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1970 Supreme(Mad) 243
Madras High Court
ISMAIL
Varadammal - Appellant
Versus
Ambalal J.Vyas - Respondent
Decided On : 08/07/1970
S.P. Srinivasan, for Appellants; S. Jagadeesan, for Respondents.
The right of the father to alienate the joint family properties for the discharge of the family debts subsists only so long as the family continues to be joint in status.
Headnote:
PARTITION - Severance of status - Institution of suit for partition - Effect - Alienation by father after severance of status - Binding nature on son - Doctrine of pious obligation.
Fact of the Case:
The third defendant, father of the second defendant, executed a composition trust deed in favor of his creditors, including the plaintiffs, to discharge his debts. Subsequently, the first defendant, mother of the second defendant, filed a suit for maintenance and partition on behalf of herself and the second defendant. The suit was decreed and a charge was created over the third defendant's share of the family properties for the maintenance of the first defendant. The second defendant obtained possession of the property allotted to him in the partition, but was obstructed by the plaintiffs, who claimed title to the property under the composition trust deed. The plaintiffs filed a suit for declaration of title and possession of the property, alleging that the proceedings in the partition suit were collusive and fraudulent.
Finding of the Court:
The court held that the proceedings in the partition suit were not collusive or fraudulent, and that the severance of status between the second defendant and the third defendant took place on the institution of the partition suit. The court further held that the third defendant had no power to alienate the joint family properties so as to bind the second defendant's interests after the severance of status, even though the debts in respect of which the composition trust deed was executed were binding on the second defendant. However, the court held that the second defendant's share in the family properties was liable for the debts incurred by the third defendant, notwithstanding the severance of status.
Issues: 1. Whether the proceedings in the partition suit were collusive or fraudulent? 2. Whether the severance of status between the second defendant and the third defendant took place on the institution of the partition suit? 3. Whether the third defendant had the power to alienate the joint family properties so as to bind the second defendant's interests after the severance of status? 4. Whether the second defendant's share in the family properties was liable for the debts incurred by the third defendant, notwithstanding the severance of status?
Ratio Decidendi: 1. The court held that the proceedings in the partition suit were not collusive or fraudulent, as there was no evidence to support the plaintiffs' allegation that the suit was instituted with a view to defraud or delay creditors. 2. The court held that the severance of status between the second defendant and the third defendant took place on the institution of the partition suit, as the court had come to the conclusion that the partition was beneficial to the minor's interests. 3. The court held that the third defendant had no power to alienate the joint family properties so as to bind the second defendant's interests after the severance of status, as the right of the father to alienate the joint family properties for the discharge of the family debts subsists only so long as the family continues to be joint in status. 4. The court held that the second defendant's share in the family properties was liable for the debts incurred by the third defendant, notwithstanding the severance of status, as the debts were binding on the second defendant under the doctrine of pious obligation.
Final Decision: The court allowed the second appeal, set aside the judgments and decrees of the courts below, and declared that the plaintiffs had no title to Item 1 of the suit properties and were not entitled to recover possession thereof from the second defendant. The court also declared that the plaintiffs' title to Items 2 to 4 of the suit properties was subject to the charge for maintenance in favor of the first defendant created under the decree in the partition suit.
JUDGMENT :- The defendants 1 and 2 in O. S. 135 of 1961 on the file of the court of the Subordinate Judge, Salem, are the appellants before this court, and they are mother and son. The third defendant in the suit is the husband of the first defendant and father of the second defendant. He was carrying on business on behalf of the family consisting of himself and his minor son and in the course of the business, he had incurred considerable debts. I. P. 22 of 1955 was filed by one of his creditors on 29-3-1955, before the Sub. Court. Salem, for adjudging the third defendant as insolvent. Similarly, I. P. 27 of 1955 was filed before the same court on 22-4-1955, by another creditor for adjudging the third defendant as insolvent. In order to avert an adjudication in the said insolvency proceedings, the third defendant compromised with his creditors and executed Ex. A-19 on 24-9-1956, being a composition trust deed in favour of all his creditors constituting the plaintiffs in the suit, who are respondents 1 to 3 herein and defendants 4 and 5, who are respondents 5 and 6 herein, as the trustees authorising them to sell the suit properties and discharge the debts. In view of the execution of this composition trust deed, the insolvency petitions were terminated by a joint endorsement on 5-10-1956 and the petitions were dismissed on 6-10-1956.
2. As against these proceedings, there were certain other parallel proceedings that went on. The first defendant and the second defendant, represented by the first defendant, filed a suit in forma pauperis for maintenance, past and future for the first defendant and for partition and separate possession of his share of the family properties for the second defendant and for a charge on the third defendant's share of the family properties for the maintenance to be awarded in favour of the first defendant. Prior to this, a petition to sue in forma pauperis was filed on 19-1-1955. The said petition was returned on 25-1-1955, for curing certain defects. However, the first defendant did not represent the petition. But subsequently it was re-presented on 9-11-1955, with an application to excuse the delay. The first defendant's counsel has got back the pauper petition from the court on 12-2-1955, but did not present it till 9-11-1955. The petition to excuse the delay was opposed by the third defendant and ultimately it was dismissed on 14-8-1956. Thereafter, defendants 1 and 2 filed a fresh original petition, which was numbered as O. S. 32 of 1957 on 7-9-1956. In that suit, the present third defendant remained ex parte, and the learned Subordinate Judge, Salem, passed a preliminary decree for partition and subsequently a final decree in favour of the second defendant and for maintenance in favour of the first defendant and created a charge over the share of the third defendant for the said maintenance of the first defendant. Item 1 of the present suit properties was allotted to the share of the second defendant and a charge was created over Items 2 to 4 which were allotted to the share of the third defendant for the maintenance of the first defendant. In execution of this partition decree, the second defendant obtained possession of the property which is said to have been taken possession of by respondents 1 to 3 and 5 and 6 herein, pursuant to the composition trust deed executed by the third defendant - 4th respondent herein. The first respondent and one Krishna Chettiar obstructed the delivery of possession of Item 1 to the second defendant and the court by removing the obstruction passed the order of delivery in R. E. A. 15 of 1960 in R. E. P. 221 of 1959 in O. S. 32 of 1957 on the file of the Sub. Court, Salem. It is, thereafter, respondents 1 to 3 herein representing the body of creditors instituted the present suit, namely. O. S. 135 of 1961 on the file of the court of the Subordinate Judge, Salem, for declaration of title to all the four items of properties in the plaint schedule and for po
