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2006 DIGILAW 2746 (MAD)

N. Dakshinamurthy v. P. Natarajan & Others

2006-10-16

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (This appeal is filed under Section 96 of C.P.C. praying for the relief as stated therein.) This appeal has been preferred against the decree and Judgment in O.S.No.387 of 1987 on the file of Sub Court, Namakkal. The plaintiff in O.S.No.387 of 1987 is the appellant herein. 2. The short facts in the plaint relevant for the purpose of deciding this appeal are as follows: The suit was filed for partition and for an order of permanent injunction. The first defendant is the father of the plaintiff. The second defendant Subbaraya Gounder is the brother of the first defendant. Previously, the plaint schedule property was the joint family property of the plaintiff, first and second defendants. The plaintiff and the defendants were in possession and enjoyment of the joint family properties. The Plaint "A" schedule property was allotted to the first defendant in the partition entered into between the first defendant and his father. The plaint "B" schedule property was allotted jointly in favour of first and second defendants. The first and second defendants are in possession and enjoyment of the respective ½ share which are scheduled as plaint "B" schedule property. The plaintiff is residing separately for the past more than ten years and cultivating a portion of the land separately. The first defendant is residing separately. The first defendant borrowed some amounts through third defendant Karur Vysya Bank Limited, but the plaintiff was not a beneficiary under the said loan. The first defendant had no necessity at all to borrow any amount from the third defendant. The borrowing made by the first defendant is not for the family or for the benefit of the plaintiff. The third defendant is bringing the suit properties to sale in REP No.17 of 1987 in O.S.No.44 of 1984 on the file of the Sub Court, Namakkal and the same was posted to 30.9.1987. If the respondent is allowed to bring the properties to sale then the right of the plaintiff will be very much affected and it will not be possible for the plaintiff to retain the same. The plaintiff is entitled to ½ share in the suit "A" schedule property and 1/4th share in the plaint "B" schedule property. The plaintiff's share will not be liable for the amount due to the third defendant from the first defendant. The plaintiff is entitled to ½ share in the suit "A" schedule property and 1/4th share in the plaint "B" schedule property. The plaintiff's share will not be liable for the amount due to the third defendant from the first defendant. The plaintiff was not at all benefited by the borrowing, which were made by the first defendant. So the plaintiff's property will not be liable for payment for the debt due to the third defendant. Hence prayer for permanent injunction restraining the third defendant from bringing the properties to sale in REP No.17 of 1987 in O.S.No.44 of 1984. The plaintiff is entitled to ½ share in the plaint "A" schedule property and 1/4th share in the plaint "B" schedule property. The plaintiff asked the first defendant with the help of relations and well wishers to divide the properties and allot one such equal share in the "A" Schedule properties and 1/4th share in the "B" schedule properties. Since first and second defendants are not amenable for amicable partition, the plaintiff has come forward with the suit for partition. The plaintiff came to know about the sale proceeds only through the paper publication in one issue of "Malaimurasu" dated 18.9.1987. The decree obtained by the third defendant will not bind upon the plaintiff and his share in the suit properties and the first defendant's share alone is more than sufficient to meet the decree debt of the third defendant As the defendants 1 and 2 are not amenable for amicable partition, the plaintiff is forced to file the suit for partition and separate possession. 3. The first defendant in his written statement would contend that the plaintiff is his son and the second defendant is his brother and that in the family properties, the plaint "A" schedule properties were allotted to the first defendant and the plaint "B" schedule properties were allotted to the first defendant and his brother second defendant. Hence the plaintiff is entitled to ½ share in plaint "A" schedule properties and 1/4th share in the plaint "B" Schedule properties. The plaintiff does not want to continue in the Hindu Joint Family and he got separated himself from the Hindu Joint Family and leading a separate life. Between the parties, there was a mediation took place in front of the panchayadhars on 20.12.1976. The plaintiff does not want to continue in the Hindu Joint Family and he got separated himself from the Hindu Joint Family and leading a separate life. Between the parties, there was a mediation took place in front of the panchayadhars on 20.12.1976. After the separation of the plaintiff from the Hindu Joint Family, the first defendant is leading a separate family life . The first defendant had borrowed a loan from the third defendant, bank. For the above said loan, family properties were shown as collateral security. The first defendant has utilised the borrowed amount, only for his personal use. The plaintiff is in no way connected with the said loan amount. The said loan will not bind the share of the plaintiff in the plaint schedule properties. This defendant has no objection for granting relief as prayed for in the plaint. 