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PETITIONER: PANNALAL AND ANOTHER

       Vs.

RESPONDENT: MST. NARAINI AND OTHERS.

DATE OF JUDGMENT: 07/03/1952

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. FAZAL ALI, SAIYID BOSE, VIVIAN

CITATION:  1952 AIR  170            1952 SCR  544  CITATOR INFO :  RF         1953 SC 487  (8)  F          1959 SC 282  (12,13,16)  R          1964 SC1425  (12,19,20,21)  R          1978 SC1791  (12,17,20)

ACT: Hindu   law--Debts--Pre-partition  debts  of   father--Sons’ liability  --Pious liability of son--Nature and extent,  and mode  of  enforcement--Decree against estate  of  father  in sons’  hands  as legal  representatives--Whether  executable against property allotted to sons on partition--Civil Proce- dure Code (Act V of 1908), ss. 47, 52, 53.

HEADNOTE:   B,  acting as manager of a joint Hindu family,  consisting of  himself and his sons executed a mortgage deed in  favour of the plaintiff, hypothecating certain movables to secure a loan.  Subsequently  the sons obtained  a  partition  decree against  their father and the joint family  properties  were divided  by  metes and bounds and  separate  possession  was taken  by the father and the sons.  Later on, the  plaintiff filed  a  suit against ’B praying for a decree  against  the mortgaged property as well as against the joint family.  The sons applied for being impleaded as defend ants stating that the mortgaged properties were allotted to them by the parti- tion  decree  and  B was not the manager of  a  joint  Hindu family.  In  reply  the plaintiff gave up the  claim  for  a mortgage decree stating that she would be statisfied with  a money decree against B and the plaint was amended according- ly  B  died and his sons were brought on the record  as  his legal  representatives.  The sons pleaded, inter alia,  that the  debt was illegal and immoral as it related to  specula- tive  transactions by the father. The parties arrived  at  a compromise  and on the basis thereof a simple  money  decree was passed in favour of the plaintiff against the estate  of B  in the hands of his legal representatives. The  judgment- debtors  (sons) disputed their liability on  three  grounds, viz., (i) that under the terms of the compromise decree, the decree-holder could proceed only against the properties of B in  the hands of his legal representatives and  no  property belonging  to  the  sons  could  be  made  liable  for   the

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decree;(ii) that, as the decree was obtained after partition of  the joint family properties between the father  and  his sons, the properties of the sons obtained in partition  were not liable under Hindu law for the debt of the father, (iii) that  in any event if there was any pious obligation on  the part  of the sons to pay the father’s debt  incurred  before partition such obligation could be enforced against the sons only in a properly constituted suit and not by way of execu- tion  of  a  decree obtained in a  suit  which  was  brought against  the father alone during his lifetime and  to  which the  sons were made parties as legal  representatives  after the father’s death: 545     Held,  (repelling  the  contentions), (1)  that  as  the decree fulfilled the conditions of sec. 52 (1) of the  Civil Procedure  Code it attracted all the incidents which  attach by  law  to a decree of that character  ’and  therefore  the decree-holder was entitled to call in aid the provisions  of sec. 53 of the Code and if any property in the hands of  the sons  was  liable under the Hindu law to  pay  the  father’s debt,  such  property would be liable in  execution  of  the decree  by virtue of the provision of sec. 53 of  the  Civil Procedure  Code; (2) that a son is liable even after  parti- tion  for the pre-partition debts of his father,  which  are not  immoral  or  illegal and for the payment  of  which  no arrangement was made at the time of the partition; (3)  that a  decree passed against the separated sons as legal  repre- sentatives  of  the  deceased father in respect  of  a  debt incurred before partition can be executed against the shares obtained by such sons at the partition and this can be  done in execution proceedings and it is not necessary to bring  a separate suit for the purpose.     [Case  was remanded to the execution court to  determine the  question  whether the debt was immoral or  illegal  and whether  any arrangement was made at the time  of  partition for the payment of the debt.]     Bankey  Lal  v. Durga Prosad (I.L.R. 53 All.  868  F.B.) approved.  The view of the majority in AtuI Krishna v.  Lala Nandanji  (I.L.R. 14 Pat. 732) disapproved. (Case  law  dis- cussed).

