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archana (Inspector)     24 August 2012

Fraudulant father

Sir/madam,

My father in law is a regular offender in money matters , he takes loans from people & absconds later he makes me and my husband pay as the people start coming to our house & quarrel. We people fearing any action against us(since we both are government employees ) used to pay the amount he fraudlantly takes on our name.

We had purchased a plot for construction of house in May 2011 , at present he is again absconding and lenders are pressurising us to pay them money as he has told them that he has taken it for purchase of the same  which is fully untrue . He has never even spend a penny on any household chores , have deceited us in all money matters & this plot too we have taken with help of bank loan. The original papers are though with bank we are afraid , as to how to safeguard ourselves, our kids' future & plot .

Please guide what we should be doing now ?



Learning

 13 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     24 August 2012

Dear Querist,

 

You or your husband are in no manner liable for any personal loans taken by your father in law if otherwise the house was not put up as security or you had not given any personal guarantee.  If the money lenders are still troubling you - you can seek the help of police, they are committing criminal intimidation.

 

If your father in law is a habitual defaulter - consider giving out an ad in the newspaper severing all relations with him. This is the most effective way of ruling out any future liability. 

 

Regards,


Adv. Bharat Chugh

*Supreme Court of India

*Delhi High Court

*Distt. Courts of Delhi/NCR

 

Tajobsindia (Senior Partner )     24 August 2012

 

Originally posted by : Adv. Bharat Chugh

 

You or your husband are in no manner liable for any personal loans taken by your father in law if otherwise the house was not put up as security or you had not given any personal guarantee.  If the money lenders are still troubling you - you can seek the help of police, they are committing criminal intimidation. 
XXX

 


I slightly differ to brother Bharat's views as there is "pious obligation of Son" even with S. 6 HSA  Amendment (2005)

Reasoning is given below by quoting SC judgment and like this there are many other SC / State HC’s judgment relating to pious obligations of a SON [I am fully aware brother Bharat, in instance facts of the query before us these ref. may not fit squarely but to some extent if more facts known about this query a creditor may jolly well use S. 50, 52 and 53 CPC to claim relief from SON as the then case may be] hence as generic below references are shared for other queries:


ref.:
Hon’ble SC Judgment in Pannalal And Another vs Mst. Naraini And Others [1952 AIR 170, 1952 SCR 544]

 

In above reference Hon'ble SC case;

 

“One Baldev Das executed a deed on September 30, 1925, in favour of Mt. Naraini and Talok Chand hypothecating certain moveables belonging to the joint family of himself and his sons to secure repayment of a loan of Rs. 16,000. On April 16, 1928, the sons of Baldev Das filed a suit against Baldev Das for partition of the joint family property and a final decree for partition was passed on July 20, 1928, and the joint family property was divided by metes and bounds and separate possession of their respective shares was taken by Baldev Das and his sons. On September 29, 1934, Mt. Naraini filed a Suit against Baldev Das for a decree for Rs. 12,500 remaining due under the hypothecation bond. It was averred in the plaint that the debt was incurred by Baldev Das as manager of the joint Hindu family consisting of himself and his sons, and the plaintiff claimed a decree against the hypothecated property as well as against the joint family. The sons of Baldev Das then applied to be joined as parties to the suit. It was asserted in the application that Baldev Das was not the manager of the joint family and the properties had been partitioned by a decree of the Court, and the properties alleged to be hypothecated were allotted to the share of the petitioners. Counsel for Mt. Naraini then gave up the claim for a mortgage decree and prayed only for a money decree against Baldev Das personally and the plaint was amended by deleting all references to the joint family property. When this amendment was made, the sons of Baldev Das withdrew their application for being impleaded as parties to the suit. On April 17, 1935, Baldev Das died and on September 2, 1935, the widow and sons of Baldev Das were brought on the record as legal representatives of Baldev Das. They then raised a contention that the debt incurred by Baldev Das was illegal or immoral and was not binding on the family property. On November 20, 1935, the parties arrived at a compromise and a simple money decree was passed in favour of the plaintiff for the amount claimed in the suit together with half costs against the estate of Baldev Das in the hands of his legal representatives. Mt. Naraini, made attempts to execute this decree but they proved abortive. Ultimately she applied to the Court which had passed the decree that the properties which had been allotted to the sons of Baldev Das under the partition decree, be attached and sold. The sons of Baldev Das objected to the attachment and sale of the properties allotted to their share on the plea that these properties did not belong to Baldev Das and were the separate properties of the objectors and that the same had been obtained on partition with their father long before the plaintiff's decree was obtained. It was contended that the properties could not be made liable for satisfaction of the decretal dues which had to be realised, under the terms of the decree, from the estate left with Baldev Das.”

