S. M. Jakati and Another vs S. M. Borkar and Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 233 of 1954

Decision Date: 24 September 1958

Coram: J.L. Kapur, Bhuvneshwar P. Sinha, Syed Jaffer Imam

In the matter titled S. M. Jakati and Another versus S. M. Borkar and Others, the judgment was delivered on 24 September 1958 by a bench of the Supreme Court of India consisting of Justice J. L. Kapur, Justice Bhuvneshwar P. Sinha and Justice Syed Jaffer Imam. The opinion was recorded by Justice J. L. Kapur and the case is reported in 1959 AIR 282 and 1959 SCR Supplement (1) 1384, with subsequent citations including R 1964 SC 880 and several entries in the Election and Registration reports. The issues involved the interpretation of Hindu law concerning the duty of a son to pay his father’s debts, the effect of a partition on that duty, the meaning of the term “avyavaharika,” and the scope of a sale under section 55 of the Bombay Land Revenue Code, 1879 (Bombay V of 1879). The headnote of the report summarizes the factual backdrop and the principal legal questions that the Court addressed.

The petitioner, identified as J, held the position of managing director of a cooperative bank and received an annual remuneration of Rs 1,000. When the bank entered liquidation, an inspection of its affairs revealed that the bank’s funds had not been invested properly and that J had been negligent in performing his duties. Consequently, the Deputy Registrar of Cooperative Societies issued a payment order against J for the amount of Rs 15,100. To enforce this order, the Collector attached an item of property belonging to J’s joint family on 27 July 1942 under section 155 of the Bombay Land Revenue Code and placed it for auction. The property was sold at auction to the first respondent on 2 February 1943, and the sale was confirmed on 23 June 1943. While these proceedings were ongoing, on 15 January 1943, one of J’s sons filed a suit seeking partition and separate possession of his share in the joint family property. In that suit the son argued, among other points, that the auction sale in favor of the first respondent could not bind the joint family because the liability incurred by J was “avyavaharika,” a debt that could not be transferred to satisfy the sons’ interests. He further contended that the filing of the partition suit created a severance of status among family members, thereby terminating the father’s authority to alienate his sons’ shares, and that, consequently, the sons’ interests did not pass to the auction purchaser. Finally, he maintained that section 155 of the Bombay Land Revenue Code permitted only the sale of the defaulter’s (the father’s) right, title and interest, and therefore could not encompass the shares of other joint family members. The evidence presented, which included the notice of sale, the proclamation of sale and the sale certificate, demonstrated that the entire property, not merely the father’s share, had been sold. The Court held that the liability incurred by J was not “avyavaharika” and that the sale of the joint family property, including the sons’ shares, for the purpose of discharging the debt was valid.

The Court held that the sale of the joint‑family property, which also comprised the sons’ share, for the purpose of paying the debt was legally valid. The Court also observed that Colebrooke’s rendering of the Sanskrit term “avyavaharika” as “any debt for a cause repugnant to good morals” most closely expressed the authentic meaning of the term as found in the Smṛti texts. The judgment relied on the precedent set in Hem Raj alias Babu Lal v. Khem Chand, reported in 1943 L.R. 70 I.A. 171. According to the observations of Justices Imam and Kapur, the following principles were established: first, a son’s duty to discharge a father’s non‑immoral or lawful debts arose from a pious obligation that persisted during the father’s lifetime and continued after his death, and this duty was not terminated by the partition of the joint‑family estate; second, when the right, title and interest of a judgment debtor were placed for sale, the determination of what passed to the purchaser depended on the specific facts of each case, including the nature of the estate offered for sale, the court’s intention, and the buyer’s actual purchase and payment; third, the expressions “right, title and interest” in section 155 of the Bombay Land Revenue Code carried the same meaning they possessed in the analogous language of the Code of Civil Procedure that was in force when the Land Revenue Code was enacted; fourth, in execution proceedings it was unnecessary to implead the sons or commence a separate suit when a severance of status occurred during execution, because the sons’ pious duty remained, resulting only in a change in the mode of enjoyment of the property; and fifth, a debt incurred by a father who acted as a managing director and received salary or remuneration, and which arose from negligence in the discharge of his duties, was not an “avyavaharika” debt, since it could not be described as repugnant to good morals.