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:  Civil  Appeal No. 57  of 1951.   Appeal from a judgment dated 18th May, 1948, of  the High  Court of East Punjab at Simla (Khosla and  Teja  Singh JJ.) in Letters Patent Appeal No. 189 of 1946 arising out of the  judgment  dated  11 th February, 1946,  of  the  Senior Subordinate  Judge,  Ambala.  The facts are set out  in  the judgment.     Gopinath  Kunzru (B.C. Misra, with him) for  the  appel- lants.     Rang  Behari Lal (N.C. Sen, with him) for  the  respond- ents.     1952. March 7.   The judgment of the Court was delivered by     MUKHERJEA J.--This appeal is on behalf of the  judgment- debtor  in a proceeding for execution of a money decree  and it  is  directed against the judgment of  a  Letters  Patent Bench  of the Punjab High Court dated 18th of May, 1949.  by which the learned Judges 546 affirmed,  in appeal, a decision of a single Judge  of  that court dated 29th October, 1946.  The original order  against

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which the appeal was taken to the High Court was made by the Senior  Subordinate Judge, Ambala, in Execution Case No.  18 of  1945 dismissing the objections preferred by  the  appel- lants under section 47 of the Civil Procedure Code.     To  appreciate the contentions that have been raised  in this appeal, it would be necessary to give a short narrative of  the  material events in their chronological  order.   On September  30,  1925, Baldev Das, the father of  the  appel- lants,  who was, at that time the manager of a  joint  Hindu family,  consisting  of  himself and his  sons,  executed  a mortgage  bond in favour of Mst. Naraini,  the  original-re- spondent  No.  1, and another person named Talok  Chand,  by which  certain  movable properties belonging  to  the  joint family  were hypothecated to secure a loan of Rs 16,000.  On April 16, 1928, the appellants along with a minor brother of theirs named Sumer Chand filed a suit:--being Suit No. 23 of 1928  in the Court of the Subordinate Judge of  Shahjahanpur against  their father Baldev Das for partition of the  joint family  properties.  The suit culminated in a  final  decree for  partition  on  20th July, 1928, and  the  joint  family properties  were  divided by metes and bounds  and  separate possession  was taken by the father and the sons.   On  29th September,  1934, Mst. Naraini filed a suit in the Court  of the Senior Subordinate Judge, Ambala, against Baldev Das for recovery  of  a sum of Rs. 12;500 only on the basis  of  the mortgage bond referred to above. It was stated in the plaint that the money was borrowed by the defendant as manager of a joint  Hindu  family and the plaintiff prayed for  a  decree against the mortgaged property as well as against the  joint family.  On  18th  December, 1934, the  appellants  made  an application before the Subordinate Judge under Order I, Rule 10,  and Order XXXIV, Rule 1, Civil Procedure Code,  praying that  they might be added as parties defendants to the  suit and the points in issue arising therein might be decided  in their presence.  It was asserted in the 547 petition  that  Baldev Das was not the manager  of  a  joint family  and that the family properties had been  partitioned by  a decree of the court, as a result of which the  proper- ties  alleged to be the subject-matter of the mortgage  were allotted  to the share of the petitioners. In reply to  this petition,  the  plaintiff’s counsel stated in court  on  7th February, 1935, that his client would give up the claim  for a  mortgage decree against the properties in suit and  would be  satisfied  only with a money decree against  Baldev  Das personally. The plaint was amended accordingly, deleting all reference  to  the  joint family and  abandoning  the  claim against  the mortgaged property.  Upon this  the  appellants withdrew  their  application for being made parties  to  the suit and reserved their right to take proper legal action if and  when necessary. On April 17, 1935, Baldev Das died  and on  2nd September following the appellants as well as  their mother, who figures as respondent No. 5 in this appeal, were brought  on  the record as legal representatives  of  Baldev Das.  On  October 9, 1935, the appellants  filed  a  written statement in which a number of pleas were taken in answer to the plaintiff’s claim and it was asserted in paragraph 10 of the written  statement that Baldev Das dealt Badri or specu- lative transactions, and if any money was due to the  plain- tiff at  all  in connection with  such transactions the debt was  illegal  and  immoral and not  binding  on  the  family property.   On the same day  the court recorded an order  to the effect that as the plaintiff had given up her claim  for a mortgage decree, the legal representatives of the deceased could not be allowed to raise pleas relating to the validity

