Supreme Court of India (Desai, J., for V. R. Krishna Iyer and himself), September 27, 1978 — Civil Appeals Nos. 2084-2085 of 1978 (by special leave) against the judgment dated 10/11 October 1974 of the Bombay High Court in First Appeals Nos. 160 and 173 of 1966 dismissing the defendant's appeals and affirming the trial Court's decree for possession in favour of the plaintiffs. The plaintiffs' father, Dattatraya Govind Kulkarni, borrowed a Tagai loan of Rs. 12,000/- on 7-2-1949 under the Land Improvement Loans Act, 1883 for constructing wells in joint family lands, offering joint family lands as security; on default the suit land (Survey Nos. 487/1-487/6, Shirwal) was sold in revenue auction and purchased by the appellant (possession delivered 20-5-1960). The plaintiffs, pleading a partition of 6-7-1956 (Ext. 53; registered deed Ext. 79) under which the suit land fell to their share, sued to declare the sale void. Held, allowing the appeals: (i) the suit land was joint family property; (ii) the loan was borrowed by the father as Karta for improvement of joint family lands — agriculture being a family occupation, it was ipso facto for legal necessity and a joint family debt; a Karta need not describe himself as such, his capacity being gathered from surrounding circumstances; (iii) where a partition makes no provision for joint family debts, property allotted to coparceners remains liable therefor (Sat Narain; Pannalal; Vriddhachalam Pillai); (iv) under the doctrine of pious obligation — a legal, not merely religious, obligation (Muttayan; Anthonyswamy) — sons are liable for the father's pre-partition debts not tainted with illegality, immorality or avyavaharik character, and the obligation survives partition; a creditor executing a pre-partition decree/recovery order may seize and sell the property without joining the sons, the sons' remedy being to prove the debt's tainted character; partition merely alters the mode of enjoyment (Jakati followed; Ganpatrao confined to its facts); (v) a Tagai loan is recoverable as arrears of land revenue (Bombay Land Revenue Code, ss. 150, 155); the revenue authority's order tantamounts to a decree and a proclamation of sale to execution, execution having begun before the partition (first proclamation 25-4-1955), and the whole property having been sold, full title passed to the purchaser (Rai Babu Mahabir Prasad applied); (vi) 'borrower' in s. 7 of the Loans Act includes a Karta of a joint Hindu family borrowing in his representative capacity — the Act contemplates joint borrowers (s. 9), and a restricted construction would disable joint Hindu families from availing of the Act. Appeals allowed; plaintiffs' suit dismissed, no order as to costs.
