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suit. He admitted the validity of the claim. The defendants Kandhai
Lai and Shankar Lai are minors. The defendants other than Madan
Lai have defended the suit. They have denied that Madan L\l was the
head and manager of the family, and have alleged that the moneys were
not lent to Madan Lai as the manager or for the purposes of the family,
and that the bond in suit was given without their consent and without
any valid necessity, and that Madan Lai borrowed the money for and
spent it in immorality, and that; they have not received any benefit from
the loans. The plaintiffs' suit was dismissed with costs by Pandit
Bansidhar, the Subordinate Judge of Allahabad, and their appeal was
dismissed wish costs by the District Judge. From the decree of the
District Judge this appeal has been brought.

It has been found that the property included in the bond was the
whole ancestral property possessed by the family. It has also been found
that Madan Lai paid no attention to the family or their interests, and did
not, as a matter of fact, act as the managing head of the family ; that the
defendants Kunji Lai and Muni Lai discharged his functions as head and
manager of the family, and were not only of full age when the bond
was executed, but had carried on business on their OWQ account; for some
six years previous to its execution ; that there were no ancestral debts, and
that the debts in respect of "Which the bond was given were all personal
to Madan Lai, and that the money from first to last was received by
Madan Lai for his own personal use, and that the plaintiffs could not bufc
[78] have been aware of those facts. From the judgments of the two
Courts I think the District Judge was referring to Lala Ram Kishan as
well as to his sons when he found that the plaintiffs could not but have
been aware of the facts. It was also found that Madan Lai had grossly
neglected his duty to bis sons, but that it was not shown that the debts
were tainted with immorality. The bond in suit was given on the 13tk

766



YII] BADHI PRASAD V. MADAN LAL 15 All, 79

day of Sudi Pus, Sambat 1941, and the Subordinate Judge found, and the 1893
District Judge did not dissent from the finding, that ' the answering FEB. 8.
defendants have proved that since the latter part of Sambat 1935, or the
beginning of Sambat 1936, the said defendants have not stood in need of FULL
being looked after or cared for by their father. In the first place, the defend- BENCH.
ant No. 1, i.e., the principal debtor (Madan Lai), does not seem to have i5~jT~78
ever attended to his family necessities. Since his father's death he has ,_ R *.
passed a life of luxury, and in this state of his itattention bis family passed ia j W TJ.
its days ill or well as fell to their lot. But from the time above mentioned y 18ag \ .'
his elder son, and, from a short time after, his other son took to business
themselves, and thus they, their minor brothers and their mother supcorted
themselves. The parties do not only belong to a brotherhood, but are
collaterally related also. Their houses also are close to each other. It
is somewhat hard to believe that the plaintiffs may have remained unaware
of the conduct and manners of the defendant No. 1 their debtor."

From tbe findings to which I have referred it appears that at no time
did Madan Lai ever act as the manager of tbe family ; that he never
fulfilled the duties of the head of a Hindu family ; and that sines a time
prior to the giving of the bond of tbe 7th of October 1881 the sons, Kunji
Lai and Munni Lai, performed the duties which their father ought to
have performed for the family, and by their exertions in business support-
ed themselves, their mother and their minor brothers, tbe other two
defendants. As I read the judgments of the Courts below, Lala Earn
Kishan and his heirs, the plaintiffs in this suit, must have been well
aware of the circumstances of the family, I confess that my sympathies
are entirely with the defendants, the sons of Madan Lai.

[79] Mr. Strachey, on behalf of the plaintiffs-appellants, has contended
that they are entitled on the findings and on the authority of decisions
of their Lordships of the Privy Council, to the decree which they seek
by tbe prayer in their plaint. Mr. Chaudhri, on the other hand, on
behalf of the sons of Madan Lai, has contended that the pious duty of a
Hindu son to pay debts contracted by the father does not arise except
when the father is dead, is abroad, or is immersed in difficulties, and in
support of that contention he cited texts and passages to be found at page
205 of Mandlik's Hindu Law. " The Vyavahara Mayukha, &o , &e.,"
edition of 1880, at pages 42 and 263 of the Sacred Books of the East,
Volume 33, and verses 27, 28 and 29 of tbe translation of the Mitakshara,
at page 255 of MacNaghten'a Mitakshara, edition of 1870. Our attention
was also drawn to pages 642, 643, 644, and 645 of West and Buhler's Hindu
Law, 3rd edition, and Mr Chaudhri contended that this suit, so far as it
related to the interests of sons of Madan Lai in the family property, was
premature. Ho also contended that the debts in respect of which the
bond of tbe 30th December 1884 was given were not antecedent debt ;
within the meaning of the expression " antecedent debt " as used in the
decision of their Lordships of the Privy Council in Mussammat Nanomi
Babuasm and others v. Modun Mohun and others (1), the argument being
that by " antecedent debt " was meant a prior debt due by tbe father to a
person other than the person to whom he subsequently alienated family
property in order to obtain money with which to discharge such prior debt ;
and the debts not having been contracted by Madan Lai as manager of
the family or for family purposes and without tbe consent of his sons,
and the SOBS having derived co benefit from the advances, Madan Lai

