Bhekan Nath Misser and Others vs Gulab Chand Seth

Rowland, J.—This appeal arises out of a title suit. The land was claimed by the plaintiff as transferee from an auction purchaser Girdhari Singh who bought at a sale held on 4th May 1914 and confirmed on 6th June 1914. Delivery of possession was taken on 30th March. 1917; but the auction-purchaser never actually occupied and enjoyed the property. He sold it on 4th January 1929 to the present plaintiff who sued on 2nd February 1929. The decree on which the property was put up for sale was a Small Cause Court decree obtained by one Jainarain against Kesho Nath Missir and his son Punit on a hand-note. The decree was obtained on 1st September 1913 ex parte against Kesho and on admission against Punit.

The defence is that as Kesho had besides Punit two other sons, Bhikhan and Kishun who were not impleaded in the Small Causa Court suit and execution proceedings, the auction-purchaser got no title Kesho and Punit could not even alienate their own undivided share in the joint family property, much less the entire estate; that the auction-purchaser got no title by his purchase and the plaintiff has no title; and further that the suit is barred by limitation which should run under Article 138, Lim. Act, from the date of confirmation of sale. The suit was dismissed by the Munsif who thought that unless the plaintiff proved that the loan for which the suit was brought was taken by Kesho the father of the family the defendants were not bound by it in the absence of proof of family necessity. He also thought that delivery of possession on the spot was not proved; that limitation should run from the date of sale and that the suit was therefore barred by limitation.

The Subordinate Judge reversed these findings and has decreed the suit.

It is certain that the Munsif was in error in thinking that a decree against the father would not be considered in law to be a debt which his sons were bound to discharge. The existence of a decree against the father which he was bound to satisfy is prima facie sufficient to hold that this was a debt binding on the sons in the absence of proof of illegality or immorality in the transaction leading up to it. The leading case is Chhakauri Mahto v. Ganga Prasad (1912) 39 Cal 862 . There the sons wore held to be bound to satisfy after their father''s death a decree against him for damages arising out of a trespass. This case was followed in Chandrika Ram Tiwari and Others Vs. Narain Prasad Rai and Others, , a case of a decree for damages for wrongfully cutting down certain trees. The same principle was upheld in Gadadhar Ramanuj Das v. Ghana Shyam Das AIR 1918 Pat 391.

The decree in that case was a decree obtained against the father for failing to deliver accounts to the principal for whom he was acting as agent. It was again so held in Ganesh Rai v. Deo Saran Ahir AIR 1920 Pat 821 where the decree was for costs awarded against the father who had unsuccessfully defended a title suit brought against him. Therefore there was a debt of the father Kesho Nath for which the estate was open to be taken in execution proceeding upon a decree for payment within the principles laid down in Brij Narain v. Mangal Prasad AIR 1924 PC 50. Thus far the judgment of the Subordinate Judge is correct. But after this much reasoning, he proceeds immediately to the conclusion:

I hold therefore that the whole of the disputed share passed at the sale held in execution of the said decree.

It is unfortunate that the attention of the Subordinate Judge was not drawn to the question which has fro be considered and decided before it can be held that the shares of the junior members of a Mitakshara family have passed by a sale in execution of a decree against their father. In Nanomi Babuasin v. Modhun Mohan (1886) 13 Cal 21, the Privy Council after deciding that the debt was binding on the sons said:

There remains only the question whether-anything more than the father''s coparcenary interest was bargained for, paid for, and taken, possession of by the purchaser,

It was then observed that:

the language of the execution and sale proceedings was such that the purchaser must have thought that he was buying the entirety. It is equally clear that all parties thought the same. The purchaser therefore has succeeded in showing that he bought the entirety of the estate.

In Mahabir Pershad v. Moheswar Nath Sahai (1890) 17 Cal 584 their Lordships addressed themselves to the question of fact

whether the thing meant to be sold and bought, was the entirety of the estate or only a share in it.

After considering such papers regarding the execution proceeding as were on the record, their Lordships said that:

all parties, judgment-creditors, judgment-debtors, the plaintiff and his advisers, and the Court itself, considered that the thing put up to sale was the entirety of the estate.

In Maruti Sakharam v. Balaji (1891) 15 Bom 87 the Bombay High Court after construing the execution documents came to the conclusion that in the case before them the contents of the execution documents did not indicate an intention to put up the entire interest in the property in the joint family. Accordingly they held that only the interest of the father had passed.

In Hardi Narain Sahu v. Ruder Perkash Misser (1884) 10 Cal 626 it was held by the Privy Council that on a proper reading of the sale certificate the decree-holder had purchased the right, title and interest of the judgment-debtor only. Again in Abdul Aziz Khan v. Appayasami Nicker (1904) 27 Mad 131 the Privy Council pointed out that:

the questions are, what did the Court intend to sell and what did the purchaser understand that he bought? These are questions of fact or rather of mixed law and fact and must be determined according to the evidence in the particular case.

The Subordinate Judge not having examined the question from this point of view the record must be remitted to him for a finding on this point.

The sale certificate has not been exhibited. I was given to understand at the hearing that each party intends to rely on its contents as supporting his contention. This and other relevant evidence the Subordinate Judge should permit either side to adduce. He should return the record to this Court with his findings within three months of its receipt by him or earlier if possible. The question of limitation I need not discuss at this stage.

There is a finding of the lower appellate Court to the effect that a formal or symbolical delivery of possession was made on 30th March 1917 but that the auction-purchaser never attempted actually to use and enjoy the property. The legal effect of this and the question whether limitation will run from the date of the sale certificate or from the date of delivery of possession will remain to be considered later.