Kerala High Court
Vijayakumaran vs Sankarankutty Ezhuthassan on 26 March, 2001
Equivalent citations: 2002 A I H C 172, (2001) 4 CURCC 282 (2001) 2 KER LT 335, (2001) 2 KER LT 335
JUDGMENT S. Sankarasubban, J.
1. This appeal has been referred to a Division Bench by a learned Single Jugde. The question referred to is with regard to the interpretation of S.5(2) of Joint Hindu Family System (abolition)Act(hereinafter refereed to as `the Act'). Learned counsel for the appellants relied on a decision in Bhagyam Ammal v. Mayilswamy Kounder, 1990(2)KLT 537, in support of the contention that S.5(2)of the Act only saves the pious obligations and the same cannot mean that even after the commencement of the act, a decree obtained against a father alone would be enforceable against the interest of the son in the joint family property as the joint family attained a status of division by virtue of S.4 of the Act. Manohgaran, J., before whom the matter was argued, held as follows:"In my view the question is of importance and the matter requires consideration by a Division Bench". The facts of the case are as follows:
2. The suit was field for partition of the plaintiffs' 4/5 share over the paint schedule property. First defendant is the father of the plaintiffs. The paint schedule properties were obtained by the first defendant under Ext. A2 partition deed. The first defendant created two montages., Exts. X1 and X2 with regard to the paint schedule property in favour of the second defendant. Exts. X1 and X2 are dated 30.1.1975 and 12.12.1975 respectively. Since the amount due under Exts. X1 and X2 were not obtained, a suit was filed by the second defendant against the first defendant on the basis of Exts. X1 and X2, as O.S.No.37 of 1981 on the filed of the Subordinate Judge's Court, Palakkad. Ext.B1 is the decree in the suit. The first defendant alone was made party. In execution of the decree, the properties were brought to sale and purchased by the second defendant. According to the plaintiffs, they came to know it only subsequently and immediately, the suit was filed. The case of the plaintiffs is that the first defendant had no right to mortgage the plaint schedule propitiates for his own debts. The second defendant has no manner of right to bring the property for sale. The court sale conducted is not binding on the plaintiffs' right over the property. The mortgage deed executed by the first defendant is not binding on the plaintiff's right over the property. The second defendant is not entitled to get any relief on the basis of the mortgage deed. The plaintiffs are entitled to get 4/5 share. Even though the first defendant filed a written statement, it is not relevant.
3. The second defendant field a written statement contending that the suit is not maintainable. The plaint property belonged to the first defendant and the plaintiffs have no manner of right over it. The properties were acquired by the first defendant himself. As per the proceedings in e.p. 55 of 1982 in O.S. NBo. 37 of 1981, the properties belonged to the second defendant alone. The first defendant alone had right over the property. As per the court, sale, the second defendant has obtained right over it. Even if it is found that the properties are joint family properties, the properties are liable for the debts incurred by the first defendant for his wife and children and for the family necessity.
4. On the basis of the above pleadings, the court below framed five issues. On behalf of the plaintiffs, PW1 was examined and DW1 was examined on behalf of the defendants. Exts. A1 and A2 were marked on behalf of the plaintiffs and Ext. B1 was marked on behalf of the defendants. Exts. X1 and X2 were marked as court Exhibits. On the basis of the evidence, the court below found that the properties included in the mortgage deed are joint family properties and not individual properties of the first defendant. Then the court below considered the question whether the debts were incurred for the benefit of the joint family. It found that the debts were incurred for the benefit of the joint family. Therefore, the court below held that Exts. X1 and Ext. X2 mortgage deeds were executed by the father while he was the manager of the joint family and when the pious obligation theory was in force. On the basis of the above position of law, the court below held that since the plaintiffs have no case that the debt was incurred by the father for an immoral purpose the plaintiffs are liable for it. Thus, it was held that the decree was valid and binding on the plaintiffs and the suit was dismissed. It is against the above preliminary decree that appeal is filed.