 

 

The following undisputed propositions emerge from the judgment in Pannalal's case:

 

1. A Hindu son is not personally liable to pay the debt of his father even if the debt was not incurred for an immoral purpose : the obligation of the son is limited to the assets received by him in his share of the joint family property or to his interest in such property, and it does not attach to his self-acquisitions.

 

2. The pious obligation of the son to pay the debt of his father exists whether the father is alive or dead. It is open to a creditor of the father to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such a suit and obtain an adjudication from the Court that the debt was payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes.

 

3. So long as the family remains undivided, the father is entitled to alienate for satisfying his personal debt not tainted with immorality the whole of the joint family estate, and a creditor of the father is also entitled to proceed against the entire estate for recovery of the debt borrowed by the father.

 

4. The sons are not liable for the debts incurred by the father after partition between them and their father. The share which the father receives on partition and which after his death devolves upon his sons, may in the hands of the sons, be available to the creditors of the father, but the shares allotted on partition to the sons cannot be made liable for the "post-partition" debts of the father.

 

5. The sons are liable to pay the pre-partition debt of the father, even after partition if the debt of the father is not immoral or illegal and for the payment of which no arrangement was made at the date of the partition,

 

6. A decree obtained against the father alone after partition in respect of a pre-partition debt cannot (during the life-time of the father) be executed against the property which is allotted to the son on partition. A separate and independent suit must be instituted against the sons before their share can be reached. The parenthetical clause is added by us.

 

A decree passed against the separated sons as legal representatives of the deceased father in respect of a debt incurred before partition can be executed against the property obtained by the sons at the partition. This liability arises by virtue of Section 53 of the Civil Procedure Code. When execution is sought against the sons, the sons are at liberty to show that the property in their hands is not liable to pay the debts of the father; but the enquiry has to be made in the course of execution proceedings and not in a separate suit.


In ref.: Annabhat v. Shivappa [(1928) 30 BOMLR 539, 110
Ind Cas 269],

“…it was held that the son was under a pious obligation to pay the debts of his father incurred by him on account of trade liabilities out of ancestral property, even though the trade may have been started by the father, and that this duty arose even during the lifetime of the father and the liability could not be avoided by the son coming to a partition of the family property subsequent to the filing of the suit against the father and the son. In that case, the debt was not an avyavaharik debt and the plaintiff filed a suit against the father as well as the son, and during the pendency of the suit the defendants arrived at a partition. A decree was then passed against the father and the son, to be satisfied out of the joint family estate and also personally from the father. It was held by this Court that the son was liable to satisfy the debts out of the joint family property allotted to him at the partition. That was a simple case in which the son was impleaded in the suit to recover a debt due by the father and the decree was passed against the son.”


In ref.: Surajmal Deoram v. Motiram Kalu [(1939) 41 BOMLR 1177]

In this case Mr. Justice Lokur set out several propositions enunciating the extent and character of the liability of Hindu sons governed by the Mitakshara Law to satisfy the debts of the father which were not avyavaharik, and the procedure to be followed for enforcement of that liability. In that case, a suit was filed against the father alone when he was the manager of the joint Hindu family and a decree was obtained against him. Thereafter partition was effected between the debtor and his sons, and execution was sought to be levied against the father, and the property of the erstwhile joint family was sold. The decree-holder purchased the property and the son filed a suit for a declaration that the creditor had not purchased his interest in the property. Mr. Justice Lokur in that case held that the son was liable to pay the debt of the father, but the liability of the son could be enforced by a separate suit and not by execution of the decree against the father and that the sale, at the execution, of the property which had been allotted to the son at the partition did not convey to the purchaser that property and that the son was entitled to the declaration claimed by him.


