Patna High Court
Keshav Nandan Sahay And Ors. vs The Bank Of Behar on 30 August, 1976
Equivalent citations: AIR1977PAT185, 1977(25)BLJR543, AIR 1977 PATNA 185
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Birendra Prasad Sinha, J.
1. These two appeals are by the judgment-debtors in two execution cases.
2. The respondent-decree-holder, Bank of Behar, now State Bank of India, obtained a decree in Money Suit No. 61 of 1956, on the 29th June, 1957, for a sum of Rs. 28,750/12/- against Deonandan Sahay. It also obtained against him another decree in Money Suit No. 109 of 1'956, on the 24th February, 1958, for a sum of Rs. 3,44,232/-. Two execution cases were filed against the judgment-debtor, Deonandan Sahay. Execution Case No. 62 of 1958 arose out of Money Suit No. 61 of 1956 and Execution Case No. 112 of 1958 arose out of Money Suit No. 109 of 1956. After service of notice, Deonandan Sahay filed petitions under Section 47 of the Civil P. C., giving rise to Miscellaneous Case No. 53 of 1961 in Execution Case No. 62 of 1'958 and Miscellaneous Case No. 54 of 1961 in Execution Case No. 112 of 1958. Deonandan Sahay died in April 1962 and the two miscellaneous cases were dropped. His heirs including his wife, song and daughters were brought on record in June 1962 in both the execution cases. In December 1962, the widow of Deonandan Sahay filed petitions under Section 47 of the Civil P. C. in both the execution cases, swing rise to Miscellaneous Case Nos. 106 and 107 of 1963. On the 15th July, 1967, both the miscellaneous cases were dismissed for default. On the 18th July, 1967, fresh petitions were filed by the widow giving rise to Miscellaneous Cases Nos. 35 and 36 of 1967. In those miscellaneous cases, the widow was ordered to deposit security which not having been deposited by her, the two cases stood dismissed for default on the 10th December, 1968. The widow died some time after. The sons and daughters of Deonandan Sahay (the present appellants) this time filed two petitions under Sections 47 and 60 of the Civil P. C. and Sections 14 and 15 of the Bihar Money-Lenders Act in both the execution proceedings. They were registered as Miscellaneous Cases Nos. 69 and 70 of 1967. Miscellaneous Appeal No. 323 of 1972 arises out of Miscellaneous Case No. 69 of 1967 and Miscellaneous Appeal No, 324 of 1'972 arises out of Miscellaneous Case No. 70 of 1967. Both the miscellaneous cases were heard together by the Court below and a common order was passed in both of them. Although valuation of the attached properties was raised, the objections were substantially disallowed.
3. The original judgment-debtor Deonandan Sahay and his two brothers, Shyam Nandan Sahay and Hari Nandan Sahay, owned extensive properties which included zamindari interests in several Touzis and agricultural lands in several villages. They had their ancestral house at village Baghi and another big house called Sahay Bhawan at Muzaffarpur. The one-third share of Deonandan Sahay was attached in the execution proceedings and was described in four lots. Lot No. 1 consisted of 4.21 acres of land in village Baghi including a pucca double-storeyed house in which one-third share of the judgment-debtor was valued by the decree-holder at Rs. 10,000/-. The Court below has raised the valuation of lot No. 1 to Rs. 1,00,000/-. Lot No. 2 consisted of Sahay Bhawan, a pucca house with boundary having an area of 5.46 in the town of Muzaffarpur. In it one-third share of the judgment-debtor was valued at Rs. 15,000/- by the decree-holder, but the Court below valued the house at Rs. 3,00,000/-, one-third share of Deonandan Sahay being Rs. 1,00,000/-. Lot No. 3 properties consisted of agricultural lands in village Muriari, having an area of 30 bighas. A nominal valuation was given by the decree-holder but the Court below has valued it at Rs. 60,000/- as claimed by the appellants. Lot No. 4 consisted of certain shares in different companies, In the execution case they were valued at Rs. 3,462/-. The appellants still claim a higher value for the properties which I shall deal with at a proper place.