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or  otherwise of the mortgage.  On 20th November, 1935,  the parties  arrived  at a compromise and on the  basis  of  the same,  a  simple money decree was passed in  favour  of  the plaintiff  for the full amount claimed in the suit  together with  half costs amounting to Rs. 425 annas odd against  the estates of Baldev Das in the hands of his legal  representa- tives.   After certain attempts at execution of this  decree which did not prove successful, 548 the  present  application  for execution was  flied  by  the decree holder on March 13, 1945, in the court of the  Senior Subordinate Judge, Ambala, and in accordance with the prayer contained  therein,  the court directed  the  attachment  of certain immovable properties consisting of a number of shops in  possession  of the appellants and situated  at  a  place called  Abdullaput. On April 23, 1945, the appellants  filed objections under section 47, Civil Procedure Code, -and they opposed  the attachment of the properties  substantially  on the  ground that those properties did not belong  to  Baldev Das  but were the separate and exclusive properties  of  the objectors which they obtained on partition with their father long  before  the decree was passed.  It was  asserted  that these properties could not be made liable for the  satisfac- tion of the decretal dues which had to be realised under the terms  of the decree itself from the estate left  by  Baldev Das.     After  hearing the parties and the evidence  adduced  by them the Subordinate Judge came to the conclusion that there was  in fact a partition between Baldev Das and his sons  in the  year 1928 and as a result of the same, the  properties, which  were attached at the instance of the  decree  holder, were  allotted to the share of the sons.  The decree  sought to be executed was obtained after the partition, but it  was in  respect  of a debt which was contracted  by  the  father prior  to  it. It was held in these circumstances  that  the separate share of the sons which they obtained on  partition was liable under the Hindu law for the pre-partition debt of their  father if it was not immoral and under section 53  of the  Civil Procedure Code the decreeholder was  entitled  to execute the decree against such properties.  As no point was raised by the objectors in their petition alleging that  the debt covered by the decree was tainted with immorality,  the objections  under  section 47, Civil  Procedure  Code,  were dismissed.  The  objectors thereupon took an appeal  to  the High  Court  of  East Punjab which was heard  by  Rahman  J. sitting singly.  The learned  judge dismissed the appeal and affirmed the decision of the Subordinate 549 Judge.  A further appeal taken to a Division Bench under the Letters Patent was also dismissed and it is the propriety of the  judgment  of  the Letters Patent Bench  that  has  been challenged before us in this appeal.     Mr.  Kunzru appearing for the appellants put  forward  a three-fold contention in support of the appeal. He contended in  the first place that under the terms of  the  compromise decree  the  decreeholder  could proceed  only  against  the properties of Baldev Das in the hands of his legal represen- tatives and no property belonging to the appellants could be made liable for the satisfaction of the decree.  The  second contention put forward is that as the decree in the  present case  was  obtained  after partition  of  the  joint  family property  between  the  father and his  sons,  the  separate property  of the sons obtained on partition was  not  liable under Hindu law for the debt of the father. It is urged last of  all that in any event if there was any pious  obligation

