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TMI Blog1958 (8) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... hem and their father are not liable to be proceeded against for the realisation of the income-tax assessed on their father the second defendant for the assessment years 1945-46, 1946-47 and 1947-48 in so far as it related to their interest in the suit properties. They alleged in the plaint inter alia that the family of the plaintiffs and the second defendant was carrying on an ancestral business in textiles, that the second defendant started and conducted several new businesses which were speculative in character, including the import and export in several commodities infringing the control orders in force at the time, and that he never bestowed any control over the affairs of the business nor maintained proper accounts. The plaintiffs subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulative in nature, that the second defendant had not mismanaged the conduct of the business and therefore the liability of the second defendant to pay income-tax was a debt which the plaintiffs as sons were bound to pay from and out of the joint family properties under the doctrine of pious obligation. He further held that this debt could not be held to be tainted with immorality so as to bring it within the category of avyavaharika debts. He also upheld the objection raised on behalf of the Union of India that the suit was premature and hence not maintainable. On these findings the suit was dismissed. Hence the appeal. At the outset we may briefly dispose of one of the grounds on which the suit was dismissed, namely, that the suit was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovering an amount due under a decree. Section 60 of the Code includes in the category of property liable to attachment and sale in execution of a decree, all salable property, movable and immovable, belonging to the judgment-debtor or over which or the profits of which he has a disposing power which he may exercise for his own benefit. It cannot be disputed that in execution of a decree against the father the decreeholder can bring to sale the entire family property alleging that the sons are bound by the debt on the foot of which the decree had been obtained. Of course it will be open to the sons to intervene and object to the sale of their shares on the ground that the debt is not binding on them. All that the plaintiffs have done in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooke of the term avyavaharika debts as debts for a cause repugnant to good morals and then go on to observe that the term does not admit of a more precise definition. They observe: When a particular debt is called in question, it will be the duty of the courts to examine its nature in the light of tee principles mentioned above, which are not exhaustive but only basis, and to see whether in the circumstances it is of the kind which will give exemption to the son from the liability of paying it, on the ground that it is repugnant to morals. This decision as well as other decisions were discussed in a recent decision of a Bench of this court to which one of us was a party in Perumal Chetti v. Province of Madras [1955] 1 M.L.J. 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffs that the income as assessed was more than the income which would have been properly adopted if all the accounts had been placed before the Income-tax Officer. It may be that if the true facts are placed before the court, the assessment actually made may turn out to be less than what ought to have been made. There is no doubt an allegation in the plaint that the estimate made by the Income-tax Officer had out-grown several times, i.e., five or six times over the actual income. But this allegation has not been substantiated by positive evidence. This is not a case in which the sons are sought to be made liable for a debt incurred by their father in the course of the business conducted by him. Presumably the father has made profits to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bride. A son should be relieved of the obligation to pay a toll which his father has become liable to pay. Probably this is because a toll is payable on the spot and as the obligation arises as the result of an evasion for which he may be convicted and fined, it was an obligation ex delicto. It may be the conduct of a father in evading payment of a toll was not good conduct. The appellant's learned counsel did not develop the point; nor did he cite any authority for the position that the word sulka occurring in the smriti texts would apply to arrears of income-tax. We have no doubt that the plaintiffs cannot escape their liability to discharge the debt incurred by the second defendant, that is, the arrears of income-tax, on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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