S.S. Sidhu, J.@mdashThe Court of the Subordinate Judge 1st Class, Patiala (A) (Shri Joginder Singh), vide its judgment and decree dated 22nd December, 1962, passed a declaratory decree in favour of the Plaintiffs and against the Defendant that the property belonging to Plaintiffs Nos. 1 and 2, that is, 2/3rd share out of the coparcenary property is not liable to attachment and sale for the recovery of the arrears of tax due to the defandant from Munshi Ram father of Plaintiffs Nos. 1 and 2. It also granted a decree restraining the Defendant front geting that land attached and auctioned for the realisation of arrears of tax due from Munshi Ram. The Defendant was also burdened with payment of costs of the suit. An appeal preferred against that judgment and decree of the trial Court by the Union of India, Defendant, was dismissed and the parties were left to bear their own costs by the Court of the Additional District Judge, Patiala (Shri Om Parkash Sharma) vide its judgment dated 31st July, 1963. Hence this appeal.
2. The facts of the case in brief are that Lakshmi Dass grandfather of Rajesh Kumar and Shaneel Kumar Plaintiffs received 22 Bighas 18 Biswas of land by allotment in village Dhakansu Kalan. This land was later on mutated in the name of his six sons, that is: Munshi Ram, Behari Lal, Walati Ram, Saat Ram, Rekha Mal and Bhagwan Dass, in equal shares. In spite of the fact that all the said six brothers were living separately that land remained joint in the names of all of them in the revenue record. Munshi Ram was entitled to 1/6th share, that is, 7 Bighas and 17 Biswas of land out of the land mentioned above which had come from his father Lakshmi Dass, Rajesh Kumar and Shaneel Kumar, Plaintiffs Nos. 1 and 2. being the sons of Munshi Ram and, as such, being co-parceners of the joint undivided property of the family were having 2/3rd share.
3. While their father Munshi Ram was having l/3rd share in the co-parcenary property, viz., l/6th share of the land got by Munshi Ram from his father Lakshmi Dass.
4. Munshi Ram was running some business in Bombay. He had to pay certain taxes in respect of that business. After the death of Munshi Ram. which took place on 17th November, 19S8, the Collector of Bombay wrote to the Collector, Patiala, in March, 3960, for the realisation of arrears of tax by attachment and sale of the land in dispute, that is, l/5th share of the land left by Lakshmi Dass, alleged to be belonging to Munshi Ram deceased. The Collector, Patiala, issued orders for the attachment of the land and the Halqa Patviari effected attachment of that land which is the land in dispute, in compliance with that order. Rajesh Kumar and others, Plaintiffs who included the sons, daughters, widows and the mother of Munshi Ram, being heirs of Munshi Ram, brought a suit for declaration to the effect that the land in dispute was their Joint Hindu Family property having been acquired by their grandfather Lakshmi Dass and, as such, it was not liable for attachment and sale for the realisation of the arrears of taxes due from Munshi Ram, beyond 1/3rd share of the same which Munshi Ram had already sold in his life time. Besides declaration to the above effect, the Plaintiffs also sought a decree for permanent injunction restraining the Defendant from proceeding with the sale of the land in dispute, which is 2/3rd share of 1 /6th share of the land got by Munshi Ram from his father Lakshmi Dass. From the pleadings of the parties, the following issues were framed:
1. Whether the suit does not disclose any cause of action and there was no attachment at the time of the suit ?
2. Whether a valid notice u/s 80 C.P.C. was given to the Defendant ?
3. Whether the Plaintiffs are the owners of 2/3rd of the property in their right as co-parceners and what is its effect ?
4. Whether Mansa Ram had no share left in the property at the time of his death as alleged in para No. 3 of the plaint ?
5. Whether the Civil Court has got no jurisdiction and the relief claimed for should not be given to the Plaintiff ?
6. Relief.
5. The trial Court decided issues Nos. 1 and 5 against the Defendant issue No. 4 against the Plaintiff and issues Nos. 2 and 3 in favour of the Plaintiffs and in the result granted a decree in favour of the Plaintiffs and against a decree as already stated above. The first appellate Court upheld the findings of the trial Court on all the five issues and, in the result, dismissed the appeal filed by the Defendant.
6. The finding of the trial Court given on issue No. 3, which was confirmed in appeal by the first appellate Court, only has been challenged in this appeal by the Defendant Appellant. There is no dispute between the parties that 1 /6th share of the landed property of Lakshmi Dass got by his son Munshi Ram was the co-parcenary property of Munshi Ram and his sons Rajesh Kumar and Shaneel Kumar, Plaintiffs Nos. 1 and 2. Munshi Ram died on 17th November, 1958. He had incurred the debts in question when their family was still joint.
7. The only point which is to be considered by this Court is whether co-parcenary interest of Rajesh Kumar and Shaneel Kumar, Plaintiffs Nos. 1 and 2, in the co-parcenary property, viz., 2/3rd share of 1 /6th share of the land got by Munshi Ram from his father Lakshmi Dass can also be got attached and sold for realisation of income tax dues which were payable by Munshi Ram to the Defendant or whether the Defendant can get attached and sold only 1/3rd share of Munshi Ram in that coparcenary property. Article 290 of Mulla''s Hindu Law (Thirteenth Edition), which reads as under, is a complete answer to the above proposition:
290. Pious obligation of son, grandson and great-grandson to pay ancestor''s debt:
(1) Where the sons (which expression throughout includes son''s sons and son''s son) are joint with their father, and debts have been contracted by the father in his capacity of manager and head of the family for family purposes, the sons as members of the joint family are bound to pay the debts to the extent of their interest in the coparcenary property.
