Back
IN THE HIGH COURT OF ORISSA
S.K. Ray, B.K. Patra, JJ.
ASHUTOSH RATH - APPELLANT
Versus
VYSYARAJU BADAREENARYAN - RESPONDENT
First Appeal No. 241 of 1970
Decided On : 20-07-1972
PARTITION - JOINT FAMILY PROPERTY - SELF-ACQUIRED PROPERTY - DEBT - LIABILITY OF SON - TRANSFER OF PROPERTY ACT, 1882, SECTION 53 - HINDU LAW - PIOUS OBLIGATION - ATTACHMENT - EXECUTION OF DECREE - LIMITATION ACT, 1963, SECTION 28 - ADVERSE POSSESSION - BURDEN OF PROOF.
Fact of the Case:
Plaintiff filed a suit under Order 21, Rule 63, CPC, claiming that the house attached in execution of a decree against his father was his separate property and not liable to attachment. The Plaintiff's father had taken a loan from the Defendants' predecessor and executed hand-notes. The Defendants obtained a decree against the Plaintiff's father and attached the disputed house. The Plaintiff claimed that the house was his separate property as a result of a partition between him and his father and that the debt was an Avyavaharika debt for which he was not liable.
Finding of the Court:
1. The disputed house was the self-acquired property of the Plaintiff's father, Balakrushna Rath. 2. There was a partition between the Plaintiff and his father prior to 25-1-1950, but the disputed house was not allotted to the Plaintiff in such partition. 3. The Plaintiff never acquired any title to the disputed house during his father's lifetime. 4. The Plaintiff inherited the disputed house after his father's death in 1966. 5. Under Hindu law, a son is not personally liable for his father's debts, even if the debt was not incurred for an immoral purpose. The obligation to pay the debt is limited to the assets received by the son in his share of the joint family property or to his interest in such property and does not attach to his self-acquisitions. 6. The disputed house, being the self-acquired property of the Plaintiff's father, is liable to be attached and sold in execution of the decree obtained by the Defendants against the Plaintiff's father, notwithstanding the fact that the property has been inherited by the Plaintiff after his father's death.
Issues: 1. Whether the disputed house was the joint family property or the self-acquired property of the Plaintiff's father? 2. Whether there was a partition between the Plaintiff and his father and whether the disputed house was allotted to the Plaintiff in such partition? 3. Whether the Plaintiff acquired any title to the disputed house during his father's lifetime? 4. Whether the Plaintiff is liable for the debt incurred by his father? 5. Whether the disputed house is liable to be attached and sold in execution of the decree obtained by the Defendants against the Plaintiff's father?
Ratio Decidendi: 1. The onus of proving that the disputed house was joint family property lies on the Plaintiff. The Plaintiff failed to establish that the disputed house was joint family property. The evidence showed that the disputed house was the self-acquired property of the Plaintiff's father. 2. The Plaintiff failed to establish that there was a partition between him and his father and that the disputed house was allotted to him in such partition. 3. The Plaintiff failed to establish that he acquired any title to the disputed house during his father's lifetime. 4. Under Hindu law, a son is not personally liable for his father's debts, even if the debt was not incurred for an immoral purpose. The obligation to pay the debt is limited to the assets received by the son in his share of the joint family property or to his interest in such property and does not attach to his self-acquisitions. 5. The disputed house, being the self-acquired property of the Plaintiff's father, is liable to be attached and sold in execution of the decree obtained by the Defendants against the Plaintiff's father, notwithstanding the fact that the property has been inherited by the Plaintiff after his father's death.
Final Decision: The appeal was dismissed.
JUDGMENT :
B.K. Patra, J. - This is an appeal by the Plaintiff whose suit, under Order 21, Rule 63, CPC was dismissed by the Additional Subordinate Judge, Berhampur. Late Balakrushna Rath, the father of the Plaintiff had taken on loan of Rs. 9.150/- on two hand notes dated 27.6.1951 from late V. Venkataratnam Raju, husband of Defendant No. 2 and father of Defendant No. 1. The hand-notes were kept alive by payments made from time to time by late Balkrushna Rath. The Defendants instituted a suit on the hand-notes against late Balkrushna Rath (M.S. 14/63) and obtained a decree for about Rs. 17, 000/0. In execution of that decree (E.P. No. 35 of 1963) against Balkrushna Rath, the house mentioned in the schedule to the plaint in the present suit was attached. The Plaintiff thereupon filed a petition under Order 21, Rule 68, CPC claiming that in a prior partition between himself and his father, the plaint schedule property had fallen to his share and that be was Is possession thereof in his own right and that It was consequently not attachable in execution of the decree which the Defendants had obtained against his father. That application having been rejected on 10-3-1965, the Plaintiff filed a revision petition in this Court (Civil Revision No. 102 of 1965) which was dismissed on 22.7.1968. The Plaintiff thereafter on 30.8.1968 instituted the Suit giving rise to the appeal.
2. It was contended in the plaint that due to misunderstanding between the Plaintiff and his wife on one side and his parents on the other, an amicable partition of the entire family properties came to be made between the years 1944 and 1952. To avoid further ill-feelings, the Plaintiff's father relinquished all his properties including the suit house in favour of the Plaintiff by a registered deed of relinquishment dated 9.11.1953 and put the Plaintiff in possession of all the properties. The Plaintiff has thus been enjoying the suit house as his absolute and separate property and had got his name mutated in municipal records in respect thereof. In the year 1961, Balkrushna Bath was declared a pauper. The Defendants being aware of this fact and knowing fully well that Balakrushna Rath was not possessed of any properties executed the money decree which they had obtained against him and attached the disputed house, being fully aware that the disputed house did not belong any more to him. It was further contended that the suit debt in M.S. 14 of 1960 was not incurred by Plaintiff's father for the benefit of the family or for any legal or binding necessities and the debt was an Avyavaharika debt which the Plaintiff is not liable to discharge. In the circumstances stated above, the Plaintiff prayed for declaration of his title to the disputed house and for a further declaration that it is not liable to be attached or sold in execution of the decree which the Defendants had obtained against the Plaintiff's father in M.S. 14 of 1960 and to set aside the order passed by the Court below in the claim petition (M.J.C. No. 162 of 1963).
3. The Defendants in a joint written statement denied the plaint allegation that there was ever any partition between the Plaintiff and his father and that in such partition the disputed house had fallen to the share of the Plaintiff. According to them, late Balkrushna Rath till his death in the year 1966 was living jointly with his son the Plaintiff and continued to be the owner of the disputed house which was himself acquired property. The plaint allegation that the loans to recover which M.S. 14 of 1960 was filed, was an Avyavaharika debt, was denied and it was contended that the loan was incurred for the benefit of the family of which late Balakrushna Rath was the Karta. Regarding the registered deed of relinquishment referred to in the plaint, it was stated that the document was created by late Balakrushna Rath in order to defraud his creditors and to save his properties from being sold to recover the loans which he had incurred. The all
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