4. The appellants raised several objections in the two miscellaneous cases. They being similar, I propose to deal with them together. Their first objection is that the house at Baghi (lot No. 1) is exempt from attachment or sale under Section 60 of the Civil P. C., being used for agricultural purposes. Their second' objection is that the attached properties have not been adequately valued even by the Court below. Thirdly, they say that Deonandan Sahay separated from the appellants and others in the year 1944 and as such, the appellants had no pious obligation to pay the decree passed against Deonandan Sahay after such separation. It is stated that each male and female member of the family of Deonandan Sahay entered into a family arrangement to end the dispute amongst themselves and keep peace and harmony in the family and became separated and got separate and exclusive properties for his or her use and enjoyment and accordingly changes were made in the Revenue records and other papers. It is further stated that after the death of Deonandan Sahay and after coming into force of the Hindu Succession Act, his properties have devolved upon the appellants and their mother and they have no pious obligation to pay the debts (vide paras. 4 and 5 of the objection petition under Section 47 of the Code).
5. The respondent decree-holder (Bank of Behar) filed objections in the Court below challenging the maintainability of the miscellaneous cases, on the ground that they were barred ,by res judicata. The alleged separation in the year 1944 was also seriously challenged and it was stated that those papers had been brought into existence with ulterior motives and were only paper transactions. It was further stated that the residential house at Baghi (lot No. 1) was not meant for carrying on agricultural operations which were not carried on from there. It was asserted that the valuation given by the decree-holder was correct. It was also stated that the appellants were under the pious obligation to pay the decretal amount.
6. Shri Kailash Roy appearing on behalf of the appellants, in the beginning, submitted that the residential house at village Baghi, described in lot No. 1, must be held to be exempt from attachment and also under Section 60 (1) (c) of the C. P. C., as agricultural operations were carried on from there. According to Section 60 (1) (c) of the C. P. C., "Houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him" are not liable to attachment or sale. It was merely mentioned in para. 8 of the petition under Section 47 of the C. P. C. that lot No. 1 properties cannot be attached and sold inasmuch as agricultural operations are carried on from the building on the said property. No further details were given. In para. 10 of the rejoinder, this was denied. Shri Roy referred to the evidence of A Ws. 1, 2, 3, 4, 10 and 15 and to that of O. Ws. 2, 10, 12 and 13. The Court below found against the appellants and held that agricultural operations were not carried on from the residential house at Baghi and, therefore, it could not be exempt under Section 60 of the Code. In Shrimant Appasaheb Tuljaram Desai v. Bhal-chandra Vithalrao Thube. (AIR 1961 SC 589) it was held that the provisions of Clause (b) of Section 60, in the case of an agriculturist, suggest a person who tills the soil in order to maintain himself. Under Clause (c), houses and other buildings belonging to an agriculturist and occupied by him are exempt from attachment. The word "agriculturist" in Clause (c) must carry the same meaning as the word "agriculturist" in Clause (b) and the house must be occupied by him as such. The person claiming to be an agriculturist must at least show that he was dependent for his living on tilling the soil and was unable to maintain himself otherwise. Where a person had substantial income otherwise, it could not be said that he was really depending for his maintenance by tilling the soil. Such a person was not an agriculturist within the meaning of that word in Section 60. A. W. 10 Keshav Nandan Sahay, one of the appellants, admitted in his evidence that he had been carrying on business at Calcutta and the members of the family had got sufficient investments in several business firms. We were taken to the evidence on this point by Shri Roy and I do not find that there is any satisfactory evidence to show that the appellants carried on agricultural operations from the residential house at Baghi. There is no evidence worth the name to suggest that the appellants are dependent upon agriculture, if at all it is carried on from the house at. Baghi. When Shri Roy was confronted with the decision reported in AIR 1961 SC 589 (supra) and the state of evidence on the point, he was very fair in not pressing this point further. Accordingly, I hold, in agreement with the Court below, that there is no substance in this objection of the appellants.