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on  the part of the sons to pay the father’s  debt  incurred before partition, such obligation could be enforced  against the sons, only in a properly constituted suit and not by way of  execution  of  a decree obtained in  a  suit  which  was brought against the father alone during his lifetime and  to which  the sons were made parties only as legal  representa- tives after the father’s death.     As  regards  the first point, the determination  of  the question raised by Mr. Kunzru depends upon the  construction to  be  put  upon the terms of the  compromise  decree.  The operative  portion  of the decree as drawn up by  the  court stands as follows:     "It  is ordered that the parties having  compromised,  a decree in accordance with the terms of the compromise be and the same is hereby passed in favour of the plaintiff against the estate of Baldev Das deceased in possession of his legal representatives.  It is also ordered that the defendants  do also pay Rs. 425-7-0, half costs of the suit." 71 550     There was no petition of compromise filed by the parties and made part of the decree, but there are on the record two statements,  one made by Pannalal, the appellant No.  1,  on behalf  of  himself and his mother, and the  other  by  Lala Haraprasad, the special agent of the plaintiff, setting  out terms  of the compromise. The terms are worded much  in  the same  manner as in the decree itself and are to  the  effect that  a  decree for the amount in suit  together  with  half costs  would be awarded against the property of  Baldev  Das deceased.  It  is argued by Mr. Kunzru that  the  expression "estate of Baldev Das deceased" occurring in the decree must mean  and refer to the property belonging to Baldev  Das  at the  date  of his death and could not include  any  property which  the  sons  obtained on partition  with  their  father during  the  father’s lifetime and in respect of  which  the latter  possessed  no  interest at the time  of  his  death. Stress is laid by the learned counsel in this connection  on the fact that when the appellants were brought on the record as  legal  representatives of their deceased father  in  the mortgage  suit, they specifically asserted in their  written statement that there was a partition between them and  their father  long before the date of the suit as a  result     of which  the  hypothecated properties were allotted  to  them. Upon that the plaintiff definitely abandoned her claim to  a mortgage  decree or to any relief against the  joint  family and agreed finally to have a money decree executable against the personal assets of Baldev Das in the hands of his heirs. In  these  circumstances,  it is urged that if  it  was  the intention  of  the parties that the  decreeholder  would  be entitled  to  proceed against the separate property  of  the sons nothing could have been easier than to insert a  provi- sion  to  that  effect in the compromise  decree.  There  is undoubtedly  apparent force in this contention but there  is another aspect of the question which requires consideration. The terms of the decree that was passed in this suit, though based on the consent of the parties, are precisely the  same as are contemplated by section 52 (1) of the Civil procedure Code.  It was a decree for money 551 passed  against  the  legal representatives  of  a  deceased debtor  and it provided expressly that the  decretal  amount was to be realised out of the estate of the deceased in  the hands of the legal representatives.  It is argued on  behalf of the respondent, and we think rightly, that as the  decree fulfils the conditions of section 52 (1) of the Civil Proce-

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dure  Code, it would attract all the incidents which  attach by  law  to  a decree of that  character.  Consequently  the decreeholder would be entitled to call in aid the  provision of section 53 of the Code; and if any property in the  hands of  the sons, other than what they received  by  inheritance from their father, is liable under the Hindu law to pay  the father’s  debts, such property could be reached by  the  de- creeholder  in  execution  of the decree by  virtue  of  the provision of section 53 of the Civil Procedure Code.  Wheth- er the property which the sons obtained on partition  during the lifetime of the father is liable for a debt covered by a decree passed after partition and whether section 53 has  at all  any application to a case of this character  are  ques- tions  which  we have to determine in  connection  with  the second  and the third points raised by appellants.   Section 53, Civil Procedure Code, it is admitted, being only a  rule of  procedure,  cannot create or take away  any  substantive right. It is only when the liability of the sons to pay  the debts of their father in certain circumstances exists  under the Hindu law, is the operation of the section attracted and not  otherwise.  The only other question that  can  possibly arise by reason of the decree being a compromise decree  is, whether the parties themselves have, by agreement,  excluded the  operation  of section 53, Civil Procedure Code.  It  is certainly possible for the parties to agree among themselves that the decree should be executed only against a particular property  and  no  other, but when any  statutory  right  is sought  to be contracted out, it is necessary  that  express words  of exclusion must be usedl.  Exclusion cannot be  in- ferred  merely  from the fact that the  compromise  made  no reference to such right.  As nothing was said in the compro- mise decree in the present case about the 552 right  of the decreeholder to avail herself of other  provi- sions of the Code which might be available to her in law, we cannot  say  that the plaintiff has by  agreement  expressly given up those rights. The first point, therefore, by itself is of no assistance to the appellants.   We now come to the other two points raised by Mr. Kunzru and  as  they are inter-connected they can  conveniently  be taken up together. These points involve consideration of the somewhat  vexed question relating to the liability of a  son under the Hindu law other than that of the Daybhag school to pay  the debts of his father, provided they are not  tainted with immorality. In the opinion of the Hindu Smriti writers, debt  is not merely a legal obligation, but  non-payment  of debt  is a sin, the consequences of which follow the  debtor even  after  his death. A text (1), which is  attributed  to Brihaspathi, lays down:     "He who having received a sum lent or the like does  not repay it to the owner, will be born hereafter in the  credi- tor’s house a slave, a servant, a woman or a quadruped."     There  are  other texts which say that a person  m  debt goes  to  hell. Hindu law-givers therefore imposed  a  pious duty on the descendants of a man including his son, grandson and  great grandson to pay off the debts of  their  ancestor and  relieve him of the after death torments  consequent  on non-payment.   In the original texts a difference  has  been made  in regard to the obligation resting upon sons,  grand- sons and great grandsons in this respect.  The son is  bound to  discharge the ancestral debt as if it was his  own,  to- gether with interest and irrespective of any assets that  he might  have received. The liability of the grandson is  much the same except that he has not to pay any interest; but  in regard to the great grandson the liability arises only if he

