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Kumaji Sare Mal Firm And Partners v. Kalwa Devadattam And Others
Judgment Summary — CHANDRA REDDY, J.
Factual and Procedural Background
The present appeal was brought by the defendants against an order of the Sub Court dated 12-7-1948 which had dismissed a claim petition in execution proceedings in O. S. No. 7 of 1944. The factual matrix began with O. S. No. 18 of 1942 (later renumbered O. S. No. 7 of 1944) filed in the District Court, Anantapur, for recovery of damages of Rs. 10,022-10-6 for alleged breach of a contract dated 28-11-1949 to deliver 100 bales of yarn at a stated price.
The trial Court found in favour of the defendants, holding the contract to be unenforceable as a wager; on appeal the Madras High Court reversed the trial Court and decreed the suit, holding that the contract was not a wager and that breach gave rise to a cause of action for damages. Execution proceedings followed and properties were attached and brought to sale.
The plaintiffs intervened under Order 21, Rule 63, C.P.C., claiming the attached properties had fallen to their share under a partition deed (Ex. A-1) and therefore were not liable for their father's debts. That claim was disallowed by the Sub Court and unsuccessfully revised to the High Court. The present appeal concerns whether the decree and consequent execution could be applied to the sons' shares and related procedural consequences arising from the attachment and the alleged partition.
Legal Issues Presented
- Whether an attachment raised after dismissal of a suit is automatically revived when the decree dismissing the suit is reversed on appeal and the suit is decreed.
- Whether the sons' shares in family property (as evidenced or claimed by Ex. A-1 partition deed) could be subjected to execution of a decree obtained against the father alone.
- Whether the partition deed (Ex. A-1) constituted a genuine partition effective to protect the sons' shares from execution, or whether it was an ineffective/sham partition.
- Whether the debt underlying the decree was vitiated by being a wagering contract (and therefore unenforceable against the sons).
Arguments of the Parties
Plaintiffs / Respondents
- The plaintiffs claimed that the properties which had been attached fell to their shares under a partition deed (Ex. A-1) and were therefore not liable to be attached for their father's debts.
- They also argued (as presented in the earlier suit) that the debt was an Avyavaharika (speculative) debt arising from a speculative and hazardous trade of the father, and that they were not bound by the decree because the suit had been filed against their father in his individual capacity.
Defendants / Appellants
- The defendants contended that the debt was not an Avyavaharika debt, that the partition deed relied upon by the plaintiffs was a sham concocted to defraud creditors, and that, in any event, the suit properties were the separate properties of one defendant (the 6th defendant) or otherwise were earned by the father and were liable for the debt.
- As specific to this appeal, the appellants argued that an attachment effected in 1942 (when the suit was dismissed) was revived when the suit was decreed in appeal by the High Court and therefore execution could proceed against the attached properties irrespective of the alleged partition. They relied on the decision in Muhammad Abdul Khadhir v. Padmanabha Pillai (AIR 1952 Trav-Co. 414 (FB)) to support that point.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Muhammad Abdul Khadhir v. Padmanabha Pillai, AIR 1952 Trav-Co. 414 (FB) | Held (by that Full Bench) in support of the proposition that an earlier attachment can be treated as revived when an appeal succeeds and the decree is granted on appeal. | The appellants invoked this decision to support their position that the 1942 attachment was revived upon the High Court decree. The Court explicitly rejected following this decision, finding it opposed to Balaraju v. Masilamani. |
| Balaraju v. Masilamani, AIR 1930 Mad 514 (FB) | Laid down the principle that an attachment raised as a result of the dismissal of a suit by the trial Court does not automatically revive when the suit is decreed in appeal. | The Court treated this decision as binding and followed it, using it to reject the contention that the 1942 attachment revived automatically on the High Court decree. |
| Mayne, Hindu Law (11th Edn.) — cited text at p. 412 | States the principle: "Even where a decree is obtained against a Hindu father after his sons who were impleaded in the suit had been exonerated and dismissed therefrom, it can be executed against the sons' interest in the joint family properties." | The Court invoked this statement (and the authorities cited in the footnote) to support the proposition that a decree against a father may be executed against sons' shares if the property remains joint family property. |