7. Next, I take up the question regarding valuation. The decree-holder had valued the property of lot No. 1 (the residential house and its boundary at Baghi) at Rs. 10,000/-. The judgment-deb tors-appellants claim that it would not be less than Rs. 8,00,000/-. The Court below, as stated above, has valued it at Rs. 1,00,000. Lot No. 2 properties were valued by the decree-holder at Rs. 15,000/-. The judgment-debtors claimed a sum of Rupees 12,00,000/-. The Court below, as stated above, has valued it at Rs. 3,00,000/- Lot No. 3 properties (the agricultural lands at village Muriari) were valued by the judgment-debtors at Rs. 60,000/-. The Court below has accepted the valuation given by the judgment-debtors. A lot of documentary and oral evidence was adduced by both the parties on the question of valuation. A. W. 1 Ramsewak Singh, a cultivator of village Sardhia, stated that the house at Muzaffarpur was worth Rs. 14,00,000/- and the compound was worth Rs. 10,00,000/-, i. e., a total sum of Rs. 24,00,000/-. The appellants in their objection petition themselves put the valuation of Lot No. 2 properties at Rs. 12,00,000/- in para. 10. A, W. 1 appears to be more enthusiast in this respect. He is not connected with the affairs of the appellants in any way. A. W. 2 Baleshwar Jha stated that the Baghi house (lot No. 1) was worth Rs. 8,00,000/-. In cross-examination he admitted that he did not know how many rooms were there in the Baghi house. In paragraph seven of his cross-examination, he further admitted that he was giving the valuation by guess and he had no talk with anybody regarding the valuation of the house. A. W. 4 Birendra Prasad who was in the service of the appellants, stated that the Muzaffarpur house situated in Naya Tola was worth Rs. 24,00,000/-and the Baghi house was worth Rupees 8,00,000/-. He also proved Ex. 1, a sale deed dated the 30th of July, 1950, under which he had purchased sixteen dhurs of homestead land at Baghi for sum of Rs. 628/-. The land, according to him, was situate 21/2 bighas west of the Baghi house. He further stated that the rent of the Sahay Bhawan at Muzaffarpur was Rs. 2,500/- per month. He admitted that he had not seen any account regarding the construction of the houses and had stated the valuation by guess. Under Ex. 1, sixteen dhurs of land was sold along with bricks for a sum of Rs. 628/-. It is not clear how much bricks were sold under Ex. 1. Therefore, much reliance cannot be placed on Ex. 1 for correctly assessing the value of the land at village Baghi. As regards the rent of Rs. 2,500/-per month for the Sahay Bhawan at Muzaffarpur, no receipt appears to have been filed. A. W. 4 admitted that he did not know what was the municipal valuation of Sahay Bhawan at Muzaffarpur. A. W. 9 is a private consulting Engineer. He estimated the value of Sahay Bhawan along with the lands at Rs. 13,49.800/-and the Baghi house, excluding the lands, at Rs. 5,88,940/-. He admitted that he had no degree in Architecture. He could not give the survey number or the holding number of either of the houses nor he had seen any paper concerning the two houses. He could not say the sale-rate of the adjoining lands. He had not seen also any account for the construction of the two houses. He proved Exs. 5 and 5 (a), the reports regarding valuation of the houses. The Court below rightly did not place much reliance on these valuation reports, The houses are very old and the materials used in their construction must be very cheap at the time they were constructed. A, W. 10 Keshav Nandan Sahay, one of the appellants contrary to the claim put up in the objection petition, claimed a sum of Rs. 12,00,000/- for the Baghi house and a sum of Rs. 24,00,000/-for the Muzaffarpur house in his evidence. Much reliance cannot be placed on his evidence. He is a very interested witness. A. W. 15 Ram Nandan Prasad is an employee of Sahay Properties Investment (Private) Ltd., a company belonging to the appellants and other members of the family. It is difficult to place any reliance on his evidence as well. He stated that Biresihwar Chatterji sold two kathas and one dhur of land for a sum of Rs. 17,000/- to one Jagannath Sah Halwai. There is no document filed in support of this transaction. A. W. 12 Mahendra Prasad had, of course, proved a sale deed dated the 25th June, 1970, executed by Bireshwar Chatterji in respect of one katha one dhur of land for a sum of Rupees 13,000/- in Mohalla Mohammadpur Quazi. The Sahay Bhawan is situated in Mohalla Naya Tola. From the evidence on record, it is not clear that the land under Ex. 1 (a), dated the 25th June, 1970, is similarly situated as the Saihay Bhawan. A lot of oral evidence appears to have been led on behalf of the decree-holder-respondent disputing the claim of the appellants with regard to valuation. I do not think it is necessary to deal with that evidence in detail. Shri Mundrika Prasad Singh, learned Counsel appearing on behalf of the decree-holder-respondent, submitted