all the members of the coparcenary as well as the coparcenary property.
(c) It has not been established that joint family manager Shanmugham was leading an immoral life and the debt incurred by him is not avyavaharika debt.
(d) The suit properties are liable to be proceeded for the partition debt and the plaintiffs are also liable to discharge their debt as it is a pious obligation and the suit properties are liable to be proceeded for the pre-partition debts of the joint family and there is no escape.
15. Being aggrieved by the judgment and decree of the trial court the plaintiffs preferred A.S.No. 129 of 1981 on the file of the Subordinate Judge, Gobichettipalayam. The first appellate court also held that father Shanmugham is alive, that the suit decree debt was incurred prior to the partition that the debt incurred by the joint family manager father Shanmugham is not tainted with illegality or immorality. The first appellate court however held that as the plaintiffs have not been impleaded as parties to the suit O.S.No. 204 of 1974, and the father alone had been impleaded as a party to the said suit, father's 1/3rd share in the suit property alone could be proceeded and the 2/3rd share belonging to the plaintiffs cannot be proceeded for the recovery of the said decree passed in O.S.No. 204 of 1974, which is sought to be executed in E.P.No. 194 of 1986.
16. It was further held that the auction sale is valid with respect to the 1/3rd share of the father Shanmugham and the auction sale in respect of the 2/3rd share of the plaintiffs is invalid and it is not binding on the plaintiffs. In that view of the matter the first appellate court allowed the appeal in part and decreed the suit O.S.No. 296 of 1986 declaring that the plaintiffs are entitled to 2/3rd share in the suit property and granted consequential injunction with respect to the plaintiffs 2/3rd share besides holding that the auction purchaser would be entitled to seek for partition in respect of the 1/3rd share of the father alone. Being aggrieved, the present second appeal has been preferred.
17. It has to be recorded that the findings of the two courts below that the father is still alive had not been challenged is this second appeal. Further the findings that the debt was incurred one year and four months prior to the partition by the joint family manager is not being challenged in this second appeal, nor it could be canvassed. The further finding that the pre-partition debt incurred by the joint family manager is binding on the plaintiffs and the debt is not tainted with illegality or immorality could not be challenged. It is also fairly stated by the counsel for the respondents that the above aspects need not be gone into as the findings of the two courts below are concurrent and have not been challenged by the respondent in this second appeal.
18. Mr. A.K. Kumaraswamy, the learned Counsel appearing for the appellant rightly contended that the first appellate court has erred in law in proceeding as if that for realisation of the decree debt the father's 1/3rd she alone could be proceeded just because the sons, namely the plaintiffs have not been impleaded to the money decree obtained by the first defendant. The learned Counsel for the appellant is well supported by the pronouncements of the Apex Court and this Court.
19. Per contra Mr. Murugamanickam, the learned Counsel for the plaintiffs/respondents contended that the auction sale is valid only in respect of the father's 1/3rd share and the 2/3rd share of the plaintiffs cannot be proceeded, However, the learned Counsel for the respondents submitted that the debt incurred by the father is pre-partition debt and no provision has been made in the partition deed when the father and the sons agreed for a partition in terms of partition deed Ex.A-1 dated 16.9.1971. It is also true that to the suit O.S.No. 204 of 1974, the father alone was impleaded as a party and the present plaintiffs have not been impleaded as parties. This aspect could be relevant only for the purpose of deciding as to whether the debt incurred by the father, a joint family manager is binding on the sons who are the coparceners? or as to whether the debt is not binding on the coparceners? It is true in the earlier suit there was no occasion for the present plaintiffs to challenge the binding nature of the debt. However, in the present suit, the binding nature of the debt had been gone into on the plea put forward by the plaintiffs and it has been held that the decree debt had been incurred by the joint family manager, the father prior to the date of partition and which debt has been incurred for necessity and it is not in avyavaharika debt.