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received  assets  from his ancestor. It is  now  settled  by judicial  decisions that there is no difference  as  between son, grandson and great grandson so far as the obligation to pay the debts of the ancestor is concerned; but none of them has any personal (1) Vide Colebrooke’s Digest I, 228, 553 liability in the matter irrespective of receiving any assets (1). The position, therefore, is that the son is not person- ally liable for the debt of his father even if the debt  was not  incurred for an immoral purpose and the  obligation  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.  The  duty being religious or moral, it ceases to exist if the debt  is tainted  with  immorality  or vice. According  to  the  text writers, this obligation arises normally on the death of the father;  but  even during the father’s lifetime the  son  is obliged  to  pay his father’s debts in  certain  exceptional circumstances,  e.g.,  when  the father  is  afflicted  with disease  or  has become insane or too old or has  been  away from his country for a long time or has suffered civil death by  becoming  an anchorite (2).  It can now be taken  to  be fairly  well settled that the pious liability of the son  to pay  the  debts of his father exists whether the  father  1s alive or dead (3).  Thus it is open to the father during his lifetime, to effect a transfer of any joint family  property including the interests of his sons m the same to pay off an antecedent  debt not incurred for family necessity or  bene- fit,  provided  it  is not tainted with  immorality.  It  is equally open to the creditor 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  suit and obtain an adjudication from the court that the debt  was a proper debt 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. These propositions can be said to be  well recognised    and   reasonably   beyond   the   region    of controversy(4). All of them, however,  (1) Vide Masitullah v. Damodar Prasad, 53 I.A. 204. (2) Vide Mayne’s Hindu Law, 11th edition, p. 408. (3) Vide Brij Narain v. Mangla Prasad, 51 I.A. 129. (4)  Vide Girdharee Lall v. Kantoo Lall, 1 I.A. 321;  Maddan Thakoor  v.  Kantoo Lall, 1 I.A, 333;  Suraj Bunsi  v.  Sheo Prasad, 6 I.A.88; Brij Narain v. Mangla Prosad, 51 I.A. 129. 554 have  reference to the period when the estate remains  joint and there is existence of coparcenership between the  father and  the  son.   There is no question that so  long  as  the family remains undivided the father is entitled to alienate, for   satisfying  his own personal debts  not  tainted  with immorality,  the whole of the ancestral estate.  A  creditor is  also entitled to proceed against the entire  estate  for recovery  of  a debt taken by the father.  The  position  is somewhat  altered  when there is a disruption of  the  joint family  by a partition between the father and the sons.  The question then arises, whether the sons remain liable for the debt of the father even after the family is divided; and can the creditor proceed against the shares that the sons obtain on partition for realization of his dues either by way of  a suit or in execution of a decree obtained against the father alone  ? It must be admitted that the law on the subject  as developed by judicial decisions has not been always consist-

