DHONDOPANT MADHAVRAO INDE Vs. ASHOK HARIBHAU PATIL

JUDGEMENT

(1.) THE above First Appeal is directed against the judgment and decree, dated November 7, 1969, passed by the Civil Judge, Senior Division, Bhir, decreeing the suit, filed by respondent No. 1, against the appellant, who was defendant No. 1; and his father, defendant No. 2, for declaring that the sale -deed, dated March 8, 1965, executed by defendant No. 2, in favour of defendant No. 1, was ineffective and not binding on the plaintiff, to the extent of his interest in the property; and that the plaintiff should be put in possession of the suit -land, to the extent of half, bearing S - No. 104, measuring 19 acres 16 gunthas, assessed at Rs. 39.64 p., situated in village Pimpalner, Taluka Bhir, District Bhir, partition in respect of which had to be made by the Collector, or his gazetted subordinate, under Section 54 of the Civil Procedure Code; and directing further an inquiry under Order XX, Rule 12(i)(c) of the Civil Procedure Code, for mesne profits, from the date of the suit, till delivery of possession; and to pay costs.

(2.) THE sale was set aside, on the ground that the consideration of Rs. 15,000, paid by defendant No. 1 to defendant No. 2, was tainted by imorality, inasmuch as defendant No. 2 had sold the suit -land, for the purpose of paying the amount embezzled by him in respect of the Seva Sahakari Society, Pimpalner, while he was the chairman of that society. The learned Judge, in arriving at the conclusion, followed the decision in Bai Mani v. Usajali : AIR1931Bom229 , and particularly, the decision in Widya Wanti v. Jai Dayal AIR[1932] Lah. 541.

(3.) MR . Deshpande submitted that the present debt cannot be said to be 'Avyavaharika', because, if what was embezzled was not paid by the defendant No. 2, the defendant No. 2 would have been liable to be prosecuted and punished; and he was, in fact, convicted; and he was not imprisoned, merely because he had paid the amount to the society, by selling the land to the defendant No. 1. Mr. Deshpande is, however, not able to cite a single decision of any High Court in this country or of the Supreme Court, where the view propounded by him has been accepted, that a son would be liable, in respect of amounts admittedly embezzled by the father, for which the father had to sell the property to pay the embezzled amount, as in the present case.