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Judgment
N.V. Balasubramanian, J.—This appeal is preferred against the judgment and decree in O.S. No. 256 of 1985 on the file of Subordinate
Judge''s Court, Namakkal. The plaintiff is the appellant herein. He filed the suit for partition claiming 1/3rd share in the plaint B-schedule
properties. The plaintiff is the son of the first defendant and the second defendant is the brother of the plaintiff and the third defendant is his mother.
The case of the plaintiff is that there was a partition in the family of the plaintiff in the year 1964, to be precise on 10.8.1964 (Ex.A-1) and the
said partition was arrived at between the first defendant (plaintiff''s father) and the father of the first defendant. According to the deed of partition
dated 10.8.1964, certain properties were allotted to the first defendant''s father and certain other properties were allotted to the first defendant.
Admittedly, the properties were joint family properties and the properties allotted to the first defendant in the deed of partition continued to be joint
family properties in his hand. The case of the plaintiff is that the plaint B-schedule properties have been settled by the first defendant in favour of his
wife, third defendant by a deed of settlement dated 5.6.1974 (Ex.A-2) and according to the plaintiff, the deed of settlement is a void document as
his father had no power to settle the entire B-schedule properties. In the plaint the plaintiff has stated that the third defendant has sold some of the
properties belonging to the joint family in favour the defendants 4 to 6. In so far as the seventh defendant, who is the contesting defendant, is
concerned, he is said to have lent money to the third defendant, mother of the plaintiff and the seventh defendant also filed a suit in O.S.No.180 of
1984 on the file of Subordinate Judge''s Court, Namakkal and obtained a decree. He also filed execution petition in E.P.No.56 of 1985 and
proceeded against B-schedule properties which were settled in favour of the third defendant. It is also stated in the plaint that the Court ordered
sale of properties and auction sale was posted on 9.10.1985 and hence, the plaintiff filed the suit claiming 1/3rd share in the plaint B-schedule
properties.
All other defendants except the seventh defendant remained ex parte, though the defendants 5 and 6 and also 13 have filed written statements.
As far as the seventh defendant who is the contesting defendant is concerned, in his written statement he has admitted the settlement of B-schedule
properties in favour of third defendant on 5.6.1974 and he also admitted that the third defendant was in possession and enjoyment of those
properties. His case was that the suit itself is bad as it has been fraudulently instituted to defeat the just claims of the seventh defendant. It is also his
case that the settlement would be valid in so far as the 1/3rd share of the first defendant is concerned. On the basis of the above pleadings, the trial
Court has framed as many as 12 issues for consideration and ultimately dismissed the suit for partition. It is against the judgment and decree, the
present appeal has been preferred.
We heard Mr. S. Sethurathnam, learned senior counsel appearing for the appellant and Mr. R. Saseedharan, learned counsel appearing for the
contesting 7th respondent. After hearing the parties, the following points arise for consideration:
Whether the settlement of the plaint B-schedule properties by the first defendant in favour of third defendant by way of deed of settlement dated
5.6.1974 (Ex.A-2) is valid and would bind the plaintiff?
Whether the trial Court was correct in holding that under the theory of pious obligation the plaintiff was bound to discharge the debts of his
mother?
Whether the suit would fail for not impleading the Official Receiver?
Whether the trial Court was correct in holding that all the properties which were allotted to the first defendant in the deed of partition dated
10.8.1964 (Ex.A-1) were not included in the suit and hence, the suit fails on the ground that it is a suit for partial partition?
The first submission of Mr. S. Sethurathnam, learned senior counsel for the appellant is that the suit properties are joint family properties and
hence, the settlement of joint family properties by the first defendant in favour of his wife is void. We find that the submission of the learned senior
counsel for the appellant is well-founded. Admittedly, in the deed of partition dated 10.8.1964 (Ex.A-1), joint family properties were allotted to
the first defendant and the properties allotted to the first defendant continued to be the joint family properties and when the first defendant had two
sons, namely, the plaintiff and the second defendant who had right by birth in the properties at the time of settlement, the deed of settlement dated
5.6.1974 executed by the first defendant in favour of his wife, third defendant would not bind the plaintiff as the plaintiff would be entitled to 1/3rd
share on the basis of pre-existing right by his birth in 1/3rd share in the joint family properties. The Supreme Court has held that husband could not
make any gift of ancestral property to his wife out of affection on the principle of pious purposes. In Ammathayee Ammal and Another Vs.
Kumaresan and Others, , the Supreme Court has observed as under:-
We see no reason to extend the scope of words ''pious purposes'' beyond what has already been done in the two decisions of this Court and
rejected the contention that a husband could make any such gift of ancestral property of his wife out of affection on the principle of pious
purposes.