In ref.: Chanmallappa Shivlingappa v. Vannaji Sakalchand [(1942) 45 Bom. L.R. 457] a Division Bench, of Mumbai High Court

held that a decree against a Hindu father for a debt binding on his sons, which was not illegal or immoral, can be enforced against the sons after partition in execution proceeding by attachment and sale of the properties and that it was not necessary to file a separate suit. This case is an authority for the proposition that after a decree is obtained against a Hindu father even if there be partition between him and his sons and division of the joint family estate the property of the joint family including the property which has been allotted to the sons is liable to be resorted to for satisfaction of the debt due to the creditor in execution proceedings after impleading the sons. The distinction between Surajmal's case and Chanmallappa's case is obvious. In Surajmal's case the son was not made a party to the execution proceedings. In Chanmallappa's case, the sons were made parties to the execution proceedings and their interest in the property was held liable to satisfy the debts of the father, and execution was held to be the proper method of enforcing the liability against the sons by impleading them in the darkhast.


The question was again considered by Mr. Justice Lokur in ref.: Ramchandra Rango v. Annaji Venkatesh [(1943) 45 BOMLR 1037]. In that case, Mr. Justice Lokur added one more proposition to the six propositions which he had enunciated in the earlier case of Surajmal as follows (p. 1044):


To obtain such a decree, (i.e. a decree for recovery of a debt due by a Hindu father after partition), the creditor must either join the son as a party to the suit against the father, or, if he has already obtained a decree against the father alone after the partition, he must file a separate suit against the son on the original debt, if it be in time, or sue for a declaration that the son's separated share in the joint family property is liable to be attached and sold in execution of the decree against the father for the satisfaction of the entire decretal amount or such portion of it as may be found binding on the son.

In that case, after the debt was incurred by the father, property of the joint family was partitioned, and a suit was filed against him for recovery of the debt and a decree was passed. That decree was sought to be executed against the sons and the sons contended that the decree could not be executed against them. It was held by Mr. Justice Lokur that the liability could only be enforced after obtaining a decree against the sons declaring their liability and not by executing the decree against their father.


In ref.: Ganpatrao Vishwanathappa v. Bhimrao [(1948) 52 Bom. L.R. 154] it was held that a money decree obtained against a Hindu father could not after partition be executed against the property allotted to the sons on partition without impleading the sons in the execution proceeding. Mr. Justice Bavdekar in delivering the judgment of the Court observed (p. 157):


...a decree obtained against the father alone cannot be executed against the son's interests after partition without making the sons parties to the execution proceedings. It is true that the decree can be executed against their interest; but the question is whether the decree can be executed against their interest without making them parties, and the proposition of law...is that in case a creditor wants to bring to sale the interest of a particular person, that person must be represented in the execution proceedings. 

 

 

Adv Archana Deshmukh (Practicing Advocate)     24 August 2012

You and your husband are not liable in your personal capacity to repay any debts contracted by your father in law unless you have stood as guarantors to his debts. His debts cannot be recovered from your property. Also after the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt.

Tajobsindia (Senior Partner )     24 August 2012

Lady Archana

 

J Agreed;

 

But do fill in below Proviso too just after your above para (what is not clear in this query as to; are debts before 2005 or after that and which debts creditors are asking from Son i.e. before 2005 or afterwards one is one and second read S. 50 CPC which overrides HAS S. 6 HAS Amendment (2005) from where the root of this query generates and I have only that difference as generic reply and not otherwise J

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-

 

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

 

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

 

Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

 

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

 

Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.'.

Adv Archana Deshmukh (Practicing Advocate)     24 August 2012

From the query it does not appear to me that the debts referred by the querist must be so old. She is telling us the habit of her FIL to borrow money and then abscond to avoid repayment and thereafter she and her husband used to repay it. So the older debts (before 2005 ) must have been repaid by them by now. From what I understand, she is referring to the debts her FIL have contracted in the recent past, so in my opinion her husband cannot be hold liable on the ground of pious obligation for any debt contracted by her FIL after 2005 amendment to HSA.

