(Firm) Govindram Dwarkadas v. Nathulal

1. This appeal arises out of a suit instituted under O. 21, R. 63 of the CPC, to establish the plaintiff's right to a house, and for a declaration that the house is not liable to be attached and sold in execution of a decree obtained by the defendants against the plaintiff's father. The plaintiff, who is respondent 1, and respondent 2, Motilal, his father, formed a joint family which was dissolved by a partition effected between them on 6th April 1927. As a result of the partition a moiety of the house in suit fell to the share of the plaintiff and the other moiety to that of his father, but the plaintiff became the owner of the whole house by purchasing his father's half-share by a registered sale-deed on the same day as the partition for Rs. 5,000. The appellant, firm Govindram Dwarkadas, and respondent 3, firm Goverdhandas Lakhmidas, obtained simple money decrees against the plaintiff's father in two separate suits filed by them in the year 1928 subsequent to partition, and in execution of their respective decrees they attached the house in suit. The plaintiff filed an objection to the attachment but it was rejected by the executing Court. Accordingly he filed the suit out of which this appeal arises for establishing his right to the house as mentioned already. The suit was resisted by his father's judgment-creditors on the ground that the partition and the sale by the father of his half-share in the house to the son were nominal and colourable transactions as well as fraudulent having been intended to delay and defeat the creditors. The lower Court negatived the defendants' plea and decreed the suit in plaintiff's favour. One of the two judgment-creditors has preferred this appeal.

2. The important question of law which arises for determination in this appeal is whether the creditors of the father who obtained decrees against him alone in suits to which the plaintiff was not made a party could enforce their decrees against the share which the plaintiff obtained as a consequence of partition effected before the suits. On behalf of the appellant it is contended that in view of the son's pious obligation to pay his father's debts the son's share is liable to be taken in execution even though the son was not impleaded in the creditors' suits against the father who was at the time admittedly separate from his son. Reference is made to 55 All 283, AIR 1933 All 235 , 149 IC 181 , 55 All 283 , 1933 ALJ 550 6 Luck 497, AIR 1929 Oudh 406 , 119 IC 449 , 6 Luck 497 , 6 OWN 689 (FB) 2 Luck 561 AIR 1927 Oudh 180 , 101 IC 907 , 2 Luck 561 , 4 OWN 408 and AIR 1931 Sind 84, AIR 1931 Sind 84 , 134 IC 386 , 25 SLR 374 as authorities for the proposition contended for by the appellant. In 55 All 283, AIR 1933 All 235 , 149 IC 181 , 55 All 283 , 1933 ALJ 550 the facts were that a Hindu who was the manager of a joint family consisting of himself, his sons, nephew and grandnephew, incurred debt on a bond. The creditors filed a suit against all of them. The debt was found to be not justified by legal necessity so as to be binding on the family as a whole and the suit was dismissed against the nephew and grandnephew but decreed against the manager and his sons who were held to be under a pious obligation to pay their father's debts. On appeal by the sons it was contended that the doctrine of pious obligation to pay the father's debts came into play only (1) if he was not the manager, and (2) if besides the sons there were other members of the family who were not under any such pious obligation. Reference was made to 46 All 95, AIR 1924 PC 50 , 77 IC 689 , 51 IA 129 , 46 All 95 (PC) 24 ALJ 273, AIR 1926 All 220 , 91 IC 785 , 48 All 245 , 24 ALJ 273 53 All 868 AIR 1931 All 512 , 135 IC 139 , 53 All 868 , 1931 ALJ 917 (FB) and 51 Mad 361, AIR 1928 Mad 657 , 110 IC 141 , 51 Mad 361 , 54 MLJ 726 (FB) and the contention was sought to be sustained on the principle that the pious obligation of the sons is co-extensive with the right of the father to dispose of the family property in order to liquidate his debts and that where the father is not competent to alienate the family property for the payment of his debts, there remains no pious obligation on the sons to satisfy his debts. The significance of the contention will be evident only when it is borne in mind that in U.P and Bengal it is not open to a coparcener to alienate an undivided share of joint family property. Iqbal Ahmad, J., enunciated the proposition that the son's liability is based on his pious obligation to pay his father's debts irrespective of the father's power to dispose of his son's share and held that the sons were bound to pay the father's debts. The difficulty in U.P and Bengal in the matter of father's capacity to alienate the son's interest to satisfy his own debts arises from the fact that it is not open to any co-parcener to dispose of an undivided share in joint property although it is held permissible for the judgment-creditors of the father to bring to sale in execution the son's undivided interest: see 3 Cal 198 (1877) 3 Cal 198 , 4 IA 247 , 3 Suther 468 , 3 Sar 730 (PC) and 18 Cal 157. (1891) 18 Cal 157 , 17 IA 194 , 5 Sar 586 (PC) The law in this behalf was laid down by their Lordships of the Privy Council in the last mentioned case in these terms:

