S.M. JAKATI & ANOTHER versus S.M. BORKAR & OTHERS

Citation: [1959] 1 S.C.R. 1384 · Decided: 24-09-1958 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed

Judgment (excerpt)

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Stolt r:j 1'1adhy.:J 
1'1adf;;h 
v. 
Ueuashankar 
S. K. Das j. 
Septen1ber 2 4. 
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1384 
SUPH.ElllE COURT R~PORTS/ [1959] 
now be decided by the High Court on merits in 
accordance with law. It ~s ottly necessa~y to adr.1 that 
the act complained of was committed a.s far ba~k as 
l9;i3 and it is desirable that. the case should be dealt 
with as expeditiously as possible. 
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Appeal aUoweJ'. 
S. l\L JAKATI & ANOTHER 
11. 
S. JL BORKAR & OTHERS 
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(B. P. 81~HA, JAFER h1,n1 and J. L. KAPUf: JJ.) 
Hindr1 La<()-Dcbt.1' of fathcr--Pious oblt'gation uf son---I)arti-
tion. if ajf1:r:fs such obligation-A\
0yavaharika, J/raning •Jf- ·S11!r of 
joint Ja1nily property-" J?ight, title and interest Qf d~Jaulter "-. 
Bombay Land Rcrcntte Code, 1879 (Rom. V of 1879), s. i55 . 
.J \\'as the 1nanaging director of a Co-operative Bc..nk getting 
a y•mly remuneration of I<s. 1,000. The Bank went iat~ liquida-
tion and an examination of th~ affairs ha\'ing 
~ho\,·l'ci that the 
n1011ies of the Bank ,,·ere not properly invested and that J \Vas 
ncglige11t in the discharge of his duties, a payment order for 
Rs. r5.100 wa9'rna11e by the Deputy Registrar of Co-operative 
Societies against him. 
On .July 2i, 1942, for the realisation of 
the amount, an item of property belonging to the joint family of 
.J was attached hy the Collector and brought to sale under s. 155 
of the Bombay Land Ifovenue Code, and purchased at auction 
hy the first respondent. This sale was held on Februuy 2. 1943, 
and confirmed on .June 23, i943. 
In the meantime on January 
r5, -r943, one of the sons of J instituterl a suit for partition and 
separate possession of his :->hare in the joint farnily properties. 
and contended, i11ter alia, that the sale in favou1 of the first 
respondent was not binding 011 the joint family. 
lhc sale \\·a3 
challenged on the grounds (1) that the liability wh'eh J incurred 
\vas aP)'a;,•aJ1ariha and therefore the interest of his :ions could not 
L><' sold for the realisation of tlw debt (2) that eve·1 if J.he debt 
\\"as not ai·yaraharika, the institution ~f the suit for partition 
operated as :;cverance of status bet\\·een the 
1n1~mbers of the 
family and, therefore, the father's power of disposition ovrr the 
son·~ share hari con11! to an end and, consequently, at the a.uc:tion 
sale the sha1'e of the. sons did not pass to the a'>ction pur-
'chaser, and (3) that what could legally ht sold under s. 155 
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S.C.R. >~UPREME COURT REPORTS 
1385 
of the Bombay ,i.,and Revenue Code was the right, title and 
interest of the defaulter, i. e.~ the 'father alone, which could not 
include the share of the other memgers of the joint family. The 
evidence consisting of the notice for sale, the proclamation of 
sale and the sale certificate showed that the whole of the pro-
perty was sold, and not the share of the father alone. 
Held, that the liability which J incurred was not"avyava-
harika and that the sale of the joint family property, including 
the share of the sons, for the discharge of the debt, was valid. 
Held, also, that, Colebrooke's translation of the term avya;1a-
harika as "any debt for a cause repugnant to good morals", was 
the nearest approach to the true concept of the term as used in 
the Smrithi texts. 
Hem Raj alias Babu Lal v. Khem Chand, (r943) L. R. 70 I. A. 
r7r, relied on. 
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Per Imam and Kapur JJ.-(r) The liability of the sons to 
d~scharge the debts of the father which are not tainted with im-
morality or illegality is based on the pious obligation of the sons 
which continues to exist in the lifetime and after the death of 
the father and which does not come to an end as a result of 
partition of the joint family property. All that results from 
partition is that the right of the father to make an alienation 
comes to an enll. 
(2) Where the right, title and interest of a 
judgment-debtor are set up for sale, as to what passes to the 
auction purchaser is a question of fact in each case dependent 
upon what was the estate put up for sale, what the Court 
intended to sell and what the, purchaser intended to buy 
ar1d did buy and what he paid for. 
(3) The words "right, 
title and interest " occurring in s. r55 of the Bombay Land 
Revenue Code have the same connotation as. th<j' had in the 
corresponding words used in the Code of Civil Procedure existing 
at the time the Bombay Land Revenue Code was enacted. (4) In 
execution 

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