4. The second defendant remained exparte. 5. The third defendant in his written statement would contend that the plaintiff and the first defendant are the members of the Hindu joint family. They are living together. They are having joint mess and joint worship The allegations that the plaintiff is separately residing for more than ten years and cultivating some portions of the suit properties separately are all false. The plaintiff and the first defendant own a Rice Mill by name "Sri Gopalakrishna Mills", Chinnakkakaveri, Vellakkalpatti Post, Rasipuram Taluk. It is a family business. The said Mill is engaged in sago and starch manufacturing. The said business is a very lucrative one. The plaintiff also is working with his father in the said Mill. The first defendant applied for a loan of Rs.50,000/- on 5.10.1987 for the working capital of the said Mill. The sanction was granted by this defendant Bank for the loan of Rs.50,000/- as cash credit loan account. In pursuance of the said sanction, the first defendant executed a promissory note for Rs,50,000/- in favour of the third defendant on 8.12.1977 promising to pay the said amount of Rs.50,000/- to the third defendant or order or on demand with interest at 17% per annum with quarterly rests. From 8.12.1977, the first defendant was having transactions with the third defendant in the cash credit loan account. For the said amounts due under the said account, the first defendant hypothecated his movables in the above Gopalakrishna Mills and executed a hypothecation deed on 8.12.1977. From 8.12.1977, the first defendant was having transactions with the third defendant in the cash credit loan account. For the said amounts due under the said account, the first defendant hypothecated his movables in the above Gopalakrishna Mills and executed a hypothecation deed on 8.12.1977. Thereafter, the first and second defendants deposited the title deed relating to the suit properties belonging to them with the third defendant on 9.12.1977 at the office in Shevapet, Salem as security and with a view to create an equitable mortgage over the same. The first and second defendants acknowledged the above said deposit of title deeds with this defendant by a letter of acknowledgment dated 10.12.1977 and thereby first and second defendants have created an equitable mortgage in favour of the third defendant for the amounts due under the cash credit loan account. The first and second defendants did not pay the amount regularly. As on 21.3.1984, a sum of Rs.36,831.11ps was due to this defendant from the first and second defendants and the plaintiff. Therefore, the third defendant has filed a suit against the plaintiff, first and second defendants on the equitable mortgage for Rs.36,831.11ps in O.S.No.44 of 1984 on the file of the Sub Court, Namakkal. The defendants 1 and 2 in the suit were defendants 1 and 2 in that suit. The plaintiff herein was the third defendant therein. Thereafter, the first and second defendants and the plaintiff herein who was the third defendant in that suit failed to appear and their counsel reported no instructions. Hence, an exparte decree was passed on 8.7.1985 against the plaintiff herein and the first and second defendants. A final decree was passed in I.A.No.480 of 1985, in pursuance of the preliminary decree in O.S.No.44 of 1984 on 16.6.1986. The plaintiff herein and first and second defendants have filed I.A.No.80 of 1986 in O.S.No.44 of 1984 to set aside the exparte final decree passed in I.A.NO.80/1986 and the said application was allowed and the exparte final decree was set aside. But the plaintiff and the first and second defendants remained exparte in the final decree proceedings also and a final decree was passed on 30.7.1986. In pursuance of the said final decree, mortgage properties were brought to sale in REP.No.17 of 1987 in O.S.NO.44 of 1984 on the file of Sub Court, Namakkal. But the plaintiff and the first and second defendants remained exparte in the final decree proceedings also and a final decree was passed on 30.7.1986. In pursuance of the said final decree, mortgage properties were brought to sale in REP.No.17 of 1987 in O.S.NO.44 of 1984 on the file of Sub Court, Namakkal. The plaintiff filed the present suit and obtained an order of temporary injunction in I.A.No.803/1987. Hence, the execution petition could not be proceeded with on that date. E.P.No.17/1987 was dismissed on 4.11.1987 as there was no batta paid . The debt has ripened into a decree in O.S.No.44 of 1984 on the file of Sub Court, Namakkal and the same is binding on the plaintiff, not only in respect of the share of his father but also in respect of the share of the plaintiff. The debt was not for any immoral or illegal purposes, only to meet the family necessity. The said loan was borrowed by the first defendant, who is none other than the father of the plaintiff herein. So under Hindu law , the rule of pious obligation, the plaintiff is liable to pay the suit amount in O.S.No.44 of 1984 to the plaintiff therein, who is the third defendant herein. The subsequent mortgage deed dated 10.12.1977 is therefore binding on the plaintiff and his father who is entitled to mortgage the family properties to secure loan amount for maintaining the joint family. The claim of the plaintiff is barred by res judicata in lieu of the decree passed in O.S.No.44 of 1984. The parties