(l) 13I.A. 1 = 13 C. 21.
767



15 All. 80 INDIAN DECISIONS, NEW SERIES [Vol.

1893 had no power to mortgage the family property, and the mortgage could
FEB. 8. not be enforced in this suit. In support of that contention Mr. Ghaudhri
cited a judgment of a Full Bench of the High Court at Calcutta iu Modhoo
FULL Dyal Singh v. Golbur Singh and others (I).

BENCH. Whatever may have been the rule of Hindu Law, I agree with

~ the opinion of Pontifex and McDonell, JJ., expressed in their jui H g-[80]

*?!? R '' men * i ln Laljee Sahoy v. Fakeer Chand and others (2) in respect of it

M son verne d Dv tne rules of the Mitakshara. " Bub by the decisions of

A.W.N. j.j je p r j vy Council it has now been established that it is the pious duty of

the son to pay his father's debts out of the ancestral estate even in the

father's life time." In speaking of the " father's debts " those learned

Judges were not referring to debts tainted with immorality.

The expressions " antecedent debts " and " antecedent debt " are ex-
pressions which, unless there is something to restrict their meaning, would
undoubtedly include a prior debt due by the father to the person to
whom he mortgaged or conveyed family property. I assume that when
their Lorriships of the Privy Council, on the 18t>h of December 1886, in
Mussamat Nanomi Babuasin and others v. Modun Mohun and others (3) at
page 18 of the report in L. R, 13 L A., said, "the decisions have for
some time established the principle that the sons cannot set up their
rights against their father's alienation for an antecedent debt, or against
bis creditors' remedies for their debts, if not tainted with immorality,"
they used the expression " antecedent debt; " as it had been used by their
Lordships of the Privy Council in Suraj Bunsi Koer v. Sheo Prashad Singh
and others (4) when, in referring to the decisions in Girdharee Lall v.
Kantoo Lall (5^ their Lordships at page 106 of the report say : " This case
then, which is a decision of this tribunal, is undoubtedly an authority for
these rropositions : 1st. That where joint ancestral property has parsed out
of a joint family, either under a conveyance executed by a father in con-
sideration of an antecedent debt, or in order to raise money to pay off
an antecedent debt, or under a sale in execution of a decree for the
father's debt, his sons, by reason of their duty to pay their father's
debts, cannot recover that property, unless they show that the debts
were contracted for immoral purposes, and that the purchasers had
notice that they were so contracted. . ." That passage in my
op'rtion shows that the expression "antecedent debt" is not to be restricted
[81] to a prior debt due to a person other than the purchaser or mort-
gagee, as their Lordships put as cases of antecedent debts the case of an
antecedent debt being the consideration for the conveyance, and the case
of the consideration for the conveyance being money raised by the sale
in order to pay off an antecedent debt. Pontifex and MoDonell, JJ., in
their judgment in Laljce Sahoy v. Fakeer Chand and others (2), referred
to prior debts of the father to the mortgagee as "antec-irient debts." In
HanumanKamat v. Dowlat Mundar and others '6), Tottenham find Norris,
JJ., held that the purchase money itself, which was she consideration for
the conveyance, could not be said to be an antecedent debt. I know of
no other restriction of the expression " antecedent debt."

It would in my opinion be useless to discuss what may have been, or
may have been considered to have been, the law in India affecting the
power of a father in a joinfc Hindu family, governed by the law of the Mitak-
ahara, to convey or mortgage joint family immoreable property in,

(1) 9 W. B. C. R. 511. (2) 60 135 739. (3) 13 I.A, 1-18 C. 21,~

(4) I.A. 88. (64 14 B.L.B. 187-1 I.A. 321.

(6) 10 C. 528.

