R. Krishnaswami Iyengar v. Thiagaraja Pillai — 1969 DIGILAW 194 (MAD)

Judgement JUDGMENT :- This Second Appeal raises an interesting question of Hindu Law relating to the pious obligation of the son to discharge the debts of his father. One Balasubramania Pillai and his three brothers, defendants 7 to 9, in the suit of which this second appeal arises, formed members of a joint Hindu family. On 21-10-1921, under the original of Ex. A-2, there was partition among the four brothers by metes and bounds of all the family properties except an extent of 1 acre 82 cents of Nanja land bearing S. F. No. 580 situated in Vangal village, Karur Taluk, and separate possession was taken by the four brothers. The particular item of Nanja land was set apart for maintenance of their mother Meenakshi Ammal for her lifetime, and the partition deed provided that on the death of Meenakshi Ammal, the four brothers would take 1/4th share each in the property. In effect, the four branches had a vested remainder in this item of property as tenants-in-common, the item being subject to the life estate of Meenakshi Ammal. Balasubramania Pillai had borrowed a sum of Rs. 1,600/- on a promissory note dated 4-7-1928 from the plaintiff the appellant in this second appeal, and, for realisation of the amount due under the promissory note, he filed a suit O. S. No. 243 of 1936 on the file of the District Munsif's court. Karur. To that suit, besides the executant of the promissory note Balasubramania Pillai, he made as party defendant Balasubramania Pillai's son, Thiagaraja Pillai, the present first defendant 1st respondent in the second appeal. A decree was sought against Thiagaraja Pillai on the footing that he was bound to pay his father's debt by reason of the pious obligation of the son. On 22-3-1937, the suit was decreed as prayed for against the father and son. Two execution petitions, E. P. No. 274 of 1942 and E. P. No. 211 of 1945, were taken against both the father and son; but the execution petitions were dismissed for non-payment of batta. It is seen from the records that in later execution proceedings the son was given up. Execution was sought by the decree-holder against the l/4th share in the vested remainder, in the suit property, as against the father and it was ultimately sold in E. P. No. 19 of 1949. It is seen from the records that in later execution proceedings the son was given up. Execution was sought by the decree-holder against the l/4th share in the vested remainder, in the suit property, as against the father and it was ultimately sold in E. P. No. 19 of 1949. The decree-holder, the present appellant, with the permission of the court, purchased the share in the court auction. It is evident from the sale certificate dated 22nd December, 1949, of which Ex. A-1 is the certified copy and the suit register extract Ex. A-7 that the execution proceedings were only against the father, the first defendant in that suit, and not against the son. The son was expressly exonerated. The suit register records that a sum of Rs. 1,581-6-4 was allowed as rateable to the decree debt in question out of the net proceeds of "the 1st defendant's immoveables" and part satisfaction to that extent entered up. Balasubramania Pillai died in December, 1955 and the life estate holder Meenakshi Ammal, on 1-12-1960. After the death of the life estate-holder, as court auction-purchaser, the appellant filed the suit out of which the second appeal arises for partition and separate possession of a l/4th share in the suit property. The suit is resisted by Thiagaraja Pillai, the 1st defendant in the suit, and his lessee, the 10th defendant. The substantial defence to the suit is the objection put forward by Thiagaraja Pillai that the plaintiff can have only the share of his father Balasubramania Pillai in the property, namely, a 1/8th share, as execution proceedings were taken only against his father. It is contended for him that, though a money decree had been obtained against the father and son, the decree-holder sought to execute the decree against the father only and so cannot claim to have purchased the interest of the son in the property, the son not having been proceeded against in execution. While the trial court overruled the defence, on appeal, the learned District Judge accepted the son's case and gave a degree in favour of the plaintiff for partition and separate possession of 1/8th share only in the property. While the trial court overruled the defence, on appeal, the learned District Judge accepted the son's case and gave a degree in favour of the plaintiff for partition and separate possession of 1/8th share only in the property. The short but difficult and interesting point that arises for consideration in this second appeal is what passes if a decree-holder who has obtained a decree against both the father and son, executes the decree against the immoveable property of the family in execution proceedings taken against the father alone. Whether in the circumstances the interest of the son or only the father's interest in the property sold passes under the execution sale has to be determined. 