BHEKAN NATH MISSER Vs. GULAB CHAND SETH

JUDGEMENT

(1.) This appeal arises out of a title suit. The land was claimed by the plaintiff as transferee from an auction purchaser Girdhari Singh who bought at a sale held on 4 May 1914 and confirmed on 6 June 1914. Delivery of possession was taken on 30 March. 1917; but the auction-purchaser never actually occupied and enjoyed the property. He sold it on 4 January 1929 to the present plaintiff who sued on 2 February, 1929. The decree on which the property was put up for sale was a Small Cause Court decree obtained by one Jainarain against Kesho Nath Missir and his son Punit on a hand-note. The decree was obtained on 1st September 1913 ex parte against Kesho and on admission against Punit.

(2.) The defence is that as Kesho had besides Punit two other sons, Bhikhan and Kishun who were not impleaded in the Small Causa Court suit and execution proceedings, the auction-purchaser got no title Kesho and Punit could not even alienate their own undivided share in the joint family property, much less the entire estate; that the auction-purchaser got no title by his purchase and the plaintiff has no title; and further that the suit is barred by limitation which should run under Art. 138, Lim. Act, from the date of confirmation of sale. The suit was dismissed by the Munsif who thought that unless the plaintiff proved that the loan for which the suit was brought was taken by Kesho the father of the family the defendants were not bound by it in the absence of proof of family necessity. He also thought that delivery of possession on the spot was not proved; that limitation should run from the date of sale and that the suit was therefore barred by limitation.

(3.) The Subordinate Judge reversed these findings and has decreed the suit. It is certain that the Munsif was in error in thinking that a decree against the father would not be considered in law to be a debt which his sons were bound to discharge. The existence of a decree against the father which he was bound to satisfy is prima facie sufficient to hold that this was a debt binding on the sons in the absence of proof of illegality or immorality in the transaction leading up to it. The leading case is Chhakauri Mahto V/s. Ganga Prasad (1912) 39 Cal 862. There the sons wore held to be bound to satisfy after their father's death a decree against him for damages arising out of a trespass. This case was followed in Chandriha Ram Tiwari V/s. Narain Prasad Rai AIR 1924 All 745, a case of a decree for damages for wrongfully cutting down certain trees. The same principle was upheld in Gadadhar Ramanuj Das V/s. Ghana Shyam Das AIR 1918 Pat 391.