Patna High Court
Sheikh Karoo And Ors. vs Rameshwar Sao And Sukhdeo Sahu And Anr. on 2 June, 1921
Equivalent citations: 62IND. CAS.905, AIR 1923 PATNA 143
JUDGMENT Jwala Prasad, J.
1. These two appeals arise out of an order of the District Judge of Gaya, dated the 5th of May 1919. By this order the District Judge disposed of two appeals before him from the order of the Munsif, dated the 1st of February 1919, passed under Section 47 of the Code of Civil Procedure in Objection Cases Nos. 219 and 220 of 1918. These two objections were respectively made by the sons of two brothers, Gopi and Gobardhan, judgment: debtors in the appellant's decree under execution. The two objections raised the same points and were disposed of by one order by both the Courts and will, therefore, be disposed of by one judgment of this Court.
2. The Courts below have upheld the objection of the respondents and dismissed the execution of the decree. The decree-holder is, therefore, the appellant before us. The fasts have been fully and clearly stated by the Court below and I adopt the same from its judgment.
3. On 12th Septmber 1908, Gopi and Gobardhan who were undivided brothers governed by the Mitakshara Law, executed a mortgage-bond in favour of the appellant. September the 21st, 1907 (30th Bhado, 1314), was the due date of payment mentioned in the bond. On the 4th of October 1915, eight years after the expiry of the due date, the appellant brought an action to enforce the mortgage security, making Gopi and Gobardhan and a third brother Jogeshwar as defendants. Gopi and Gobardhan did not appear to contest the suit; but Jogeshwar appeared and pleaded that the mortgage of the ancestral property by Gopi and Gobardhan was invalid, as it was not made for family necessities or antecedent debts. Two issues were raised:
(1) Was Jogeshwar Sahu, defendant No. 3, separate from the other defendants at the time of the execution of the deed? (2) Was the money advanced by the plaintiff for the benefit of the joint family?
4. The Subordinate Judge held that Jogeshwar Sahu was joint with his brothers at the time of the mortgage and that the money advanced by the plaintiff was not advanced for the benefit of the joint family. Jogeshwar was accordingly exempted from the liability but, as the mortgaged property had on partition, subsequent to the mortgage, been allotted to the executants of the bond, Gobardhan and Gopi, with which Jogeshwar ceased to have any concern, the Court passed an ex parte. decree againat Gobardhan and Gopi. The preliminary decree was passed on the 25th of November 1916. On the 2nd of November 1917, the final decree was passed. The direction in the decree was that if the decretal amount was not paid within six months, the mortgaged property would be sold to satisfy the debt. On the 19th of December 1917, the appellant-decree holder took out execution of the decree, making Gopi, Gobardhan and Jogeshwar parties as judgment-debtors. On the 21st of December 1917, the execution was dismissed, no steps apparently having been taken. In the meantime Gopi and Gobardhan died. On the 31st of October 1918, the decree was put in execution for the second time. We are concerned with this execution. The execution was against four minor sons of Gobardhan and two minor sons of Gopi, with a prayer to substitute them in place of their deceased fathers. Notice was issued against the six minor sons under Order XXI Rule 22. Their application for time to file objection was rejected and the Court substituted their names in place of the original judgment-debtors Gopi and Gobardhan, and directed issue of notice under Order XXI, Rule 66, for the settlement of sale proclamation. These sons filed objection to the execution of the decree under Section 47 of the Code of Civil Procedure, which gave rise to Miscellaneous Cases Nos. 219 and 220 of 1918, the lower Court Appeals Nos. 20 and 21 of 1919 and Second Appeals Nos. 5 and 256 of 1919 respectively. the grounds for the objection urged by the minor sons of Gopi add Gobardhan are: (1) that they are not bound by the decree, inasmuch as they were not joined as parties in the mortgage suit add that the mortgage loan was not taken for family necessities or spent for legal purposes; and (2) that the mortgaged properties, which are ancestral properties and to which they have succeeded after the death of their fathers by survivorship, cannot be followed by the decree bolder in execution of his mortgage-decree. The appellant-decree-holder filed a re-joinder to the effect that some of the sons were not alive at the time of the institution of the suit and of the existence of the others they had no information; that the mortgage loan was taken for the benefit of the joint family and not for illegal purpose; and that the petitioners, the sons of Gopi and Gobardhan, were not born at the time of the mortgage. The decree-holder did not produce his witnesses, although he had got summonses issued, on the dates fixed for the hearing; of the case and accordingly the case was decided without any evidence haying been gone into. The Subordinate Judge, resting his decision upon the judgment in the mortgage suit, held that the property was mortgaged without family necessity and consequently the decree against the deceased fathers. Gopi and Gobardhan, was extinguished on their death and no longer subsisted. Relying upon the cases of Ali Ahmad v. Sohan Lal 24 Ind. Cas. 6 : 12 A.L.J. 613 and Jowala Prasad v. Protap Udai Nath Sahi Deo 37 Ind. Cas. 184 : 1 P.L.J. 497 : (1917) Pat. 27 : 2 P.L.W. 406 the Subordinate Judge dismissed the execution. On appeal the District Judge took the same view and dismissed the appeal. Hence these second appeals by the decree-holder.
