PERUMAL CHETTI Vs. PROVINCE OF MADRAS

JUDGEMENT

(1.) This appeal under the Letters Paten against the judgment of Raghava Rao J. in S. A. No. 1851 of 1947, arises out of a suit brought by the province of Madras in the Court of the District Munsif of Chingleput to set aside an order passed by the Court of the Subordinate Judge of Chingleput on a claim petition in the following circumstances: Certain minors represented by their mother as next friend brought a suit 'in forma pauperfs' in the Court of the Subordinate Judge of Chinglepul for the partition of alleged family properties against the father and grandfather of the minors and others. (The statement in the judgment of the learned Judge that the suit was brought by defendant 2 as the next friend is not accurate). Pending the suit, the mother died, and defendant 2 in the present suit was appointed next friend in her place. The suit (O. S. No. 72 of 1940), was not heard and disposed of. On 9-8-1940, when the case was called, defendant 2, the next friend was not present, and the pleader appearing for the plaintiffs in that suit reported no instructions, and the suit was dismissed. The learn ed Subordinate Judge, after directing the plain tiffs to pay the costs of the defendants, ordered the next friend i.e., defendant 2, to pay Government Rs. 1792-7-0 being the court-fee payable on the plaint, as the suit had been instituted 'in forma pauperis.' In execution of the decree for payment of the court-fee the Government attached the family properties of defendants 1 and 2, defendant 1 being the son of defendant 2. Defendant 1 preferred a claim under Order 21, Rule 58, C. P. C., by an application, E. A. No. 148 of 1943, alleging that the defendants had become divided by a deed of partition dated 20-10-1941 at which certain properties were allotted to the shares of the two defendants severally and that the properties which had been attached were not liable to be proceeded against for the realisation of the court-fee. Defendant 1 also alleged that he was not liable for the debt of the lather, as it was not binding on him in law. The learned Subordinate Judge of Chingleput overruled the contention of defendant 1 that the debt was not binding on him but allowed the claim petition on the ground that there had been a partition between defendant 1 and his father. It is to set aside this order of the learned Subordinate Judge that the Government filed the present suit. The Government alleged that the partition relied upon by defendant 1 was a sham and colourable transaction not intended to be acted upon and was a mere blind to screen the properties, if possible, from the creditors of defendant 2. Defendant 2 remained 'ex parte'. Defendant 1 pleaded that the partition was 'bona fide' and denied that it was fraudulent as alleged by the Government, and further stated that the court-fee due to the Government was not a debt valid and binding on him, under Hindu law. Defendant 3, who had purchased the suit properties from defendant 1, adopted the written statement by defendant 1.

(2.) The learned District Munsif who tried the suit held that the partition was sham and nominal, but held that defendant 1 was not bound to pay the court-fee ordered to be paid by defendant 2, as it was in the nature of a fine, to which the doctrine of pious obligation did not extend. He, however, rejected the contention on behalf of defendant 1 that the debt was 'Avyavaharika', In the result he passed a decree setting aside the order on the claim petition as regards the properties set out in Schedule B to the plaint, which defendant I had claimed as having been allotted to his share at the partition and declared that the plaintiff's right to proceed against the undivided share of the father, defendant 2 in all the joint family properties shall remain unaffected and that defendant Is undivided share shall not be liable to be proceeded against in execution of the decree for payment of the court-fee due to the Government. There were two appeals against this decree, one by defendant 3, and the other by the province of Madras. The learned Subordinate Judge also held that the partition was sham and nominal and that the obligation arising out of the decree in O. S. No. 72 of 1940, was in the nature of the fine or penalty and the son's share could not be proceeded against in enforcement of the same. He substantially confirmed the decree of the lower Court, except for a slight modification consequent on the fact that properties in Schedule A had already been sold away. Thereupon, the Government preferred a second appeal to this Court, which came up before Raghava Rao J. The learned judge allowed the appeal and dismissed the cross-objection which tad been preferred by defendant 3. Before the learned Judge, very properly, the concurrent finding of the Courts below that the partition was sham and nominal was accepted. But the learned judge, differing from the Courts below, held that the obligation to pay court-fees under the decree in O. S. No. 72 of 1940 was not in the nature of a fine, nor was it an 'avyavaharika' debt and defendant Is share was also liable to be proceeded against. The learned Judge, however, granted leave to appeal and defendant 3 is the appellant before us.

(3.) Two questions of law were raised before us by Mr. Venkatasubramania Aiyar, learned counsel for the appellant, viz., (1) that the liability of defendant 2 to pay the court-fee under the decree in O. S. No. 72 of 1940 was in the nature of a 'danda', which the son was not liable to pay under Hindu law, and (2) that in any event the liability would fall within the category of 'avyavabarika' debts, which also the son was not bound to pay.