20. On these findings, it has to be considered, that whether the view taken by the trial court has to be sustained or the view taken by the first appellate court has to be upheld. The trial court took the view that the debt incurred by the father not being an avyavaharika debt nor tainted with illegality on immorality is binding on the members of the coparcenary as well and being a pre-partition debt, the theory, pious obligation applies positively.
21. On the contrary the first appellate court held that there he been a division between the father Shanmugham and his sons viz., the two plaintiffs and they having not been impleaded as parties to the money suit in O.S.No. 204 of 1974, are not liable to satisfy the money decree and the theory of pious obligation as well as the representation by the joint family Manager cannot be invoked on the facts of the present case.
22. It is fairly stated by the counsel for either side that the debt incurred by the father as found by the two courts below is a binding debt and it is not tainted with illegality or immorality and therefore the plaintiffs who are the sons are liable to be proceeded against the joint family properties left in the hands of the plaintiffs. It is admitted that what has been allotted under Ex.A-1 partition is a joint family ancestral property in which the father Shanmugham been given a life interest and his two sons namely the plaintiffs had been given a vested remainder up to the life time of the father. As no provision has admittedly been made for the discharge of the binding family debt in the partition deed Ex.A-1, the joint family properties are liable to be proceeded for recovery of the debt due and it is not as if in law joint family properties in the hands of the plaintiffs could not be proceeded.
23. The legal position of pious obligation is well settled. It is settled law that every son, grandson, great-grandson is under pious duty to discharge the debts and dues with interest incurred by the father, grand-father or the great-grandfather. The liability imposed on a son to pay the just debts of the father is not a gratuitous obligation thrust on him. The liability imposed to pay the debts for the father is the binding doctrine of pious obligation as has been held by the Supreme Court in Antonyswamy v. Chinnaswamy Gounder and the Apex Court held thus;
It is evident therefore that the doctrine of pious obligation is not merely a religious doctrine but has passed into the realm of law. The doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property and both these conception are co-related. The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu Law, but is a salutary counter balance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property.
The liability of the son is not a personal liability and the joint family property in the hands of the sons is liable to be proceeded against for the discharge of such binding debt.
24. In Pannalal v. Mt. Nabaini , it has been held thus:
There are other texts which say that a person in debt goes to hell. Hindu Law givers therefore imposed a pious duty on the descendants of a man including his son, grandson and great grandson to pay off the debts of their ancestor and relieve him of the after death torments consequent on non payment. In the original texts a difference has been made in regard to the obligation resting upon sons, grandsons, and great grandsons in this respect. The son is bound to discharge the ancestral debt as if it was his own, together with interest and irrespective of any assets that he might have received. The liability of the grandson is much the same except that he has not to pay any interest, but in regard to the great grandson the liability arises only if he received assets from his ancestor.
It is now settled by judicial decisions, that there is no difference as between son, grandson and great grandson so far as the obligation to pay the debts of the ancestor is concerned; but none of them has any personal liability in the matter irrespective of receiving an assets, vide Masitulla v. Damodar Prasad L.R. 52 I.A. 204 (P.C.). The position, therefore is that the son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self acquisiton. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice. According to the text writers, this obligation arises normally on the death of the father; but even during the father's life time the son is obliged to pay his father's debt in certain exceptional circumstances, e.g., when the father is afflicted with disease or has become insane or too old or has been away from his country for a long time or he suffered civil death by becoming an anchorite vide Mayne's Hindu Law, Edn.11 p.408.
It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead, vide Brij Narain v. Mangia Prasad L.R. 51 I.A. 129 (PC). Thus it is open to the father, during his lifetime, to effect a transfer of any joint family property including the interests of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons, parties to such suit and obtain an adjudication from the court that the debt was a proper debt payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. These propositions can be said to be well recognised and reasonably beyond the region of controversy, vide Girdharee Lal v. Kanotoo Lal L.R. 1 I.A. 321, Madras Thakoor v. Kanttol Lal L.R. 1 I.A. 333, F.N. Suraj Busi v. Sheo Prasad, L.R. 6 I.A. 88 (P.C.), Brij Narain v. Mangia Prasad, L.R. 51 I.A. 129 (PC.) .