5. The learned Vakil on behalf of the decree-holder relies upon Section 53 read with Section 52 of the Code of Civil Procedure. These sections have now provided that the sorts in a Mitakshara family are the legal representatives of their deceased father. Accordingly the respondents represent the original debtors, Gopi and Gobardhan, and they are liable to satisfy the decree out of the assets of their deceased fathers in their hands. This is conceded by the learned Judge. The aforesaid new sections in the Code have given effect to the Full Bench decision in Amar Chandra Kundu v. Sebak Chdnd Chowdhury 34 C. 642 : 11 C.W.N. 593 : 5 C.L.J. 491 : 2 M.L.T. 207 (F.B.). Vide also the Full Bench decision in Periasami Mudaliar v. Seetharama Chattiar 27 M. 243 (F.B.) : 14 M.L.J. 84 referred to by the District Judge in his judgment. The learned Judge also concedes that the sons would have been liable to satisfy the decree in case the original decree was a mere decree for money, and they could avoid the decree only on their proving that the debt was immoral, for then "the sons' liabilities as representatives of their deceased fathers, judgment-debtors, and their liabilities under their pious duty would coincide." Vide Amar Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642 : 11 C.W.N. 593 : 5 C.L.J. 491 : 2 M.L.T. 207 (F.B.). The learned Judge says that the fathers' (Gopi and Gobardhan) undivided shares, as they existed at the time of the mortgage, could be sold if there was an order for the issue of sale proclamation in the execution of the decree during the lifetime of the fathers. The learned Judge on this point observes as follows:--"No doubt attachment in a mortgage suit is no longer needed after a final decree; but that fact seems to me to make it all the more necessary that the other members of the joint family should be bound by some proceedings which reaches and affects them indicating the order for sale, (such as a sale proclamation) which will have the effect of charging the property in their hands." For this proposition the learned Judge relies upon the case of Suraj Bunsi Koer v. Sheo Persad Singh 5 C. 148 : 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 705, where in execution of an ex parte decree against a Hindu governed by the Mitakshara the estate was attached, but prior to the sale the judgment debtor died and on objection being made by the infant sons of the judgment-debtors and co-sharers, the latter were referred to a regular suit and the property was sold. In the suit brought by the infant sons and other so sharers to set aside the mortgage-decree and the execution sale, it appeared that the debt was incurred without justifying necessity and it was held that neither the infante nor the ancestral properties in their hands were liable for their father's debt, but as regards the judgment-debtor's undivided share in the estate sold, whether or not his alienation was valid by the law as in vogue in Bengal, it was capable of being seized in execution and the effect of the execution sale was to transfer the said share to the purchaser, no execution proceeding having at the time of the judgment debtor's death gone so far as to constitute in favour of the execution-creditor a valid charge thereon which could not be defeated by the judgment-debtor's death before the actual sale. Latterly in the case of Madho Parshad v. Mehrban Singh 17 I.A. 194 : 18 C. 157 : 5 Sar. P.C.J. 586 : Rafique and Jackson's P.C. No. 121 : 9 Ind. Dec. (N.S.) 105, the decision in Suraj Bunsi Koer v. Sheo Persad Sing 5 C. 148 : 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. (N.S.) 705 was interpreted to mean that if no proceedings had been taken to enforce the debt in the lifetime of the judgment-debtor, his interest in the property on his death passed to his sons by survivorship, so that it could not be followed by the creditors in heir hands. Thus the learned District Judge holds that in order to follow the properties in the hands of the sons, it was necessary for the decree-holder that the execution should have been levied during the lifetime of the fathers by obtaining an order for sale of the property, such as the sale proclamation, in order to create a charge on the undivided share of the fathers and that not having been done, the fathers' undivided share passed on to their sons after their death by right of survivorship without any charge of the mortgage decree having been imposed upon it. The Judge also