5. Sri.P.B. Krishnan appearing for the appellants submitted that the suit was filed on the basis of Exts. X1 and X2. These security bonds were executed in favour of Venugopal Company P.Ltd. by the subscriber.He submitted that so far as the security bond executed in favour of the Company is concerned, it cannot be said that a debt or liability is created. He cited certain decisions of this Court as well as the Supreme Court to support the contention that Exts. X1 and X2 cannot create any liability or debt. Hence, according to him, the debt is created only when the conditions mentioned in Exts. X1 and X2 are violated and a right is given to the creditor to sue for the amount.
6. It is true that Exts. X1 and X2 are before the passing of the Joint Hindu Family System(Abolition)Act. The Kerala Joint Hindu Family System(Abolition)Act, 1975 came into force on 1.12.1976. According to the counsel, there is no evidence in this case as to when the instalments were defaulted and the suit was filed only in 1981. Thus, the learned counsel contended that the debt was created after the commencement of the Joint Hindu Family System(Abolition)Act. The further case of the appellants is that even if it is admitted that the debt was incurred before the commencement of the above Act, the suit was instituted only in 1981. At the time of institution of the suit, there was no joint family. By virtue of the Act, the joint family has been split up and the plaintiffs and the first defendant and become tenants in common. After the commencement of the Act, there is no managership and so the father cannot represent the family. In such an event, according to the learned counsel for the appellants, the decree obtained under Ext. B1 without impleading plaintiffs 1 to 4 is not binding on their share of properties.
7. Learned counsel for the respondents submitted that it has come in evidence that the debts were incurred by the father for the purpose of marriage and education of the children. It was for that purpose that the father subscribed for chitties. It may be true that exts. X1 and X2 may not as such create a relationship of creditor and debtor. The amount was obtained for the purpose of necessity of the joint family. Hence, according to the counsel, the debts were incurred before the commencement of the Act. So far as the decree is concerned, learned counsel submitted that in so far as the plaintiffs are liable for the debts incurred by the father on the basis of pious obligation, it is not necessary to make them parities to the suit. The decree passed is binding on them. Learned counsel for the respondents submitted that they were not so much concerned with the properties. Even though attempts were made to settle matter by payment of money, that could not succeed and finally the case had to be argued.
8. In Jangardhana Mallan & Ors. v. Gangadharan & Ors., 1983 KLT 197, a Bench of five Judges' of this Court held thus: "The obligation to pay future subscriptions in chitty undertaken under the original contract continues to be the same whether the prize is drawn or not or the price amount is recovered or not. An obligation is a legal tie and gives rise to a legal relationship. When an obligation arises out of a contract its nature depends on the terms of the contract. When the obligation concerns payment of money that may mature into a debt which such debt is incurred. All such obligations need not be debts through they may result into the incurring of debts depending on the terms of the contract. Till such debts are incurred the relationship of the parties bound by the legal ties or obligation, arising under the contract could not be that of debtor and creditor. That status would arise only on the debt coming into existence...". The Supreme Court in the decision reported in M/s. Shriram Chits & Investment (P) Ltd. v.Union of India, AIR 1993 SC 2063, adopted the principles laid down in Janardhana Mallan's case. Thus, learned counsel for the appellants submitted that on the basis of Exts. X1 and X2, it cannot be said that the debt or liability was created prior to the commencement of the Act. But no evidence was adduced by the parties in this case to show as to when the debt was incurred. The Act came into force on 1.12.1976. According to us, since the suit was instituted after the commencement of the Act, the plaintiffs ought to have been made parties to the suit.
9. It is true that for the debts incurred by the father of a joint family, the properties of the joint family are liable. Unless it is found that the debts are incurred for immoral or illegal purposes, the sons are bound to discharge the debts of the father. It is also not disputed that so long as the joint family continues, the father continues as the manager. In the circumstances, it is enough when a decree is obtained with the father alone as the judgment debtor. In this case, it is clear that suit for recovery of money on the basis of Exts. X1 and X2, mortgages was filed after the commencement of the Act and only the father was impleaded. The question is whether such a decree is valid or not.