2. In this case, one thing is settled that the debt in question was one which the son was bound to discharge from out of his share in the joint family property, the decree in the suit having been obtained against the father and son. It is now well settled that the pious obligation of the son to pay the debts of his father exists, whether the father is alive or dead. It is open to the father during his lifetime, to convey joint family property including the interest of his son, to pay off antecedent debts not incurred for family necessity or benefit, provided the debts are not tainted with immorality. A creditor may institute a suit against the father, and, in execution of the decree, put up for sale the entire family property that is, the father's interest as well as the son's interest in the property. At his option, the creditor may make the sons parties to his suit on the debt due by the father and obtain adjudication from court that the debt would bind the sons also. In Sidheshwar v. Bhubane-shwar, AIR 1953 SC 487 at p. 490, the Supreme Court observes : "A personal decree obtained against the sons could certainly be executed against them by attachment and sale of their undivided interest. The position, in our opinion, cannot be different if they are under a legal liability to discharge the decretal debt due by their father and this liability must be capable of being enforced in the same manner as a personal decree against them. The position, in our opinion, cannot be different if they are under a legal liability to discharge the decretal debt due by their father and this liability must be capable of being enforced in the same manner as a personal decree against them. Whether this could be done only by making the sons parties to the sale or execution proceeding, is another matter to which we would advert presently; but so far as the legal liability of the sons is concerned, as the debts incurred by the father have not been shown to be immoral or irreligious, it must be held that under the rule of Hindu Law mentioned above, there is a legal liability on the part of the sons to discharge these debts and the creditor can enforce this liability by attachment and sale of the sons' interest in the same manner as if it was a personal debt due by them....... Holding as we do, that the sons were liable in this case to discharge the decretal debt due by their father, the further question arises as to how this liability could be enforced? Could the interest of the sons in the joint property be attached and sold without making the sons parties to the suit and the execution proceedings? The point does not seem to us to present much difficulty. Strictly speaking, the sons could not be said to be necessary parties to the money suit which was instituted by the creditor against the father on the basis of a promissory note. If a decree was passed against the father and the sons jointly, the latter would have been personally liable for the debt and the decree could have been executed against their separate or personal property as well. No doubt the sons could have been made parties to the suit in order that the question of their liability for the debts of their father might be decided in their presence. Be that as it may, the money decree passed against the father certainly created a debt payable by him. If the debt was not tainted with immorality it was open to the creditor to realise the dues by attachment and sale of the sons' coparcenary interest in the joint property on the principles discussed above.............................. Be that as it may, the money decree passed against the father certainly created a debt payable by him. If the debt was not tainted with immorality it was open to the creditor to realise the dues by attachment and sale of the sons' coparcenary interest in the joint property on the principles discussed above.............................. He can, if he likes, proceed against the father's interest alone but he can, if he so chooses, put up to sale the sons' interest also and it is a question of fact to be determined with reference to the circumstances of each individual case whether the smaller or the larger interest was actually sold in execution." 3. The contentions of Mr. R. Ramamurthi Ayyar, counsel for the decree-holder-auction-purchaser, may be summed up thus : In the presence of the son an adjudication of the binding nature of the debt on the son's interest in the joint family has been obtained. The decree is against both the father and son and the liability to satisfy the decree is joint and several. Without execution, the father could have, by private treaty, alienated joint family property for the discharge of the decretal liability. Such alienation would be binding on the son. If in this case the suit had been instituted against the father alone and on the decree therein the coparcenary property, including the son's interest, had been attached and sold, the son could not object to the sale by reason of his duty to pay his father's debt. Counsel submits that it makes no difference, if the son is also made a party to the suit, a decree obtained against both the father and son and execution proceeded against the father alone. All that happens in such a case it is said is to preclude the son from objecting to the sale of the entirety of the coparcenary interest in execution proceedings on the ground that the debt is Avyavaharika debt. 