BISHUNATH RAI Vs. JODHI RAI

JUDGEMENT

(1.) A Hindu son sued for the cancellation of two auction sales of joint family ancestral property sold in execution of decrees which the lower Appellate Court held were not binding on him. The question was whether the decree were such as would bind a Hindu son. One sale was held on the 28 June, 1911, in execution of a decree for sale on foot of a mortgage and the other sale took place on 28th September, 1912, in execution of a simple money-decree. The simple money- decree was for a debt contracted by the father to pay pre-emption money. Both the lower Courts have held that this was a legal necessity for which the father, the managing member of the family, may borrow money. The property is still in the possession of the family. Apart from that it will be the pious duty of the son to pay a simple money debt due from his father even during the lifetime of his father.

(2.) The second sale raises a question of burden of proof. It was argued here that it lay on the auction-purchaser to prove that the debt was contracted for valid necessity. This is not correct. The first Court held that the plaintiff and his father were members of a joint family and that the family property was jointly held. Thug the plaintiff could not claim half share of the property in suit as there has been no division of the joint family property. He can avoid the sale entirely if he could prove that the debt was contracted for immoral purposes. This he has failed to do.

(3.) The argument was that the burden lay on the purchaser. I had occasion in Oudh to discuss this matter in Rup Kishore V/s. Kanhaiya Lal F.A. No. 70 of 1921. The distinction between the son's liability under a mortgage executed by a father in a joint Hindu family and his remedy after proceeding taken against the father on the foot of the mortgage was first stated by Lord Hobhouse in the Privy Council judgment of Nanomi Babuasin V/s. Modhun Mohun (1886) 13 Cal. 21, It appears to their Lordships that sufficient care has not always been taken to distinguish between the question how far the entirety o? the joint estate is liable to answer the father's debt and the question how far the sons can be pre-oluded by proceedings taken by or against the father alone from disputing that liability. Destructive as it may be of the principle of independent co-parcenary rights in the eons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for antecedent debt or against his creditors remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate their Lordships think that there is no conflict of authority.