BHUPATIRAJU SREERAMARAJU Vs. NADIMPALLI PULLAM RAJU

JUDGEMENT

(1.) Both these Letters Patent Appeals are directed against the judgment and decree of our learned brother Sanjeeva Row Nayudu J., in Appeals No. 214 of 1956. Defendants 21, 4 and 5 are the appellants in L.P.A. No. 20 of 1961 and the 1st defendant is the Appellant in L.P.A. No. 34 of 1961. The plaintiff and defendants 18 and 19 in O. S. No. 6 of 1954 on the file of the Subordinate Judges Court, Amalapuram are the sons of the 17th defendant. The suit was instituted by the plaintiff as a minor represented by his maternal uncle as the guardian for partition and separate possession of one fourth share in the family properties described in schedules A and B. The case of the plaintiff was that his father, the 17th defendant, who was an agriculturist, started a new business Viz., rice mill business and that the debts incurred by him were avyavabarika debts and that consequently the alienations effected by the father of B. schedule properties under three sale deeds Exhibits B.1 and 6.15 and B.24 were not valid and binding on him. He also pleaded that the decree obtained by the 7th defendant as against his father in O. S. No. 40 of 1952 on the file of the Subordinate Judges Court, Amalapuram, for recovery of the partnership debt was not valid and binding on him and that the sales held in execution of that decree and the purchase made by the defendants in execution of that decree were not binding upon him. On behalf of the defendants, it was contended that the B schedule proper-ties were sold for antecedent debts viz., the partnership debts of the father, and that they were consequently binding on the plaintiff. It was also pleaded that under the doctrine of pious obligation the properties of the plaintiff were liable to be proceeded against in execution of the decree in 0. S. 40 of 1952 on the file of the Subordinate Judges Court, Amalapuram. The Subordinate Judge, Amalapuram held that though the business started by the father was a new business, still the sons shares were liable to be brought to sale in execution of the decree obtained by the 7th defendant in 0. S. No. 40 of 1952 on the file of Court of Subordinate Judges Court, Amalapuram. So far as the alienations of B schedule properties were concerned, it was held by the learned Subordinate Judge that the sales were effected for antecedent debts and that they were binding on the sons. It was also found that items 1, 2, and 5 of the Plaint A schedule and half of item 1 and items 2, 3(a) and 4 of Plaint B schedule were not joint family properties. The learned Subordinate Judge also held that it was not beneficial to the minor to have a partition. In the result, he dismissed the plaintiffs suit. The plaintiff thereupon preferred appeal No. 214 of 1956 on the file of this Court. Our learned brother Mr. Justice Sanjeeva Row Nayudu took the view that the debts contracted in connection with the new business started by the father, the 17th defendant, were avyavaharika debts and that consequently the alienation of B schedule properties as also the Court auction purchases of A schedule properties were not valid and binding upon the minor. No appeal was preferred in respect to the items which were declared by the Subordinate Judge as the separate properties of the father. It is as against the judgment of our learned brother that the Letters Patent Appeals have been filed before this court.

(2.) Sri Gangadhararao, the learned Advocate for the Appellants, raised a new legal contention based on the admitted facts viz., that the rice mill business started by the father in 1946 was not a new business. He also urged that if the business was a new business even then the sons are liable under the doctrine of pious obligation and that the view taken by the learned Judge that the debts are avyavaharika was erroneous. Having carefully heard the arguments of Sri Gangadhararao as also of Sri. Chandramouli on behalf of the respondent, we are satisfied that both the contentions should prevail. Though our learned brother wrote an elaborate judgment discussing the meaning of the words "debt" and "avyavaharika debt", we think it is not necessary to dwell at length having regard to the fact that the law is well settled and is concluded by authority which is binding on us.

(3.) We shall take up the question whether the business started by the father is a new business within the meaning of Sanyasi Charan v. Krishnadhan Banerji, ILR 49 Cal 560 : (AIR 1922 PC 237) and the Benares Bank Ltd. v. Hari Narain, ILR 54 All 564 : (AIR 1932 PC 182). It is clearly admitted that the rice mill business was started by the father in 1946 when he was the sole surviving coparcener. Neither the plaintiff nor his brothers defendants 18 and 19 were born at the time of the commencement of the business. From the facts, it appears that on 1-11-1947, the 17th defendant entered into a partnership with Vissamraju, Bhavaraju and Lakshmikantham. A partnership deed was executed on 11-7-1948 and the rice mill was purchased on 25-11-1948. lt is no doubt true that the debts in respect of which the properties were sold voluntarily or through court were contracted in respect of this partnership business. The identical question arose for decision before the Madras High Court in Canara Banking Corporation Ltd. v. South Indian Bank Ltd., Shevapeta, AIR 1958 Mad 132. Rajamannar, C.J. referred to the Privy Council decisions referred to supra and formulated the question for consideration as follows: