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1999 Supreme(Ori) 427
IN THE HIGH COURT OF ORISSA
P.K. Misra, A. Pasayat, JJ.
SRI GOPINATH JEW OF KUMARPUR AND OTHERS - APPELLANT
Versus
BRUNDABAN MOHAPATRA AND OTHERS - RESPONDENT
A.H.O. No. 27 of 1993
Decided On : 23-03-1999
S.P. Mishra, A.K. Mishra 2, S.K. Mishra, R.K. Patnaik, D. Patra, U.S. Patnaik, S.K. Ray, B. Brahmachari, A.K. Patra and B.N. Lenka, for the Appellant; Brajamohan Patnaik, for Respondents 1 to 3, for the Respondent
A son's liability under the rule of pious obligation in Hindu Law to pay the debt of his father is subject to the exceptions specified in the texts. A son is not liable for his father's liabilities arising out of his criminal acts.
Headnote:
HINDU LAW - PIOUS OBLIGATION - SON'S LIABILITY - EXTENT - DEBTS INCURRED BY FATHER FOR UNAUTHORISED POSSESSION OF DEITY'S PROPERTY - NOT BINDING ON SONS - SALE OF JOINT HINDU FAMILY PROPERTY IN EXECUTION OF DECREE FOR SUCH DEBTS - NOT AFFECTING INTERESTS OF SONS.
Fact of the Case:
Plaintiffs filed a suit for a declaration that their interest in the property of the joint family in which they were members is not affected by the sale of the property for recovery of damages in Money Suit No. 15 of 1957 and in Title Suit No. 16 of 1960. Their stand was that the decree for damages was against the defendants personally and joint family interest could not have been sold.
Finding of the Court:
The court found that the decrees executed were not specifically against the plaintiffs, and therefore, the question for consideration was whether the plaintiffs would be bound by the decrees so that the sale in execution of the decrees would bind them. It was observed by the learned Single Judge that the unlawful occupation of land by a person and enjoyment of usufructs are illegal. Any liability for such illegal action would be personal and such liability would not bind the coparceners of a Hindu Joint Family. Similarly such acts of the Karta of a Joint Hindu Family will not bind the members. That would be in the nature of "Avyavaharika debt". Sons of Hindu debtors have no pious obligation to discharge such debt.
Issues: Whether the sale of joint Hindu family property in execution of a decree for damages incurred by the father for unauthorised possession of deity's property is binding on the sons.
Ratio Decidendi: The court held that the liability incurred for unauthorised possession is "Avyavaharika debt" and therefore, the interest of the plaintiffs in the property sold would not be affected by the sale of the Joint Hindu Family property. Purchasers having purchased the interest of a co-sharer would be deemed to be in joint possession of the properties purchased, since in execution of a decree the purchaser is entitled to the right of the judgment-debtor in the property and has no better right. Court cannot sell the interest of a person who is not liable under the decree.
Final Decision: The appeal was dismissed.
JUDGMENT :
A. Pasayat, J. - In this appeal under the Letters Patent, judgment of learned Single Judge of this Court in First Appeal No. 86 of 1978 affirming the judgment and decree passed in Title Suit No. 151 of 1972 by the learned Subordinate Judge, Athagrarh (hereinafter referred to as the 'trial Judge') is under challenge.
2. The facts leading to filing of the appeal essentially are as follows:
Plaintiff-respondents in this appeal filed a suit for a declaration that their interest in the property of the joint family in which they were members is not affected by the sale of the property for recovery of damages in Money Suit No. 15 of 1957 and in Title Suit No. 16 of 1960. Their stand was that the decree for damages was against the defendants personally and joint family interest could not have been sold. The suit was decreed. Defendants took the stand in the suit and in the First Appeal that the decree passed against defendant Nos. 17 to 19 were not due to any criminal acts done and the plaintiffs having obtained benefit out of the deity's property which was in possession of defendant Nos. 17 to 19, who are their coparceners in joint family, their share in the scheduled property was also bound by the sale in execution. The plea was found untenable by learned Single Judge affirming similar view of the trial Court.
3. Factual position as noticed by the learned Single Judge was as follows :
Case of plaintiffs is that their relationship with the defendants against whom the decree in Money Suit No. 15 of 1957 and Title Suit No. 16 of 1960 were passed would be revealed from the genealogy as given hereunder:
Sibaram
Gobinda(D.17) Banamali (D. 18) Dinabandhu(D.19)
=Saudamini (D. 23) = Sailabala (D. 24) (not married) Prakash (D.4)
(adopted)
Pramoda (P.2) Pratap (P.3) Prakash (P. 4)
(Given in adoption to D. 19)
Plaintiff No. 1 is the son of defendant Nos. 17 and 23, plaintiff Nos. 2, 3 and 4 are sons of defendant Nos. 18 and 24. In 1964, plaintiff No. 4 was given in adoption to defendant No; 19 who is unmarried. Properties in Schedules A and B of the plaint have been sold to some of the defendants and their predecessors in interest. Decrees executed were on the basis that defendant No. 1, the deity installed in village Kumarpur has vast properties, defendant No. 2 was hereditary trustee' of deity, defendant Nos. 17 to 19 transferred the landed properties of the deity and illegally retained possession of the lands from 1952 to 1959 and misappropriated the usufructs of those lands. For recovery of the profits enjoyed by the defendant Nos. 17 to 19, M.S.No. 15 of 1957 was filed for Rs. 1,680/- which was ultimately decreed for Rs. 1,400/-. In the other suit, i.e., Title Suit No. 16 of 1960, damage amounting to Rs. 1058/- was decreed. These amounts were sought to be recovered in execution and properties covered under A and B Schedules were sold. The decrees being for damages are personal against the judgment debtors, and interests of plaintiffs are not affected by the same since they were not the judgment-debtors. Stand of defendants has been indicated above.
4. Learned Single Judge noted that there was no dispute that the decrees executed were not specifically against the plaintiffs, and therefore, the question for consideration was whether the plaintiffs would be bound by the decrees so that the sale in execution of the decrees would bind them. It was observed by the learned Single Judge that the unlawful occupation of land by a person and enjoyment of usufructs are illegal. Any liability for such illegal action would be personal and such liability would not bind the coparceners of a Hindu Joint Family. Similarly such acts of the Karta of a Joint Hindu Family will not bind the members. That would be in the nature of "Avyavaharika debt". Sons of Hindu debtors have no pious obligation to discharge such debt. It was noticed that though defendant Nos. 17 to 19 did not incur any debt, yet they were made liable for the am