The Court further noted that the cases of Panna Lal v. Mst. Naraini, reported in 1952 S.C.R. 544, and Sudhashway Mukherjee v. Bhubaneshwar Prasad Narain Singh, reported in 1954 S.C.R. 177, were followed. The decisions in Khiarajmal v. Daim (1904 L.R. 32 I.A. 23) and Sat Narain v. Das (1936 L.R. 63 I.A. 384) were distinguished, while the judgment in Mulgund Co‑operative Credit Society v. Shidlingappa Ishwarappa, reported in 1941 A.I.R. Bombay 381, was approved. The appeal concerned Civil Appeal No. 233 of 1954, which arose from the judgment and decree dated 22 August 1950 of the Bombay High Court in Appeal No. 80 of 1946, itself stemming from an original decree dated 19 October 1945 of the Court of Civil Judge, Senior Division, Dharwar, in Special Suit No. 64 of 1943. Counsel for the appellants were A. V. Viswanatha Sastri and M. S. K. Sastri, while the respondents were represented by counsel comprising A. S. R. Chari, Bawa Shivcharan Singh and Govindsaran.

Counsel for respondents Nos. 2‑4 appeared before the Court, and the judgment dated 24 September 1958 was delivered by Justice Kapur, with Justice Sinha concurring to the order proposed. The matter before the Court was an appeal against the judgment and decree of the High Court of Bombay, which had varied the decree of the trial Court that had decreed the plaintiff’s suit for possession by way of partition of joint‑family property. The factual background was confined to a limited set of circumstances. M. B. Jakati, identified as defendant No. 1, served as the Managing Director of Dharwar Urban Co‑operative Bank Limited, which subsequently went into liquidation, and in that capacity he received an annual remuneration of one thousand rupees. Pursuant to certain proceedings initiated against him by the liquidator of the bank, the Deputy Registrar of Co‑operative Societies issued a payment order directing him to pay fifteen thousand one hundred rupees on 21 April 1942. In execution of that order, the Collector, exercising powers under the Bombay Land Revenue Code, attached a bungalow owned by M. B. Jakati on 27 July 1942. A notice calling for the sale of the attached property was published on 24 November 1942, followed by a proclamation on 24 December 1942, and the sale was scheduled for 2 February 1943. On 16 January 1943, defendant No. 1 applied for a postponement of the sale, a request that was rejected by the authorities. Consequently, the auction was conducted on the appointed date of 2 February 1943, and the sale was formally confirmed on 23 June 1943, the purchaser being S. N. Borkar, who is identified as defendant No. 7 and now respondent No. 1. Subsequently, on 10 February 1944, respondent No. 1 transferred the same property to defendants numbered 8 to 10, who correspond to respondents Nos. 2‑4. A pedigree table was presented to clarify the family relationships, showing Madhavarao Balakrishan Jakati as defendant No. 1, his wife Bhimabai as respondent No. 2, and their children Krishnaji, Shriniwas, Shantibai and Indumati, with the latter three identified as plaintiffs. On 15 January 1943, Krishnaji, a son of defendant No. 1, instituted a suit demanding partition of the joint‑family property and possession of his distinct share, alleging, inter alia, that the purchase of the bungalow by respondent No. 1 could not bind the joint family because it resulted from illegal and immoral conduct on the part of defendant No. 1, described as misfeasance; he further contended that the auction was conducted under section 155 of the Bombay Land Revenue Code, which permits the sale only of “the right, title and interest of the defaulter,” and therefore only the father’s interest could be sold, not the interests of other family members. The plaintiff asserted a one‑quarter share of the property and also claimed that he was not on good terms with his father, who had neglected his interest, and that he was residing with his mother’s sister without maintenance from either parent. On 12 January 1944, appellant No. 1 filed a written statement in support of the partition claim, asserting his own share and endorsing the earlier plaintiff’s contention that the sale in favour of respondent

In this case, the Court noted that the liability of Defendant No 1 was not binding on the joint family. Defendant No 2, who is now appellant No 2 and is the mother, also supported the plaintiff’s claim and, after the death of Krishnaji, asserted that she was entitled to his share as his heir. Following Krishnaji’s death, Shriniwas, who is appellant No 1, was substituted as plaintiff on 28 June 1944. The suit was principally opposed by respondents numbered 1 through 4. Respondent No 1 argued that the plaintiff’s partition suit was collusive, having been instituted at the behest of Defendant No 1, M B Jakati, and therefore was not brought in good faith. He further pleaded that Defendant No 1 had been held liable by the liquidator of the Dharwar Urban Co‑operative Bank Ltd. for misfeasance, on the ground that he had acted negligently while discharging his duties as managing director of the bank. Respondent No 1 contended that the debt was a family obligation because Defendant No 1 received an annual remuneration from the bank and the properties had been sold to satisfy a debt that bound the family. Consequently, he asserted that the sale effected under the payment order could not be contested, since under Hindu law the sons were duty‑bound to discharge their father’s debts. He added that the sale could only be challenged if it could be shown that the debt of Defendant No 1 was incurred for an “immoral or illegal purpose.” These pleadings raised several questions before the courts. The learned Civil Judge concluded that the partition suit was indeed collusive and held that the liability incurred by Defendant No 1 was avyavaharika, meaning it was not enforceable against the sons. Accordingly, the judge fixed a one‑third share of the joint‑family property for appellant No 1, one‑third for Defendant No 1, and one‑third for appellant No 2. He declared these shares to apply to the entire joint‑family property, including the bungalow, which was the sole asset in dispute before the appellate court. On appeal, the High Court found that the debt was not avyavaharika, observing that no evidence had been produced to support the trial court’s finding. The High Court characterized the order of the Deputy Registrar as a judgment to which neither the sons nor the auction purchasers were parties, and therefore it did not constitute proof beyond the historical fact of its delivery. Regarding the interest that passed to the auction purchaser under section 155 of the Bombay Land Revenue Code, the High Court held that the whole estate, including the sons’ shares, had been sold in execution of the payment order, leaving the sons with no interest in that property. The High Court accordingly varied the decree to reflect this view. The plaintiffs then obtained a certificate of appeal from the High Court of Bombay and raised several points before this Court. Their principal contention was that the debt was avyavaharika and therefore, even in an auction sale, the sons’ interest should not have passed to the purchaser. The appellants also referenced the Supreme Court Reports (S C R.) in support of their position.

