VYANKATES DHONDDEO DESHPANDE versus SOU. KUSUM DATTATRAYA KULKARNI & ORS.

Citation: [1979] 1 S.C.R. 955 · Decided: 27-09-1978 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

' 
• 
, 
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VYANKATES DHONDDEO DESHPANDE 
v. 
SOU. KUSUM DAITATRAYA KULKARNI & ORS. 
September 27, 1978 
lV. R. KRISHNA lYBR AND D. A. DESAI, JJJ 
... 
95·5 
lli11du Law-Tagai-Loan-Pre-partition debt 
of 
father-Son•s 
liability-
Portition if t1/ftcl• such obligation-Pious obligation of son-A vyavaharik-
sale of Joint family property for antecedent debt-Whether executable against 
prop1rty allotted to soru on partition. 
Land lmpravement Loans Act, 1883-Sec. 1-Expression "borrower" need 
not be gi1en a restricted meanfng-Karta of a joint Hindu family can be bor-
rower in a repruentative capacity, 
The respondents' father took a Tagai loan from the Government for the 
purpooe Of digging wells in ihis land by offering his land as security for the 
loan. When he failed to repay the loan, the suit land was 
auctioned under 
the revenue recovery proceeding and it was purchased by the appellants. 
In a 
suit for. recovery of possession, the respondents alleged that their . father had 
A 
B 
c 
no saleable interest in 1he land because, !prior to the date of auction, in the 
D 
partition between themselves and their father, the suit land came to their share 
and therefore the land which belonged to them could not have been sold in 
an· auction for recovering a personal debt of their father. 
The trial court declared the sale las void. The High Court affirmed 
the 
trial Court's order. 
In appeal to this Court the respondents contended that the debt was not a 
joint family debt; neither was the father acting as Karta of the joint family 
not was the loan for the benefit of the joint family and therefore the 
joint 
family property could not be made liable for such loan. 
Allowing the appeals the Court, 
HELD : 1 (a) The suit land was joint family property of the respondents 
and their father. [%IC] 
(b) If the loan, for the recovery of whlch the suit property was brought 
to auction, was joint family debt and if the suit property 
was 
joint 
family 
property it would be liable to be sold for recovery of joint family debt. [963A] 
E 
'F 
(c) Whether the Karta acted in his personal capacity 
or 
representative 
G 
capacity has to be ,gathered 
from all 
the 
surrounding 
circumstances. 
The 
flather borrowed the loan in his capacity as Karta of the joint family 
for 
improvement of the joint family lands and for this purpose 
he 
offered 
as 
security the land which was joint family property. It is not necessary that the 
Karta acting in his capacity as K.arta should describe himself as Karta.- to affirm 
his representative capacity. 
Therefore he must be deemed to have acted in the 
transaction on behalf of the family. 
[961G-H] 
H 
Mullals Hindu Law (14<h &Jn.) p. 313, Art. 251. referred to. 
A 
B 
c 
D 
E 
• 
G 
H 
956 
SUPREME COURT REPORTS 
[1979] l s.c.R. 
(d) Agriculture was one of the occupations which the father was carrying 
on as Karta of the joint family. If agriculture was one of the occupations of 
the joint family and if the loan was borrowed for the purpose of improving 
the joint family Jaruis, the loan would ipso facto be for legal necessity and it 
would be joint family debt. [962H] 
( e) Where the sons are joint with their father and debts have been con-
tracted by the father for bis personal benefit the •ons are liable to pay the 
debts provided they were not incurred for illegal or immoral purpose. This 
liability to pay the debt had been described as pious obligation of the son to 
.pay the father's debt if it is not tainted with illegality or immorality. 
~960FJ 
Muttayan v. Jamindar of Sivagiri, [1883] 9 I.A. 
128 
A111hony..,amy v. 
M. R. Chinnaswamy Koundan (dead) by L. R.r. & Ors. 
[1970] 2 SCR 648; 
referred to. 
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( f) If at a partition amongst the members of the joint family no provision 
,_. 
was made for joint family debts, then despite the partition and allotmeat of 
shares to different coparceners, the foint family property acquired by partition 
would still be liable for the joint family debts. 
[964DJ 
Sat Narain ,v. Das, [1936] 63 /.A. 384; 
Pan11ala/ & Anr. v. M.n. Narolni 
& Ors. [1952) SCR 544 at 558; 
Vriddhachalam Pillai v. Sha/dean Syrian 
Bank Ltd. & Anr., [1964) S SCR 647; referred to. 
(g) Jn the instant case the property sold was liable for the diacb&rge <>f 
the father's debt. The debt being a pre-partition debt which was not shmm to 
be tainted with illegality or immorality, could be r<covered from the joint 
family property in the hands of the sons. [965F) 
(h) The pious ob

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