1948 (9) TMI 15 - HC - Indian Laws

Summary

Issues Involved:
1. Liability of joint family property for the father's debts.
2. Effect of partition on the execution of a decree against joint family property.
3. Representation of minor sons in execution proceedings.
4. Application of the principle of lis pendens.
5. Validity of the partition under Section 64 of the Civil Procedure Code (CPC).

Issue-wise Detailed Analysis:

1. Liability of Joint Family Property for the Father's Debts:
The court reaffirmed the established Hindu law principle that in a joint Hindu family governed by the Mitakshara, the entire joint family property, including the sons' interest, is liable for the father's debts, provided they are not tainted by illegality or immorality. This liability persists even if the sons are not made parties to the suit or execution proceedings. The sons can intervene before or after the sale to contest the debt's validity.

2. Effect of Partition on the Execution of a Decree Against Joint Family Property:
The court examined the implications of a partition occurring after a decree has been obtained against the father. The prevailing view in the Bombay High Court is that a decree obtained against the father before partition can be executed against the entire joint family property, including the sons' interests, even after partition. However, the sons must be made parties to the execution proceedings post-partition to ensure their interests are properly represented.

3. Representation of Minor Sons in Execution Proceedings:
The court emphasized that after a partition, the father cannot represent the sons' interests in execution proceedings. The principle established is that a person whose interest is to be sold must be represented in the execution proceedings. This was supported by the Privy Council's ruling in Khairajmal v. Daim, which held that the court has no jurisdiction to sell the property of persons not parties to the proceedings or properly represented. Consequently, if the sons are not made parties post-partition, only the father's interest can be sold.

4. Application of the Principle of Lis Pendens:
The court addressed the respondent's contention that the auction sale was affected by the principle of lis pendens. The court concluded that this principle did not apply because the execution proceedings were for recovering money due to the judgment-debtor, not directly involving a right to immovable property. Therefore, Section 52 of the Transfer of Property Act, which deals with lis pendens, was not applicable.

5. Validity of the Partition Under Section 64 of the Civil Procedure Code (CPC):
The court considered whether the partition effected after the property was attached was void under Section 64 CPC. The court concluded that while the partition could be void as a private transfer under Section 64, this did not negate the severance of status effected by the filing of the partition suit. Thus, the sale could only transfer the father's interest if the sons were not made parties to the execution proceedings.

Conclusion:
The appeal was dismissed, confirming that the plaintiff purchased only the father's one-third interest in the property, as the sons were not made parties to the execution proceedings post-partition. The court upheld the principle that for a creditor to proceed against the sons' interests post-partition, the sons must be made parties to the execution proceedings.