in O.S.No.44 of 1984 and the subject matter are one and the same. The plaintiff has failed to raise the above mentioned contentions in that suit. The first defendant has only one son viz., the plaintiff. The plaintiff has been described as Nagarajan , son of the said Natarjan in O.S.No.44 of 1984. But the plaintiff has now come with the different name as Dakshinamoorthy. But that may be his alias name. The plaintiff wants to take advantage of the said alias name, he wants to contend that he was not a party in O.S.No.44 of 1984. The right of the plaintiff to get a share in the suit properties, but the said share is separated to the payment of the decree debt in O.S.No.44 of 1984. The plaintiff wants to take advantage of the said alias name, he wants to contend that he was not a party in O.S.No.44 of 1984. The right of the plaintiff to get a share in the suit properties, but the said share is separated to the payment of the decree debt in O.S.No.44 of 1984. The third defendant has no objection for a decree being passed for the relief of partition prayed for subject to the payment of the decree amount in O.S.No.44 of 1984 on the file of Sub Court, Namakkal. The plaintiff is not entitled to the relief of permanent injunction The third defendant has got every right to bring the suit property for sale in execution of the decree in O.S.No.44 of 1984 on the file of the Sub Court, Namakkal. Hence the suit is liable to be dismissed. 6. On the above pleadings, the learned trial Judge has framed six issues and on the basis of oral and documentary evidence, has decreed the suit for partition of plaintiff's ½ share in plaint "A' schedule, property and 1/4th share in the plaint "B" schedule property and passed a preliminary decree in that line and dismissed the other relief. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred this appeal. 7. The only point to be decided in this appeal is "Whether the plaintiff is entitled to get an order of injunction as prayed for in the plaint in O.S.NO.387 of 1987 on the file of Sub Court, Namakkal?" 8. The Point: Admittedly, the plaintiff is the only son of the first defendant. The only contesting defendant is the third defendant viz, Karur Vysya Bank Limited. Admittedly, the third defendant had filed O.S.No.44 of 1984 against the first defendant herein, who is the father of the plaintiff herein, for recovery of the previous mortgage debt borrowed by the first defendant in which, the suit properties were shown as collateral security. According to the plaintiff, the property was brought to sale under the execution of the decree in O.S.No.44 of 1984, which has been scheduled to the plaint herein which is the Hindu Joint Family property belonging to the plaintiff, first and second defendants. The second defendant is the brother of the first defendant. According to the plaintiff, the property was brought to sale under the execution of the decree in O.S.No.44 of 1984, which has been scheduled to the plaint herein which is the Hindu Joint Family property belonging to the plaintiff, first and second defendants. The second defendant is the brother of the first defendant. Even though, the defendants would raise a contention that the suit is barred under the principle of "res judicata" in lieu of the decree and judgment in O.S.No.44 of 1984,according to the respondents, the plaintiff was arrayed as a party in O.S.No.44 of 1984 in his alias name Nagarajan, but there is no document produced to show that Nagarajan and Dhakshinamoorthy are one and the same person . While answering issue No.2, the learned trial Judge at paragraph 11 of the judgment has given a clear finding that the third defendant viz., Karur Vysya Bank Limited had failed to prove that in O.S.NO.44 of 1984,the third defendant Nagarajan is the son of the first defendant. Hence the present suit in O.S.No.387 of 1987 is not barred by res judicata due to the decree and Judgment in O.S.No.44 of 1984. 9.While, decreeing the suit in part by granting a preliminary decree for 1/2 share in "A"schedule property and 1/4th share in plaint "B" schedule property, the learned trial Judge has rejected the relief for an order of permanent injunction on the ground that the decree passed in O.S.No.44 of 1984 cannot be restrained by way of permanent injunction, since the present plaintiff is not a party in O.S.No.44 of 1984 and the present suit is not barred under the principle of res judicata. So I do not find any reason to interfere with the findings of the learned trial Judge in respect of partition of the suit properties between the plaintiff, first and second defendants since admittedly, the plaint schedule properties are the Hindu Joint family properties of the plaintiff , first and second defendants. 10. So I do not find any reason to interfere with the findings of the learned trial Judge in respect of partition of the suit properties between the plaintiff, first and second defendants since admittedly, the plaint schedule properties are the Hindu Joint family properties of the plaintiff , first and second defendants. 