Anyone of the several members of a joint family is entitled to require partition of ancestral property, and his demand to that effect, if it be not complied with, can be enforced by legal process. So long as his interest is indefinite, he is not in a position to dispose of it at his own hand, and for his own purposes: but as soon as partition is made, he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property. Actual partition is not in all cases essential. An agreement by the members of an undivided family to hold the joint property individually in definite shares, or the attachment of a member's undivided share in execution of a decree at the instance of his creditor will be regarded as sufficient to support the alienation of a member's interest in the estate or a sale under the execution.

3. It is with reference to this law which obtains in U.P that Iqbal Ahmad, J., observed that the creditor could pursue his remedy by sale of the sons' interest in the family property, even though the father having regard to the constitution of the family could not alienate the same, and formulated the conclusion in these words:

The measure of the creditor's right to recover the father's debt by attachment and sale of the interest of the sons in the family properties is not the father's right to sell that interest for the payment of his debt, but is the pious obligation of the sons, which is controlled not by the father's power to alienate that interest, but only by the conditions that the debt should not be tainted with immorality and that it can be realized only from the joint ancestral property in the hands of the son and not from his separate property.

4. Now in the cited case, AIR 1933 All 235 , 149 IC 181 , 55 All 283 , 1933 ALJ 550 it must be noticed, the sons were not separate from the father and it therefore bears no analogy to the present case. As to the learned Judge's statement of the law that the sons' pious obligation is independent of the father's power to sell the sons' interest to satisfy his personal debts, it is unexceptionable, but the statement that the creditors' power to proceed against the sons' interest is not co-extensive with the father's power to alienate that interest requires a little examination. Although it is true that a father in U.P or Bengal is unable to alienate his sons' interest, the disability arises not from his inherent lack of any power to dispose of his sons' interest but from the impossibility of alienating it so long as his own and his sons' share are embedded in property held as joint property along with others. The anomaly involved in permitting compulsory sale at the instance of the father's judgment-creditors on the one hand and forbidding voluntary sale by the father on the other is obvious. Apart from this somewhat illogical position, it may not be difficult to show that the father enjoys the same power of disposition over the sons' interest, even though undivided, in U.P as in other provinces named above. Lotus take the following case by way of illustration. A and B and A's son constitute a joint family. A incurs a debt which not being for legal necessity, does not bind B, but being untainted with illegality or immorality binds A's son. Now A will have no power to sell his own and his son's interest so long as A and B are joint, because of the law peculiar to U.P and Bengal prohibiting the alienation of an undivided share, but if there is a partition between A and B or if B consents to A's alienation of his undivided share including his son's (which amounts in theory to partition) there is nothing to prevent A from disposing of his son's interest and his own in satisfaction of his personal debts irrespective of the concurrence of his son. This position appears to have been admitted by the learned Judge at p. 292, where he states:

The father can exercise the right to alienate the family property to discharge his debts only if the family consists of the father and the sons and of no other male members.