4. All that happens in such a case it is said is to preclude the son from objecting to the sale of the entirety of the coparcenary interest in execution proceedings on the ground that the debt is Avyavaharika debt. 4. Learned counsel refers to the observations of Bhashyam Ayyangar, J. in Periasami Mudaliar v. Seetha Rama Chettiar, (1904) ILR 27 Mad 243 (FB) that the whole of the joint family property in the hands of the son must be held liable to satisfy the debt imposed upon the father by the judgment, as a solemn debt of record, quite independently of the original cause of action or alleged debt on which the suit against the father had been brought. Counsel relied on Periaswami v. Vaidhilingam Pillai, 47 Mad LW 60 : ( AIR 1937 Mad 718 ) where the binding character of the mortgage in suit, as against the interest of the sons in the mortgaged property arose for consideration. The major part of the consideration for the mortgage went in discharge of a decree obtained against the father, the mortgagee being directed to pay off the decree-holder. The decree-holder had, in the first instance, impleaded the son also in the suit; but subsequently he withdrew his claim against the son before the decree. It was held that the result of the withdrawal was only to bring the case under O. XXIII, R. 1, C.P.C. and not to bring in the operation of the rule of res judicata embodied in Section 11, C.P.C. It was remarked that the withdrawal attracted the statutory penalty under O. XXIII, R. 1 that no fresh suit can be instituted against the sons on the same cause of action. All that the case decided is, that the withdrawal of the suit against the sons did not amount to an adjudication, express or implied, that the sons were not liable in respect of the claim in that suit. The decision in Krishnan v. Somi, ILR (1940) Mad 815 : ( AIR 1940 Mad 544 ) is again to the same effect that a decree obtained against a Hindu father, after his sons who were impleaded in the suit had been exonerated and dismissed therefrom, can be executed against the son's interests in the joint family property. 5. The decision in Krishnan v. Somi, ILR (1940) Mad 815 : ( AIR 1940 Mad 544 ) is again to the same effect that a decree obtained against a Hindu father, after his sons who were impleaded in the suit had been exonerated and dismissed therefrom, can be executed against the son's interests in the joint family property. 5. The decision in Venkatranga Reddi v. Chinna Sithamma, (1941) 1 Mad LJ 270 at p. 277 : ( AIR 1941 Mad 440 at p. 444) which counsel for appellant has to meet calls for careful consideration. In that case, a decree for mesne profits had been passed against a Hindu father and his undivided minor sons, directing recovery of the profits from the father personally and the family properties of all of them. There were several attempts for executing the decree, and, through the laches of the decree-holders, execution became barred by limitation. Notwithstanding the bar, an application for execution was taken against the father alone. The father did not appear and oppose the application and execution was ordered. The execution, however, was not proceeded against. In the subsequent execution petition out of which the appeal arose in that case, the father and sons were impleaded as parties. By the principle of res judicata, the father was precluded from raising the plea of limitation in the execution petition. As against the sons, the execution was clearly barred. The trial court, while recognising that the decree against the sons could not be executed as such, took the view that, the decree being executable against the father, the sons' shares were also liable to be proceeded against in such execution by reason of their pious obligation under the Hindu Law to discharge the father's debt. The trial court observed : "The first and second defendants are the undivided sons of the third defendant : whatever the third defendant is bound to pay is realisable from out of the estate of the family of defendants 1 and 2. The first and second defendants are under a pious obligation in respect of their father's liability; hence what is binding upon the father cannot be questioned or repudiated by the sons unless it be on the ground of the debt being tainted by immorality or illegality. The sons cannot escape or avoid the decree which their father himself cannot avoid by pleading limitation. The sons cannot escape or avoid the decree which their father himself cannot avoid by pleading limitation. The decree-holder has given up his right to proceed against the sons personally and this cannot make any difference for his right to proceed against the entire family properties of defendants 1 to 3 on the ground that there is a subsisting and unavoidable decree against the father the entire estate of the father is liable to satisfy the debt." Substantially, it is the reasoning now presented for the appellant Rejecting the reasoning Patanjali Sastri, J. (as he then was) who delivered the Judgment of the Division Bench observed, that whatever might be the position, if the decree had been obtained against the father alone, the decree-holders having impleaded the sons also in the suit and obtained the decree against their shares in the family estate, could not