The appellants put forward three distinct arguments. First, they contended that the interest belonging to the sons and to other members of the joint family did not transfer to the purchaser at the auction. Second, they argued that even if the father’s debt were not considered avyavaharika, the filing of the suit for partition operated as a severance of status among the family members; consequently the father’s authority to dispose of the sons’ share ceased, and therefore the sons’ share could not pass to the auction purchaser. Third, they asserted that, under section 155 of the Bombay Land Revenue Code, only the right, title and interest of the individual defaulter – that is, the father alone – could be lawfully sold, and that such a sale could not encompass the share held by other joint‑family members. The Court identified the preliminary issue as the determination of whether the father’s debt fell within the category of avyavaharika. The term avyavaharika has been rendered in various ways, including “that which is not lawful,” “that which is not just,” and “that which is not admissible under law or normal conditions.” Colebrooke translated the word as “a debt for a cause repugnant to good morals.” Another line of authority has defined it as “a debt which is not supported as valid by legal arguments.” The Judicial Committee of the Privy Council, in Hem Raj alias Babu Lal v. Khem Chand (1), held that Colebrooke’s translation most closely approximates the true concept as found in the Smṛti texts and may be taken as the correct meaning, while noting that a more precise definition is unavailable. In Toshan Pal Singh v. District Judge of Agra (2), the Judicial Committee observed that draws of money for unauthorized purposes, which amounted to criminal breach of trust under section 405 of the Indian Penal Code, were not binding on the sons; however, a civil debt arising from the receipt of monies by the father that were not accounted for could not be termed avyavaharika. In the present case, the appellants attempted to establish that the debt was avyavaharika by relying on the payment order and the findings of the Deputy Registrar, wherein the liability was, inter alia, based on a breach of trust (1) (1943) L.R. 70 I.A. 171, 176; (2) (1934) L.R. 61 I.A. 350. The Court held that any opinion expressed in the Deputy Registrar’s order regarding the nature of defendant No. 1, M. B. Jakati’s liability, could not be admitted as evidence to decide whether the debt was avyavaharika. The order is inadmissible for the purpose of proving the truth of the factual assertions it contains; it may be relevant only to establish the existence of the judgment itself. Accordingly, under section 43 of the Indian Evidence Act, judgments are not admissible as evidence except where they relate to questions of public and general interest, or where they are required to prove the existence of a judgment, order or decree that is a fact in issue.

The Court observed that evidence offered solely to prove the existence of a judgment in rem, or to establish that a judgment, order or decree was made, was irrelevant unless such proof was required to demonstrate a fact that was actually in dispute. It was then submitted that the pleadings filed by respondent No 1 themselves indicated that the debt in question was of an immoral or illegal character. In his written statement, respondent No 1 asserted that the liquidator of the Bank had charged defendant No 1 with misfeasance on the ground that he had been grossly negligent in discharging his duties and responsibilities as managing director. The statement further alleged that, after a thorough inquiry, the Deputy Registrar had found the allegation of misfeasance to be proved and had consequently ordered defendant No 1 to contribute the sum of rupees fifteen thousand one hundred towards the liability.

The Court noted that, as previously explained, the translation provided by Colebrooke of the Sanskrit term “avyavaharika” most closely approximates its true meaning as “any debt for a cause repugnant to good morals.” Applying this definition, the Court held that the position of a managing director of a bank, who is expected to exercise a high degree of vigilance in investing the bank’s funds, could not be said to have incurred a liability that fell within the category of a cause repugnant to good morals. The Court further expressed its inability to accept the proposition that, in the modern era with its complex institutions such as banks and joint‑stock companies governed by intricate statutes and technicalities, a liability of the kind that arose in the present case could be classified as “avyavaharika.” Consequently, the Court concluded that the debt was binding upon the sons of the deceased.

