Sidheshwar Mukherjee vs Bhubneshwar Prasad Narainsingh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 53 of 1951

Decision Date: 5 October 1953

Coram: B.K. Mukherjea, Mehr Chand Mahajan, B. Jagannadhadas

In the matter titled Sidheshwar Mukherjee versus Bhubneshwar Prasad Narainsingh and others, the Supreme Court of India delivered its judgment on the fifth day of October, 1953. The opinion was recorded by Justice B. K. Mukherjea, who was joined by Justices Mehr Chand Mahajan and B. Jagannadhadas as part of the bench hearing the case. The petition was presented by Sidheshwar Mukherjee as the petitioner and the respondents were Bhubneshwar Prasad Narainsingh together with additional parties. The case was cited as 1953 AIR 487 and 1954 SCR 177, and it was later referenced in several subsequent reports including R 1959 SC 282, R 1966 SC 470, and F 1982 SC 84. The legal issue under consideration involved the provisions of Hindu law relating to debts, the pious obligation of sons, and the effect of a decree against a junior member of a joint Hindu family when the debt was neither immoral nor illegal. The Court examined whether a purchaser of the debtor’s interest in joint family property could acquire the interest of the debtor’s sons, even where the debtor was not the family’s karta and the family did not consist solely of father and sons, and whether it was necessary for the sons to be made parties to the suit or execution proceedings.

The Court explained that a person who obtained a decree against a member of a joint Hindu family for a debt could attach and sell that member’s interest in the family property, and that, provided the debt was not immoral or illegal, the interests of the debtor’s sons in the same property would also pass to the purchaser by virtue of that sale. This principle applied irrespective of whether the father was the karta, because under Hindu law the father retained the right to represent his sons, subject to the sons’ ability to contest the debt’s enforceability. The Court cited earlier decisions that approved this rule, namely Lalta Prashad v. Gazadhar (I.L.R. 55 All. 28), Chhoteylal v. Ganpat (I.L.R. 57 All. 176), and Virayya v. Parthasarathi (I.L.R. 57 Mad. 190). The Court further clarified that the rule laid down by the Privy Council in Nanomi Babuasin’s case was not limited to situations where the father acted as the head of the family; the father could effectively represent his sons in sale or execution proceedings even if he was not the karta.

The judgment also addressed the rights of a purchaser who bought the interest of a judgment debtor in execution of a decree. The Court held that such a purchaser could not institute a suit against the other coparceners to recover a share of the income from the joint family properties dating back to the purchase. The purchaser’s remedy lay in filing a suit for partition, and his right to possession would commence only from the time a specific allotment was made in his favour. The case was heard under the civil appellate jurisdiction, involving Civil Appeals Nos. 53 to 55 of 1951, which were appeals from the judgment and decree dated the eighth of September, 1948, rendered by the Division Bench of the Patna High Court.

In this matter the High Court of Judicature at Patna, whose judges were Mahohar Lall and Mahabir Prasad, had previously rendered decisions in civil appeals numbered 219 of 1946 and numbers 40 and 39 of 1945. Those appeals were directly connected with judgments and decrees dated 29 January 1946 and 16 September 1944 that had been issued by the Subordinate Judge of Motihari in original suits numbered 108, 109 and 110 of 1943. The appellant was represented before the High Court by the Solicitor-General for India, C K Daphtary, who was assisted by Rameshwar Nath. The first and second respondents were defended by Ratan Lal Chowla, with K N Aggarwal accompanying him, while the third and fourth respondents were defended by H J Umrigar. The judgment of that Court was pronounced on 5 October 1953 by Justice Mukherjee. Subsequently, Civil Appeal No 53 of 1951 was filed on behalf of the plaintiff, seeking to overturn a judgment and decree of a division bench of the Patna High Court dated 8 September 1948. That decree had modified the earlier orders of the Additional Subordinate Judge of Motihari that had been passed in Partition Suit No 108/6 of 1943-46. Alongside the partition suit, two money suits involving the same parties had been tried together with the partition suit; the trial judge had decreed both money suits, but the Patna High Court set aside those decrees on appeal. Separate appeals numbered 54 and 55 of this Court arose from those money-suit judgments, and the Court indicated that they would be considered separately. The principal issue in appeal 53, however, was confined to a single, undisputed point: the precise extent of the plaintiff’s legal title in the properties that were the subject of the partition. The plaintiff claimed, and the trial judge had accepted, that he was entitled to a share of four annas in the schedule lands. The Patna High Court, on the other hand, held that the plaintiff’s title was limited to only one anna and four pies, and that only that reduced share entitled him to seek a partition. The validity of that reduction of the plaintiff’s share was the question presented to the present Court.