Where the sons are joint with their father and debts have been contracted by the father for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for an illegal or immoral purpose. The liability to pay the debts contracted by the father, though for his own benefit, arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara law to dischage the father''s debts, where the debts are not tainted with immorality. The fact that the father was not the Karta or manager of the joint family or that the family consisted of other coparceners besides the father and sons, does not affect the liability of the sons in any way. It exists irrespective of these facts.
(2) The pious obligation of sons, grandsons, great-grandsons to pay the ancestor''s debts to the extent of their interest in the joint family property is not abrogated by the Hindu Succession Act, 1956.
(3) Liability not personal.-The liability of the son, grandson and great-grandson to pay the debts of their ancestor is not a personal one, that is to say, the father''s creditor is not entitled to proceed against their person or their separate property. It is limited to their interest in the joint family property, unless there is acceptance of personal liability in the course of judicial proceedings such as Insolvency Proceedings.
8. It is, therefore, clear that the Mitakshara Law imposes a duty upon the descendant of a person to pay the debts of the farher provided they are not tainted with immorality. Under that law as it now stands, the obligation of the son is not a personal obligation existing irrespective of the receipt of any asset but a liability confined to the assets received by him as his share in joint family property or his interest in the same The obligation exists whether the sons are majors or minors or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of his sons in the coparcenary property can always be made liable for such debts. For the pious obligation to pay the father''s debts to arise, it is not necessary that the father should be the manager or the Karta of the joint family or that the family must be composed of the father and his sons only and no other male member. This view finds support from
The liability of Hindu sons in a Mitakshara coparcenary family to discharge the debts of the father, the Karta, which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the life time 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 unless a provision has been made for the payment of the just debts of the father therefore, even though the father''s power to discharge his debt by gelling the share of bis sons in the property may no longer exist as a result of partition, the right of the judgment creditor, who has obtained a decree against the father, to seize the erstwhile coparcenary property remains unaffected and undminished because of the pious obligation of the sons." It may be pointed that that the income tax dues from Munshi Ram are not immoral dues Reference in this behalf be made to
Even if some type of taxes or duties (sulka debt) were exempt from the doctorine of pious obligation for certain reasons which appealed to the ancient smriti text writers, it is for the court to decide in the context of the present society whether any particular tax liabilities is of such a nature as could be treated as one tainted with illegality or immorality or opposed to right conduct as to bring it within the exception to the general rule that the son is liable to pay the father''s debt. The liability to pay arrears of income tax cannot be regarded as one such. On the other hand, it is obligatory on the son that he should pay taxes which are lgitima-tely due to the state by his father . Even from ancient times till the present day, the liability to pay tax to the State is regarded as one of the foremost duties of the citizens. Arrears of income tax due by the father in respect of separate business prior to partition between him and his son can be recovered from the son after the paitition under the doctrine of pious obligation.
A similar view was taken in M.R. Radhskrishnan v. The Union of India, represented by Secretary to Government of India AIR 1919 Mad 71.
9. It has been argued by the Plaintiff-Respondents that the joint family business, that is, the ancestral business of the family consisting of Munshi Ram deceased and his two sons, Rajesh Kumar and Shaneel Kumar, was of farming and since Munshi Ram did not incur the debts in question for the necessity of that joint family business and he, on the other hand, started a new business at Bombay in which he incurred heavy losses, neither his two sons are personally liable nor their interest in the comparcenary property can be made liable for the payment of those debts. No doubt, Rajesh Kumar and Shaneel Kumar are not personally liable to pay off the tax dues which are outstanding against their deceased father Munshi Ram, but I am of the view that they are bound to pay those debts to the extent of their interest in the co parcenary property. The authority of the manager to incur a debt binding on the family is based upon the principle of agency or implied authority and a family debt contracted by him for necessity or benefit of the family stands on quite a different footing from a personal debt contracted by the father which does not benefit the family. The liability of his sons to pay such debt does not rest on the principle of agency but is a special liability created purely on religious grounds and can be enforced only against the sons and no other co-parcener. It is no way dependent upon the constitution of the family either at the time when the debt was contracted or at the time when the obligation is sought to be enforced. The liability of the son is enforceable both after the father''s death and also after partition between the father and his sons, When the debts incurred by the father have not been shown to be immoral or irreligious'', there is a legal liability on them to discharge these debts and the creditor can enforce this liability by attachment and sale of sons interest in the coparcenary property in the same manner as if if was a personal debt due by them. I, therefore, set aside the findings of the Courts below in issue No. 3 and hold that although Rajesh Kumar and Shannel Kumar Plaintiffs are the owners of 2/3rd share of the property in dispute, which is a coparcnery property, yet their said share in that property is also liable for attachment and sale, along with l/3rd share of Munshi Ram in the same, for the realisation of arrears of taxes due from their father Munshi Ram deceased.
10. In the result, I accept this appeal, set aside the judgments and decrees of the Courts below and dismiss the Plaintiff''s suit. No order as to costs throughout.