| Krishnan Naidu v. Somi Naidu, ILR 1940 Mad 815 (AIR 1940 Mad 544) | Illustrative authority supporting execution of a decree against the father's debt upon sons' interests where properties are joint. | One of the decisions cited by the Court (via Mayne) as supporting the proposition that sons' interests can be reached in execution of a decree against the father. |
| Peraiswami Mudaliar v. Seetarama Chettiar, ILR 27 Mad 243 (FB) | Full Bench authority cited as illustrating the same principle regarding execution against family property. | Included among authorities relied upon by the Court to justify execution against sons' interests in joint family property. |
| Doraiswami v. Nagaswami, AIR 1929 Mad 898 | Another case cited as an illustration of the principle that a decree against a father can be executed against sons' interests in family property. | Relied upon (as cited in the text) to show consistent authority for execution against sons' interest where property is joint. |
| Inderpal v. Imperial Bank, ILR 37 All 214 (AIR 1915 All 126) | Case cited to illustrate the principle regarding execution against family property. | Referenced (via the textual footnote) as supporting authority for the Court's view that sons' interests may be subjected to execution for father's debts. |
| Raja-ram v. Rajabahsh, ILR 13 Luck 61 (AIR 1938 PC 7) | Privy Council decision discussed as being in a context (mortgagors' sons and grandsons) where interests of more remote descendants could not be taken in execution under Section 53 CPC; used by earlier judgments in distinguishing facts. | The Court noted that the Privy Council decision did not overrule the Full Bench decision ILR 27 Mad 243 and that the doctrine in Raja-ram had no application to the instant case. The decision was discussed to distinguish its facts from the present situation. |
Court's Reasoning and Analysis
The Court proceeded through the following principal steps in its analysis, relying only on materials and reasoning found in the opinion:
- Nature of the debt: The Court observed there was no evidence to show that the debt arose out of a wagering contract. The High Court's earlier judgment, which had required delivery of goods and treated the sale and claim as compensation for non-delivery, established that the debt was not vitiated by wagering. Consequently, the debt remained enforceable and was not immoral or illegal.
- Effect of a decree against the father on sons' interests: The Court explained the legal principle that a decree obtained against the manager (or father) of a joint family can bind family members even if they were not specifically impleaded, depending on the nature of the transactions and the pleadings. Because the pleadings in the earlier suit were not exhibited, the Court accepted the conservative hypothesis that the decree was against the father alone but then analyzed the consequences.
- Revival of attachment on appeal: The appellants argued that an attachment raised in 1942 (when the suit was dismissed) revived when the High Court decreed the suit on appeal, relying on Muhammad Abdul Khadhir. The Court rejected that authority as inconsistent with the principle in Balaraju v. Masilamani, which the Court regarded as binding and sound law: an attachment raised because of a trial Court's dismissal does not automatically revive upon a successful appeal. Therefore, there was no automatic revival of the 1942 attachment when the appeal succeeded.
- Validity of the partition deed (Ex. A-1): The Court found Ex. A-1 to be an ineffective partition (i.e., not a genuine partition). Given that finding, the Court reasoned that the properties continued to be joint family properties.
- Consequences of ineffective partition: Because the partition was ineffective and the properties remained joint, the sons' interests could be subjected to execution of a decree obtained against the father alone. The Court relied on established authorities and the statement in Mayne's Hindu Law to conclude that decree-holders are entitled to proceed in execution against sons' interests in joint family properties and need not be forced into a separate suit to enforce the liability.
- Resulting disposition: On the basis that the partition was ineffective and the debt enforceable, the Court concluded that the trial Court's judgment (which had held otherwise) was unsustainable and required setting aside.
Holding and Implications
Holding: The appeal is allowed. The trial Court's judgment is set aside and the decree-holders are entitled to proceed in execution against the sons' interests in the joint family properties notwithstanding Ex. A-1 (the partition deed).
Implications:
- The Court held that since Ex. A-1 was an ineffective partition and the debt was not tainted by immorality or illegality, the sons' shares in the (found-to-be) joint family properties are liable to satisfy the decree obtained against the father.
- The Court rejected the proposition that an attachment raised after a trial Court dismissal automatically revives on success in appeal; it followed Balaraju v. Masilamani on this point, and therefore declined to follow the contrary Full Bench decision in Muhammad Abdul Khadhir.