that the Baghi house was at least forty years old and was situated in a village. It was doubtful whether anybody would like to purchase that house. Moreover, whoever shall purchase the property shall have to file a suit for partition and it was not known how long it would take for the purchaser to get possession of the property. What a willing purchaser is ready to pay for such properties is always a good criterion for determining the valuation in such cases. It is true that there cannot be many purchasers for these properties at a very big amount. The house at Bagihi, situate in a village, may not attract any purchaser. If any one purchases the Muzaffarpur house, he may have to enter into litigation with co-sharers and wait for several years before taking possession, AH these are factors which must be borne in mind before fixing the valuation of the properties. There were also certain shares of the companies which were attached and valued by the decree-holder at Rs. 3,462/-, This was objected to by the judgment-debtors. The appellants examined A. Ws. 8 and 24 in this respect. A. W. 8 Deoki Nandan Prasad is an employee of Sahay Properties Ltd. He gave the value of the shares of the South Sugar Mills, S. K. Jain Co, Ltd. and Hindusthan Bicycle Ltd. In cross-examination, he stated that there were papers to support the valuation given by him, but no such papers have been filed in this case. He was examined On 19-6-1971 and gave the valuation of the shares with reference to the year 1971. There is no document to support his evidence. A. W. 24 is the secretary of the Associated Pigment Ltd., of which appellant Keshav Nandan Sahay is the managing director. He proved certain letters of Keshav Nandan Saihay asking for the market value of the shares. He has given the valuation as per Ex. 12 (o), a letter written by him to appellant Keshav Nandan Sahay. He admitted in cross-examination that he did not know when this valuation was done. He further admitted that the registers concerning the figures supplied by him "were in the office of the company but they were not filed in this case. These two witnesses being employees of the firm of the appellants are interested persons and it is unsafe to rely on their oral testimony. The valuation of the shares could be proved by the appellants with reference to the documents with the company but they did not do so. In such a situation, I do not find any material to interfere with the valuation of the shares already given. After considering the arguments advanced by learned Counsel for both the parties and looking into the evidence and other circumstances appearing from the records of the case, I am of the opinion that the valuation put by the Court below is lust and reasonable and does not need any interference by this Court. Accordingly, this objection of the appellants also must be overruled.
8. Shri Kailash Boy argued the next question with a little vehemence. He submitted that Deonandan Sahay separated from his two brothers and the present appellants in the year 1944, vide Ex. 4. Some properties, movable and immovable, were still left which were partitioned by metes and bounds by a compromise decree passed in Partition Suit No. 67 of 1956 on the 29th September, 1958. One third share was jointly given to Deonandan Sahay, his sons and his wife. Since there was a partition amongst them also, Deonandan Sahay got only 1/5th out of the one-third share. According to Shri Roy, only the share of Deonandan Sahay could be sold, if at all, in execution of the decree. He further submitted that in no event l/5th, out of the one-third share belonging to the widow of Deonandan Sahay, even after her death, could be sold in execution of the decree. According to Shri Roy, the appellants were not bound by the pious obligation to pay the decretal dues; and, in any event, the present decree cannot be executed against them.
9. In order to appreciate this point, it Is necessary to state a few more facts. According to the appellants, certain Mil-
kiat and Kasht lands were partitioned and allotted to different members of the family by a family arrangement deed dated the 31st March, 1944 Ex. 4 is the said family deed which is unregistered. It only shows that certain proprietary interests were partitioned. It is then stated that some other properties were also orally partitioned later, which included the two houses at Baghi and at Muzaffarpur. No date of this oral partition has been mentioned anywhere. Thereafter, it appears that a suit was filed on 1-10-1956, being Partition Suit No. 67/17 of 1957/1958, by Hari Nandan Sahay, one of the brothers of. Deonandan Sahay. In that suit, partition was claimed in respect of the properties described in Schedule II of the decree passed therein. It does not include any of the attached properties described in lot Nos. 1 to 4. It appears that a petition of compromise was filed and the suit was decreed in terms thereof on the 29th September, 1'958.