To understand the positions of the parties, the Court set out the following material facts. The lands in dispute were recorded in Tauzi No 703 of the Champaran Collectorate and were acknowledged to belong to the first defendant and his ancestors. The principal defendant, Bhubneshwar Prasad, had borrowed a sum of money from Panchanan Banerjee before 1932, thereby creating a promissory note. Panchanan Banerjee instituted a suit before the Subordinate Judge at Motihari to recover the loan. After obtaining a decree, he instituted execution proceedings in Execution Case No 16 of 1932 before the same Subordinate Judge. During those proceedings, the judgment debtor’s right, title and interest in the subject property—described in the records as a four-anna share—were placed up for sale. The sale of that interest and its subsequent conveyance formed the factual backdrop for the plaintiff’s claim that he had acquired a specific allotment of a four-anna share in the disputed properties. The plaintiff relied on the conveyance dated 1 February 1935, through which he asserted his right to the particular share, while the defendants contended that his title was limited to the smaller portion recognized by the Patna High Court. The Court therefore needed to determine whether the plaintiff’s legal title extended to the full four-anna share as claimed, or only to the one-anna-four-pies portion that had been upheld by the lower appellate decision.

In this case, the decreeholder purchased the property by execution sale on 7 September 1932, and the purchaser obtained possession of the property on 25 January 1935. The record shows that at the time of the sale Bhubneshwar Prasad, together with his grandfather Bishun Prakash, his father Lachmi Prasad and his two sons (who are defendants 2 and 3) constituted an undivided Hindu joint family, with the grandfather apparently acting as the family head or karta. It is not disputed that, had a partition of the joint family been effected at that moment, Bhubneshwar Prasad and his sons would have been entitled to a share of four annas in the ancestral property. Subsequently Panchanan, having obtained the judgment-debtor’s interest through the execution sale, conveyed that interest to the plaintiff by a deed dated 1 February 1935. Relying on that conveyance, the plaintiff instituted the present suit seeking a specific allotment of a four-annas share in the suit properties. The principal defendants in the suit are Bhubneshwar Prasad and his three sons, identified as defendants 2, 3 and 4, and it is undisputed that they collectively hold the remaining twelve annas share in the properties at the present time. Defendants 5, 6 and 7 were impleaded on the allegation that they held various portions of the joint property as zarpeshgidars under the twelve-annas proprietors. The suit was mainly contested by defendant No. 1. His principal argument was that the money suit brought by Panchanan was filed only against him and that his sons were not joined as parties to either the original suit or the execution proceedings. Accordingly he claimed that only his own undivided interest in the joint family property, and not the interests of his sons, could have been transferred by the sale. He contended that the execution creditor could not have acquired more than one anna and four pies of the property and that the plaintiff could claim only that limited share. The Subordinate Judge rejected this contention. The judge observed that the debt incurred by Bhubneshwar was not for immoral purposes and therefore the creditor was entitled to recover the debt not merely from the father's undivided coparcenary interest but also from the father's and the sons’ collective interest in the ancestral property. The execution proceedings indicated that the creditor intended to attach and sell the sons’ interests as well. Consequently, unless the sons could demonstrate that the debt was not enforceable against them under Hindu law, the fact that they were not made parties to the proceedings was immaterial. Based on this reasoning the trial judge allowed the plaintiff’s claim in full and pronounced a preliminary decree declaring that the plaintiff was entitled to a one-fourth share in the scheduled properties. Dissatisfied with that outcome, defendant No. 1 appealed to the High Court. The learned judges of the High Court, who heard the appeal, expressed the view that the trial court’s decision…

