MAHADEO RAM KASARWANI Vs. GANESH PRASAD

JUDGEMENT

(1.) This is an appeal by defendant 1 from a decision of the Subordinate Judge of Arrah in a case which arose in the following circumstances: Defendant 2 was a borrower of a sum of money from the Dumraon Co-operative Society. He borrowed this money for the purpose of carrying on the ancestral trade of his family. The plaintiff, who is the respondent in this appeal, is his son. The Co-operative Society went into liquidation and the liquidators took the certificate procedure for the purpose of recovering the borrowed money, and in execution they put up for sale the interest of defendant 2 in certain property and the property in question was sold and purchased by defendant 1. Now the plaintiff, the son of defendant 2, sues defendant 1 the purchaser, and defendant 2, his own father, to recover possession, of the property alleging that it being the family property which had been purchased by defendant 1, it is not liable for the debt incurred by the father, defendant 2, because the debt was incurred for immoral purposes. There is a finding of fact by the learned Subordinate Judge that the debt, far from being for immoral purposes, was for the benefit of the family and that finding is not questioned in appeal. The learned Subordinate Judge, however, has decreed the suit on the ground that all that passed under the certificate sale was such right as defendant 2 might have on a partition of the family property, that is to say the mere rights which defendant 2 had as an individual in relation to the family property which has been sold.

(2.) It has long been laid down that a father by incurring a debt binds the property of the sons so long as the debt is not for immoral purpose and lays the estate open to execution proceedings based upon a decree for the payment of that debt: see Brij Narain Rai V/s. Mangla Prasad Rai AIR 1924 PC 50. The decree being against the father, it is necessary in every case to ascertain what the rights and interests of the father are. In his individual capacity and apart from his fathership, it is true he has a right to partition and to take such share as might be allotted to him on partition; but in respect of his fathership he has the further right to sell the family property to discharge debts incurred by him and the sons are not in a position to object, being bound by the pious obligation to pay the father's debts in any case. Therefore what has to be taken into execution is the right and interest of defendant 2, the father, including not only his individual rights but the rights which he possessed by reason of his fathership, and in Section 26, Sub-section (1) of the Bihar and Orissa Public Demands Recovery Act, it is enacted that: Where property is sold in execution of a certificate, there shall vest in the purchaser merely the right, title and interest of the certificate-debtor at the time of the sale; and under that heading there is the right to dispose of the family property for the discharge of the debt. If the judgment-debtor can sell the property to satisfy the debt so can the purchaser who steps into his shoes. The learned Subordinate Judge seems to have been under the impression that there is a difference between the position of a purchaser in an execution sale conducted under the Civil Procedure Code and a purchaser in an execution sale conducted under the Public Demands Recovery Act and that the rights acquired by the purchaser under the latter enactment are less extensive than those obtained under the former. This argument is, in my opinion, entirely ill-founded and it is to be noticed that in Mt. Raja Koer V/s. Ganga Singh 13 CWN 750, the High Court of Bengal said: The provisions of the Public Demands Recovery, Act clearly show that the effect of a sale under that act is the same as the effect of a sale under the Civil Procedure Code, and consequently all that passed to the purchaser in this case is the right, title and interest of the persons named as the judgment-debtors.

(3.) Applying that principle to the facts of this case, what has passed to the purchaser is the right, title and interest of the judgment-debtor and that included the rights which he had by virtue of his position as the father, that is to say the right to sell the family property and a sale of that family property has in fact taken place and it has vested in the purchaser. The plaintiff having failed entirely to establish his case that there was anything of an immoral nature in the original debt, has no right to attack the sale any more than he would have had the right to attack a sale conducted by his father as a private individual and without the intervention of the Court. All the other findings are in favour of the defendant- appellant and this is the only point with respect to which the learned Subordinate Judge was in his (the plaintiff s) favour. In my opinion, therefore, the must be allowed and the suit of the plaintiff dismissed. The plaintiff must pay the costs throughout. James, J.