claim to proceed against such shares in execution of the decree against the father, when it could no longer be executed directly against them owing to the bar of limitation. It is said : "It is true that the liability of a son arising out of his pious obligation is distinct from that of his father though arising out of the latter's debt, and can be enforced against him by executing a decree obtained against the father alone against the entire family estate including the son's interest therein, provided of course that the debt is neither illegal nor immoral. But when the son is joined in the suit and a decree is obtained binding his interest also, the claim against him based upon his obligation must necessarily be deemed to have been put in suit and merged in the decree, and the only mode of enforcing such claim is, as it seems to us, by executing the decree against him. The matter is no longer governed by the Hindu Law but by the relevant provisions of the Code of Civil Procedure." The decision in Krishna v. Somi, ILR (1940) Mad 815 : ( AIR 1940 Mad 544 ) was distinguished as a case where the creditor's suit against the sons was withdrawn without any adjudication, express or implied, on his claim against the sons. 6. Mr. 6. Mr. R. Ramamurthi Ayyar placed considerable reliance on the decision in Kumbakonam Mutual Benefit Fund, Ltd. v. Ramaswami, (1946) 1 Mad LJ 343 : (AIR 1946 Mad 396) to get over 1941-1 Mad LJ 270 : ( AIR 1941 Mad 440 ). In that case, a mortgage had been executed by a Hindu father on behalf of himself and his three minor sons. The sale of the hypotheca not bringing in the full amount due under the decree, the decree-holder, in the first instance, applied for personal decree against the father and his two surviving sons, limiting so far as the sons were concerned to their interest in the joint family property. The decree-holder, experiencing difficulty in serving one of the sons, withdrew his application for personal decree against that son. A personal decree was obtained against the father and the other surviving son, and, in the execution, the joint family properties were sold. When the son against whom the application for personal decree had been withdrawn applied to set aside the sale of the joint family properties, in so far as his 1/3rd share was concerned, it was held in that case that his share was also liable under the pious obligation rule of Hindu Law. The thing to be noticed in the case is that, as in ILR (1940) Mad 815 : ( AIR 1940 Mad 544 ) there was no adjudication against particular son, the application for personal decree as against the son having been withdrawn. As I read it, this decision affirms the rule that withdrawal of suits against the sons does not exonerate them from their liability under the pious obligation rule. The order relied upon must amount to an adjudication in favour of the son. As I read it, this decision affirms the rule that withdrawal of suits against the sons does not exonerate them from their liability under the pious obligation rule. The order relied upon must amount to an adjudication in favour of the son. In (1946) 1 Mad LJ 343 - (AIR 1946 Mad 396) adverting to certain views expressed in (1941) 1 Mad LJ 270 : ( AIR 1941 Mad 440 ) about the scope of the decision in ILR (1940) Mad 815 - ( AIR 1940 Mad 544 ) it was observed that, if the dismissal of the sons from the suit could be read as amounting to a decision by the court that their interests in the family property were not liable for the debt, the pious obligation rule could not be applied against them in execution of the decree obtained against the father, and that much depended on the circumstances under which the dismissal took place. (1941) 1 Mad LJ 270 : ( AIR 1941 Mad 440 ) was distinguished as a case where a new situation arose, the father being precluded from raising in execution proceedings the plea of limitation by reason of a previous order passed against him alone. The decision does not, in the least, affect the proposition laid down in (1941) 1 Mad LJ 270 : ( AIR 1941 Mad 440 ) that, when the claim against the son based on the pious obligation has been put in suit and merged in a decree, the only mode of enforcing the claim is by executing the decree against the son. The cases in ILR (1940) Mad 815 : ( AIR 1940 Mad 544 ) and (1946) 1 Mad LJ 343 : (AIR 1946 Mad 396) are cases where executable decrees had not been obtained against the sons. 7. The cases in ILR (1940) Mad 815 : ( AIR 1940 Mad 544 ) and (1946) 1 Mad LJ 343 : (AIR 1946 Mad 396) are cases where executable decrees had not been obtained against the sons. 7. Counsel referred also to a Full Bench decision of this Court in Jagadesan v. Saraswathi Ammal, (1962) 1 Mad LJ 131 at p. 146 : ( AIR 1962 Mad 174 at p. 180) (FB) where the question referred to was, whether a sale of joint family property, held in execution of a decree in a suit instituted against the father alone on a mortgage executed by him the debt covered thereby not being an avyavaharika debt but which, however, was contracted neither for discharging an antecedent debt of the father nor for any necessity or benefit of the family and, in respect of which personal remedy against the father had become barred, would be binding on the sons' interest in the mortgage