5. In such a case it must be conceded that the power of the father to alienate his sons' share is co-extensive with that of his judgment-creditors to bring to sale the sons' interest. The question in the present case is whether the creditors who sue the father alone after he separates from his sons can execute the decree against the property which fell to the share of the sons at the partition. On the solution of this question 55 All 283 AIR 1933 All 235 , 149 IC 181 , 55 All 283 , 1933 ALJ 550 does not throw any light. On the contrary a Full Bench of the Allahabad High Court in 53 All 868 AIR 1931 All 512 , 135 IC 139 , 53 All 868 , 1931 ALJ 917 (FB) held that independent proceedings must be taken against the sons before their shares can be reached. In that case there was a partition of the family property between the sons and the father after he was adjudicated an insolvent. All the learned Judges who constituted the Full Bench approved of the view taken by Mukerjee, J. in 53 All 239 AIR 1931 All 162 , 185 IC 119 , 1931 ALJ 122 , 53 All 239 (FB) that the father's power to dispose of his sons' share was “property” which vested in the Receiver, but there was a divergence of opinion between Mukerjee, J. and the other learned Judges as to the procedure which the Receiver should adopt to enable him to dispose of the sons' shares. Mukerjee, J. was of opinion that the appropriate course for the Receiver was to bring an action against the sons in a competent Court of civil jurisdiction, while the other learned Judges held that the Receiver could proceed against the sons in the Insolvency Court under Section 4 of the Insolvency Act. That the disagreement related to the matter of procedure only is amply clear from the observations of Sulaiman, A.C.J, at pp. 887-88. Now, if father's power to dispose of his son's share is “property,” how can that be attached and sold in execution of a decree obtained against the father alone after partition when he loses his disposing power and thereby his “property.” The view of the Allahabad High Court does not favour the appellant's contention. Much stress is laid on 6 Luck 497 AIR 1929 Oudh 406 , 119 IC 449 , 6 Luck 497 , 6 OWN 689 (FB) as being a direct authority for the proposition that a decree obtained against the father alone after partition is capable of being executed, against the shares in the hands of the sons. The facts of the case were similar to those in the present case and the question referred to the Full Bench for its opinion was this:

Whether a Hindu son is liable to pay his father's personal debts out of the family property which has come to the son by partition before the decree was passed against the father alone.

6. Stuart, C.J, referred to 50 All 137, AIR 1927 All 714 , 104 IC 406 , 25 ALJ 829 , 50 All 137 52 Bom 376 AIR 1928 Bom 232 , 110 IC 269 , 30 Bom LR 539 , 52 Bom 376 and 51 Mad 361, AIR 1928 Mad 657 , 110 IC 141 , 51 Mad 361 , 54 MLJ 726 (FB) which lay down the simple proposition that the son is bound to pay the pre-partition personal debts of his father, a proposition which is not contested here. Wazir Hasan, J. considered the well-known decisions of their Lordships of the Privy Council reported in 1 IA 321, (1873) 1 IA 321 (PC) 6 IA 88 : 5 Cal 148, (1878) 5 Cal 148 , 6 IA 88 (PC) 13 IA 1 : 13 Cal 21 (1886) 13 Cal 21 , 13 IA 1 , 4 Sar 682 (PC) and other cases and from the observations occurring in them the learned Judge deduced the inference that the property falling to the share of the sons at a partition becomes “assets” in their hands so as to be capable of being sold in execution of a decree passed against the father alone, and that the joint estate including the sons' share becomes bound from the date of the debt in the incurring of which the father could have exercised his power of alienation. The learned Judge regarded the father's debt as being a charge on the sons' share—a view which was rightly repudiated in 51 Mad 361. AIR 1928 Mad 657 , 110 IC 141 , 51 Mad 361 , 54 MLJ 726 (FB) Various cases that were considered were those which dealt with the sons' liability on the footing that the father and the son were joint and none of the opinions recorded by the learned Judges evidences any attempt to grapple with the problem whether after the partition the father can represent the sons' interest in the suit filed against him alone so as to make the decree binding on the sons, and if he could not represent their interest, on what principle or provision of law the decree against the father could be executed against the sons.

