SURAJMAL DEORAM BHAVSAR Vs. MOTIRAM KALU WANI

JUDGEMENT

(1.) LOKUR, J. 1. This appeal raises an interesting question of Hindu Law as to how far a Hindu son is bound by the attachment and sale of his separated share in the family property in execution of a decree passed before his birth against his father for a debt not tainted with immorality or illegality, he being not made a party to the darkhast though it was filed after the partition between him and his father. The facts are simple. The defendant obtained a money decree against the plaintiff's father and another in original Suit No.795 of 1923 on June 27, 1925. Thereafter the plaintiff was born, and he separated from his father in 1932. At the partition the property in suit was allotted to his share. In execution of the said decree in darkhast No.778 of 1933 the property in suit was attached and sold by auction. The defendant himself purchased it at the auction on January 20, 1934, and obtained the sale certificate on June 5, 1934. The plaintiff was not a party to the execution proceedings. He filed this suit for a declaration that the defendant acquired no interest in the property in suit by his auction purchase, on the ground that the debt for which the decree was passed was immoral and illegal and not binding on him, that by reason of the property having gone to his share at the partition between himself and his father in 1932, it could not be attached and sold in execution of the decree against his father alone, and that the sale of his property behind his back was void. In the course of the trial, the plaintiff gave a purshis stating that he did not want to press his contention that the debt was illegal and immoral and therefore not binding on him, but he challenged the validity of the auction-sale on the other two grounds. The trial Court left open the question whether the alleged partition of 1932 was genuine and bona fide. Assuming that it was so, the trial Court, in a brief and enigmatic judgment, relied upon the ruling in Annabhat Shankar-bhat v. Shivappa Dundappa (1928) I. L. R. 52 Bom. 376 : S. C. 30 Bom. L. R. 539 and dismissed the plaintiff's suit on the ground that as the decree was obtained by the defendant before partition, the plaintiff was bound by the attachment and sale of the property allotted to his share. The lower appellate Court, however, considered various rulings bearing on the point and came to the conclusion that although the proper course of the decree-holder was to file a separate suit against the soft after he was separated from his father, yet the only objection which the son could urge against the validity of the decree was that the debt for which the decree was passed was illegal or immoral and was not binding on him, and, as the plaintiff had given up that contention by a purshis, there was no reason to set aside the sale. The learned District Judge observed : If the property were not allowed to be sold, then the creditor would have been compelled to file a suit. But the property having been sold, the son has brought the suit. This makes practically no difference. The son has the opportunity to prove that the debt was an immoral or illegal one. He having given up that contention, the sale must stand.

(2.) ON this ground the decree of the trial Court was upheld and the appeal was dismissed with costs.

(3.) IN these circumstances, the judicial decisions have endeavoured to take an equitable view in each case and to enforce the son's pious obligation in such a manner as not to work a hardship either on the son or on the father's creditor as far as possible; and I respectfully agree with the remark of Coutts-Trotter C. J. that we should apply the doctrine of the son's pious obligation " within the limits made binding upon us by the decisions and should refuse to go a step further," Subramania Ayyar v. Sabapathy Aiyar.