Gujarat HC Rejects Son's Plea Claiming No Liability To Pay Deceased Father's Bank Loan As 'Debt Is Not Heritable Under Muslim Law'

The Gujarat High Court recently rejected a man's plea against dismissal of his application for rejection of suit filed by a bank to recover a loan taken by the man's deceased father, claiming he was not liable to pay his father's bank loan as debt is not heritable property under Muslim Law. 

The court however said that the contentions made by the son would require a "detailed inquiry during the course of trial" of the recovery suit. 

The son had challenged a November 27, 2024 order passed by 4th additional senior civil judge Surat dismissing his application under Order 7 Rule 11 CPC seeking rejection of a suit for recovery of debt against the borrower. The Petitioner was impleaded as defendant no. 2 in the said suit, in the capacity of legal heir of the borrower being his son. He was also joined in the capacity of proprietor of M/s SK Textiles.

After hearing the contentions a division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi in its order said, "However, the fact remains that the petitioner has been impleaded as defendant no.2, both in the capacity of the legal heir of the borrower and being the proprietor of M/s. S.K. Textiles, the findings returned by the trial court that the original borrower had obtained hypothecation in the capacity of M/s. S.K. Textiles is required to be examined. Both the questions pertaining to the contention made by the learned counsel for the petitioner/defendant no.2 would require a detailed inquiry during the course of trial and this aspect of the matter is also taken care of by the trial court while observing that the defendant no.2, viz. the petitioner herein has liberty to take all defence available to him during trial". 

"In any case, the suit cannot be dismissed by invoking the provisions of Order VII Rule 11 CPC as none of the grounds of Rule 11 are attracted in the facts and circumstances of the case. The issues raised by the petitioner seeking for rejection of the plaint, in our considered opinion, require framing of issues and adjudication by leading evidence," the court added. Finding no infirmity with the trial court order, the bench dismissed the plea.

The trial court had noted that in the application filed under Order 7 Rule 11 CPC, the petitioner has "not stated that he has nothing to do with the proprietorship firm". 

The trial court had further recorded that all documents filed with the plaint apparently prove that the original borrower had obtained hypothecation in the capacity of proprietor of M/s SK Textile.

Meanwhile the petitioner's counsel contended that he "cannot be made liable for the debt of his father as per Muslim law and that he was living separately and independently from his father since long".

"It is sought to be argued by the learned counsel for the petitioner that as per Chapter XIV Synopsis 19 of the Muslim law, any debt left by a Muslim is not a heritable property. It was further argued that there is no privity of contract between petitioner and the plaintiff bank," the high court order notes.

Case title : IMRAN KUMELAHMED KHAN LEGAL HEIR OF LATE KUMELAHMED ABDULHAMID KHAN V/S STATE BANK OF INDIA & ANR.

R/SCA/2133/2025

Click Here To Read/Download Order 

Citation: 2025 LiveLaw (Guj) 41