10. Deonandan Sahay had -been allowed facilities for overdrawing from the current account with the Bank on or about the 17th April, 1942. By the 30th of June, 1944, as a result of overdrawals from time to time, he stood indebted to the Bank of a sum of Rs. 2,02, 942/1/-. He went on executing fresh agreements, premiums and promissory notes and ultimately a suit was filed against him for realisation of the sum of Rs. 3,94,180/2/-, being Money Suit No. 109 of 1956. This suit was filed on the 9th of May, 1956, and it was decreed on the 3rd March, 1958. Another suit being Money Suit No. 61' of 1956 had already been decreed on the 29th June, 1957, for a sum of Rs. 28,750/12/-. As already stated, Execution Case No. 62 of 1958 relating to Money Suit No. 61 of 1956, was filed on the 15th May, 1958, and Execution Case No. 112 of 1958, relating to Money Suit No. 109 of 1956, was filed on the 4th September, 1958. Attachment was issued on the 4th September, 1958, and was effected on the 22nd September, 1958. The properties described in lot Nos. 1 to 4 were thus attached.
11. Shri Kailash Roy laid much emphasis on Ex. 4 to show that there had already been separation in the family in March 1944. The Court below has not placed reliance on Ex. 4; and rightly so. Exhibit 4 is not a registered document and thus is not legally admissible in evidence. In any event, it is difficult to believe that Deonandan Sahay separated from, his wife and also from his minor song and daughters. Exhibit 4 includes only zamindari interests and no other properties. Shri Roy, ultimately, admitted that as a memorandum of Partition it was not admissible. Shri Roy then drew our attention to some other documents to show that the family had separated from one another. They are Ex. 2 series (rent receipts), Ex. 7 series (petitions), Ex. 8 series (Izaranamas), Ex. 10 series (jama-bandi registers of the State of Bihar) and Ex. 11 series (counterfoil of rent receipts). All these documents relate to a period later than 1944 when the loan was contracted and they are no proof of the fact that the family (had separated in the year 1944. Shri Roy also placed before us certain other documents which, though on record, were not admitted into evidence and marked exhibits. One of such documents is Register D, which shows mutation in different names in 1947-48, but that is only in respect of proprietary interests. Another document is an order under Section 20 of the Wealth Tax Act, dated the 28th October, 1964, in respect of the assessment year 1957-58. For the purposes of Wealth Tax, the family was deemed to have been partitioned with effect from the 30th September, 1958, the date of the decree in partition suit, being the 29th September, 1958- Similarly, the order under Section 25 (a) of the Income-tax Act, dated the 28th October, 1964, also shows that the partition was accepted with effect from the 30th September 1958, and the assessee's contention that the family assets were partitioned on the 1st September, 1956, was not accepted. None of these documents would So to support the contention of Shri Roy that the family had separated in the year 1944. Accordingly, I find, agreement With the Court below, that the story of separation in the family in 1944 is false and has not been substantiated.
12. The suit for partition was filed on 1-10-1956 and on that date the intention to separate was expressed. Accordingly, the date of filing of the suit may be taken to be the date of severance of the joint family. From the materials on the record and my discussions above, I am unable to agree with Sri Kailash Roy that there was disruption of the joint family in the year 1944. Exhibit 4, apart from being inadmissible, is also not genuine. The background in which it came into existence creates a serious doubt about its genuineness. As stated above, debts had been contracted in the year 1942 and large sums of money had become due in the year 1944. The severance of the joint family being sometime in the year 1956, Shri Roy's contention that the sons had no liability to pay, must fail.