The Court then turned to the procedural consequence of the severance of status that was effected by the filing of the suit on 25 January 1943. That filing gave rise to the argument that only the father’s share in the coparcenary estate could be seized in execution of the payment order made against him. To resolve this argument, it was necessary to examine the rights and liabilities of Hindu sons in a Mitakshara coparcenary family where the father acted as the karta. Hindu law contains two mutually exclusive principles: first, the principle of independent coparcenary rights in the sons, which is a birthright that gives the sons a vested interest in the coparcenary property; second, the pious duty of the sons to discharge the debts of their father, provided those debts are not tainted with immorality or illegality, a duty that opens the entire estate to seizure for the payment of such debts. According to the ancient Hindu law‑givers, this pious duty to settle the ancestors’ debts and to relieve them of the torments of death resulting from non‑payment applied regardless of whether the sons actually inherited any property. However, the courts have rejected a liability that would arise irrespective of inheritance and have given this religious duty a legal character, as reflected in the decision in Masit Ullah v. Damodar Prasad. The Court affirmed that, for the purpose of paying his debts, the father was entitled to alienate the whole coparcenary estate, including the sons’ shares, and that his creditors were likewise entitled to proceed against the entire estate. This right of creditors, however, was subject to the sons’ right to challenge any alienation or to protest against a creditor’s proceeding against their shares on the ground that the purpose was illegal or immoral.

The Court observed that the principles governing a Hindu son’s liability for his father’s debt are well settled and not subject to controversy. It relied on the authority of Panna Lal v. Mst. Naraini [1952] S.C.R. 544, 552‑59, Girdharee Lal v. Kantoo Lal (1874) L.R. 1 I.A. 321, 333, Mudhan Thakoor v. Kantoo Lal (1874) L.R. 1 I.A. 321, 333, Suraj Bansi Koer v. Sheo Prasad Singh (1878) L.R. 6 I.A. 88, 101, and Brij Narain v. Mangla Prasad (1923) L.R. 51 I.A. 129, 136. In the last of these cases the Privy Council affirmed that “nothing clearer could be said than what was said by Lord Hobhouse delivering the judgment of the Board in Nanomi Babusin v. Modun Mohan” (1885) L.R. 13 I.A. 1, 17‑18, even though the rule might appear destructive of the principle of independent coparcenary rights in the sons. The Court explained that for some time the decisions have established the principle that sons cannot invoke their rights to challenge a father’s alienation of property undertaken to satisfy an antecedent debt, nor can they resist a creditor’s remedies for such debts, unless the debt is tainted with immorality. The judges further stated that on this important question of liability of the joint estate there is no conflict of authority and no discrepancy of judicial opinion regarding the pious duty of Hindu sons. In Panna Lal v. Mst. Naraini the Court approved the dictum of Justice Suleman A.C.J. in Bankeylal v. Durga Prasad, namely that Hindu law bases the liability on the pious obligation itself and not on the father’s power to sell the sons’ share. The Court emphasized that Hindu law‑givers regarded non‑payment of a just debt as a sin, wholly repugnant to the Hindu concept of a son’s rights and liabilities. Justice Lal Gopal Mukherji, speaking for the Court in Bankeylal v. Durga Prasad, observed that a review of Smṛti texts on debts shows that under Hindu law the non‑payment of a proper debt was considered a very heinous sin. The Court later reaffirmed this liability based on the son’s pious duty in Sudheshwar Mukherji v. Bhubneshwar Prasad Narain Singh, citing observations from Panna Lal that the father’s power to alienate family property to satisfy his just debts may be a consequence or a means of enforcing the pious obligation, but it is certainly not the measure of the entire obligation. Finally, Justice Mukherjea reiterated that this liability is a special one created on purely religious grounds and can be enforced only against the sons.

The Court explained that the legal responsibility to satisfy a father’s just debt rests solely on the father’s relationship with his son and not on any other coparcener. Consequently, the son’s liability is grounded entirely in the father‑son relationship. As a result, the son must demonstrate that the decree against the father was based on a debt incurred for an immoral or illegal purpose before the creditor’s right to enforce the decree can be limited. In the absence of such a demonstration, the creditor is entitled to execute against the entire coparcenary property, including the son’s share. The Court noted that, except where the underlying debt is illegal or immoral, the execution creditor may lawfully sell the whole estate in satisfaction of the judgment obtained solely against the father, citing the precedent set in Sripat Singh v. Tagore (1). The Court further observed that the pious obligation imposed on Hindu sons does not cease upon partition of the family estate unless a specific arrangement has been made for the payment of the father’s just debts. This principle is supported by the authority of this Court in Panna Lal’s case (2), where Mukherjee J. remarked at page 559 that a son remains liable after partition for pre‑partition debts of his father that are not immoral or illegal and for which no arrangement was effected at the time of partition.