T68



YII]



BADRI PRASAD U. MADAN LAL



15 All. 83



satisfaction of an antecedent debt, or in order to raise money to discharge
an antecedent debt, cot tainted- with immorality, as I consider the question
has been concluded by the decisions of their Lordships of the Privy Council,
which are binding on this Court. In Musammat Nanomi Babuasin
and others v. Modun Mohun and others, their Lordships (at page 17 of
L. R 13 I. A., and at page 35 of I. L. B. 13 Gale.) said : " There is no
question that considerable difficulty has been found in giving full effect
to each of two principles of the Mitakhara law, one being that a son
takes a present vested interest jointly with his father in ancestral estate,
and the other that he is legally bound to pay his father's debts, not incurred
for immoral purposes, to the extent of the property taken by him through
his father. It is impossible to say that the decisions on this subject are
on all points in harmony, either in India or here. But the discrepancies
do not cover so wide a ground as was suggested during the argument in
this case.

" It appears to their Lordships that sufficient care has not always been
taken to distinguish between the question how far the entirety [82] of the
joint estate is liable to answer the father's debt, and the question how far
the sons can. be precluded by proceedings taken by or against the father
alone from disputing that liability. Destructive as it may be of the principle
of independent co-parcenary rights in the sons, the decisions have for some
time established the principle that the POUS cannot set up their rights
against their father's alienation for an antecedent debt, or against his
creditors' remedies for their debts, if not tainted with immorality. On
this important question of the liability of the joint estate their Lordships
think that there is now no conflict of authority.

The debts in the present case were, with the exception of Bs. 11-9-0,
antecedent debts. I regard the finding of the Court below, which was
arrived at after hearing evidence on both sides, as a finding that no portion
of the consideration, including the some of Bs. 11-9.0, was tainted with
immorality, and I am of opinion that the plaintiffs' remedy on this bond
can be obtained and enforced in this suit. In the view of the law, as
pronounced by their L6rdships of the Privy Coucil, the false averment in
the plaint that Madan Lai executed the bond in his capacity of manager
and for family purposes is on the findings of fact immaterial.

The next question to be considered is the nature of the decree to
which the plaintiffs are entitled. On that point we have been pressed
with the decision of a Fall Bench of the Calcutta High Court in Luchman
Dass v. Giridhur Chowdhry (1). That case arose and was decided before
the Transfer of Property Act, 1882 (Act No. IV of 1882), came into force.
The plaintiffs in this case are undoubtedly mortgagees within the meaning
of s. 99 of that Act. By reason of s. 99 the plaintiffs could not bring the
mortgaged property to sale except by instituting a suit, as they have done
here, under s. 67 of that Act. In that suit, as they sought a decree
for sale against not only Madan Lai's interest in the mortgaged pro-
perty but against the interest of his sons, they having notice that the
sons had an interest in the mortgaged property, properly and in
accordance with s. 85 of that Act joined the sons as parties to the
[83] suit. If the plaintiffs in this suit, which was commenced after the
Transwer of Property Act, 1882, came into force, having notice that the
sons had an interest in the property had omitted to join them, they
could have obtained a decree against the father's interest only, and could



1893

FEB. 8.

FULL
BENCH.

15 A. 75
(F.B.) =

13 A W N.

(1893) 52.



A VII 97



(1) 5 C. 855.
769



15 All. 84 INDIAN DECISIONS, NEW SERIES [Yol.

1893 not have obtained a decree for sale which would have affected the interests

FEB. 8. of the sons in the mortgaged property. When a mortgagee is entitled to

succeed in a suit brought under s. 67 of the Transfer of Property Act, 1882,

FULL he has " a right to obtain from the Court an order that the mortgagor

BENCH, shall be absolutely debarred of his right to redeem the property, or an

order that the property be sold."

' ' I would give the plaintiffs a decree under s 88 of the Transfer of

w = Property Act, 1882, for sale of the mortgaged property, or a sufficient
JA.W.N. p ar j. j i h ereo f | jf fch e defendants make default in paying to the plaintiffs or
into Court within six months from the date of notice to tbetn that the
account has been prepared in the office of this Court, the principal money
of Es. 1,650 and the agreed interest thereon of one per centum per
mensem for twelve months from the date of the bond, the 30bh of
December 1884, and damages by way of interest at the rate of six rupees
per centum per annum from the due date of the bond, viz., the 30bh of
December 1885, up to the date of the decree of this Court. Having
regard to the false averment contained in the plaint, the consideration of
which occupied much time in the Courts below, I would not allow the
plaintiffs any costs either in this Court or in the Courts below. To the
above extent I would allow this appeal. The application for a decree
under s. 90 of the Transfer of Property Act, 1882 is premature.

TYRRELL, KNOX, BLAIR, BURKITT and AIRMAN, JJ. We fully
concur in this judgment and in the decree as proposed by the learned
Chief Justice.