13. Shri Roy placed great reliance on a decision of the Supreme Court in Pan-nalal v. Mt. Naraini (AIR 1952 SC 170), and contended that the decree having been obtained after disruption of the joint family, the shares of the sons could not be proceeded against in execution of the decree against the father. He contended that if there was any pious obligation on the part of the sons to pay the father's debt incurred before partition, such obligation could be enforced against the sons only, in a properly constituted suit and not by way of execution of the decree obtained in a suit which was brought against the father alone.
14. In para. 9 of ' the judgment in Pannalal's case, the Supreme Court in clear terms held that sons are liable under the theory of pious obligation for the preparation debts incurred by the father. So far as the present case is concerned, it has been, as a matter of fact, found that the debts were contracted by Shri Deonandan Sahay before the separation in the family. The fact that the decree under execution was obtained later on is not material for this point. The observation of the Supreme Court in para. 9 of the judgment to the following effect is relevant:
"The sons are liable to pay these debts even after partition, unless there was an arrangement for payment of these debts at the time when the partition took place."
In the present case, no such arrangement was made at any point of time. It must, therefore, be held that the sons are liable even after partition for the debts in respect of which the decrees under execution have been passed.
15. However, so far as the liability of Shri Sahay's wife is concerned, her position is different. The doctrine of pious obligation cannot apply to the wife and she, therefore, cannot be liable to the creditors on the principles applicable to the sons. On a partition between a coparcener and his sons, a share is allotted to the wife in her own right and she cannot be treated as mere representative of the husband. The principle is based upon ancient Hindu texts which do not mention the wife in the category of the sons and there is no statutory enactment ex-
tending that doctrine so as to include her. It was argued by Shri Mundrika Prasad Sinha that as no arrangement was made for payment of the debts at the time of partition, the share given to the wife of Shri Sahay would also be liable. Reliance was placed on the decision in Modi Nathubhai Motilal v. Chhotubhai Desai, (AIR 1962 Guj 68). The basis of the decision are the observations made by the Supreme Court in Pannalal's case (AIR 1952 SC 170) (supra) and Sidhe-shwar Mukherjee v. Bhubneshwar Prasad Narain Singh, (AIR 1953 SC 487). In both these decisions, the Supreme Court was concerned with the liability of the sons and the observations did not relate to the liability of the widow. Learned Counsel also relied upon the observations made in para. 24 of the judgment in Virdhachalam Pillai v Chaldean Syrian Bank Ltd., (AIR 1964 SC 1425). In this case also, no question arose in respect of the liability of the wife of the debtor. The circumstances of that case also clearly distinguish the present appeals.
16. It is not the case of the decree-holder before us that a share was given to Shri Sahay's wife with a view to defeat its right. She being the mother of the appellants was entitled to a share, as a matter of course, in her own right. A female member of the joint family, although not a member of the coparcenery, is entitled to maintenance and this right in the case of wife of a coparcener, when a partition is taking place between him and his sons, crystallises into a right to get a share. It is not suggested in the present case that a share larger than what she was entitled to was given to the Wife of Shri Sahay. I, therefore, hold that so far as she is concerned, she is not liable for the payment of the decretal dues. Even assuming that she were held liable, as is contended by the decree-holder, still her share cannot be proceeded against in the present execution cases for the reasons which are mentioned hereinafter. Admittedly, she was given 1/5th share in the properties in question. The decrees must, therefore, be satisfied by executing them against the 4/5th share of the properties.
17. Shri Roy strenuously contended that the remedy of the decree-holder is to file a fresh suit against the sons of Shri Sahay and the decree passed against Shri Sahay cannot be executed straightway against his sons. He relied upon the observations made in. Pannalal's case (AIR 1952 SC 170) (supra) in para. 11. On a close scrutiny of the decision of the Supreme Court in that case, it will appear that Shri Roy's argument is not sound. The observations in para. 11 are confined to a case where the father judgment-debtor is alive. This is clear from the last sentence which reads as follows:
"It is not disputed that the provision of Section 53 of the C. P. C. cannot be extended to a case when father is still alive." Section 50 of the C. P. C. provides that where the judgment-debtor dies before the decree is fully satisfied, the decree-holder may execute the decree against the legal representative of the deceased. By Sub-section (2), the liability of the legal representative is limited to the extent of the property of the deceased coming to his hands. Then comes Section 53, the provisions whereof are important for the purposes of the present appeals. They are quoted below:
"53. Liability of ancestral property--For the purpose of Sections 50 and 52, property in the hands of a son or other descendant 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."