The Court emphasized that the sons’ liability persists despite partition because their religious duty to discharge the father’s debts continues until such debts are fully paid. This duty prevents the sons from asserting that the portion of the family estate corresponding to their interest is immune from liability for the father’s debt. Accordingly, even though partition may eliminate the father’s power to alienate his sons’ shares to satisfy his debt, the judgment creditor’s right to attach the former coparcenary property remains intact and undiminished due to the sons’ pious obligation. The Court found no divergence of judicial opinion regarding the Hindu son’s liability to pay his father’s debts after partition; the mere act of entering into partition with the father does not allow the sons to escape this duty. The Court cited the approval of this principle in Panna Lal v. Mst. Naraini (1) and Sudheshwar Mukherjee v. Bhuvaneshwar Prasad Narain Singh (2), where Mukherjee J., at page 184, observed that it is settled law that even after partition the sons may be held liable for the father’s pre‑partition debts if no proper arrangement for payment was made at the time of partition, despite the father’s loss of any right of alienation over the separated share of the estate.

In this case the issue arose as to the manner in which the sons’ liability could be enforced. A well‑settled principle of Hindu law provides that a decree obtained against the father of a coparcenary family is binding on the sons, since the father is deemed to have represented them in the suit, as noted in Kishan Sarup v. Brijraj Singh (3). As was pointed out in Sidheshwar Mukherji’s case (2), the sons are not indispensable parties to a money suit against the father, who acts as the karta, but they may be impleaded as defendants. The effect of a partition in a joint family is merely a change in the mode of enjoyment; the portion that was held jointly becomes held in severalty after partition. Consequently, attachment of the entire coparcenary estate is not disturbed by the change in enjoyment, because the liability attached to the share allotted to the sons remains intact, and the attachment itself does not terminate because of partition. Section 64 of the Code of Civil Procedure serves as a useful guide in such circumstances. Addressing the question of how the sons’ interest in the joint family property may be attached and sold, Mukherjea J observed at page 185 of Sidheshwar Mukherji’s case (2) that the money decree against the father created a debt payable by him. If the debt was not tainted by immorality, the creditor was entitled to realise the dues by attaching and selling the sons’ coparcenary interest in the joint property, applying the principles previously explained. The Judicial Committee, in a series of decisions such as Nanomi Babuasin v. Modun Mohun (1), held that the creditor has a choice: he may proceed against the father’s interest alone, or, if he prefers, he may also put the sons’ interest up for sale. Determining whether the smaller or larger interest was actually sold in execution is a factual question that must be decided with reference to the particular circumstances of each case.

The respondent contended that a partition effected after the decree but before the auction limited the efficacy of the sale to the father’s share, arguing that the sale, although in fact of the whole estate including the sons’ interest, should be treated as only the father’s because, after partition, the father no longer possessed the power to alienate the entire coparcenary estate to pay his debts. This contention disregarded the doctrine of the pious obligation of the sons. The right of a pre‑partition creditor to seize the property of the former joint family in execution of his decree does not depend on the father’s power to alienate the share of his sons; rather, it rests on the sons’ pious obligation to discharge the father’s debt. That obligation continues even when the father’s power of alienation ceases as a result of partition. Accordingly, the creditor’s remedy to attach and sell the whole estate for payment of a debt not contracted for an immoral or illegal purpose prevails over the sons’ right to retain a vested interest jointly with their father in the ancestral estate. The doctrine of pious obligation therefore continues to render the divided property liable for the father’s debts, precluding the sons from asserting a right that would defeat the creditor’s execution of the decree.

The Court explained that the liability of the sons does not depend on the father’s power to alienate property but on the principle of pious obligation that obliges the sons to discharge the father’s debt. That pious obligation continues to exist even after a partition cuts short the father’s authority to alienate any portion of the joint family estate. Consequently, when the sons’ vested right to share jointly in the ancestral estate is weighed against the creditor’s remedy to attach the whole estate for satisfaction of a debt that was not incurred for an immoral or illegal purpose, the creditor’s right prevails. The sons, therefore, are precluded from setting aside their right, and this restriction applies also to any portion of the property that has been divided, because under the doctrine of pious obligation that portion remains liable for the father’s debts.

Accordingly, where the joint ancestral property—including the sons’ share—has passed out of the family in execution of a decree for the father’s debt, the only remedy available to the sons is to prove, in appropriate proceedings, that the debt was incurred for an immoral or illegal purpose. In the absence of such proof, the sale cannot be attacked by the sons, since even after partition their share remains liable for the debt. The Court referred to several precedents such as Girdhareelal v. Kantoolal, Suraj Bansi Koer v. Sheo Prasad Narain Singh, Mussamat Nanomi Babuasin v. Modwn Mohun, and Chandra Deo Singh v. Mata Prasad, which were approved by the Privy Council in Sahu Ram Chander v. Bhup Singh, as well as Pannalal v. Naraini and Sidheshwar Mukherji’s case.