relies upon the case of Ali Ahmed v. Sohan Lal 24 Ind. Cas. 6 : 12 A.L.J. 613 for the aforesaid proposition. The learned Judge, therefore, concludes by observing "that the charge created by the mortgage on the undivided share of Gobardhan and Gopi has been defeated by the death of the judgment-debtors and that the ancestral property cannot now be charged merely by reason of the mortgage-decree." The word "merely" was advisedly used in view of the previous finding. The mortgage executed by Gobardhan and Gopi could not bind their own share in the family property and the fathers in the present case did not execute the bond in their representative capacity inasmuch as no family necessity was proved, and at least some of the sons of the judgment debtors were alive at the time of the mortgage and the decree obtained against the fathers was not in their representative capacity. Now the onus of proof was upon the mortgagee-appellant under the decision of Hunoomanpersuad Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 at p. 424 : 18 W.R. 81n : Sevestre 253n. : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 and the mere recitals in the bonds are not presumptive proof of the necessity: Vide Raj Lukhee Debea v. Gokool Chunder Chowdhry 8 B.L.R.P.C. 57 at p. 60 : 18 M.I.A. 209 : 12 W.R. 47 : 3 Suth. P.C.J. 375 : 2 Sar. P.C.J. 518 : 20 E.R. 529 read with Section 38 of the Transfer of Property Act. The decree holder did not in the present case prove that there was any legal necessity or that the sons were not in existence at the time of the execution of the mortgage. On the other hand, it was admitted in the rejoinder filed by the decree-holder appellant that some of the sons were alive. It was also held in the mortgage suit in which the decree under execution was obtained that Jogeshwar was joint with Gopi and Gobardhan at the time of the mortgage and that the property was the ancestral joint property at that time belonging to all the three brothers and that there was no justifiable necessity for the mortgage loan, nor any benefit had accrued thereby to the joint family. But as the mortgaged property fell to the share of Gopi and Gobardhan after the execution of the mortgage, the mortgage charge was transferred to that share by the principles of subrogation and was liable to the mortgage-debt, but it was invalid to charge the property after partition, inasmuch as the sons that were in existence were the joint members of their families with their fathers and the ancestral property could not be validly mortgaged to their prejudice, and the objection of Jogeshwar to the alienation must be deemed to be on behalf of the sons in existence as well as on behalf of the sons yet unbegotten or still in the womb: vide Chapter I, Section 1, verse 27 of the Mitakshara, relied upon by the learned Judge. Therefore, the learned Judge was right in holding that there was no charge created by the mortgage upon the ancestral property in question even to the extent of the undivided share of the fathers. No doubt, as observed by the learned Judge, "the fathers stood out of the litigation and in any case they could not be expected to urge that their alienation was unauthorized." As to the charge upon the undivided share of the fathers, the learned Judge holds that inasmuch as there was no order for sale in the shape of a proceeding for the issue of a sale proclamation during the lifetime of the fathers, there was no subsisting valid charge upon the property which followed it in the hands of their sons, who got the property by right of survivorship. He is of opinion that in the present execution the undivided share cannot be sold and that in order to make the sons liable for the decree in question as a debt against the fathers, the mortgagee should bring a separate suit baaed upon the pious obligation of the sons to pay the debt of their fathers. The learned Judge says that it will then be open to the sons to raise the question of the debt being immoral or illegal, a question, which, according to the learned Judge, cannot legitimately arise for decision within the scope of the proceedings under Section 47 of the Code of Civil Procedure. He says that the decree is still within six years and such a suit by the decree-holder-appellant will be well within time, the preliminary decree being of 25th November 1916 and the final decree of 2nd December 1917. In this view he is of opinion that there is no hardship caused to the decree holder.
