1958 (9) TMI 89 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the debt of the father was avyavaharika.
2. Effect of severance of status by the filing of the suit for partition.
3. Interpretation of the words "right, title, and interest of the defaulter" in Section 155 of the Bombay Land Revenue Code.

Issue-wise Detailed Analysis:

1. Whether the debt of the father was avyavaharika:
The term "avyavaharika" has been variously translated as "a debt for a cause repugnant to good morals." The appellants attempted to prove that the debt fell within this term by relying on the payment order and findings by the Deputy Registrar, which were based on a breach of trust. However, the Court held that the order of the Deputy Registrar was not admissible to prove the truth of the facts stated therein and could only be used to prove the existence of the judgment itself. The Court concluded that the liability incurred by the father as a managing director of the bank, due to negligence, could not be termed as "repugnant to good morals." Thus, the debt was binding on the sons.

2. Effect of severance of status by the filing of the suit for partition:
The Court examined the rights and liabilities of Hindu sons in a Mitakshara coparcenary family. It was established that the pious duty of the sons to discharge their father's debts not tainted with immorality or illegality continues even after partition, unless a provision has been made for the payment of such debts. The Court held that the right of the judgment creditor to seize the whole coparcenary estate for payment of the father's debt remains unaffected by partition. The sons' liability to pay the father's debt continues until the debt is paid off, and partition does not relieve the sons of their pious obligation. Consequently, the sale of the whole estate in execution of the decree cannot be challenged except on proof of the immoral or illegal purpose of the debt.

3. Interpretation of the words "right, title, and interest of the defaulter" in Section 155 of the Bombay Land Revenue Code:
The Court held that the phrase "right, title, and interest of the defaulter" in Section 155 of the Bombay Land Revenue Code has the same connotation as in the Code of Civil Procedure. It is a question of fact in each case as to what was sold in execution of the decree. The Court found that the whole bungalow was put up for auction sale, was sold, and was purchased as such, indicating that the entire coparcenary estate was intended to be sold. The Court concluded that the sale under the Bombay Land Revenue Code has the same effect as a sale by the Civil Court.

Conclusion:
The Court held that:
1. The liability of the sons to discharge the father's debts continues even after partition.
2. The words "right, title, and interest" in Section 155 of the Bombay Land Revenue Code have the same connotation as in the Code of Civil Procedure.
3. It is not necessary to implead the sons in execution proceedings if severance of status occurs pending execution.
4. The debt incurred by the father due to negligence in his duties as a managing director is not avyavaharika.

The appeal was dismissed with costs.