The Court also noted two decisions that must be regarded as limited to their factual circumstances. The Bombay High Court in Ganpatrao v. Bhimrao held that to make the sons’ share liable after partition, the sons must be brought on the record. The Madras High Court in Kameshwaramma v. Venkatasubba Row stipulated that the creditor must institute a separate suit against the sons, obtain a decree limited to the shares allotted to them on partition, and then attach and sell those shares, unless the partition was not bona fide, in which case the decree could be executed against the joint family property. The Court emphasized that these rulings are confined to their own facts.

While acknowledging that a partition terminates the father’s right to alienate property for personal debts, the Court reiterated that this termination does not affect the sons’ pious duty to discharge the father’s liabilities. Therefore, when, after attachment and proper notice of sale, the entire estate—including the attached share of the sons—is sold to a purchaser who intends to acquire the whole coparcenary estate, the physical presence of the sons is not required for the sale to be valid. The sons retain the right to challenge the sale, but only by demonstrating that the underlying debt was incurred for an immoral or illegal purpose.

The Court expressed the opinion that where a pious obligation persisted and a partition took place after a decree, the precedent cited in (1) (1874) L.R. I.A. 321. 333., (2) (1878) L.R. 6 I.A. 88, 101., (3) (1885) L.R. 13 I.A. Y., (4) (1909) I.L.R. 31 All. 176, 196., (5) (1916) L.R. 44 I.A. 1., (6) [1952] S.C.R. 544, 552, 553, 556, 559., (7) [1954] S.C.R. 177, 183, 184., (8) I.L.R. 1950 Bom. 114., and (9) (1914) I.L.R. 38 Mad. 1120. was applicable to pending execution proceedings such as those before this Court. It held that the sale of the entire estate in execution of the decree could be challenged only if the sons were able to prove that the debt had been incurred for an immoral or illegal purpose. The Court further observed that a partition could not release the sons from their pious obligation, nor could it prevent their shares from being liable to sale, diminish the effectiveness of the attachment, or prejudice the creditor’s rights.

The Court relied on the judgment in Khiarajmal v. Daim (1) where the Privy Council ruled that a sale could not be declared void merely because of procedural irregularities, but the court possessed no jurisdiction to sell property belonging to persons “not parties to the proceedings or properly represented on the record.” In that case, the two individuals named were Alibux and Naurex. Against Alibux there was no decree; he was not a party to the suit, and the Privy Council observed that his interest in the property “seems to have been ignored altogether.” Moreover, he was not identified as a debtor in the award on the basis of which the executed decree was made. Similarly, Naurex was not represented in either suit, there was no decree against him, and consequently the sale of his property was held to be without jurisdiction and therefore null and void. The Court concluded that this authority could not be applied to sons in a joint Hindu family where the father, acting as the representative of the family, obtained a decree enforceable against the sons’ shares while the coparcenary continued to exist and the liability attached to those shares persisted after partition.

The Court further determined that Sat Narain v. Das (2) was likewise inapplicable to the present facts. In that case, the Privy Council examined the father’s power of disposal of property before and after partition, a power that vested in the Official Assignee upon his bankruptcy. The issue before the Privy Council did not concern the judgment‑creditor’s right to proceed in execution against the sons’ divided shares that had been attached prior to partition. No decision was rendered on the powers of an executing court to act against the sons’ shares; the case dealt solely with voluntary alienations by a father for payment of debts not incurred for an immoral or illegal purpose. The citations for these authorities are (1) (1904) L.R. 32 I.A. 23. and (2) (1936) L.R. 63 I.A. 384. The Court noted that in situations where the sons do not contest the liability of their interest in the execution of the decree against the father, and the Court, after attachment and proper notice of sale, proceeds to sell the estate, the preceding analysis governs the validity of such a sale.