The Court observed that the decision of the learned Judges would have been indefensible only if defendant No 1 had been the head of a joint family consisting solely of himself and his sons. In such a situation, the father could have acted as the representative of his sons, and the whole undivided interest of the family could have been sold in the execution sale. However, in the present case the plaintiff was a junior member of the family and therefore possessed no authority to dispose of his sons’ share, nor could he represent them in any suit or proceeding. Consequently, what the purchaser obtained through the execution sale was not a specific portion of the joint property, but merely the right of the judgment-debtor to have his share defined and allotted by a partition. In a claim for a general partition, the question of the sons’ religious or “pious” duty to pay their father’s debts did not arise at all. Accordingly, the learned Judges held that the plaintiff was legally entitled to a share of one anna and four pies in the joint properties, a share that the father himself could have claimed at the time of partition on the date of the sale. The Court then identified the sole issue for its consideration as whether the view adopted by the learned Judges was correct.

To determine that issue, the Court said it must first examine whether the sons of defendant No 1 were legally liable to satisfy the decretal debt incurred by their father, and whether such liability could be enforced by attaching and selling their undivided coparcenary interest together with their father’s interest in the joint family property. If no such liability existed, the matter would end there; but if liability did exist, a further procedural question would arise as to whether the sons’ coparcenary interest could be attached and sold without making the sons parties to the suit and the execution proceedings. The Court noted that the answer to the first question depends on the doctrine of Mitakshara law, which imposes a duty on a person’s descendants to pay the ancestor’s debts provided the debts are not immoral. The doctrine originates from Smriti writers who deemed non-payment of debt a grave sin whose consequences follow the debtor even after death. The purpose of imposing this duty, the Court explained, is to spare the father from suffering in the after-life. Although judicial decisions have modified the original doctrine in certain respects, the current law states that the sons’ obligation is not a personal liability that exists regardless of any asset receipt; rather, it is a liability that is limited to the assets they receive as a share in the joint family property.

The Court observed that the duty of the sons to discharge a debt incurred by their father attaches to the sons’ interest in the joint family property or to any share they may have in that property. This duty persists regardless of whether the sons are adults or minors and irrespective of whether the father is still living or has died. When a debt has been incurred by the father and the debt is neither immoral nor irreligious, the sons’ interest in the coparcenary estate may invariably be called upon to satisfy that debt. The Court found no justification for the proposition that, in order to impose this religiously-motivated obligation on the sons, it must be shown that the father was the manager or karta of the joint family, or that the family consisted only of the father and his sons without any other male members. Such a restriction could not be derived either from the ancient texts that formulate the doctrine or from the principles that subsequent judicial decisions have added to the doctrine. The Court further explained that where a debt is incurred for the necessity or benefit of the family, the manager of the family—whether that manager is the father or some other person—possesses an unquestionable power to alienate any portion of the coparcenary property in order to satisfy that debt, irrespective of which family member actually contracted the debt. This managerial authority, the Court noted, rests upon the principle of agency or implied authority as set out in a passage quoted by the Mitakshara: “Even a single individual, may make a donation, mortgage or sale of immovable property during a season of distress, for the sake of the family and especially for religious purposes” (1). The Court distinguished such family-related debts from a personal liability incurred by the father that does not confer any benefit upon the family. The liability of the sons to pay a personal debt of the father does not arise from the agency principle that obliges junior family members to discharge family debts. Rather, it is a special liability founded purely on religious considerations and it may be enforced solely against the father’s sons and against no other coparcener. Consequently, this liability is rooted entirely in the relationship between father and son and does not depend on any particular composition of the family at the time the debt was incurred or when the obligation is enforced. The Court also noted that the discussion of debts in the Mitakshara treatise is treated separately and appears to have no direct connection with the provisions dealing with inheritance or the constitution of the family. The High Court, the Court observed, had placed great emphasis on the fact that the first defendant in the present case was a junior member of the family and not its karta, and therefore he lacked any right to dispose of his own interest or the interest of his sons in the joint property. The High Court seemed to assume that, because the father was deemed incompetent to alienate the coparcenary rights of his sons for the purpose of satisfying his own personal debts, a creditor could not claim a superior position. The Court rejected this line of reasoning.

