K SWAMINATHA IYER Vs. KGKRISHNASWAMI IYER

JUDGEMENT

(1.) These connected appeals, though arising out of two suits tried separately by different Subordinate Judges, are aimed at securing the same relief to the appellants-plaintiffs, viz., a declaration that a Court-sale held in execution of a decree obtained against their father is not binding on their shares in the property sold. The plaintiffs and their father are admittedly members of a joint Hindu family. The father and his brother since deceased borrowed Rs. 2,500 from the Madras People's Bank, Ltd., (in liquidation), executing a promissory note dated 19 January, 1938. The bank sued for recovery of the amount due and obtained a decree against the executants. The plaintiffs were not made parties to the suit. In execution of the decree the house now in question which admittedly belongs to the joint family Was attached on 21 June, 1939, and on the following day the Court struck off the execution proceedings ordering however, that the attachment was to subsist for four months. Within that period the bank filed afresh execution petition on 16 October, 1939, and, after sundry procedure consequent on the bank going into liquidation and the Official Liquidator being brought on record, the attached property was brought to sale on 23 March, 1942, and was purchased by one Sundararaja Pillai. The sale was confirmed on 26 June, 1942, and delivery of possession was ordered on 29 March, 1943. Thereupon the plaintiffs instituted the two suits out of which these appeals arise, O.S. No. 89 of 1942, in the Subordinate Judge's Court, Madura, for partition and delivery of their shares in the family properties including the house now in question the sale of which they impeached as not binding on their shares, and O.S. No. 33 of 1944 in the same Court for setting aside the order for delivery referred to above and maintaining their possession of the house. The Court below upheld the sale in its entirety, and refused the relief sought by the plaintiffs in respect of the house. Hence the appeals.

(2.) The plaintiffs attacked the validity of the Court-sale on various grounds in the Court below, but Mr. Sitarama Rao appearing for the appellants pressed only two of them before us; firstly, the suit brought by the bank against the father having been based only on the promissory note and not also on the debt, and the plaintiffs not having been impleaded, the decree therein must be taken to have been passed personally against the father in his individual capacity and not as representing the other members of the family and that in execution of such a decree the father's share alone in the property brought to sale can be deemed to have passed to the purchaser; and, secondly, inasmuch as the attachment was ordered to continue in force only for four months but the property was sold long after the expiry of the period, the sale was void as a subsisting attachment was an essential pre- requisite for a valid execution sale where the decree itself did not order a sale.

(3.) On the first point, our attention was called to the plaint in the bank's suit to show that it was based solely on the promissory note of the father and not also upon the consideration, and it was urged that a decree obtained against the father alone in a suit framed in that form was not binding on the sons shares in the family properties even under the pious obligation rule. It was not suggested that the decree represented an avyavaharika debt or that the father did not receive consideration for the note; but it was said that, having regard to the frame of the suit, the decree was not a debt to which the pious obligation of the sons under the Hindu Law could be extended. No authority was cited in support of this somewhat novel contention. It is true that no one could be made liable on a negotiable instrument unless his name clearly appears as the name of the person liable thereon (Sadasuk Jankidas V/s. Sir Kishen Prasad (1918) 36 M.L.J. 429 : L.R. 46 LA. 33: I.L.R. 46 Cal.663(P.C)) and it is also true that a distinction has to be made for some purposes between liability on the instrument and liability for the consideration thereof as, for instance, in the case of an indorsee who is limited only to his remedy on the note (Vide Maruthamuthu Naicker V/s. Kadir Badsha Rowther (1938) 1 M.L.T. 378 : I.L.R. 1938 Mad. 568 (F.B.)) or for the purpose of applying the presumption under Section 118 of the Negotiable Instruments Act (Vide Naryanarao V/s. Venkatappayya . The distinction also becomes relevant where the representative capacity of the executant as the manager of the family comes into question. It has been held that where a suit is instituted on a promissory note, it is prima facie a personal claim and the defendant alone is liable to satisfy the decree unless it directs that it is to be paid out of family, property, although the debt was in fact incurred for family necessity (Nagireddi V/s. Somappa . But the distinction can have no meaning where the suit is brought by the payee against the maker and the decree is sought to be enforced against the judgment debtor's son to the extent of his interest in the family property. For, it is not by reason of the father having represented the son in the suit that the son's interest is bound and passes at the execution sale but by reason of his pious obligation to pay his father's personal debt and the correlative power of the latter to sell family property including the son's share for the discharge of such debts, a power which the Court in execution exercises for the benefit of the judgment-creditor. This was recognised in the last mentioned case where the Court emphasised that it was not concerned with the application of the pious obligation rule in execution proceedings because the manager of the family there was not the father. It is not the form of the decree or the frame of the suit but the nature of the debt that determines the son's liability. Jf.it is neither illegal nor immoral, then all that the son can claim for the protection of his interest is an opportunity to show that the debt for which the decree was passed was not binding on him. As the plaintiffs have had such opportunity in these proceedings but have failed to prove that the debt due to the panic was not binding on them, they cannot claim that the sale of the suit house is invalid as against them. In Minakshi Naidu V/s. Immudi Kanakaramayya Goundan (1888) L.R. 16 I.A. 1 : I.L.R. 12 Mad. 142 (P.C.) the Privy Council upheld a sale of family property including the son's share in execution of a decree obtained against the father by a bona fide holder of a promissory note when the son failed to show that the debt was in its inception illegal or immoral, though the point was not specifically raised, the respondent (son) being unrepresented.