In the said decision it has also been held that a Hindu son is liable to pay the pre-partition debt of the father as well and the Apex Court held thus:
The question now comes as to what is meant by an arrangement for payment of debts. The expressions "bona fide" and "mala fide" partition seems to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful does not unoften lead to error and confusion. If by mala fide partition is meant a partition the object of which is to delay and defect the creditors who have claims in the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appropriate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors, if it makes no arrangement or provision for the payment of the just debts payable out of the joint family property, the liability of the sons for payment of the pre-partition debts of the father will still remain.
We desire only to point out that an arrangement for payment of debts does not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors. Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case; We can conceive of cases where the property allotted to the father in his own legitimate share was considered more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in respect thereof. That may also be considered to be a proper arrangement for payment of the creditors in the circumstances of a particular case.
After all the primary liability to pay his debts is upon the father himself and the sons should, not be made liable if the property in the hands of the father is more than adequate for the purpose. If the arrangement made at the time of partition is reasonable and proper, an unsecured creditor cannot have any reason to complain. The fact that he is no party to such arrangement is, in our opinion, immaterial. Of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he has no charge or lien is dismissed for purpose of realisation of his dues.
25. It is well-settled that in respect of the joint family properties allotted in the partition the coparcenary members namely, the sons are liable ' to be proceeded in so far as the properties have been allotted to them and in their hands and they are bound to discharge the pre-partition debts.
26. In S.M. Jakali v. S.M. Borkar , the earlier decision in Pannalal v. Mt. Nabaim , has been confirmed and it has been held thus:
There is no discrepancy of judicial opinion as to the pious duty of Hindu sons. In 1952 S.C.R. 544 : , this Court approved the following dictum of Suleman A.C.J., in Bankeyall v. Durga Prasad I.L.R. 53 All. 868 at 876 : A.I.R. 1931 All. 512 at 519.
The Hindu Law texts based the liability on the pious obligation itself and not on the father's power to sell the son's share. So great was the importance attached to the payment of debts that Hindu Law givers gave the non payment of a debt the status of sinful-ness and such non payment was wholly repugnant to Hindu Concept of son's rights and liabilities. in , Lal Gopal Mukerji, J. said at page 896 (of I.L.R. All.); (at page 527 of A.I.R.) A perusal of text books of Smriti dealing with debts will show that under the Hindu Law the non-payment of a just debt was regarded as a very heinous sin.
The liability of the Hindu son based on his pious obligation gain received the approval of this Court in Sudheswar Mukherji v. Shubneswar Prasad Narain Singh 1954 S.C.R. 177 at 183, 184 : , where the following observation made in Panna Lal's case :
The father's power of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu Law imposed upon the sons; or it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligation.
Was reiterated. And again at page 183 (of S.C.R.); (At P.490 of air), Mukherjea, J., (as he then was) said:
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." Therefore unless the son succeeds in proving that the decree was based on a debt which was for an immoral or illegal purpose the creditors right of seizing in execution of his decree the whole coparcenary property including the son's share remains unaffected because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in satisfaction of the judgment obtained against the father alone. Sripat Singh v. Prodyot Kumar Tagore L.R. 44 I.A. 1 : A.I.R. 1916 P.C. 220. The necessary corollary which flows from the pious obligation imposed on Hindu sons is that it is not ended by the partition of the family estate unless a provision has been made for the payment of the just debts of the father. This again is supported by the authority of this Court in Pannalal' case , where Mukherjea, J. said at page 559 (of S.C.R.: (at P.176 of A.I.R.).
Thus, in our opinion, a son is liable, even after partition for the pre-partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition." The liability of the sons is thus unaffected by partition because the pious duty of the sons to pay the debt of the father, unless it is for an immoral or illegal purpose, continues till the debt is paid off and the pious obligation incumbent on the sons to see that their father's debts are paid.