property. In the course of the discussion it is observed by the Full Bench that, if the sons are impleaded as parties to the suit against their father and suit against them is dismissed, it would mean that the court had decided in their favour and against the creditor on the question of their liability, and that the principle in such cases is one of mere res judicata and not on the effectiveness of the representation of the sons by their father in the suit. It is said : "It will be apparent from the above that the true principle of the right of a creditor to proceed against the son's share in the family property is not on any representation of his independent interest in the suit, but whether the debt is not an avyavaharika debt. An omission to implead the son in the suit against the father cannot mean that the pious obligation is at an end; its only consequence is that there will be no adjudication as to the binding nature of the suit debt at that stage. The son can, therefore, contest his liability with reference to the nature of the debt in other proceedings. But where the debt is not an avyavaharika one, his liability would exist although the decree is against the father alone." The above observations of the Full Bench relate to a case where no decree was obtained against the son. The son can, therefore, contest his liability with reference to the nature of the debt in other proceedings. But where the debt is not an avyavaharika one, his liability would exist although the decree is against the father alone." The above observations of the Full Bench relate to a case where no decree was obtained against the son. There is nothing in the Full Bench decision against the contention that, where a decree has been obtained against the son based on his pious obligation, the further enforcement of that obligation can only be by proceeding in execution of the decree against his interest in the family property. On the contrary, the Full Bench emphasises the independent character of the son's liability under the doctrine of pious obligation. 8. Counsel for the son relies on Balayya v. Parvateeswararao, (1947) 1 Mad LJ 85 : (AIR 1947 Mad 271) and Sivalinga Thevar v. Srinivasa Mudaliar, (1947) 2 Mad LJ 583 : (AIR 1949 Mad 346) which follow Venkataranga Reddi's case. 1941-1 Mad LJ 270 : ( AIR 1941 Mad 440 ). In the former case the suit was filed against the father and the sons for money due on a promissory note by the father and a decree was obtained against them in respect of the joint family property in their hands. The first execution petition filed against the father and sons failed for want of bidders. Subsequently, the father was adjudged insolvent and after some years the adjudication was annulled. Later on, the father died. The decree-holder sought to execute the decree against the 4/5th share of the sons in the joint family property, the sons in the meanwhile getting themselves divided from their father in respect of their shares. Objection was taken on behalf of the sons that the execution of the decree was barred by limitation. For the decree-holder, it was contended that the period from the date of adjudication of the father till the annulment of the adjudication must be deducted, and that, if it was so deducted, the execution of the decree would be in time. Objection was taken on behalf of the sons that the execution of the decree was barred by limitation. For the decree-holder, it was contended that the period from the date of adjudication of the father till the annulment of the adjudication must be deducted, and that, if it was so deducted, the execution of the decree would be in time. Following (1941) 1 Mad LJ 270 : ( AIR 1941 Mad 440 ) it was held that the decree sought to be executed was the decree against the sons, that the decree was executable even during the period the father was adjudged insolvent, and that, therefore, the petition was barred by limitation. The claim against the sons based upon the pious obligation was held to have become merged in the decree against them and the only method of enforcing it was by executing the decree against them. (1947) 2 Mad LJ 583 : (AIR 1949 Mad 346) was again a case where the decree had been obtained against both the father and the son and the decree against the son had been barred by limitation, while it was not barred against the father by intervening insolvency. These cases affirm the principle that, where there is a decree against the father and the son, the decree against the son must be looked at independently from the decree against the father. It is observed that, when the liability of a son arising under the doctrine of pious obligation gets crystallised into a decree of court, it is no longer permissible to look at the original obligation which is merged in the new obligation created by the decree, and that the relationship between the father and son is thereafter irrelevant. 