7. The reasons assigned by the learned Judge are not beyond dispute. The sons' shares cannot be regarded as “assets” of the father for two reasons: (1) they constitute the sons' property and not the father's and (2) they do not share the nature of the property to which the sons succeed after their father's death. Section 53 of the CPC, which is the only provision which can have any bearing on the issue speaks of “a deceased ancestor” and “property of the deceased” which has come to the hands of the sons and it cannot be stretched to apply to the property which the sons obtain on partition with their father: see 38 Mad 1120. AIR 1914 Mad 328 , 24 IC 474 , 38 Mad 1120 , 27 MLJ 112 Even assuming that the father's debt becomes a charge on the joint property including the sons' interest, can the charge be realised without obtaining a decree against the owner of the property charged? No effective answer to this question is apparent in the opinions of the learned Judges who constituted the Full Bench. The judgment in 2 Luck 561 AIR 1927 Oudh 180 , 101 IC 907 , 2 Luck 561 , 4 OWN 408 is based on 46 All 95 : 51 IA 129 AIR 1924 PC 50 , 77 IC 689 , 51 IA 129 , 46 All 95 (PC) which only dealt with the liability of the sons in a state of jointness with the father. Moreover, in that case the partition itself was found to be fictitious and collusive. In AIR 1931 Sind 84, AIR 1931 Sind 84 , 134 IC 386 , 25 SLR 374 the question of the sons' liability arose after the father's death, and it was held that the judgment-creditor of the father could execute his decree against the son as legal representative under Section 47 of the CPC. It is not clear whether the father's property which devolved on the son on the death of the father or the property that he had obtained on partition with his father was treated as constituting “assets” of the father, and Section 53 of the CPC, was also erroneously invoked as in 6 Luck 497. AIR 1929 Oudh 406 , 119 IC 449 , 6 Luck 497 , 6 OWN 689 (FB)