Appeal decreed.



15 A. 84 (F,B.) = 13 A. W. N. (1893) 36.
[84] FULL BENCH.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Tyrrell,

Mr. Justice Knox, Mr. Justice Blair, Mr. Justice Burkitt, and

Mr. Justice Aikman.



DHONKAL SINGH (Decree-holder) v. PHAKKAR SINGH AND OTHERS
(Judgment-debtors)* [9th February, 1893.]

Civil Procedure Cole, Chipteis VII and XIII, and s. 647 Act No. VI of 1892, s. 4
Execution ol decree Procedure applicable to execution pro:eidingsAct No. XV of
1877, Sch, ii, Art. 179 (5) Limitation.

The issuing of a notice under e. 248 of the Coda of Civil Procedure gives a fresh
starting point for limitation under art. 179, ol. (5) of sob. ii of the Indian
Limitation Aot, 1877, whether such notice is issued on a valid or an invalid
application for execution.

Chapters VII and XIII of the Code of Civil Procedure cannot, in view of s. 4
of Aot No. VI of 1892, be applied to proceedings in elocution of decrees.

But a Court has power inherent, if not conferred by statute, to dismiss an
application for execution when the applicant fails through his own laches to put
the Court in a position to proceed with his application.

Similarly, a Court has inherent power, if such power is not conferred upon it
by statute, to proceed forthwith to decide an application for execution of a decree
on the materials before it, when time has been granted to a party to perform any
act necessary for the further progress of the application and that act has noli
been done.

* First Appeal, No. 175 of 1891, from a decree of Syed Akbar Huaain, Subordinate
Juige of Cawnpore, dated the 20th June, 1891,

770



YIIJ DHONKAL SINGH V. PHAKKAR SINGH 15 All. 85

When an order is undo striking an execution case off the file of pending cases, or 1893
dismissing it on grounds other than a distinct finding that the decree is incapable

of execution, that the decree-holder's right to get thedeorea executed is barred by SBl "
limitation, or by any other rule of law, or on some similar ground on which the

application has olcarly been dismissed on the merits, whether the word " dismiss- FULL

ed" for the words " struck off the file," or any other similar words have been BENCH

used in the order, the decree-holder is not barred by the force of any such order _

from presenting and prosecuting afresh application for the execution of his decree. ja ^ oj

{P., 15 A. 198 (305) ; 25 C. 594 (599); 18 M. 131 (133) ; 6 A L.J. 944 = 3 Ind. Gas. 817 ; (F B )-
130.0. 303 (307) = 8 Ind. Gas. 377 (378) ; 76 P.R. 1903 = 170 P.L R, 1903; '22 P. j w
R. 1905 = 57 P.L.R. 1905 ; 116 P.R. 1907 = 143 P.W.R 1907'; Rel. on, 10 Ind. " *'":"
Gas. 411 (41:2) ; Appl., 17 A. 243 (244); Appr., 20 A. 423 (430); R , 16 A. 26 (27);
16 A. 390 (391) ; 24 A. 282 (287) ; 18 B. 429 (431); 19 B. 276 (230) ; 3 C.L J. 276
(279)5 100. L.J. 91 (100); 14 C.W.N. 114 (119) = 3 Ind. Gas. 47 (49); 11 Ind. Gag.
395 (386)= 13 C.L.J. 532 (534) ; 9 O.C. 288 ; 20 P.L.R. 1903 = 90 P.R. 1902; 139
P.L.R. 1905 ; 125 P.L.R. 1908 = 95 P.W.R. 1903 ; 1 B.L.R. 86.]

THIS was a reference to the Fall Beach made by an ordar of Edge,
C. J., and Burkitt and Aikman, JJ., of the 12!;h of D3camber,1892. The facts
of the case are fully stated in the judgment of Edge, 0. J.

Pandit Sundar Lai, for the appellant.

Muoshi Bam, Prasad, for the respondents.

The following judgments were delivered by the Fall Bench :

JUDGMENTS.

[85] EDGE, C. J. This is an appeal from an order of the Subordi-
nate Judge of Gawnpore disallowing an application for the execution of a
decree. The decree in question was passed on the 14th of January 1887,
and was, so far as is material, one for an ascertained amount of money
and for mesne profits to be ascertained. On the 21st of February 1888
the decree-holder applied to have the decree executei by attachmant and
sale of proparty which had been of the judgment-debtors in their life-
time. No inventory of the property sought to be attached was annexed
to the application, nor did the application contain any description of the
property sufficient to indentify it.