The Supreme Court has reiterated the same principle in R.KUPPAYEE v. RAJA GOUNDER 2003 AIR SCW 7035. Here in this case, the first
defendant has gifted all his properties which were available after alienation in favour of his wife and it is not a case of gift of ancestral property
within reasonable limits, and it would not bind the share of the plaintiff. We are of the view that the first defendant had no right to settle the
plaintiff''s 1/3rd share in the joint family properties in favour of third defendant and therefore, the deed of settlement dated 5.6.1974 would not bind
the plaintiff''s share in the plaint B-schedule properties.
The second submission of Mr. S. Sethurathnam, learned senior counsel is that the trial Court was not correct in holding that the Official Receiver
should have been impleaded as a party in the suit. We find that the seventh defendant who was/is contesting in the suit/appeal has not raised any
such point that the Official Receiver should be made a party in the suit. However, only in the written statement filed by the defendants 5 and 6 a
point has been raised that the defendants 1 and 3 have filed a petition before the Subordinate Judge''s Court, Namakkal to declare them insolvents
in I.P.No.18 of 1985 and handed over their properties to the Official Receiver and hence, the Official Receiver should be made a party. It is seen
that the defendants 5 and 6, after filing the written statement, have neither contested the suit nor let in any evidence to prove that the defendants 1
and 3 have filed the petition in I.P. No.18 of 1985 and handed over the properties to the Official Receiver. There is also no evidence to show that
they have been declared insolvents in I.P.No.18 of 1985. It is axiomatic that it is only after the adjudication that the defendants 1 and 3 are
insolvents under the provisions of the Provincial Insolvency Act, their properties would rest with the Official Receiver, and there is no evidence to
show that the defendants 1 and 3 have been declared insolvents in I.P.No.18 of 1985. In the absence of any such evidence to show that the
defendants 1 and 3 have been declared as insolvents, we hold that the question of vesting of properties with the Official Receiver did not arise and
therefore the non-impleading of the Official Receiver as a party to the suit is not fatal to the suit. We therefore hold that the plaintiff cannot be non-
suited suit on the ground that the plaintiff has failed to implead the Official Receiver as one of the parties in the suit. Further, we are of the view that
even if the defendants 1 and 3 have been declared insolvents, it is open to the plaintiff to implead the Official Receiver in final decree proceedings
and in the presence of Official Receiver, the share of the plaintiff can be allotted in that proceedings. Moreover, he has been impleaded as a party
in the appeal and the defect, if any, which is not vital, but only technical has been cured by the order impleading him as a party in the appeal.
We also find from the submissions of learned senior counsel for the appellant that the trial Court has proceeded on an erroneous basis that as
per the theory of pious obligation, the plaintiff is bound to discharge the debts of third defendant, his mother. Under the textual Hindu Law, the
pious obligation of a Hindu son would extend only to lawful debts incurred by the father or grandfather or great-grandfather. We are of the view
that it is impermissible to extend the theory of pious obligation under the textual Hindu Law to the debts incurred by the mother also to be
discharged by the son. We are of the view that a Hindu son is not bound to discharge the debts of his mother under the theory of pious obligation
under the textual Hindu law. It is well-established under the Hindu Law that every son, grandson or great-grandson is under a pious duty to
discharge the debts with interest of respectively the father, the grandfather or great-grandfather provided he had not become divided from his
respective ancestor at the time the debts were incurred and they are neither immoral, nor illegal. There is a long catena of decisions which hold that
the debts must be non-avyavaharika debts, and we have carefully studied the principle behind the discharge of debts under the theory of pious
obligation laid down by several commentators of the Hindu Law and we do not find any basis for the view entertained by the learned Subordinate
Judge when he has held that the son is also under an obligation to discharge the debts incurred by his mother. We are of the view that it is an
unwarranted extension of the principle of Hindu Law to hold that the son would be liable to discharge the debts of his mother on the basis of theory
of pious obligation. We therefore hold that the view of the trial Court that the son is bound to discharge the debts of his mother under the theory of
pious obligation is neither supported by textual Hindu Law, nor by any statutory law. It is true that a son may discharge the debts incurred by his
mother on his own accord on moral basis, but such voluntary act cannot be viewed as a legal obligation of the son under the Hindu Law. It is well
to remember that the suit has been filed by the plaintiff claiming his share in the suit properties and it is not a case where certain properties of the
mother devolved on him on the demise of his mother and he seeks to protect those properties from his mother''s creditors'' action. Learned counsel
for the respondent, in his fairness, has not seriously disputed the position in law and we hold that the trial Court has committed a serious error in
holding that the plaintiff is bound to discharge the debts of his mother under the theory of pious obligation. Since there is no pious obligation on the
plaintiff to discharge the debts incurred by the third defendant, the plaintiff is neither legally, nor textually bound to discharge the debts incurred by
the third defendant. We therefore hold that the finding of the trial Court that the plaintiff is bound to discharge the debts of his mother is not
sustainable and accordingly it is set aside.