8. The cases relied on by the learned counsel for the appellant lend no assistance to his contention. On the other hand, there is a series of rulings of the Madras High Court which adopted or favoured the view that a decree obtained against the father alone after partition between him and his sons, for his pre-partition debts, cannot be executed against the property in the hands of the sons, but that it is incumbent, on the creditor to obtain a decree against the sons and thereby proceed against the property which fell to their share at the partition: see 22 Mad 519, (1899) 22 Mad 519 , 9 MLJ 127 24 Mad 555, (1901) 24 Mad 555 38 Mad 1120, AIR 1914 Mad 328 , 24 IC 474 , 38 Mad 1120 , 27 MLJ 112 41 Mad 136, AIR 1919 Mad 1175 , 43 IC 225 , 41 Mad 136 , 33 MLJ 519 47 Mad 621 AIR 1924 Mad 682 , 80 IC 228 , 47 Mad 621 , 46 MLJ 590 and 51 Mad 361 AIR 1928 Mad 657 , 110 IC 141 , 51 Mad 361 , 54 MLJ 726 (FB) at p. 415. On principle it would appear that the view taken by the Madras High Court is the sound one. A Hindu son is liable to pay his father's debt, unless immoral or illegal, by reason of the pious obligation imposed on him. Is it a personal obligation on the part of the son? Obviously not. If it were so, he would be liable to be arrested. Nor is the liability such as affects his separate property. His liability is limited to his interest in the joint family property: see 41 Mad 136 AIR 1919 Mad 1175 , 43 IC 225 , 41 Mad 136 , 33 MLJ 519 and 10 Pat 305. AIR 1931 Pat 177 , 132 IC 871 , 10 Pat 305 , 12 PLT 75 This liability, which is ordinarily supposed to be founded on moral or spiritual considerations, is in reality co-related with the sons' acquisition of interest in the family property by his birth alone entailing reduction pro tanto of his father's share. Corresponding to the sons' pious obligation the father enjoys the right to alienate his sons' share in joint family property along with his own. That power implies that the father has a saleable interest in his sons' share. This power to sell or the saleable interest in the sons' share in the joint property is available to the father so long as he is joint with his sons. Partition severs the sons' interest from that of the father and with it the father's saleable interest in the sons' share also comes to an end. When a creditor of the father obtains a decree against him alone while he is joint with his sons he is entitled to execute that decree against the sons' interest as well for the reason that under Section 60 of the CPC, all saleable property belonging to the judgment-debtor or over which or the profits of which he has a disposing power which he may exercise for his own benefit is liable to be attached and sold in execution of a decree against him. That section presupposes that the judgment-debtor is capable of exercising his disposing power on the date of the attachment. The creditor's power to bring to sale the property owned by the judgment-debtor in which he has disposable interest is coextensive with the power of the judgment-debtor to dispose of his property or property over which he has a disposing power. It must follow that when the property ceases to be the judgment-debtor's or the judgment-debtor loses his disposing power over it the creditor's power also comes to an end, and the decree obtained by him becomes incapable of being executed against that property. It is clear therefore that the creditor's right to proceed against the sons' share in execution of a decree obtained against the father alone must cease when the father's authority to sell the sons' share is terminated as a consequence of the partition and that for the creditors to be able so to reach the sons' share, the joint status of the father and son is sine qua non. Although by the partition the father's power to alienate the sons' share is lost it does not follow that the sons' pious obligation to pay debts incurred by the father before partition also comes to an end. The obligation of the sons is not the result of the father's power to alienate sons' property but arises independently of it. The father's power of disposition is only a means which is available to the father to enforce the sons' obligation. As was pointed out in 55 All 283, AIR 1933 All 235 , 149 IC 181 , 55 All 283 , 1933 ALJ 550 the sons' obligation may subsist notwithstanding the father's incapacity or refusal to alienate his sons' interest. Consequently the son would be liable to pay his father's debts incurred before partition, although the property that he gets by partition is not liable to be attached and sold in execution of a decree obtained against his father alone after the partition. Now since the partition destroys the disposing power of the father over his sons' interest the creditor cannot reach the sons' interest through the father by obtaining a decree against him alone. His proper course after partition is to obtain a decree against the son and execute it against the property which fell to his share at the partition. Next it is urged that the partition was only a contrivance to delay and defeat the creditors and that it was nominal and colourable. There is no material on record from which to infer that the partition was never intended to be real but that it was only a cloak to shield the property from creditors. We see no reason to disagree with the lower Court's finding that the partition was real. It is further argued that if the partition was meant to be real it was fraudulent. The question whether it was fraudulent or not is in reality inconsequential since even if it was not fraudulent it would not affect the creditor's right to recover his preparation debts. We fail to see why the parties should resort to fraud when it does not put them in a better position vis-a-vis the creditor. It is true that out of property worth about Rs. 32,000, the son got a moiety of a house worth only Rs. 5,000 free from any debts which were somewhere between Rs. 20,000 and Rs. 25,000 and that the father retained for himself the other moiety in that house and another house worth Rs. 15,000 and some moveable properties worth Rs. 12,000 and took over the entire burden of the debts. In order to discharge his debts he transferred his half share in the house to his son for Rs. 5,000. There can be no element of fraud in the transaction when the father was given sufficient property to enable him to discharge his debts.

9. As to the sale of the half share in the house there is ample evidence to show that the son satisfied the father's debts to the extent of the purchase money, namely Rs. 5,000. The creditors who received payments have been examined and they have admitted the receipt of the payments. There is nothing fraudulent in selling the half share to the son rather than to a stranger, as presumably the son was entitled to pre-empt under Section 4 of the Partition Act. The result is that the appeal fails and is dismissed with costs.

B.D/D.S

10. Appeal dismissed.