In this case the Court observed that the creditor of the father could not claim a superior position merely because the father attempted to alienate his sons’ shares to satisfy his own liabilities, and it rejected the view that the creditor’s right to proceed against the sons’ share in the joint estate is identical to the father’s power of disposal over that interest. The Court noted that it would be erroneous to establish as a proposition of law that the creditor’s authority to recover the debt is co-extensive with the father’s authority to alienate the sons’ interest. The Court referred to the decision in Pannalal and Another v. Mst. Naraini, which held that the father’s power to alienate family property for payment of his just debts may arise from the Hindu law’s pious obligation imposed on the sons, but that power does not define the full extent of the obligation. The Court explained that if the creditor’s rights were deemed to depend solely on the father’s power of disposition, those rights would terminate when the father died or when a partition occurred between the father and his sons. However, settled law recognizes that even after partition the sons may remain liable for the father’s pre-partition debts if no proper arrangement was made for payment at the time of partition, despite the father’s loss of any further right to alienate the sons’ separated shares. The Court further observed that under the Mitakshara law as applied in the State of Bihar, a coparcener cannot voluntarily alienate his undivided interest without the consent of the other coparceners, yet a creditor who obtains a personal decree against a coparcener may attach and sell that undivided interest and then obtain partition through a suit. A personal decree against the sons could therefore be executed by attachment and sale of their undivided interest. The Court held that this position cannot change when the sons are legally obliged to discharge the decretal debt incurred by their father; that liability must be enforceable in the same manner as a personal decree against them. Whether enforcement requires making the sons parties to the sale or execution proceedings is a separate question, but the Court concluded that, since the father’s debts were not shown to be immoral or irreligious, the sons bore a legal liability to discharge those debts under the Hindu law rule referenced earlier.

In this case, the Court observed that the creditor could enforce the sons’ liability for the father’s debts by attaching and selling the sons’ interest in the joint family property in the same manner as if the debt were a personal liability of the sons. The Court further noted that the fact that the father had not acted as the karta or manager of the joint family, nor that the family included coparceners other than the father and his sons, did not diminish the sons’ responsibility. This principle had been adopted in a number of decisions of the Allahabad and Madras High Courts, and the Court considered the view to be well founded. Having held that the sons were liable to discharge the decree-issued debt of their father, the Court turned to the question of how such liability could be executed. It asked whether the sons’ share in the joint property could be attached and sold without the sons being made parties to the suit and the execution proceedings. The Court found no substantial obstacle to that approach. Strictly speaking, the sons were not necessary parties to the money suit that the creditor had instituted against the father on the basis of a promissory note. Had a decree been rendered jointly against the father and the sons, the sons would have been personally liable and the decree could have been enforced against their separate property. While the sons could have been joined as parties to the suit to determine their liability in their presence, the decree against the father alone nonetheless created a debt payable by him. Because the debt was not tainted by immorality, the creditor was entitled to realise the debt by attaching and selling the sons’ coparcenary interest in the joint property, as discussed earlier. The Court cited the Judicial Committee’s rulings in a series of cases, including Nanomi Babuasin v. Modun Mohun, to support the proposition that the creditor had a choice. The creditor could elect to proceed only against the father’s share, or could also put the sons’ interest up for sale. Determining which interest—smaller or larger—was actually sold in execution was a factual question to be decided based on the circumstances of each case. In the present matter, the trial judge had found, and the appellate court had not overturned, that the execution court had intended to sell and had indeed sold a four-anna share in the joint property that comprised the undivided interest of the sons of defendant No. 1.