In this case the Court observed that when the whole estate is offered for sale and the purchaser at the auction pays the full price for that entire estate, the mere fact that the sons were not named as parties in the record does not suffice to defeat the purchaser’s rights nor to extinguish the sons’ moral obligation. The Court referred to the observation of Lord Hobhouse in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa (1), where the learned Lord stated: “Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if lie knows the facts; and that if he is to be held bound to enquire into the accuracy of the Court’s conduct of its own business, no purchaser at a Court sale would be safe. Strangers to a suit are justified in believing that the Court has done that which by the directions of the Court it ought to do.” The Court also quoted Lord Hobhouse at page 18 in Mussamat Nanomi Babuasia v. Modun Mohun, noting: “But if the fact be that the purchaser has bargained and paid for the entirely, he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the executing proceedings.” The Court then explained that the central issue in an auction of this nature is to determine what the Court intended to sell, what it actually sold, what the auction purchaser claimed to buy, what was actually bought, and the consideration that was paid. The Court illustrated one line of authority through Shambu Nath Pandey v. Golab Singh (3), a decision in which only the father’s share was the subject of the proceedings. In that case the father alone was made a party, and the mortgage, the creditor’s suit, the decree and the sale certificate were all framed to affect only the father’s rights and interest. Consequently, the Court held that irrespective of the nature of the debt, only the father’s right and interest was intended to pass to the auction purchaser. By contrast, the Court cited Meenakshi Naidu v. Immudi Kanaka Rammaya Kounden (1) as an example of the opposite approach, wherein the Privy Council, after examining the documents, concluded that the Court intended to sell and actually sold the entire coparcenary interest, not a partial share. The Court further noted that the recurring question in decided cases is what was put up for sale, what was sold, and what the purchaser reasonably believed he was acquiring in execution of the decree. The decisions of Mussamat Nanomi Babuasin v. Modun Mohun (2), Bhagbut Persad v. Mussamat Girja Koer (3), Meenakshi Naidu v. Immudi Rammaya Kounden (1), Rai Babu Mahabir Persad v. Rai Markunda Nath Sahai (4) and Daulat Ram v. Mehr Chand (5) were listed as authorities on this point. Finally, the Court recorded that in the present matter the payment order had been issued by the Deputy Registrar on 21 April 1942, and after that order was forwarded to the Collector.

In this case, the Court recorded that for the purpose of recovering the debt, the property was first attached on 24 April 1942. Subsequently, a notice of sale was issued on 24 November 1942 and was published in accordance with sections 165 and 166 of the Bombay Land Revenue Code. The proclamation of sale followed on 12 December 1942. The Court observed that the property offered for sale was identified as plot No 36‑D, which measured six acres and one guntha, and its value was specified as thirteen thousand rupees. The notice also contained a disclaimer stating that no guarantee was given regarding the title of the defendant or the validity of any rights, charges or interests claimed by third parties. The order confirming the sale further demonstrated that the entire bungalow was sold. The bungalow was valued at sixteen thousand rupees and carried a mortgage of two thousand rupees, and the order confirmed that the whole bungalow, and not a portion thereof, was the subject of the sale. The sale certificate referred to the entire bungalow, identified as City Survey No 67‑D, also measuring six acres and one guntha, and recorded the sale price as thirteen thousand twenty‑five rupees. The Court found that there was little doubt that the whole bungalow was the object of the auction, as supported by the cited authorities. The purchaser at auction therefore intended to buy, and paid for, the entire bungalow rather than any fractional share. The Court noted that the payment order had been issued before any partition of the property, that the attachment and the proclamation of sale were made before a partition suit was filed, and that the sale of the whole property occurred without any protest or challenge by the sons, nor was any notice given to the Collector or the judgment‑creditor about the pending partition suit. In such circumstances, the Court held that respondent No 1 was entitled to defend his title on the same grounds that would have justified the sale had the appellants been made parties to the execution proceedings. The Court further observed that the decree concerning the father’s debts was binding, free from any impropriety, and that the moral obligation imposed on the sons by Mitakshara law was sufficient to sustain the sale and defeat the sons’ suit, just as in the case of Nanomi Babuasin v. Modun Mohun. Consequently, whether the sons were parties to the execution proceedings or brought a suit challenging the sale of their shares, the decisive issues remained the nature of the debts and the liability of the sons under Hindu law, which are the determining factors in both scenarios. The Court also indicated that the effect of attachment on the severance of status, arising from the filing of a suit by one coparcenary member whose share...

The Court observed that the question of whether a person who was liable in the execution of a decree had his rights affected had not been argued before the bar, and therefore it was unnecessary to resolve that issue in the present proceedings. Consequently, the Court found no need to examine the earlier decisions of the Privy Council in Suraj Bansi Koer v. Sheo Prasad Singh (2), Moti Lal v. Karrabuldin (3), Ragunath Das v. Sundar Das Khetri (4) and Ananta Padmanabha Swami v. Official Receiver, Secunderabad (5). The central argument advanced by the respondents relied on an interpretation of the expression “right, title and interest of the defaulter” found in section 155 of the Bombay Land Revenue Code. They contended that this expression limited the property that could be offered for auction to the defaulter’s own share alone. The Court, however, pointed out that the record clearly demonstrated that the entire property had been advertised for sale, that it had been sold, and that the purchaser had acquired it in its totality. This conclusion was supported by the notice dated 24 November 1942, the proclamation of sale dated 24 December 1942, the order confirming the sale dated 28 June 1943, and the sale certificate issued by the Collector. The Court further explained that, at the time the Bombay Land Revenue Code was enacted, the Civil Procedure Code required that property sold in execution be described as “right, title and interest of the judgment debtor,” wording that was reproduced verbatim in section 155 of the Revenue Code. Accordingly, the Court held that the determination of what was actually sold in execution of a decree is a factual question that must be decided on the basis of the evidence presented in each individual case.