1 Like

Tajobsindia (Senior Partner )     24 August 2012

Lady Archana

Right, I am neither contradicting you nor Bharat and what is not clear from the query I normally donot ask instead give generic provisions as in first and second above as it was duty of queriest to tell since when debts taken not leave to imagination.

So / well hence in a way you do agree that pious obligations to debts before 2005 do exist as per Amendment in HSA
J

Hope we savvy on this minor brush
J

Adv Archana Deshmukh (Practicing Advocate)     24 August 2012

Yes, the ground of pious obligation is available for the debts contracted before 2005 amendment, it is clear in the amendment act itself Tajobsindia :-)


Also Tajobs, we all reply to the queries from what we gather from the limited information given by the querist on the open forum. The replies are bound to be general in contrast to the situation where in our regular professional life the clients give us all the details during discussions and we give them specific advice suitable to them. But I am sure, at least the querists must be getting some basic legal knowledge about the subject from the replies :-) 

ADV S PATHAK (lawyer)     24 August 2012

why to worry.u have not signed anywhere.  i agree with adv chug.

VIKRANT VERMA (LEGAL ADVISOR)     25 August 2012

i am agree with the above reply

Sudhir Kumar, Advocate (Advocate)     26 August 2012

I will hve to agree with Ms Archana and Mr Chugh. 

 

Son's pios duty does not extend to frauds of the father. 

 

This querist and he rhusband are for big trouble as so far thye hav eprobably not allowed anyone to file criminalcase against her FIL.  So he keeps cheating people and they keep paying.  At leat allow him to succeed being in jail for few days whihc , as decribed by you he is attempting.

 

One day they will be cursed by their children when they have no money for their education and marriage.  Their liability will keep swelling

archana (Inspector)     27 August 2012

Namaste All !

 

Thank you so much for relpying so promptly to my query . As in of the above comments it has been referred that I didnot mention the time when loan was taken , I apologize for leaving that information . All the debts are taken only after 2008 (that is after our marriage) & till 2010 we settled all the loan taken during our wedding as per my father in law . After waiting for an year and confirming numerous times we went to purchase the plot in May 2011 .For the plot too he has not paid a single penny , moreover he has never given or spent a rupee from his pocket for any thing brought at home or given as gifts to relatives during family functions.

We have not been guarantors for any of the loans he has taken but one of the meidator recently forced my husband to sign a post dated cheque when he went to pay some amount to another person ( The amount was sent to my husband for paying off some amount of  the loan by my Father in law 's elder sister & my FIL was forcing him to do so ).

Now , my question is my husband liable for punishment or can any action be initiated against him by that mediator before law showing cheque signed by him or if the cheque bounces as we do not have any money left with us now ? can we complaint to bank or else where that it was taken by pressurising him ?

archana (Inspector)     27 August 2012

Namaste All !

 

Thank you so much for relpying so promptly to my query . As in of the above comments it has been referred that I didnot mention the time when loan was taken , I apologize for leaving that information . All the debts are taken only after 2008 (that is after our marriage) & till 2010 we settled all the loan taken during our wedding as per my father in law . After waiting for an year and confirming numerous times we went to purchase the plot in May 2011 .For the plot too he has not paid a single penny , moreover he has never given or spent a rupee from his pocket for any thing brought at home or given as gifts to relatives during family functions.

We have not been guarantors for any of the loans he has taken but one of the meidator recently forced my husband to sign a post dated cheque when he went to pay some amount to another person ( The amount was sent to my husband for paying off some amount of  the loan by my Father in law 's elder sister & my FIL was forcing him to do so ).

Now , my question is my husband liable for punishment or can any action be initiated against him by that mediator before law showing cheque signed by him or if the cheque bounces as we do not have any money left with us now ? can we complaint to bank or else where that it was taken by pressurising him ?

Sudhir Kumar, Advocate (Advocate)     27 August 2012

You husband has put his neck in the noose by signing this cheque. He will be liable to go to jail if cheque gets bounced.  NI Act is complainant friendly.  I believe he was emotionally blackmailed and did not like his father going to jail. 

 

You should have allowed your FIL to go to jail instead of your husband going.

 

Your future is penniless.  Please if any more victims of his forgery come guide him to thana let them take you FIL and never apply for his bail.

 

If you repell one such visitor he will repell five.

 


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