- Direct effect on the parties: execution could proceed against the attached properties/sons' interests; the trial Court's order dismissing the claim petition is set aside; the appeal allowed with costs.
- The opinion applies and relies upon existing authorities and principles; it does not purport to announce a novel legal principle beyond applying established law to the facts. No new precedent is explicitly stated to have been laid down by this judgment beyond its application of settled authorities.
Disposition: Appeal allowed; costs awarded to the appellants; trial Court judgment unsustainable and set aside.
Judgement
CHANDRA REDDY, J. :-
This is defendants appeal. The action giving rise to this appeal was brought up by the respondents for setting aside the summary order passed by that Court on 12-7-1948 dismissing the claim petition in execution proceedings in O. S No. 7 of 1944 on the file of the Sub Court and for other incidental reliefs. The circumstances leading up to this appeal may be set out in brief.
2. The appellant filed O. S. No. 18 of 1942 in the District Court, Anantapur which was subsequently transferred to the Sub Court and numbered O. S. No. 7 of 1944. That suit was for recovery of damages in a sum of Rs. 10,022-10-6 for alleged breach of contract dated 28-11-1949 whereby the plaintiffs agreed to deliver to the defendants 100 bales of yarn at a price of Rs. 10-8-0 per bundle. The answer to the suit was that the contract was a wager and consequently unenforceable. This defence found favour with the trial Court. But on appeal the suit was decreed in reversal of the trial Courts decree. The learned Judges of the Madras High Court expressed the opinion that the suit contract was not by way of wager and breach of it would give a cause of action for damages.
In execution of this decree the properties in dispute were brought to sale. The plaintiffs intervened by an application under O. 21, R. 63, C. P. C. setting up a case that the properties had fallen to their snare on the basis of the partition deed, Ex. A-1 referred to in connection with the other appeal and not liable to be attached for the debts due by their father. This claim was disallowed and the matter was carried in revision to the High Court unsuccessfully.
3. The basis of the suit was that the debt for the realisation of which the properties were attached was an Avyavaharika debt having been incurred in connection with a speculative and hazardous trade of the father, that the partition was true, valid and therefore, binding on all the defendants and consequently the shares of the plaintiffs were not liable for the decree debt and that lastly they were not bound by the decree as the suit was filed against their father in his individual capacity.
4. The suit was defended on the plea that the debt was not an Avyavaharika debt, that the partition deed relied on by the plaintiffs evidenced a sham transaction brought about to defraud the defendants, that in any event the suit properties were the separate properties of the 6th defendant and even otherwise they were answerable for that debt because they were all earned by the father out of his business.
5. The trial Court while answering the issue in regard to the nature of the debt against the plaintiffs decreed the suit as it thought that the only remedy of the defendant was by way of a suit since the properties were allotted to the shares of the plaintiff in the partition which, in its opinion, was an effective one. Dissatisfied with this judgment, the decree-holders preferred this appeal.
6. The finding of the trial Court as regards the binding nature of the debt was not assailed before us by the respondent except as a part of the general theme that the plaintiffs are under no obligation to discharge any of the debts of their father which were contracted for a speculative trade. We have dealt with this matter in the other appeal and this need not be considered afresh. Further, no evidence was adduced to show that this debt arose out of a wagering contract as suggested for the father in the earlier suit.
That is obviously because there could not be any defence on that ground since the terms of the contract as culled out in the judgment of High Court establish that delivery of the goods was contemplated and in fact Nagappa the defendant therein was called upon to take delivery of the goods and it was only when he failed to comply with that demand that the goods were sold at his risk and compensation claimed by way of difference between the prices. It must therefore be taken that the debt was not vitiated in any way and consequently it could be enforced against the sons by virtue of the theory of pious obligation, not being a debt tainted with immorality or illegality even if the sons were not parties to the suit.
7.The plaintiffs were not to nomine parties to the suit, but that does not conclude the matter. A decree obtained against the manager of the joint family will bind the members of the family even if they are not specifically impleaded in the suit. Nor is it essential to state in the plaint that the father was sued as the manager of the family. The circumstances may warrant the inference that the suit was laid against the family represented by the manager. So, whether a suit was brought against the manager in his individual capacity or as representing the whole family, has primarily to be gathered from the nature of the transactions involved in the suit and the averments in the plaint.But, in this case the pleadings in the suit in which that decree was passed were not exhibited. We have therefore, no means by which we could judge this matter from the contents of the written statement. Mr. Chalapathi Rao invites us to hold that it was against the father individually that the suit was instituted and not as representing the family. This argument is not altogether without force. Be that as it may, in the absence of any material we may not be justified in concluding that the decree was against the whole joint family.
