A) ABSTRACT / HEADNOTE
The Supreme Court of India in S.M. Jakati & Another v. S.M. Borkar & Others ([1959] SCR 1384) analyzed the application of the pious obligation doctrine in Hindu law, dealing with the liability of sons for debts incurred by their father. The case revolved around whether the auction sale of joint family property for the recovery of the father’s debt was valid under Hindu law. The dispute focused on whether the debt was avyavaharika (tainted by immorality or illegality), whether the partition suit severed the coparcenary status and insulated the sons’ shares from execution, and the scope of property saleable under Section 155 of the Bombay Land Revenue Code, 1879. The Court upheld the auction sale, holding that the father’s liability was not avyavaharika, and the sons’ shares remained attachable despite the partition due to the continuing pious obligation.
Keywords: Hindu Law, Pious Obligation, Avyavaharika Debt, Partition, Coparcenary Property, Joint Family, Auction Sale, Section 155 Bombay Land Revenue Code, Negligence, Supreme Court of India
B) CASE DETAILS
i) Judgement Cause Title:
S.M. Jakati & Another v. S.M. Borkar & Others
ii) Case Number:
Civil Appeal No. 233 of 1954
iii) Judgement Date:
September 24, 1958
iv) Court:
Supreme Court of India
v) Quorum:
Justice B.P. Sinha, Justice J.L. Kapur, Justice Jafer Imam
vi) Author:
Justice J.L. Kapur
vii) Citation:
[1959] SCR 1384
viii) Legal Provisions Involved:
-
Section 155 of Bombay Land Revenue Code, 1879 (Bombay Act V of 1879)
-
Section 43 of Indian Evidence Act, 1872
-
Sections 2(c), 33, 36, 46, 123(7) of Representation of the People Act, 1951 (in another matter in the same report)
ix) Judgments overruled by the Case (if any):
None
x) Case is Related to which Law Subjects:
Hindu Law, Civil Law, Property Law, Family Law, Indian Evidence Law
C) INTRODUCTION AND BACKGROUND OF JUDGEMENT
The present appeal concerns the liability of sons under Hindu law to discharge debts incurred by their father and the nature of property attachable for recovery. Madhavarao Balakrishna Jakati was the managing director of Dharwar Urban Co-operative Bank, which went into liquidation. Following findings of negligence, the Deputy Registrar of Co-operative Societies passed a payment order of ₹15,100 against him. In execution, joint family property was auctioned. The dispute arose when the son, Krishnaji, initiated a partition suit contending that the sale could not bind his share as the debt was avyavaharika.
D) FACTS OF THE CASE
Madhavarao Balakrishna Jakati, as managing director of the Dharwar Urban Co-operative Bank, received ₹1,000 annually. The bank’s liquidation revealed mismanagement of funds due to Jakati’s negligence. On April 21, 1942, the Deputy Registrar ordered him to pay ₹15,100. The Collector attached joint family property under Section 155 of the Bombay Land Revenue Code on July 27, 1942. The auction sale was conducted on February 2, 1943, and confirmed on June 23, 1943. Meanwhile, on January 15, 1943, his son Krishnaji filed a suit seeking partition and contended that the auction sale was invalid regarding his share, asserting that the debt was avyavaharika and alleging severance of coparcenary status due to the partition suit.
Respondent Borkar, who purchased the property at auction, subsequently sold it to third parties, respondents 2 to 4.
E) LEGAL ISSUES RAISED
i) Whether the debt incurred by the father was avyavaharika and not binding on the sons.
ii) Whether the institution of a partition suit severed the coparcenary and prevented the auction sale from affecting the sons’ shares.
iii) Whether only the right, title, and interest of the father could be sold under Section 155 of the Bombay Land Revenue Code.
F) PETITIONER/ APPELLANT’S ARGUMENTS
i) The counsels for Petitioner / Appellant submitted that the debt incurred was avyavaharika, being based on negligent acts constituting misfeasance and thus immoral or illegal. They relied on the Deputy Registrar’s findings to argue that misfeasance and gross negligence created liability that could not bind the sons’ share under the doctrine of pious obligation in Hindu law.
ii) They contended that filing the partition suit before the auction severed the coparcenary status. Consequently, the father no longer had alienation rights over the sons’ shares.
iii) They argued that under Section 155 of the Bombay Land Revenue Code, only the father’s right, title, and interest could be sold, not the entire joint family property.