In support of this approach, the Court referred to several earlier authorities. In Rai Babu Mahabir Prasad v. Markunda Nath Sahai (1), Lord Hobhouse stated at page 16 that “it is a question of fact in each case, and in this case their Lordships think that the transactions of the 4th and 5th of January 1875, and the description of the property in the sale certificate, are conclusive to show that the entire corpus of the estate was sold.” Likewise, in Meenakshi Naidu v. Immudi Kanaka Rammaya Kounden (2) the Court held that the whole interest of the coparcenary was sold after considering the evidence placed on record. By contrast, Lord FitzGerald, citing Hurdey Narain v. Rooder Perkash (3), observed that the documents in that case demonstrated that the court intended to sell, and did sell, only the father’s share – the share and interest that he would acquire on partition and nothing beyond it. The Court noted the citations for these authorities as follows: (1) (1889) L.R. 17 I.A. 11, 16; (2) (1888) L.R. 16 I.A. i; (3) (1883) L.R. 11 I.A. 26, 29. These precedents illustrate that the substance of what is described and sold, rather than a technical reading of the statutory language, determines the extent of the conveyance in execution sales.

In the present case the sale was held to comprise “whatever rights and interests the said judgment debtor had in the property” and nothing beyond that description. The Court referred to the decision in Sripat Singh v. Tagore (1) where the expression “right, title and interest of the judgment debtor” was interpreted to convey the entire coparcenary estate. That decision also stressed that the substance of a transaction, rather than its mere technical form, must determine what is transferred. Accordingly, the Court explained that the inquiry must focus on three aspects: what was actually offered for sale, what the court intended to sell, and what the purchaser intended to acquire and ultimately claimed to have bought.

The appellants’ counsel cited Shambu Nath Panday v. Golab Singh (2), a case in which “right and interest of the father” was said to denote only a personal interest. The Court observed, however, that in that earlier case the documentary evidence clearly showed that only the father’s share was intended to be transferred. The Court then turned to Mulgund Co‑operative Credit Society v. Shidlingappa Ishwarappa (3), which affirmed that a sale effected under the Bombay Land Revenue Code produces the same legal result as a sale ordered by a civil court. The language of the two statutes—“the right, title and interest of the defaulter” in the Revenue Code and “the right, title and interest of the judgment debtor” in the Civil Procedure Code—was held to be essentially identical. The Privy Council’s observation in Rai Babu Mahabir Prasad v. Markunda Nath Sahai (4) was relied upon to confirm that the nature of the transferred interest does not change merely because the sale is made under section 155 of the Bombay Land Revenue Code rather than under the Code of Civil Procedure; the effect of the transfer remains the same. On this basis the Court articulated three principal holdings. First, the sons remain liable to discharge the father’s debts that are not tainted by immorality or illegality, because this liability arises from a moral duty that persists during the father’s lifetime and after his death and does not cease because of a partition of the joint family property, the partition merely terminating the father’s right of alienation. Second, when the “right, title and interest” of a judgment debtor are placed for sale, the determination of what passes to the purchaser is a factual question in each case, dependent on the specific estate offered for sale, the court’s intention, and the purchaser’s intention, actual purchase and consideration paid. Third, the expressions “right, title and interest” used in section 155 of the Bombay Land Revenue Code carry the same meaning as the analogous terms employed in the Civil Procedure Code, and therefore should be construed consistently across both statutes.

The Court observed that the statutory provisions under discussion were already in force at the time the Bombay Land Revenue Code was originally enacted, and it placed this fact at the outset of its analysis. Turning to the procedural aspects of execution proceedings, the Court held that it is not required to implead the sons or to institute a separate suit when a severance of status occurs while the execution proceedings are pending. The reason, as the Court explained, is that the filial obligation, described as the pious duty of the sons, continues unchanged; consequently the only effect of the severance is a variation in the manner in which the property is enjoyed, not a termination of the underlying right or an alteration of ownership. The Court then examined the question of liability concerning a father who also occupies the position of managing director and who receives a salary or other remuneration. It concluded that any liability that arises from negligence in the performance of his managerial duties does not fall within the category of an avyavaharika debt, because such liability cannot be characterised as repugnant to good morals. On that basis, the Court found that the appeal could not succeed. Accordingly, the Court ordered that the appeal be dismissed and that the costs of the proceedings be awarded to the appropriate party. The judgment further recorded that Justice Sinha agreed with the proposed order, and the appeal was dismissed.