[Italics supplied]
27. In the light of the said pronouncement it is needless to state that the view taken by the first appellate court cannot be sustained and it had obviously misunderstood the legal position. As already held by the Apex Court the liability of the sons is unaffected by the partition because the pious duty of the sons to pay the debt of the father unless it is for an immoral or illegal purpose continues till the debt is paid off. The present case as has been concurrently found by the two courts below is a pre-partition debt and it had not been incurred for immoral or illegal purposes and therefore it is binding. The plaintiffs even though they are divided from their father still the erstwhile joint family properties are liable to be proceeded even in the hands of the plaintiffs.
28. It is true that the plaintiffs are not impleaded as parties to the earlier litigation instituted by the first defendant. However, the said money decree is binding on the joint family properties left by the father in the hands of the plaintiffs. Following the said pronouncements of the Apex Court it follows that the suit properties are liable to be proceeded for the recovery of the amount due to the first defendant and for realisation of the decree debt the properties of the joint family and the properties in the hands of the plaintiffs could always be proceeded as has been held by the Apex Court. In view of the settled legal position, the judgment of the first appellate court has to be set aside and that of the trial court has to be restored.
29. The view that the plaintiffs are not liable, because they have not been impleaded as parties to the earlier suit O.S.No. 201 of 1974 cannot be sustained in the light of the above pronouncements of the Apex Court. It has not been established that in the partition effected under Ex.A-1 a provision has been made for the earlier binding debt incurred by the joint family manager. It is the settled legal position that while the members of the co-parcenary effected a division among themselves, it is incumbent upon them to make provision for debts.
30. In the present case, as seen from Ex.A-1 no such provision has been made even though the debt has been incurred much prior to Ex.A-1 the date of partition, As has been found by the two courts below, the debt is binding upon the family and therefore a provision should have been made in Ex.A-1 partition deed as well. Hence there is no escape for the plaintiffs and following the pronouncements of the Apex Court, this Court sets aside the judgment of the first appellate court and restores the judgment and decree of the trial court.
31. C.R.P.No. 2349 of 1995 as well as C.R.P.No. 2950 of 1995 have to be disposed of in the light of the judgment rendered in the second appeal.
32. The money decree is binding on the plaintiffs 1 and 2 and for realisation of the amount due under the decree it is open to the decree holder to proceeded against the entire property of the joint family including the share of the plaintiffs 1 and 2 and they are bound by the decree passed against the joint family manager for realisation of the pre-partition debt.
33. The challenge to the auction sale had not been established. The further challenge that the auction sale had been conducted in violation of the Code of Civil Procedure had been negatived by the courts below. After attachment an auction was conducted validly, in which the second defendant is the successful bidder. The second defendant has deposited the bid amount, It has not been established that the sale is vitiated on any ground whatsoever, nor it can be held that the sale is invalid or inoperative for any other reason. Hence, it follows automatically that the successful bidder namely the second defendant is entitled to the suit property and the execution petition shall be proceeded further by issuing sale certificate in favour of the second defendant and also delivering possession of the suit property which had been purchased in the auction sale.
34. In the result the second appeal is allowed. The judgment and decree of the first appellate court are set aside and that of the trial court is restored.
35. C.R.P.No. 2349 of 1995 has to be allowed as the courts below have found that there has been a valid auction sale and the Revision petitioner is the successful bidder.
36. C.R.P.No. 2350 of 1995 also has to be allowed as prayed for and the order of the court below has to be set aside which legal position follows consequent to this Court allowing the second appeal.
37. The question of law framed in the second appeal is answered in favour of the appellant. The second appeal and the civil revision petitions are allowed. The suit instituted by the respondent in O.S.No. 296 of 1988 will stand dismissed and the execution application filed in E.A.No. 392 of 1995 as well as 377 of 1989 in E.P.No. 104 of 1986 on the file of the district Munsif Court, Bhavani will stand dismissed.
38. Both the parties shall bear their respective costs throughout.