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TMI Blog1973 (7) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... inding on the family as being unsupported by consideration as well as necessity or benefit to the estate. It is said that the father Venkiteswara Mallan and the 4th defendant had, at any rate, no fight to transfer the interest of the plaintiffs and therefore in any event in the alternative they prayed that the plaintiff's may be allowed to recover 6/8th share in the suit properties. According to them on the date of Ext. P2 the properties were much more valuable than the amount shown as consideration so the sale deed and even the amount so shown was not received but the entire amount was reserved with the first defendant to discharge by payment the future kuri instalments in a kuri subscribed by their father. This, it is said, could have been done from out of the income of the property sold and also of the properties which were in the possession of the family. The main contention raised by the first defendant was that the property never belonged to the joint family that it was separate property of the father, Venkiteswara Mallan, that it was dealt with by him as if his own property, that the 4th defendant joined the document by way of abundant caution at the instance of the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the validity of the document But a decree was given only in regard to 6/8th share, This too was subject to liability to contribute 6/8th share in the kuri subscriptions made from the date of Ext. P2. The plaintiffs were further directed to pay the costs of the improvements in the share allotted to them under the final decree, ( 3. ) Though one of the hotly debated issues in the court below was whether the properties comprised in Ext. P2 belonged to Venkiteswara Mallan separately or whether it belonged to his family that is no longer in controversy here because counsel fairly concedes that such a proposition cannot be sustained in law. The property admittedly belonged to Venkiteswara Mallan's father and it is such ancestral properties that were taken by Venkiteswara Mallan and his brothers under the partition deed of 1951. Any property obtained by a person governed by the Hindu Mitakshara law from his ancestors must be ancestral property in his hands and the sons in the family will have right by birth to such property, ( 4. ) We must notice here that there is no plea that the debts which Venkiteswara Mallan is said to have incurred during the years when he carried on bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in the kuri for which Ext. P7 bond was executed and that since the debts had to be paid off that would be possible only by releasing the other items limiting the kuri security to the suit items. The deed also recited that since the vendee had agreed to undertake the entire liability of such kuri dues the sale was being executed for ₹ 21,000/- the entire amount being retained with vendee to pay instalments in future as and when they fell due. Normally future payment would take another 12 1/2 years and it was long before the expiry of that period that suit was instituted in 1963. ( 6. ) If the suit properties were ancestral then, of course, the consideration and necessity for the sale under Ext. P2 has to be shown by the alienee or he must show manifest advantage to the family by reason of the sale. That the consideration recited in Ext. P2 is real cannot admit of any doubt. But whether that is a consideration binding on the family and if it be, so far as the family is concerned, whether there was any pressing necessity to execute such a sale deed is a question on which the first defendant should, as we would presently show, lose in this appeal. The first defendant wan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of ₹ 1,500/- under Ext. D18 dated 10-10-1952 from D.W. 4. another sum of ₹ 5,000/- under Ext D19 dated 8-3-1954 was borrowed from D.W. 5 and a sum of ₹ 600/- evidenced by Ext. D24 dated 2-4-1955 from D.W. 6 and a sum of ₹ 1,500/- under a pronote Ext. D26 dated 18-10-1953 from D.W. 8. It can be seen that all the dates of these debts are after Ext, P7 data and some of them are debts after Ext. P2 sale deed. ( 7. ) There Is no reliable evidence in support of a case that the chitty security bond was executed by Venkiteswara Mallan as joint family manager. Not that there is any such case but we are observing so because even assuming that para 6 'C' of the written statement is construed as a plea that the debts are joint family debts that will not help the first defendant as there is no evidence to substantiate it. Therefore the debt, if at all, was one for which Venkiteswara Mallan was answerable personally and it is not a debt of the family, Even assuming that it is a debt of the family it has not been shown by the evidence in the case that there was pressing necessity to execute Ext. P2 sale deed since at that time there were very valuable proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew taken by the court below on the nature of the obligation arising under Ext. P7 is erroneous and that is the attempt by counsel Sri T. S. Venkiteswara Iyer, appearing for the appellants in this case, ( 10. ) In this context the normal incidents of a kuri have to be noticed. The chitty foreman and the subscribers enter into a contract whereby the subscribers oblige themselves to pay subscriptions in stated instalments and the foreman obliges himself to pay the prized amount when once the chitty is prized by the subscriber at any instalment. This obligation of the subscriber arises from the stipulations in the contract. Even when he is a prized subscriber he has the same obligation to pay future subscriptions arising not by reason of the fact that he has prized the kuri but because of the contract entered into by him with the foreman to pay such subscriptions whether the kuri is prized or not. If he bids the kuri at any instalment and demands the prize money the obligation of the foreman to pay the same also arises under the contract. Future subscriptions paid by the prized subscribers are not in discharge of the liability for the prized amount because the prize amount is recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority judgment of the court said that-- The obligation on the part of a prized subscriber to pay the future subscriptions, when they fall due is one of the concomitant features of the legal relationship between them In order that this legal tie may develop or crystallise Into a debt, it is necessary that the future subscriptions must have fallen due, When each of the future instalments of subscriptions falls due. from that moment, the liability to pay becomes a debt in the same Judgment the learned Judge observed-- When a prized subscriber executes security bond at the time when he receives the prize amount, the security bond is given, not for the prize amount which he has received but for the payment of future subscriptions on the due dates. In other words, the security is furnished, not for ensuring the return of the prize amount but for the payment of future subscriptions, the amount of which will in most cases never correspond with the prize amount. The learned Judge points out that-- ......... the analogy of an instalment bond does not hold good, We may notice here that this decision of the High Court of Travancore has been approved in a decision of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borrower of the sum received less the instalments already paid by him, undertaking to repay the loan in instalments that still remain to be paid, and the liability under the security bond which he executes for the due payment of such instalments is a debiturn in praesenti solvendum in futuro, incurred on the date of the bond itself. The question is one of some difficulty not the least part of which arises from the somewhat conflicting decisions dealing with these peculiar kuri transactions which are so common in some parts of this presidency. On the whole however, we are of opinion that the judgment debtors' contention is supported by a preponderance of authority and must be accepted. We may also notice here that Varadachariar J. of the High Court of Madras had expressed a different view in Maruda Konar v. Veerammal. AIR 1936 Mad. 985 . The learned Judge had held that there was no present debt in that case. That was a case where the ticket holder assigned to the plaintiff the security bond executed by the successful bidder. Varadachariar J. observed in that case that the obligation undertaken by the security bond-- ......... is not repayment of the benefit already recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promise to pay nor is the term understood with the technical limitations of that term in the common law of England. Any liability of a Hindu father would be comprehended within the term 'rina' or debt. May be that he has to pay arrears of rent of properties or that he is answer able for mesne profits or is accountable for money under a contract. All these cases, where liability has been incurred, though it is not by way of taking any money under a promise to pay, are cases of debts of the father and therefore where these debts are antecedent alienations in discharge of such debts could not be attacked by the sons. But that would not be the case where no liability has been incurred so much so it could not be said that the father has become a debtor. We are referring to this aspect because counsel for the appellant relied on the decision of the Madras High Court in Nachimuthu v. Balasubramonia. AIR 1939 Mad. 450 in support of his stand. We are afraid counsel would not derive any help from the Madras decision. That case concerned only the scope of the term 'debt' and as we observed earlier the court was of the view that it would not be limited to a debt strictly so c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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