6. I have fully considered the well reasoned judgment of the learned Judge and the contentions on behalf of both the parties. It appears to me that under the present law there is no necessity of any order for attachment of the property in execution, of a mortgage-decree. The decree in a mortgage suit directs, as has been done by the present decree, the sale of the ancestral property mortgaged by the fathers. Consequently after their death, the proceedings in execution may be continued against the sons. The sons of a Mitakshara family have been made, by express enactment under Section 53 of the Code of Civil Procedure, legal representatives of their father in respect of the property which descends to them under the Hindu law and which has been made liable for the satisfaction of the decree passed by the Court. The section runs as follows:--"For the purposes of Section 50 and Section 52, property in the hands of a son or other decendant which is liable under Hindu Law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative." This section was enacted in order to settle a question of procedure on which there was conflict of judicial decisions. The Bombay and the Calcutta High Courts were of opinion, under the old Code of Civil Procedure of 1882, that the question of the liability of the sons to pay their fathers' debt unless tainted with immorality was one "relating to the execution of the decrees within the meaning of Section 47 and that it should be determined by the Court executing the decree. Vide Umed Hathising v. Goman Bhaiji 20 B. 38 : 10 Ind. Dec. (N.S.) 820, Shivram Dhondu Pwara V. Sakharam Krishna 1 Ind. Cas. 459 : 33B, 39 : 10 Bom. L.R. 939; Hanmant Kashinath Joshi v. Ganesh Annai 51 Ind. Cas. 612 : 43 B. 612 at p. 626 : 21 Bom. L.R. 435 and Amar Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642 : 11 C.W.N. 593 : 5 C.L.J. 491 : 2 M.L.T. 207 (F.B.). On the other hand, the Madras and the Allahabad High Courts were of opinion that a decree against a Hindu father could not he executed against the ancestral property in the hands of the sons even to the extent of the father's interest in the property and the only remedy of the decree holder was to institute a regular suit against the sons, they being of opinion that the question whether the debt was tainted with immorality was not one that could be gone into in execution proceedings: Ravi Varma Raja V. Yadayil Koman 5 M. 223 : 2 Ind. Dec. (N.S.) 156; Beresford v. Ramasubba 13 M. 197 : 4 Ind. Dec. (N.S.) 850; Lachmi Narain v. Kunji Lal 16 A. 449 : A.W.N. (1894) 169 : 8 Ind. Dec. (N.S.) 292 and Jagannath Prasad v. Sita Ram 11 A. 302 : A.W.N. (1889) 81 : 6 Ind. Dec. (N.S.) 620. There was no difference of opinion in any of the High Courts as to the executon being continued, whether the family property was attached during the lifetime of the father or not. The Allahabad and the Madras decisions are no longer law. They have been virtually overruled by Section 53 of the Code, which has given effect to the Bombay and the Calcutta High Courts views. Under Section 50, Clause (1) of the Code of Civil Procedure, if the judgment-debtor dies before the decree is fully satisfied, the decree holder may apply to the Court which passed it to execute the same against the legal representative, of the deceased. Under Section 53 when a person governed by the Hindu Law dies before the decree against him is satisfied, his sons or other descendants would be deemed to be his legal representatives in respect of the property which is liable under the Hindu Law for the payment of the debt of the deceased ancestor in respect of which the decree has been passed. Therefore, under the new law the decree can be executed against the son to the extent of the ancestral property which is liable for the debt of the decree passed against the father. The procedure is that the decree-holder should bring the son on the record as the legal representative of the deceased father judgment-debtor. This being done, the question relating to the execution, discharge and satisfaction of the decree arising between the decree-holder and the legal representative of the deceased judgment-debtor (relating to the execution, discharge and satisfaction of the decree) must be determined by the Court executing the decree and not by a separate suit by virtue of Section 47 of the Code. Therefore, having regard to the present Section 53, read with Sections 52 and 47, a separate suit for the determination of the liability of the sons for the debt covered by the decree passed against their father would he barred by Section 47. The only remedy of the decree holder is to apply for