G) RESPONDENT’S ARGUMENTS
i) The counsels for Respondent submitted that the debt did not amount to avyavaharika debt. Negligence in duty as managing director, while constituting civil liability, was not immoral or illegal under Hindu law principles.
ii) They asserted that even if partition was initiated, the pious obligation of the sons under Mitakshara law continued until the father’s debts were discharged.
iii) They argued that the auction sale legally covered the entire joint family property since the Collector sold the property as a whole, as evidenced by sale certificates and proclamations. The law did not require impleading the sons in execution for enforcing pious obligation debts.
H) RELATED LEGAL PROVISIONS
i) Section 155 of Bombay Land Revenue Code, 1879
Permits sale of “right, title and interest of the defaulter” for revenue arrears recovery.
ii) Section 43 of Indian Evidence Act, 1872
Judgments not relevant unless it falls within exceptions like res judicata or judgments in rem.
iii) Doctrine of Pious Obligation (Hindu Law – Mitakshara)
Imposes duty on sons to discharge debts of father unless tainted by immorality or illegality.
iv) Case Law Interpreting Avyavaharika Debt:
-
Hem Raj alias Babu Lal v. Khem Chand [(1943) L.R. 70 I.A. 171]
-
Toshanpal Singh v. District Judge of Agra [(1934) L.R. 61 I.A. 350]
I) JUDGEMENT
a. RATIO DECIDENDI
i) The Court held that the liability incurred due to negligence was not avyavaharika. Colebrooke’s translation, describing avyavaharika as “repugnant to good morals,” was accepted as the accurate test. Negligence in corporate management, though actionable, did not meet that standard.
ii) The pious obligation of sons under Mitakshara law continues after partition unless debts are immoral or illegal. Mere partition does not relieve sons from liability.
iii) Execution against the father’s debt can proceed against joint family property even without impleading sons if their shares remain liable. The auction sale was valid since the Collector sold the whole property, which the purchaser intended to buy.
iv) Section 155 of the Bombay Land Revenue Code uses terminology akin to the Civil Procedure Code. What passed at auction depended on facts — here, the entire bungalow was sold.
b. OBITER DICTA
i) The Court noted that failure to implead sons in execution does not nullify sale where pious obligation exists.
ii) The Court distinguished Khiarajmal v. Daim [(1904) L.R. 32 I.A. 23] as inapplicable, stating that unlike that case, the father validly represented the family for debts under Hindu law.
iii) Similarly, Sat Narain v. Das [(1936) L.R. 63 I.A. 384] was inapplicable as it dealt with insolvency and voluntary alienation, not execution under pious obligation.
c. GUIDELINES
-
Pious Obligation survives partition unless debts are immoral or illegal.
-
Sons’ shares are attachable even if not party to execution proceedings.
-
Auction sales of joint family property are valid where Collector sells entire property.
-
“Right, title and interest of the defaulter” includes full coparcenary rights in absence of proven immorality.
J) CONCLUSION & COMMENTS
The judgment reaffirmed the strong pious obligation principle under Hindu law. It clarified that negligence-based debts incurred by fathers remain binding upon sons unless immoral under Hindu standards. The Supreme Court effectively balanced the son’s rights with creditors’ enforcement remedies, emphasizing that partition does not easily defeat pious obligations. The ruling underscores the careful judicial approach taken by Indian courts to sustain creditor rights while preserving traditional family law principles.
K) REFERENCES
a. Important Cases Referred
-
Hem Raj alias Babu Lal v. Khem Chand, (1943) L.R. 70 I.A. 171
-
Toshanpal Singh v. District Judge of Agra, (1934) L.R. 61 I.A. 350
-
Masit Ullah v. Damodar Prasad, (1926) L.R. 53 I.A. 204
-
Panna Lal v. Mst. Naraini, [1952] S.C.R. 544
-
Sudheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh, [1954] S.C.R. 177
-
Suraj Bansi Koer v. Sheo Prasad Singh, (1878) L.R. 6 I.A. 88
-
Mussamat Nanomi Babuasin v. Modun Mohun, (1885) L.R. 13 I.A. 1
-
Khiarajmal v. Daim, (1904) L.R. 32 I.A. 23
-
Sat Narain v. Das, (1936) L.R. 63 I.A. 384
-
Rai Babu Mahabir Persad v. Rai Markunda Nath Sakai, (1889) L.R. 17 I.A. 11
b. Important Statutes Referred
-
Bombay Land Revenue Code, 1879 (Bombay Act V of 1879) — Section 155
-
Indian Evidence Act, 1872 — Section 43
