Meenakshi Naidu v. Immudi Kanaka Ramaya Kounden
BS649612
PRIVY COUNCIL
Before:-Lord Fitz Gerald, Hobhouse and Richard Couch.
0 D/d.
01.11.1888
Meenakshi Naidu - Defendant
Versus
Immudi Kanaka Ramaya Kounden - Plaintiff
On Appeal from the High Court at Madras.
The Respondent did not appear.
Solicitors for the Appellant :- Rowcliffes, Rawle and Co.
Mitakshara Law - Execution Sale - Son's Interests bound - Father's Debt not immoral.
[Para ]
Where it appeared that an execution sale related to the whole zemindary, and not merely to the interest of the judgment debtor therein:--
Held, in a suit by a son of the judgment debtor, impeaching his father's debt as tainted with immorality, that, on failing to establish that allegation, his suit must to dismissed. Under Mitakshara law the son's interest was liable for the father's debt.
Appeal from a decree of the High Court (April 7, 1884) varying a decree of the Subordinate Judge of Madura (April 14, 1883).
The suit was brought by the son of the zemindar of Velliyakundam against his father and the Appellant for a declaration that a promissory note for Rs. 2000, granted by the zemindar and held by the Appellant, was given for illegal and immoral purposes, and that the sale of the zemindary under an order of the Court, in execution of a decree on the promissory note, and the purchase of it by the Appellant, was invalid and illegal as against the Plaintiff, and that the sale should not be registered by the Collector. The original Court dismissed the suit. The High Court varied the decree by declaring that the sale only affected the first Defendant's interests, and not those of the Plaintiff.
The facts are stated in the judgment of their Lordships. The material passage of the judgment of the High Court (Turner, C.J., and Muttusami Aiyar, J.) was as follows:--
"The income which remained for the support of the family was not large, and although the first Defendant may have been extravagant in his expenditure in proportion to his fortune, and have indulged in immorality, it is not shewn that the loan was taken with the intention that it should be expended in immoral purposes, or that it was so expended. The lender, looking to the necessitous circumstances of the family, may well have believed the money was required for family purposes, though there is no evidence that any representation of this kind was made to him, or that he lent his money on the faith of such a representation. All that is shewn is that the first Defendant contracted a debt. We have then to consider whether the Plaintiff is entitled to the whole or any portion of the relief sought by him. He is not entitled to a declaration that the debt was contracted for immoral purposes, nor is he entitled to a declaration that the judgment debt is not under any circumstances binding on him; but in view of the recent ruling Probably that of Hurdey Narain v. Rooder Perkash, Law Rep. 11 Ind. Ap. 26 of the Privy Council that a sale in execution of a money decree of the right, title, and interest of an Hindu father will affect only the interests of the father, the Plaintiff is entitled to a declaration that the sale in execution of the decree of 1879 has affected the interests of the first Defendant only, and not those of the Plaintiff."
Mayne, for the Appellant, contended that this judgment was wrong. The only ground of relief alleged by the Plaintiff was that the decree of 1879 had been obtained in respect of a debt contracted for illegal and immoral purposes. On the concurrent findings of both Courts that this allegation of fact had not been maintained by the evidence the suit should hare been dismissed. In satisfaction of that decree the Court was competent to sell the whole zemindary. All the proceedings in execution shew that the Court intended to sell the whole, subject only to the mortgage charges. Under the old Act of 1859 only the right, title, and interest of a judgment debtor were sold. The object of Act X. of 1877, see sects. 287, 306, 311, and 312, was to prevent auction sales being of only the right, title, and interest. Reference was made to Deendyal Lal v. Jugdeep Narain Singh Law Rep. 4 Ind. Ap. 247; Hurdey Narain v. Rooder Perkash Law Rep. 11 Ind. Ap. 26. The general principle is that one member of a joint family cannot be made liable by any other member for debt which was not incurred for the benefit of the whole family. The exception is that the son is bound to pay the father's debt, and the grandson is bound to pay the grandfather's, if not incurred for immoral purposes. Reference was made to Hunooman Persaud Panday v. Munraj Koomweree 6 Moore's Ind. App. Ca. 393; Girdharee Lall v. Kantoo Lall Law Rep. 1 Ind. Ap. 321; Suraj Bunsi Koer v. Sheo Proshad Singh Law Rep. 6 Ind. Ap. 88, 104. The apparent contradiction of Deendyal's Case to these cases is first noticed in Mussamut Nanomi Babuasin v. Modun Mohun Law Rep. 13 Ind. Ap. 1; Simbhunath Panday v. Golab Singh Law Rep. 14 Ind. Ap. 77, 80; Pettachi Chettiar v. Sangili Veera Pandia Law Rep. 14 Ind. Ap. 84; Rani Sartaj Kuari v. Rani Deooraj Kuari Law Rep. 15 Ind. Ap. 51.
Cases Referred :-
Deendyal Lal v. Jugdeep Narain Singh, Law Rep. 4 Ind. Ap. 247.
