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Introduction
A Hindu Joint Family is formed when everyone either inherit it from their ancestors like father, grand father or great grandfather or when all members decide to come together and throw their share in the joint family pool. But their might also be compelling reasons due to which this Hindu Joint Family needs dissolution like when there are frequent fights between the family members or when one of the siblings is taking the main advantrage of Hindu Joint Family property while denying other’s their legal due. In these situations members can ask for division of HJF property amongst themselves. This division is called Partition. On partition every sibling should get equal share.
In this article we will see that it is the duty of the sibling getting higher share in Partition to give some amount to the other siblings so that all can get equal share in Partition. And if a brother/sister declines to do so the other sibling have a right to go to Court to get justice.
Facts
Manickam Pillai (let’s say X) and Sambasiva Pillai (let’s say Y) were brothers who decided to partition their Hindu Joint Family property. So they divided the property in 2 Schedules (or lists)-Schedule A containing the properties which were to be given to Y and schedule B containing the properties which were to be given to X. Now, as often happens, properties given to one of the brothers is of higher value (like a property Connaught Place) than properties given to other brother( like a property in Sant Nagar). In these cases the norm is that the brother getting the Connaught Place property has to pay some money to the brother getting the Sant Nagar property or pay some debts which are pending on the Hindu Joint Family property to equalize the partition.
The same thing happened here whereby Y who got the high valued properties also got the responsibility of discharging the debt of their father which he incurred on a promissory note. Further it was decided if Y fails to do so then it will be the responsibility of X to pay the said debt, but in the latter case X will get the right of getting from Y double the amount which he have pay the debt. Further Clause 5 of the Partition Deed stated that in case Y does not pay to X the said money then the properties can be used to pay off the debt money to X. (this is called Charging the property which I will explain to you later in this Article).
A Son Must Pay His Late Father’s Debt
Here I will deviate from this discussion to have a look as to why X is so much intent on paying his father’s debt. The reason for this is to be found in Hindu law which states that it’s a pious obligation of a son to discharge/pay his father’s debt. The aim of discharging the debt of the father is to prevent the father from facing evil consequences in the afterlife. Even it is considered a legally enforceable debt i.e. if the father draws a Cheque/Promissory Note and dies before paying the amount due on the Cheque/Promissory Note, the beneficiary of the Cheque/Promissory Note can file a case against the son for getting the amount due on Cheque/ Promissory Note. Further Ghose’s Hindu law 3rd edition clearly says that “A son alone, on whom he (the father) throws his debt and through whom he obtains immortality begotten for the fulfilment of laws”. But a son is not liable to pay each and every debt of his father. So Gautama says “A son has not to pay, in this world, his father’s debt which are incurred for spirituous liquor, for gratification of lust, or in gambling, or a fine or what remains unpaid of a toll : Nor (shall he make good) the idle gifts.”. Same are the views expressed by other authorities on Hindu law like Manu and Yagnavalkya.
In essence a son is liable for the debts of his father which are incurred by the father as a decent and respectable man and not responsible for father’s illegitimate acts.
What is a Charge
Coming back to the facts of the case, X discharged these debts and in the terms of the agreement between X&Y asked Y to pay him that money which he gave to discharge the debt. but Y declined to do so due to which X was constrained to file a case to get his money back from his brother.
The contention of X was that in this situation of Y failing to pay the debt of the father a charge will be created on his property. (Charges are defined under Section 100 of Transfer of Property Act, 1882. When a person takes a loan or money from someone he charges his prpperties to secure the loan amount. This creation of charge or security (which is the immovable property like house, land etc.) means that in case the Borrower doesn’t pay the money back to the Lender, the Lender can go to the court and request it to sell the property. From the sale money the loan amount together with the interest is given to the Lender and if some money is left after this then it is returned to Borrower).
But Y stated that no properties were named in Clause 5 and hence no Charge can be considered to be created. This contention is based on the law that a Charge, as in the case of a Mortgage, must be on a specific property or properties and in case the properties are not defined then Charge is void. So one have to specifically name the property on which Charge is created. For example if A lends Rs. 100/- to B and B says that I secure this debt by my house in Delhi and if B has 3 houses in Delhi then no Charge can be considered to be created because it is not defined as to which property is security for the lender.
But in this case the said problem was not there and Y’s contention is wrong as when Clause 5 stated “from their properties” it certainly meant the property which was given to Y after the partition of Hindu Joint Family property. It is common sense because it was the duty of Y to pay the debt and having failed to do so his property is only liable to be Charged and as these properties were contained in Schedule A, the charge was on specific properites named in Schedule A.
The upside of all this is that now X could get the money which he paid on is Father’s debt by forcing Y to sell his property (of course Y can avoid this even now if he gives the money directly to X).
Conclusion
All brothers and sisters in a Hindu Joint Family are equal in every way. Hence each one should get equal share in Partition too. If a sibling promises to pay some money to other siblings in order to balance the partition but in future denies to do so, the other siblings might feel cheated which will create furhter ill will between already estranged siblings. So in order to avoid any future disputes it is better to have a registered Partition Deed or Family Settlement whereby a Charge or Mortgage is created on the property of the sibling who have been more fortunate on Partition. Its better to prevent the future disputes about the partitioned property rather than trying to find solutions later on, as it’s rightly said that ” One stich in time, saves Nine.”
Parveen Semwal
Advocate, Delhi High Court and Supreme Court of India