J. L. KAPUR, J - (1.) THE following Judgment of the court was delivered by . (with him S. JAFER IMAM, J.):
(2.) THIS is an appeal against the judgment and decree of the High court of Bombay varying the decree of the trial court decreeing the plaintiff's suit for possession by partition of joint family property. The facts of the case lie in a narrow compass. M. B. Jakati, defendant No. 1, was the Managing Director of Dharwar Urban Co-operative Bank Limited which went into liquidation, and in that capacity he was receiving a yearly remuneration of Rs. 1,000.00. As a result of certain proceedings taken against defendant No. 1, M. B. Jakati, by the liquidator of the Bank, a payment order for Rs. 15,100.00 was made by the Deputy Registrar of Co-operative Societies on 21/04/1942. In execution of this payment order a bungalow belonging to M. B. Jakati, defendant No. 1, was attached by the Collector under the Bombay Land Revenue Code on 27/07/1942. Notice for sale was issued on 24/11/1942, and the proclamation on 24/12/1942. The sale was fixed for 2/02/1943. On 16/01/1943, M. B. Jakati defendant No. 1 applied for postponing the sale which was rejected. The auction sale was held on 2/02/1943, and was confirmed on 23/06/1943,-the purchaser was S. N. Borkar, defendant No. 7, now respondent No. 1. On 10/02/1944, respondent No. 1 sold the property to defendants 8 to 10 who are respondents 2 to 4. The following pedigree table will assist in understanding the case: JUDGEMENT_282_AIR(SC)_1959Image1.jpg On 15/01/1943, Krishnaji a son of defendant No. 1 brought a suit for partition of the joint family property and possession of his separate share alleging inter alia that the purchase by respondent No. 1 of the bungalow was not binding on the joint family as `it was not liable to be sold for the illegal and immoral acts on the part of defendant No. 1 which were characterised as misfeasance `; that the auction sale was under s. 155 of the Bombay Land Revenue Code under which only ` the right, title and interest of the defaulter ` could be sold and therefore the right, title and interest of only the father, defendant No. 1 was sold and not that of the other members. The plaintiff claimed 1/4 share of the property and also alleged that he was not on good terms with his father who had neglected his interest; that he was staying with his mother's sister and was not being maintained by his father and mother. On 12/01/1944, appellant No. 1 filed his written statement supporting the claim for partition and claiming his own share. He supported the claim of the then plaintiff that the sale in favour of respondent No. 1 was not binding on the joint family. Defendant No. 2, now appellant No. 2, the mother, also supported the plaintiff's claim and on the death of Krishnaji, she claimed his i share as his heir. After the death of the original plaintiff Krishnaji, Shriniwas appellant No. 1 was substituted as plaintiff on 28/06/1944. The suit was mainly contested by respondents 1 to 4. Respondent No. 1 pleaded that plaintiff's suit for partition was collusive having been brought at the instance of the defendant No. 1, M. B. Jakati, and it was not bona fide; that defendant No. 1 was made liable at the instance of the liquidator of the Dharwar Urban Co-operativeBank Ltd., for misfeasance because he acted negligently in the discharge of his duties as managing director of the Bank; that the debt was binding on the family as defendant No. 1, M. B. Jakati, had been receiving a yearly remuneration from the Bank and the properties were sold in payment of a debt binding on the family and therefore the sale in execution of the payment order could not be challenged as the sons were under a pious obligation under the Hindu law to discharge the debts of their father; that the sale could only be challenged on proof of the debt of defendant No. 1 being for an ` immoral or illegal purpose. These pleadings gave rise to several issues.
(3.) THE learned Civil Judge, held that the suit was collusive; that the liability which defendant No. 1 incurred was avyavaharika and was therefore not binding on the sons and thus appellant No. 1 would have 1/3 share in the joint family property, defendant NO. 1-1/3 and appellant No. 2 also 1/3. He therefore declared the shares as above in the whole of the joint family property including the bungalow which is the only property in which the respondents are interested and which is in dispute in this appeal. On appeal the High court held that the debt was not avyavaharika as there was no evidence to support the finding of the trial court, the order of the Deputy Registrar being in the nature of a judgment to which neither the sons nor the auction purchasers were parties and therefore it was not ` evidence of anything except the historical fact that it was delivered`. In regard to the question as to what interest passed to the auction purchaser on a sale under s. 155 of the Bombay Land Revenue Code, it held that the whole estate including the share of the sons was sold in execution of the payment order and therefore qua that property the sons had no interest left. The High court varied the decree to this extent and the plaintiffs have come up in appeal to this court by certificate of the High court of Bombay. The case of the appellants is (1) that the debt was avyavaharika and therefore in an auction sale the interest of the sons and other members of the joint family did not pass to the auction-purchaser; (2) that even if the debt was not avyavaharika the institution of the suit for partition operated as severance of status between the members of the family and therefore the father's power of disposition over the son's share had come to an end and consequently in the auction sale the share of the sons did not pass to the auction-purchaser; and (3) that what could legally be sold under s. 155 of the Bombay Land Revenue Code was the right, title and interest of the defaulter i. e. of the father alone which could not include the share of the other members of the joint family. ;