Learned counsel for the respondent submitted that the suit is bad on the ground that all properties belonging to the joint family have not been
included in the suit and the plaintiff filed the suit only for partial partition of joint family properties as some of the properties have been left out from
the scope of the suit. He also referred to paragraph-15 of the judgment of the trial Court and submitted that the observation of the trial Court is
that all the properties have not been included in the suit for partition. Learned counsel submitted that the entire circumstances prior to the filing of
the suit should be taken into account to determine the question of maintainability of the suit. According to him, the settlement was made as early as
on 5.6.1974 and the seventh defendant advanced money to the mother of the plaintiff and instituted a suit and obtained a decree and he also
initiated execution proceedings to execute the decree and when the properties were about to be sold, the plaintiff has filed the suit for partition.
Learned counsel for the respondent therefore submitted that the suit is liable to be dismissed on the ground that all the properties of the joint family
have not been impleaded. However, we are unable to accept the submission of the learned counsel for the respondent. Firstly, the seventh
defendant who is contesting herein as well as before the trial Court has not raised any such plea in his written statement. There was also no issue on
this aspect. It is also relevant to notice that the defendants 1 to 3 have not filed any written statement to the effect that all the joint family properties
have not been included in the suit for partition filed by the plaintiff. The specific case of the plaintiff is that the properties allotted to the first
defendant in the deed of partition between the first defendant and his father on 10.8.1964 were settled in favour of the third defendant under Ex.A-
2 and some of the properties have been sold by the third defendant in favour of the defendants 4 to 6. The defendants 4 to 6 remained ex parte
and the defendants 5 and 6 are concerned, they filed written statement and in the written statement also, they have not disputed that they
purchased the properties from the third defendant. It is in this factual background, the observation of the trial Court found in paragraph-15 has to
be considered.
The trial Court has proceeded on an erroneous basis that A-Schedule properties in the suit were the properties described as first item in the
deed of partition dated 10.8.1964. In so far as Ex.A-1 is concerned, it was a deed of partition between the first defendant and his father and the
properties described as first item in the deed of partition were allotted to the first defendant''s father and the properties described as second item in
the deed of partition were allotted to the first defendant. The trial Court has proceeded to compare the properties described as first item in the
deed of partition dated 10.8.1964 with the properties described as A-schedule in the plaint and come to the conclusion that all the properties have
not been included in the suit for partition. The approach of the trial Court is erroneous as the properties allotted to the first defendant were not
described in the first item in the deed of partition, but only the second item in the deed of partition were allotted to the first defendant. Further, we
have already seen that there was no issue on this point and when there is no issue, it is not expected of the plaintiff to lead evidence to show that all
the properties have been included. Moreover, the definite case of the plaintiff is that the third defendant sold some of the properties in favour of the
defendants 4 to 6 and the defendants 4 to 6 remained ex parte and there is no denial in the written statement filed by the defendants 5 and 6 that
the third defendant have sold some of the properties in their favour. We hold that in the absence of an issue and any evidence on this aspect, the
trial Court should not have ventured into the question and decide the question whether all the joint family properties were included in the suit for
partition or not. We hold that the entire exercise done by the trial Court in comparing the properties allotted to the first defendant''s father to the
properties described as A-schedule in the plaint is not correct. As far as the submission of the learned counsel for the respondent that the plaintiff
filed the suit only after the properties were about to be sold in the execution proceedings is concerned, we are of the view that the plaintiff is
entitled to protect his interest in the suit properties and when the properties were about to be sold, the plaintiff is entitled to safeguard his interest by
approaching the court. We are of the view that the time when he approached the Court is not of much relevance, and what is relevant is whether
the plaintiff has a right, interest and title in the suit property and whether he is able to establish the same. We hold that the plaintiff has established
that he is entitled to 1/3rd share in the suit B-schedule properties and the suit cannot be thrown out on the ground that the plaintiff approached the
Court belatedly as the suit filed by him is within time.
Accordingly, the judgment and decree of the trial Court holding that the plaintiff is not entitled to claim his share in B-schedule properties is set
aside and we hold that the plaintiff would be entitled to 1/3rd share in the suit B-schedule properties. The appeal stands allowed to the above
extent. However, there will be no order as to costs.