18. On account of the extended meaning of the property of the deceased which has come to the hands of the sons, and of the term of legal representative, the liability of the sons of Shri Sahay to pay off the decretal dues in the pending execution cases arises. The discussions in paras. 12 and 13 of the judgment in Pannalal's case, (AIR 1952 SC 170) (supra) clearly establish this position. The observations made in para. 13 may be referred to in this context:
"As we have said already, Section 53, Civil P. C., being a rule of procedure, docs not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his father's debts. It, however, lays down the procedure to be followed in cases coming under this section and if the son is bound under Hindu law to pay the father's debts from any ancestral property in his hands -- and the section is not limited to property obtained by survivorship alone -- the remedy of the decree-holder against such property lies in the execution proceedings and not by way of a separate suit. The son would certainly be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by the executing Court under Section 47, Civil P. C. This seems to be the true scope and the meaning of Section 53, C. P. C."
19. I, therefore, hold that the sons of Shri Sahay can legally be impleaded in ;he pending execution cases and the deretal dues may be realised from the shares allotted to them. They could have certainly challenged the executability of the decrees on the ground that the debts were Avyavharik. They, however, have not raised such a plea in the Court below and it has not been argued before us that on the materials on the record, the debts for which decrees have been passed can be characterised as immoral. There is no scope for raising such a plea now. The result is that the objections on behalf of the sons of Shri Sahay, in so far as the shares allotted to them on partition are concerned, must be rejected.
20. As stated above, the wife of Shri Sahay also died leaving behind her sons and daughters as her legal representatives. They have inherited 1/5th share which had been originally allotted to their mother. It has already been held above that the property allotted to her cannot be liable for payment of the debts. Even assuming that she is held to be liable, still such a liability cannot be enforced in the execution cases inasmuch as the provisions of Section 53. Civil P. C., would not cover her. The section refers to the 'son' or other 'descendant'. The wife could not be included in either of the two terms. In the present case, Shrimati Sahay also died leaving behind her sons and daughters as her legal representatives. Their liability cannot be enlarged, so as to include the property which they inherited from their mother. Their objection, therefore, to the executability of the decrees will succeed so far as the share of their mother, now in their hands, is concerned.
21. Shri Mundrika Prasad Sinha contended that in view of the dismissal of the earlier miscellaneous cases, the objections raised must be held to be barred by the principles of constructive res judicata. Admittedly, the objections were dismissed for default. Miscellaneous Cases Nos. 53 and 54 of 1961, filed by Shri Deo-nandan Sahay himself, were dismissed in May 1962. After his death, his legal representatives were impleaded in the execution cases in June 1962. The objections raised by Shrimati Sahay were dismissed on the 5th July, 1967, for default, and her further objections in Miscellaneous Cases Nos. 35 and 36 of 1967 were dismissed as security could not be deposited. The question is whether these dismissal orders would conclude the present objection in favour of the decree-holder by the application of the doctrine of constructive res judicata. Shri Kailash Roy, in reply, relied upon the decision in Shivashankar Prasad Sah v. Baikunth Nath Singh, (AIR 1'969 Sc 971) wherein it was held that before a plea can be held to be barred by res judicata, the plea must be heard and determined by the Court. It was observed there that dismissal for default of an application by the judgment-debtor, resisting the execution of a decree, is not a final decision of the Court after hearing the parties and, therefore, cannot operate as res judicata and the judgment-debtor can raise that objection in a subsequent application. In view of this decision, it is manifest that the plea of res judicata has no substance.
22. In view of the findings recorded above, these appeals are allowed in part. The objections to the execution of the decrees in regard to 1/5th share in the property which had been allotted to the share of the wife of Shri Deonandan Sahay are allowed. Subject to this modification, the decision of the Court below on all other points is confirmed, There shall be no order as to costs.
Lalit Mohan Sharma, J.
23 I agree.