execution of the decree against the son of the deceased judgment-debtor as his legal representative. Again, the amendment of the old words "fully executed" by the words "fully satisfied" in Section 50 was with a view to settle the conflict of decisions between the Allahabad and the Madras High Courts as to when the legal representative should be brought on the record. Under the present Code, at any time when the decree has not been "fully satisfied" the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. The application for substitution of the legal representative and to continue the execution may be made when the judgment-debtor dies during the pendency of execution proceedings as well as when the judgment-debtor dies after the decree but before it has been put into execution. Therefore, the appellant adopted the right procedure in the present case in applying for the execution of the decree against the sons of the judgment-debtors, the respondents, when the first execution failed and thereafter the judgment-debtors died without having "fully satisfied" the decree. The question as to whether tht decree is capable of execution inasmuch as the debt covered by it was tainted with immorality ,is one relating to the execution of the decree and the plea with respect to that must be taken and determined in the execution proceedings. The learned Judge if, therefore, to my mind wrong in holding that the decree holder must necessarily bring a separate suit for the determination of the liability of the sons to pay the debt on the ground of their pious obligation to discharge the debt of their fathers. The question was one which appertained to the execution of the decree and was well within the scope of Section 47 of the Code. The judgment debtors in the present case were the applicants under Section 47 of the Code, objecting to the execution of their liability under the decree. Their objection was, as stated by the learned Judge, that "they were not bound by the decree inasmuch as they were not joined as parties to the mortgage suit and that the mortgage loan was not taken for family necessity or spent for legal purposes." There was no objection taken on the score of the debt being tainted with immorality. No evidence was also offered on that point. The onus of proof of immorality or illegality as affecting the debt incurred by the fathers was upon the sons, for after the death of their fathers their liability to pay the fathers' debt arises under the express text of the Mitakchara, on the ground of their pious obligation to save their fathers from the region of torment or hell. The sons are, therefore, bound to pay the decreed debt of their fathers under the Hindu Law. This liability of theirs is a personal one and, as the learned Judge has held, it is not barred inasmuch as six years from the date of the decree have not yet elapsed. Therefore, in the execution proceedings the appellant decree-holder is entitled to enforce the decree in question by executing it against the sons. This is a personal liability of the sons, irrespective of any ancestral property or self acquired properly of their lathers in their hands. The properties in mortgage are now held by the sons and, therefore they can be sold in execution of the decree. Under Section 50, Clause (2) of the Code of Civil Procedure, when the decree is executed against a legal representative, be is "liable to the extent of the proper y of the deceased which has come to his hands and has not been fully disposed of." The rule of Hindu Law is that where a son or a grandson takes ancestral property by survivorship, he is bound to pay out of such property all debts of his ancestor not incurred for immoral or illegal purposes including the judgment-debts. It was with a view to enforce this recognized rule of Hindu Law namely, that members of a joint Hindu family may not escape the payment, out of the joint family property, of any debt incurred and decreed against their father before his death, provided that such debt is not tainted with immorality, that Section 53 was enacted in the new Code.
7. The result is that the ancestral properly in the hands of the sons of Gopi and Gobardhan is liable to be sold on the basis of their personal liability to pay off the debt of their fathers. In this view the objections of the sons against whom the decree has been executed as the legal representatives of the deceased fathers, who were the original judgment debtors in the decree, must be disallowed under Section 47 of the Code of Civil Procedure. The orders of the Court below are set aside and the appeals are decreed with costs.
Adami, J.
8. I agree