Girdharee Lall v. Kantoo Lall, Law Rep. 1 Ind. Ap. 321.
Hunooman Persaud Panday v. Munraj Koomweree, 6 Moore's Ind. App. Ca. 393.
Hurdey Narain v. Rooder Perkash, Law Rep. 11 Ind. Ap. 26, 28, 29.
Mussamut Nanomi Babuasin v. Modun Mohun, Law Rep. 13 Ind. Ap. 1.
Pettachi Chettiar v. Sangili Veera Pandia, Law Rep. 14 Ind. Ap. 84.
Rani Sartaj Kuari v. Rani Deooraj Kuari, Law Rep. 15 Ind. Ap. 51.
Simbhunath Panday v. Golab Singh, Law Rep. 14 Ind. Ap. 77, 80.
Suraj Bunsi Koer v. Sheo Proshad Singh, Law Rep. 6 Ind. Ap. 88, 104.
JUDGMENT
The judgment of their Lordships was delivered by
Lord Fitzgerald :- In this case the Appellant was the decree creditor. The note for Rs. 2000 was not originally passed to him, but he became the bona fide holder and upon that note he obtained a money decree against the zemindar. An attempt has been made to impeach that decree which their Lordships will presently refer to. The decree creditor then took the ordinary proceedings to have the zemindary attached and sold. The son of the zemindar, who was the Plaintiff in the suit now before their Lordships, intervened, and he first sought by petition an order that his interest in the zemindary should be excluded from the sale, and that the sale should be made subject to his right. It does not appear from any document before their Lordships what order, if any, was made on that petition; but their Lordships assume that the petitioner failed before the Court below in obtaining that protection which he sought. Notwithstanding that petition, proceedings towards a sale went on. and upon the documents before their Lordships they must come to the conclusion that the thing professed and intended to be sold, and actually sold, was not the father's share, but the whole interest in the zemindary itself, Throughout this case the son does not appear to have ever contended that no more than his father's interest was sold. His case was that the whole zemindary was sold out and out; he impeached the debt which led to the sale, and asserted that the decree founded on it could not bind his interests. That impeachment of the debt has failed. It was said to have been for illegal and immoral purposes, and if it had been in its inception illegal and immoral the son would not be liable to pay the debt, and the zemindary would not be the subject of sale. But that ground has entirely failed. The Subordinate Judge, who examined the evidence with the greatest care, correctly came to the conclusion that there was no satisfactory evidence that the debt was contracted for illegal or immoral purposes, and there is no doubt in the case that the original creditor advanced the Rs. 2000 bond fide, and that it was a debt contracted by the father and coming within he ordinary rule of Hindu law with reference to an estate such as is now before their Lordships, that the son would be liable for the debt contracted by the father to the extent of the assets coming to him by descent from the father, and that his interest in the zemindary was liable, and might be sold for the satisfaction of that debt. The son, having failed to get the protection which he sought by his petition, instituted this suit, impeaching the debt, and seeking to be absolutely relieved from it. He has failed entirely in that, and their Lordships quite agree with the judgment of the subordinate Court that, failing in that, his whole suit failed. The Plaintiff based his case upon the impeachment of the debt, and upon that alone, and failing in that allegation and that impeachment, the whole suit fails. That being the case, there might have been a sale of this estate under this decree, including the whole interest or of so much as was necessary. Upon the documents their Lordships have arrived at the conclusion that the Court intended to sell, and that the Court did sell, the whole estate, and not any partial interest in it.
Their Lordships do not intend in any way to depart from principles which they have acted upon in prior cases. The High Court, in dealing with the case, entirely agrees with the Subordinate Judge in the view which he took of the evidence, and would so far confirm his ruling; but it says, "but in view of the recent ruling of the Privy Council that a sale in execution of a money decree of the right, title, and interest of an Hindu father, will affect only the interests of the father, the Plaintiff is entitled to a declaration that the sale in execution of the decree of 1879 has affected the interests of the first Defendant only, and not those of the Plaintiff."
The "recent ruling" referred to is probably that to be found in Hurdey Narain v. Rooder Perkash Law Rep. 11 Ind. Ap. 28, 29.
The High Court seems to have acted on the rule so laid down as a rigid rule of law, apparently applicable to this particular case. But the distinction is obvious. In Hurdey Narain's Case, all the documents showed that the Court intended to sell, and that it did sell nothing but the father's share-the share and interest that he would take on partition, and nothing beyond it-and this tribunal in that case puts it entirely upon the ground that everything showed that the thing sold was "whatever rights and interests the said judgment debtor had in the property" and nothing else.
Their Lordships are of opinion that the decision of the Subordinate Judge was entirely right, and that the decision of the High Court was wrong in holding that less than the entirety of the estate was sold.
Their Lordships, therefore, will humbly advise Her Majesty that the decision of the High Court varying the decision of the Subordinate Judge be reversed, that the appeal to the High Court be dismissed with costs, and that the decree of the Subordinate Judge be reinstated, and their Lordships give the Appellant the costs of this appeal.
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