KESAVA KAMATH Vs. GOPALAKRISHNA BHATT

JUDGEMENT

(1.) The 2nd defendant in a money suit is the appellant. The suit was filed by a minor aged 6 years through his mother as next friend. The plaintiff is the son of the 4th defendant and the grandson of the 3rd defendant. There was a partition in the family of the parties on 9th July 1960. As per Ext. P2 partition deed, the 4th defendant got himself separate from his father and other members of his family. The plaintiff was born subsequently. On 5th January 1968, the 4th defendant both for himself and as guardian of the plaintiff executed Ext. A1 sale deed in respect of the plaint schedule property which he obtained in partition for a consideration of Rs. 30,000. The major portion of the consideration was reserved for payment of debts due from the family. Rs. 1,000 had been received by the 4th defendant prior to the execution of the deed. Rs. 2,282.27 was paid at the time of registration. The balance Rs. 5,000 was reserved with the vendee to be paid on the receipt of the minor on his attaining majority. Till the minor attains majority, the interest at 7 per cent on the said amount is to be paid on the receipt of the minor's mother. According to the plaintiff, interest was paid only till 5th of January, 1969. The suit was filed for the interest due till the 5th of January, 1970. In the meanwhile, the 2nd defendant filed O.S. No. 39 of 1969 on the file of the Sub Judge, Kasaragod, against defendants 3 and 4 for recovery of certain amounts due under a promissory note. The suit was decreed in due course. In execution of the decree, the 2nd defendant attached the amount reserved with the 1st defendant vendee under the sale deed, Ext. A1. The plaintiff claimed that the amount reserved in his favour was not liable to be attached in execution of the decree as the same belonged to him and neither the 3rd defendant nor the 4th defendant had any right in respect of it. The 1st defendant in his written statement admitted his liability to pay the amount. Defendants 3 and 4 were ex parte. The 2nd defendant who is the decree holder in O. S.39 of 1969 alone contested. He contended that the sale deed in favour of the 1st defendant is hit by S.53 of the Transfer of Property Act. Even if the sale is valid, the amount reserved does not belong exclusively to the minor but is liable for the debt of defendants 3 and 4. The Trial Court dismissed the suit. The plaintiff preferred an appeal before the Subordinate Judge Kasaragod, who allowed the appeal and granted a decree in favour of the plaintiff holding that the amount was not liable to be attached in execution of the decree in O. S.39 of 1969. The second appeal is preferred challenging the appellate decision.

(2.) The contention put forward on behalf of the appellant is that the amount of Rs. 5,000 reserved under Ext. A1 still belongs to the joint family of the plaintiff and the 4th defendant. The decree in O. S.39 of 1969 is in respect of a debt binding on the joint family and as such the amount is liable to attachment in execution of the decree. Even otherwise, since the debt was not incurred for illegal or immoral purposes, it is binding on the plaintiff who is none other than the son of the 4th defendant based on the principle of pious obligation and, therefore, the minor plaintiff is not entitled to challenge the attachment. The minor respondent on the other hand, would contend, that Ext. A1 sale deed effected a severance in status between himself and his father and, therefore, a decree obtained against the father alone subsequent to the sale deed is not binding on him.

(3.) It has come out in evidence that O. S.39 of 1969 was obtained on the basis of a promissory note executed by the 4th defendant on 16th April 1967 prior to the execution of Ext. A1 sale deed on 5th January 1968. Therefore the debt is ordinarily binding on the plaintiff minor, either on the ground that it was incurred for the purpose of joint family or on the ground of pious obligation, unless it is made out that it was incurred for some illegal or immoral purpose. There is no case and there is no evidence that the debt was incurred for any immoral purpose.