10. The only objection raised by the appellant/plaintiff is that while proceeding with REP.No.17 of 1987 in O.S.No.44 of 1984, the decree holder viz., the third defendant may be directed to proceed against the share of his father in the plaint schedule properties and if the sale proceeds are not found sufficient to make out the decree amount in O.S.NO.44 of 1984, then the decree holder may be allowed to proceed with the share of the plaintiff in the plaint schedule properties. Admittedly, the plaintiff is the son of the first defendant, who had borrowed a loan from the third defendant viz., Karur Vysya Bank Limited and to realise the said loan amount, the third defendant Karur Vysya Bank Limited, had filed O.S.NO.44 of 1984 and got a decree in its favour. Thereafter REP NO.17 of 1987 was filed before the Sub Court, Namakkal to realise the decree amount. 11. The duty of the son in Hindu law to pay the debt incurred by the father of the Hindu Joint Family has been enumerated in Mayne's Hindu Law and Usage 15th Edition at page 764 as follows: "The history of the doctrine of pious obligation : Starting from the theory that it is a pious duty on the part of the son to pay his father's debts, the Hindu Law liability of sons has proceeded step by step till the debts of the father, not being illegal or immoral, have become in every sense a liability of the joint estate of the father and sons. In 1874, the case of Girdharee lall v Kantoo Lall(1874 I IA 321) laid down that the father could sell the joint estate of himself and his sons for his debts, provided they were not immoral and the case of Muddun Thakoor v Kantoo Lall (1874)1 IA 333) has established that the joint estate could be sold in execution of a money decree against the father. Suraj Bansi's case: In 1879 the Privy Council, after reviewing the fundamental principles of the Mitakshara law and the prior decisions, laid down the following propositions in the case of Suraj Banksi Koer v Sheo Pershad (1879)6 IA 88,106 : 5 Cal 148, 171). Firstly, that where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debts, his sons by reason of their duty to pay the father's debts cannot recover that property unless they show that the debts were contracted for immoral purposes and that the purchaser had notice that the debts were so contracted; and secondly, that the purchasers at an execution sale, being strangers to the suit, if they have no notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings. In 1882, in Muttayan Chetti v Sangili Vira, the Privy Council held that the whole estate was liable in the hands of the son for all the debts, which though neither necessary nor beneficial to the family, were free from any taint of immorality. It was also held that the fact that property in that case was an impartible zamindari could not affect its liability for the payment of the father's debts when it came into the hands of the son by descent from the father. Since it became assets in his hands, if not duly administered in payment of his father's debts, it was liable, as against the son, to be attached and sold in execution . In 1885, in Nanomi Babuasin v Modun Mohun, the Judicial Committee explaining the interaction of the two principles of the Mitakshara law, namely, (1) that a son takes a present vested interest jointly with his father in ancestral estate; and(2) that he is legally bound to pay his father's debts, not incurred for immoral purposes, to the extent of the property taken by him through his father, observed that the effect of the decisions on the theory of pious obligation of the sons was destructive of the principle of independent co-parcenary rights in the sons. That decision established that if the father's debt, not having been contracted for immoral purposes is such as to support a sale of the entirety of the joint estate, either he may sell the later without suit or the creditor may obtain a sale of it by suit. But the joint sons, not being parties to the execution proceedings or to the sale, are not precluded from having the question as to the nature of the debt tried in a suit of their son, a right which will, however, avail them nothing unless it can be shown that the debt was not such as to justify a sale of the joint estate". So here also, the plaintiff has not established that the loan borrowed by his father viz., first defendant was for immoral or illegal purposes. So far as the debt is not an Avyavaharika debt , the son is bound to discharge the loan borrowed by his father for the purpose of the family necessity. Under such circumstances, I do not find any reason to interfere with the findings of the learned trial Judge which is neither illegal nor infirm. The point is answered accordingly. 11. In fine, this appeal is dismissed, confirming the decree and judgment passed in O.S.No.387 of 1987 on the file of Sub Court, Namakkal, dated 20.12.1991. The learned counsel appearing for the appellant would contend that third respondent/ third defendant may be permitted to proceed against the first defendant's(father of the plaintiff) ½ share in plaint "A" schedule property and 1/4th share in plaint "B" schedule property in O.S.NO.44 of 1984 at the first instance and if the decree amount could not satisfy the debt, then to proceed against the share of the appellant. This request of the appellant is acceded and the executing Court in REP NO.17 of 1987 in O.S.No.44 of 1984 on the file of Sub Court, Namakkal is directed to proceed against ½ share in plaint "A" schedule property and 1'4th share in plaint "B" schedule property allotted to the first defendant herein, at the first instance. If the decree amount could not be realised out of the sale proceeds, then to proceed against ½ share in plaint "A" schedule property and 1/4th share in plaint "B" schedule property allotted to the plaintiff in O.S.No.44 of 1984 on the file of Sub Court, Namakkal. No costs.