10. After coming into force of the Kerala Joint Hindu Family System (Abolition) Act, the joint family is broken and there is no manager. Songs become co-tenants. The question is whether the liability can be enforce by filing a suit only against a senior member. Similar question has arisen for consideration before this court in Bhagyam Ammal v.Mayiwamy Kounder, 1990 (2) KLT 537. In the above decision, the court stated thus: "Ss 5 & 6 only save the pious obligations of a Hindu son, grandson or great grandson in respect of any debt or liability binding on the joint Hindu Family created before the commencement of the Act by Manager or Kartha. That does not mean that even after the commencement of the Act, the person who contract the liability or debt continues to be the manager. There is nothing in the Act to lead to a different conclusion. It follows that notwithstanding the aforesaid saving provisions it is necessary that members of co-parcenary should be made parties to the suit in orders to make the decree binding on their shares. That is because after commencement of the Act, joint family ceased to exist and the head of the family also ceased to be the manager of Kartha and became incompetent to represent the members who become co-owners". The Court followed a decision of the Supreme Court reported in Pannalal & Anr. v. Mt. Naraini & Ors., AIR 1952 SC 170. In the above decision, the Supreme Court had held as follows: "After a partition takes place, the father can no longer represent the family and a decree obtained against him alone, cannot be binding on the separated sons. In the second place the power exercisable by the father of selling the interests of the sons for satisfaction of his personal debts comes to an end with partition. As the separate shares of the sons cannot be said to belong to the father not has he any disposing power over it or its profits which he can exercise for his benefit, the provisions of S.60, Civil, P.C., would operate as a bar to the attachment and sale of any such property in execution of decreed against the father". The decision of the Nagpur High Court in Jainarayan v.Sonaji, AIR 1938 Nagpur 24, was also followed in the above case. In V.D. Deshpande v.Kusum Kulkarni, AIR 1978 SC 1791, it was held as follows: "A further requirement is that for an effective partition of a Mitakshara Joint Hindu Family a provision for the joint family debts should be made.... Therefore, if partition is effected before paying the debts, provision to pay the debts should be made so as to determine the residue available for partition. ..... Even assuming that the debt was not for the benefit of the estate of the joint family and, therefore, not a joint family debt, and assuming that it was the personal debt of the father yet the doctrine of pious obligation of the sone to pay the father's debt would still permit the creditor to bring the whole joint family property to auction for recovery of such debts." In Cheriya v.Kumarann, 1988 (2) KLT 704, Padmanabhan, J.observed as follows: "In thsi case the money suit against the father alone on a pronote was instituted and the attachment was obtained when the sons attained severance from the father by filing a suit for partition in 1969. The competence of the father to represent the estate of the sons to have a binding attachment and sale of their rights without themselves being eo nomine parties is not because their shares belong to him, but only because of disposing power he is having as contemplated in S.60 CPC . By severance of status that disposing power goes and he ceases to be competent to represent them. Even though the pious obligation of the sons continues evenafter partition, hen once the severance is attained and thereafter becomes incapable of alienating the properties of the sons or represent them, the matter of attachment or sale of their shares binding on them will be matter of procedure governed by the Code of Civil Procedure. As attachment or sale or which they are not parties may in such circumstances not bind them in spite of the pious obligation theory. Further even if the father was competent to represent the sons in the suit, the cause of action in the suit against the father was on the pronote and the cause of action against the sons is on their Hindu Law liability".
11. Thus, on the basis of the above decisions, it is clear that when the family becomes separate, it is necessary to implead all the members of the co-parcenary parties to the suit. In the present case, the father alone was made party to the suit and a decree was obtained. At that time, the Joint Hindu Family System (Abolition)Act had come into force. Hence, according to us, the decree and the sale are not binding on the shares of the plaintiffs. Thus a suit for partition will lie.
12. In the case, the trial court has stated that the debt was incurred for the purpose of the members of the family. If that be so, the sons are also liable to pay the amount. In that case, the amount payable to the second defendant is to be treated as the debt of the family and this debt will have to be discharged equally by all the sharers. Thus, in effecting partition, the share of debts due from the plaintiffs will be treated as the amount due to the second defendant and the property will be allotted taking into account the shares of liability of each of the plaintiffs. Thus, a preliminary decree is passed as follows:
The plaintiffs will be entitled to 4/5 shares in the plaint schedule properties and the plaintiffs are also liable to discharge 4/5 share of the decree amount in O.S. No.37 of 1981. This amount will be a charge on the share to be allotted to the plaintiffs till the amount is discharged.
13. Appeal is disposed of as above.