In this case, the trial judge found — and that finding was not overturned on appeal — that the court which executed the decree had intended to sell, and actually sold, a share of four annas in the joint property. That share included the undivided interest belonging to the sons of defendant number one. The Privy Council, in the case of Nanomi Babuasin, held that a son in such circumstances may assert that, because he was not made a party to the sale or to the execution proceeding, he should not be prevented from challenging the nature of the debt or his liability to pay that debt in any suit or proceeding that he initiates or in which he is later made a party. The son may raise the objection during the execution proceeding itself, or he may commence a separate suit seeking a declaration that the debt does not bind him. He may also rely on the same defence when the purchaser at auction attempts to have his rights defined and separated in a partition suit. In the present matter, the sons were named as defendants in the partition suit and therefore were given the opportunity to raise those objections. Unfortunately, they chose not to make use of that opportunity. Defendant number two, who was the elder son of defendant number one, filed no written statement and did not contest the suit in any manner. A written statement was filed on behalf of the minor sons, defendants three and four, who were represented by a pleader acting as their guardian, and in that pleading the issue was specifically raised. Nevertheless, the record shows that they neither asked the court to frame any issue on that point nor produced any evidence in support of it. Consequently, they failed to demonstrate that the debt was one which, under the Hindu law rule, they were not bound to pay. It may also be noted that, although the trial court decided against the sons, they did not seek to challenge the decree by filing an appeal. The only appeal filed was by their father, who is cited as 13 I.A., and the sons were initially made respondents; only at a very late stage did the appellate court re-classify them as appellants. The learned judges of the High Court expressed the view that the principle laid down by the Judicial Committee in Nanomi Babuasin’s case, and in the subsequent cases that followed, could apply only when the father was the head of the family and, in that capacity, could represent his sons in the suit or the execution proceeding. They further held that if the father was not the karta, the principle would not apply and the purchaser could acquire only the father’s right, title and interest, even though the court had purported to sell the sons’ interest as well. The present Court does not accept that view as sound. While it is true that in all the cases referred to earlier the father was in fact the head of the family, that fact does not alter the underlying principle.

In this case, the Court observed that the fact that the father actually headed the family did not change the applicable legal principle. If a distinction were to be drawn based on the father’s ability to represent his sons in litigation, the Court explained that, subject to the sons’ right to contest the liability, the father could represent them even without being a karta. The Court held that, as a father, he could fully act on behalf of the branch of coparceners consisting of himself and his sons, and that his position would not be enhanced merely by becoming the family’s karta. The Court referred to a decision of the Madras High Court, noting that while a joint family remains undivided, any branch or sub-branch may constitute a separate corporate entity within the larger family. Consequently, the father would unquestionably serve as the head and legal representative of the smaller unit comprising himself and his sons, even though he was not the head of the whole family. Accordingly, the Court concluded that the High Court was incorrect in holding that the plaintiff could not assert a four-anna share in the property because his father had not been the manager or karta of the joint family at the time of the execution sale. The Court therefore allowed the appeal, set aside the judgment and decree of the High Court, and restored the judgment of the trial judge. It also ordered that the plaintiff would bear the costs of both this Court and the lower Court. The matters were recorded as Civil Appeals Nos. 54 and 55 of 1951. Turning to the money appeals, the Court noted that the issues were limited to a brief point. The plaintiff had instituted partition suits against the first-party defendants seeking recovery of his four-anna share of the income and profits from the properties listed in the schedules of the plaints, which he claimed were part of his purchase. He alleged that the first-party defendants had appropriated all of the profits and refused to give him his lawful share. The High Court had held that the plaintiff’s claim must fail because the purchase at the execution sale conveyed only the undivided interest of the coparceners in the joint property. According to that view, he had not obtained a defined share or the right to joint possession from the date of his purchase. The Court stated that he could establish his rights only by filing a partition suit, and that possession would arise only when a specific allotment was made in his favour. In the Court’s opinion, the counsel supporting the appeals failed to demonstrate that, as a matter of law, his client was entitled to joint possession from the date of his purchase. Consequently, the money appeals were dismissed with costs, while Appeal No. 53 was allowed. Appeals Nos. 54 and 55 were dismissed, and the agents for the parties were listed.

The Court observed that the plaintiff’s entitlement to possession in the suit for partition would arise only from the time when a specific allotment of the property was made in his favour. In the Court’s view this principle correctly reflected the law, and consequently the Court adopted this position. Counsel Mr. Daphtary, who had appeared in support of the appeals, was unable to persuade the Court that, as a matter of law, his client was entitled to joint possession from the date of his purchase. The Court found that the arguments presented by counsel did not meet the legal standard required to establish such a right of joint possession. Accordingly, the Court concluded that the appeals could not succeed and ordered that the appeals be dismissed with costs. The Court further recorded that Appeal No. 53 was allowed, whereas Appeals Nos. 54 and 55 were dismissed. The record shows that the appellant was represented by an agent named Rajinder Narain, and the respondents numbered one and two were represented by an agent identified as P. G. Aggarwal.