9. In my view, the instant case is governed by the principles enunciated in 1941-1 Mad LJ 270 : ( AIR 1941 Mad 440 ) (1947) 1 Mad LJ 85 : (AIR 1947 Mad 271) and (1947) 2 Mad LJ 583 : (AIR 1949 Mad 346). A creditor may be satisfied by proceeding against the father personally or against his interest in the joint family property. A creditor may be satisfied by proceeding against the father personally or against his interest in the joint family property. The creditor may choose to make the son's interests liable in execution of the decree against the father, relying upon the pious obligation of the son to pay off his father's non-Avyavaharika debts or he may choose to get an adjudication both against the father and son, the son's liability being on the pious obligation, and enforce the decree against both. Having obtained the decree against the son, he can proceed against the interest of the son in the joint family property only by enforcing the decree in execution. The fact that the creditor, if the decree was obtained against the father alone, could have brought to sale the son's interest also, cannot avail him when he has chosen to implead the son as a party in the suit and obtained a decree against him. The claim based on pious obligation having become the subject of a decree cannot be relied upon to make the son liable for the decree against the father. A single obligation of the son cannot be made the subject of diverse execution proceedings, one against the father and one against the son. Processual law will not permit it. The claim against the son is merged in the decree against him and the decree must be looked at independently from the decree against the father. The only method of enforcing the claim against the son in such a case is to execute the decree against him. In the instant case, the decree-holder has obtained a decree both against the father and son and he took out execution proceedings only against the father. Clearly in the circumstances, he cannot proceed against the son's interest in the joint family property in the execution proceedings against the father. 10. The instant case may be looked at from another angle examining what passed under the execution sale, whether the father's interest or the interests of both the father and son. This is not a case where objection is raised in execution proceedings. The sale took place in 1949 and the auction-purchaser, that is, the decree-holder, now seeks a declaration that under the execution sale against the father, the son's interest has also passed. This is not a case where objection is raised in execution proceedings. The sale took place in 1949 and the auction-purchaser, that is, the decree-holder, now seeks a declaration that under the execution sale against the father, the son's interest has also passed. As there was an intervening life estate, he claims possession now of not only the father's interest but also the interest of the son in the property which was put up for sale. The sale proclamation advertises sale of a 1/4th interest in the suit property, subject to the life estate but the son has been specifically exonerated. It has been held in decisions that as to what passes under an execution sale would depend upon the form of the execution proceedings, including the sale proclamation, sale certificate as well as the proceedings in the suit in which the decree has been passed. But even if the court purports to sell the entirety of the interest, it cannot sell more than the law allows. In the light of the preceding discussion, the son's interest cannot pass under the execution sale. That apart, having regard to the sale certificate and the proceedings in the suit, it is a reasonable inference that what has passed under the execution sale is the interest of the father alone. As has been repeatedly pointed out, it is a mixed question of law and fact as to what the court intended to sell at a public auction. In Pettachi Chettiar v. Chinnatambiar, (1887) ILR 10 Mad 241 (PC) the question was what passed on a sale of the right, title, and interest in an impartible zamindari in execution of decree against the Zamindar, the head of an undivided family, whether it was only his own personal interest or the whole title to the Zamindari, including the interest of a son. Having regard to the proclamation of sale and other proceedings, it was said that, if the whole estate could have been put up for sale, it was put up, and that it was not a question of what the court could have done, or what they ought to have done, but what they did, what was put up for sale and what was purchased. In the instant case, the decree-holder obtained a decree both against the father and the son, the purpose of obtaining the decree against the son being to embark his liability in the action and make his interest in the joint family liable by a decree against him for the debt of his father without leaving the matter open for later proceedings. Notwithstanding the decree against the son, the decree-holder would not execute the decree against him but would exonerate him, the decree-holder being the auction-purchaser. The suit register extract records that the decree debt was satisfied out of the net proceeds of the 1st defendant's (the father's) immoveables. In the circumstances, it will be a proper inference, having regard to the frame of the suit and the execution proceedings ultimately ending in the sale of the property, that the decree-holder intended to confine his execution only to the interest of the father in the joint family property. 11. In the result the second appeal fails and is dismissed with costs. Leave granted. Appeal dismissed.