8. We may therefore, proceed on the hypothesis that the decree was against the father alone. On this basis an argument was pressed upon us that the decree could not be executed against the shares of the sons after partition. On the other hand, the contention for the appellants was that the attachment which was effected in 1942 though raised when the suit was dismissed was revived when the suit was decreed in appeal by the High Court and consequently execution could proceed against the attached properties irrespective of the alleged partition. Support for this point was sought to be derived from a judgment of the Travancore-Cochin High Court in Muhammad Abdul Khadhir v. Padmanabha Pillai, AIR 1952 Trav-Co. 414 (FB) (A).
It is true that this ruling lends support to the point made by the appellant. But we feel we cannot share the view taken in the judgment as it is opposed to the principle enshrined in Balaraju v. Masilamani, AIR 1930 Mad 514 (FB) (B). It is laid down in the latter that the attachment will not revive when the appeal is allowed against the decree dismissing the suit. This was followed in a number of cases and in our opinion it contains a sound principle of law, apart from our being bound by it. The principle, therefore, is when once attachment is raised as a result of the dismissal of the suit by the trial Court it would not get automatically revived when the suit is decreed in appeal.
9. The position then is there was no attachment when Ex. A-1, which purported to disrupt the family and to divide the properties by metes and bounds, came into being. If this partition was genuine one, the sons shares could not be reached in execution of the decree. The only remedy available to the creditors is to file a suit to enforce the liability arising from the decree against the sons shares but not to proceed against them in execution of the decree. But, we have found that the partition evidenced by Ex. A-1 was an ineffective one.
Does it make any difference so far as the rights of the creditors are concerned. In our judgment, it does. If there was really no partition and the properties continued to be joint family properties, the sons interest therein could be proceeded against even if the decree was against the father alone and the decree-holder is not per force driven to a suit to realise his decree. There is ample authority for this opinion of ours. In Maynes Hindu Law (11th Edn.) it is stated at page 412:
"Even where a decree is obtained against a Hindu father after his sons who were impleaded in the suit had been exonerated and dismissed therefrom, it can be executed against the sons interest in the joint family properties."At the foot note are cited a number of cases illustrating this principle - Krishnan Naidu v. Somi Naidu, ILR 1940 Mad 815 : ( AIR 1940 Mad 544) (C), Peraiswami Mudaliar v. Seetarama Chettiar, ILR 27 Mad 243 (FB) (D), Doraiswami v. Nagaswami, AIR 1929 Mad 898 (E) and Inderpal v. Imperial Bank, ILR 37 All 214 : ( AIR 1915 All 126) (F). In the first mentioned case, it is pointed out by Sir Lionel Leach, C. J. that Raja-ram v. Rajabahsh, ILR 13 Luck 61 : ( AIR 1938 PC 7) (G), had not overruled the decision of the Full Bench, ILR 27 Mad 243 (D). ILR 13 Luck 61 : ( AIR 1938 PC 7) (G), was a suit brought against the mortgagors sons and grandsons in which a simple money decree was passed against the estate of the debtor in the hands of the sons as legal representatives of the father and the suit was dismissed against the grandsons.
In these circumstances, it was decided by the Privy Council that the interests of the grandsons in the family property could not be taken in execution of the decree under S. 53, C P. C. That doctrine can have no application here. The principle that governs cases of this type is that even if a decree is obtained against the father personally, that decree could be executed against the sons share as they are liable for the fathers debt. The sons could escape liability only on the ground that the debt was an immoral or illegal one.
The result is the same even if the sons were made parties to the suit originally and were exonerated. It follows that the decree-holders were entitled to proceed in execution against the interest of the sons in the properties which we have found to be joint family properties notwithstanding Ex. A-1, and they need not be driven to a separate suit to satisfy their decree. In this view of the matter, the appeal is allowed with costs throughout, as the judgment of the trial Court is unsustainable and has to be set aside.
Appeal allowed.
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