On the 25th of February 1888 the Subordinate Judge ordered a notice,
under section 248 of the Code of Oivil Procedure, to issue to the legal
representatives of the deceased judgment-debtors, and on the same day a
notice under that section was, in accordance with the order of the Subor-
dinate Judge, issued, fixing the 24th of March 1888 as the day on which
the legal representatives of the deceased judgment-debtors should show
cause why the decree should not be executed against them. That notice
was served on the llth of March, 1888.

On the 24th of March 1883, the pleader for the decree-holder asked
the Court for a week's time to enable him to file a list of the property
sought to be attached. The Court on the 24th of March 1888 allowed
time for filing the list until the 3rd of April 1888, and fixed the 3rd of
April 1888, for proceeding with the hearing of the application for execu-
tion.

On the 3rd of April 1888, no list of the property sought to ba attached
having been filed, the Subordinate Judge passed an order that the appli-
cation for execution " be struck off the file of pending cases."

On the llth of February 1891, the decree-holder presented to the
Court of the Subordinate Judge the application for execution, the dismissal
of which is the subject of this appeal.

771



15 All. 86 INDIAN DECISIONS, NEW SEBIES [Yol.

1893 The particulars whioh were inserted in the column of the application

FEB. 9. relating to the mode in which the assistance of the Court was required,

were as follows :

FULL [86] "Rupees 20,019-11-li are due to the decree-holder on account

BENCH, of the decree-money, costs, mesne profits and interest, out of that Rs. 15,000

~~ have been realized. The necessary inquiry relating to the amount of

mesne profits may be made, and the amount which may be found correct

may be awarded by the attachment and sale of the judgment-debtors'

' property. Pahalwan Singh and Khaman Singh, judgment-debtors, are

(1893) 36, jj ea( j Th e execution proceedings may be taken against the" heirs of the

said judgment-debtors. The inventory of the property will be filed

hereafter."

It will be noticed that no inventory or description of the property
sought to be attached was given, and yet if the case were one, as appa-
rently it was, in which some at least of the property sought to be attached
was moveable property which had been of the judgment-debtors in their
life- time, s. 236 of the Code of Civil Procedure applied and required that
such an inventory should be annexed to the application for execution; and
if some of the property sought to be attached was immoveable property,
s. 237 applied and required that the application should " contain a de-
scription of the property sufficient to identify it, and also a specification
of the judgment-debtor's share or interest therein to the best of the belief
of the applicant and so far as he has been able to ascertain the same."
If those sections or either of them applied, neither the application of the
21st of February 1888 nor that of the llfch of February 1891 was in
accordance with law. Possibly also s. 238 may have applied to the appli-
cation. The Acts and Codes of the Legislature have been passed to be
observed and not to be treated as dead letters. It is almost inconceivable
that the negligence of the decree-holder or his pleader which led to
the application of the 21st of February 1888 being struck off the file
of pending cases should have been repeated when the application of
the llth of February 1891 was made. My experience of the neglect
of parties -or their pleaders to observe the procedure provided by the
Legislature would induce the belief that they considered that such
procedure might be treated with contempt, and that they were entitled
to conduct their litigation in Civil Courts in the dilatory, negligent
[87] and slipshod fashion most suited to their inclinations and their
idleness. In my opinion, when such negligence results in an application
being dismissed or a hearing -adjourned, the opposite party should be
allowed his costs, if any have been incurred by him.

On the 2nd of March 1891 a notice. under s. 248 of the Code of
Civil Procedue fixing the llth of April, 1891, for the persons against whom
execution was applied for to show cause was issued in pursuance of an
order of the Court of that date.

There is on the record a judgment, dated the 9fch of June 1891, signed
by the Subordinate Judge. That judgment is, so far as .is material, as
follows : " On inspection of the record of execution case it is clear that
the decree-holder obtained one week's time for filing an inventory on 24th
March 1888, but he did not do so, and the case could not proceed further
and was struck off on the 3rd April, 1888. Therefore under the ruling of
Eadha Charan, this application is barred by s. 158, Act XIV of 1882.
A fresh application cannot be made. This application is therefore
disallowed.

772



YII] DHONKAL SINGH V. PHARKAR SINGH 15 All. 89

The order under appeal is signed by the Subordinate Judge, and is 1393
dated the 22nd of July, 1891. So far as that order is material it is as F EB . g,
follows :

" Application for determining the amount of mesne profits valued at FULL
Es. 5,019-3-1*. BENCH,

" Upon the hearing of this case on the 20th day of June 1891, by



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 113 of 155)