GANPATRAO VISHWANATHAPPA Vs. BHIMRAO SAHIBRAO

JUDGEMENT

(1.) THIS is an appeal from a suit filed by the appellant to recover possession of certain lauds which he had purchased in execution of a decree which he had obtained against one Sahebrao Patil, the father of the respondent. It is no longer in dispute that at the time when the appellant obtained the decree against Sahebrao, Sahebrao and his two minor sons, one of whom subsequently died, were members of a joint Hindu family, Under the view of this Court, which has differed in this regard with other High Courts in India, the whole of the joint family property including the sons' interest therein was liable to be brought to sale in execution of the decree against Sahebrao, notwithstanding any partition which may have taken place after the date of the decree. It appears that after the date of the decree the appellant brought to sale the whole of the joint family property and himself purchased it in execution, the sons, who were minors, not having appeared to contest the execution. But, in the meanwhile, the sons who were minors brought a suit for partition against their father, and as a result of this suit they obtained a decree. The suit from which the present appeal arises was brought by the plaintiff for possession of the property which he had purchased in execution of his own decree, and to this suit he made one of the minor sons a party, the other having died prior to the filing of the suit. The respondent, the other minor son, took up a contention that the debt in respect of which the joint family property was sold was contracted by Sahebrao for an illegal and immoral purpose and the decree in that suit and the auction sale in execution were not binding on his share in the properties. He also contended that the auction sale was affected by the principle of lis pendens. Upon this point the defendant failed, and the learned trial Judge came to the conclusion that the plaintiff-appellant purchased in the execution sale only the one third interest of the father, because prior to the sale there had been effected a partition between the father on the one hand and the sons on the other by the filing of the suit. By partition, of course, the learned trial Judge meant a severance of the status of the joint family. He held that consequently the minor sons should have been made parties to the execution proceedings and inasmuch as the plaintiff-appellant had failed to do so, all that passed by the execution sale was one-third interest of the father. In doing so, he has followed the decision of a single Judge of this Court in Sur ajmal Deoram v. Motiram Kalu, 41 Bom, L. B. 1177: (A. I. R. (27) 1940 Bom, 22) and when the appellant went in appeal to the learned District Judge, the learned District Judge relying upon the same case dismissed the appeal.

(2.) THE plaintiff-appellant has come in second appeal, and this matter has now referred to us because subsequent to the decision in Suraj mal's case, 41 Bom. L. R. 1177 : (A. I. R. (27) 1940 Bom. 22) there was reported a case, again of another single Judge, in Tammanji Govind v. Abdul Rahim, 47 Bom. L. R. 884 : (A. I. R. (93) 1946 Bom. 105 ). It was held in that case that members who are united at the time a joint family liability is incurred were not absolved from their liability by the fact that they had become subsequently divided. Consequently, an objection by the sons that they had not been parties to the execution proceedings, and consequently the Court was not entitled to sell their interest was not maintainable.

(3.) IT is true that Sen J. seems to have been inclined to take a somewhat different view in the case of Tammanji Govind v. Abdul Rahim, (47 Bom. L. R. 884: A. I. R. (33) 1946 Bom. 105 ). That was a case of a morlgaga decree which had been obtained by a mortgagee creditor of the father. The decree was payable by instalments, and while some of the amounts due upon the decree still remained un-recovered from the debtor, one of the sons filed a suit against the father, his brother and his another, the decree-holder and other creditors of the father for partition and a declaration that Govind's debts and his liabilities under the decree were not binding on his share in the joint family property. The partition suit resulted in a decree which gave a declaration that the award decree was binding on the father as well as on the sons. After the date of the decree in this partition suit there was filed by the mortgagee creditor an application for execution against the father only praying that the amount due be recovered by sale of the mortgaged property. A sale was ordered and papers were sent to the Collector, but after the date of the order for the sale and before the property was sold the father died. The sons were brought on the record as the heirs, and they contended that the mortgagee being aware of the decree in the partition suit and the sons not having been made parties to the darkhast filed after the date of the decree he could not proceed against them or their separate shares in the family property. Reliance was placed in support of this proposition upon the decision of the Madras High Court in the case of Venkatanarayana v. Somaraju, I. L. R. (1937) Mad. 880 : (A. I. R. (24) 1937 Mad, 610 (F. B.) ). The creditor relied in support of his contention that he is entitled to bring to sale the sons' interest also on the decision of Lokur J. which I have referred to above in Surajmal Deoram v. Motiram Kalu, 41 Bom. L. R. 1177 : (A. I. R. (27) 1940 Bom. 22 ). Sen J. purporting to follow the case of the Madras High Court held that the members who were united at the time a joint family liability was incurred were not absolved from their liability by the fact that they became subsequently divided, A creditor is entitled to have recourse to every item of the joint family property so long as it is in the hands of the persons who are under the law liable for his debt. When they must be held to be parties to the suit, it is immaterial what the character of the property in their hands is, whether it is still un-divided property or has become separate property by division. In doing so he followed, as I have said above, the view of the Madras High Court in the case of Venkatanarayana v. Somaraju, I. L. B. (1937) Mad. 880 : (A. I. R. (24) 1937 Mad. 610 (F. B.) ). Now, it appears to us with respect that the case before Sen J, did not present any very formidable difficulty. The case was a case upon mortgage deed; the mortgage decree was obtained at a time when the father and the sons were joint. IT is well established again that both a mortgage decree as well as a money decree which had been obtained against the father when he was joint with his sons can be executed not only against the father's interests in the pro-party but also in the sons' interest in the property in execution of the decree after partition that is, I mean, in so far as Bombay is concerned. The sons did not dispute this proposition of the law. Their only contention was that to the darkhast which was filed after the decree in the partition suit the decree-holder has made only the father as a party, and the sons, as a matter of fact, had not been made parties. IT appears to us that the contention of the sons could have been met merely by making the sons parties to the suit. No question of limitation appears to have been raised, inasmuch as if there is a partition after a suit there does not seem to be any period of limitation prescribed for making the sons parties. If there was any objection taken on the ground that the sons ought to have been made parties to the darkhast because after the decree the father was not a person who was entitled to represent the estate and any application to make the sons parties after the objection was taken would be of no avail as on that date a fresh application would be barred, then the objection should have been treated as an objection of limitation. IT could easily have been met under the explanation to Article 182. But so far as the question which was raised, namely, that the sons interest could not be sold was concerned, it could be dealt with by a simple answer that the decree having been obtained when the father and sons were still joint, the sons' interest was liable to be sold in execution after the partition provided the sons were made parties to the suit.