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ent or uniform and the pronouncements of some of the  Judges betray a lack of agreement in their approach to the  various questions involved in working out the law.    As  regards debts contracted by the father  after  parti- tion,  there is no dispute that the sons are not liable  for such debts. The share which the father receives on partition and which after his death comes to his sons, may  certainly, at the hands of the latter, be available to the creditors of the father, but the shares allotted on partition to the sons can never be made liable for the post-partition debts of the father  (1). The question that is material for  our  present purpose  is,  whether  the sons can be made  liable  for  an unsecured  debt of the father incurred before partition,  in respect  to which the creditor filed his suit  and  obtained decree after the partition took place.  On this point admit- tedly  there is divergence of judicial opinion,  though  the majority of decided cases are in favour of the view that the separated share of a son remains liable even after partition for the pre-partition debts of the father which (1)  Vide Mayne’s Hindu Law, 11th Edition, 430. 555 are not illegal or immoral (1). The reasons given in support of this view by different Judges are not the same and on the other  side  there  are pronouncements  of  certain  learned Judges, though few in number, expressing the view that  once a  partition  takes  place, the obligation of  the  sons  to discharge the debts of their father comes to an end(2).       The  minority view proceeds upon the footing that  the pious obligation of the son is only to his father and corre- sponding  to  this obligation of the son the  father  has  a right  to alienate the entire joint property  including  the son’s  interest  therein for satisfaction of  an  antecedent debt not contracted for immoral purposes.  What the creditor can  do is to avail himself of this right of the father  and work  it  out either by suit or  execution  proceedings;  in other words, the remedy of a father’s simple contract credi- tor during the father’s lifetime rests entirely on the right of the father himself to alienate the entire family property for  satisfaction  of his personal debts. The  father  loses this right as soon as partition takes place and after  that, the  creditor cannot occupy a better position or be  allowed to assert rights which the father himself could not possess.     The  reasoning  in support of the other view  which  has been  accepted in the majority of the decided cases is  thus expressed  by Waller J. in his judgment in the  Madras  Full Bench case(3):     "On  principle,  I  can see no reason  why  a  partition should exempt a son’s share from liability for a  pre-parti- tion  debt  for which it was liable  before  partition.  The creditor  advances money to the father on the credit of  the joint family property.  Why should he be deprived of all but a fraction of his security by a transaction to which he  was not a party and of which he (1) Vide Subramanya v. Sabapathi, 51 Mad. 361 (F.B.);  Anna- bat v. Shivappa, 52 Bom. 376; Jawahar Singh v. parduman,  14 Lab. 399; Atul Krishna v. Lala Nandanji. 14 Pat. 732 (F.B.); Bankey Lal v. Durga All 868 (F.B.); Raghunandan v.  Matiram, 6 Luck. 497 (F.B.).   (2)  Vide  Krishnaswami, v. Ramaswami, 22 Mad.  519;  V.P. Venkanna  v.V.S.  Deekshatulu, 41 Mad. 136;  Vide  also  the dissentient judgment of Ayyangar J. in Subramanya v. Sabapa- thi, 51 Mad. 361 (F.B.).   (3)Vide  Subramanya  v.  Sabapathi, 51  Mad.  361  at  369 (F.B.). 556

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was not aware ? and what becomes of the son’s pious  obliga- tion ? It was binding as regards the particular debt  before partition;  does it cease to apply to that debt  simply  be- cause there has been a partition ?"       The first part of the observation of the learned Judge does  not impress us very much. An unsecured  creditor,  who has  lent money to the father, does not acquire any lien  or charge  over  the family property, and no  question  of  his security  being diminished, at all arises. In spite  of  his having borrowed money the father remains entitled to  alien- ate  the  property and a mere expectation  of  the  creditor however reasonable it may be, cannot be guaranteed by law so long as he does not take steps necessary in law to give  him adequate  protection.  The extent of  the  pious  obligation referred  to  in the latter part of the observation  of  the learned  Judge certainly requires careful consideration.  We do not think that it is quite correct to say that the credi- tor’s  claim  is based entirely upon the father’s  power  of dealing  with  the son’s interest in the joint  estate.  The father’s right of alienating the family property for payment of  his  just debts may be one of the  consequences  of  the pious  obligation which the Hindu law imposes upon the  sons or one of the means of enforcing it, but it is certainly not the  measure  of  the entire obligation.  As  we  have  said already,  according to the strict Hindu theory, the  obliga- tion  of the sons to pay the father’s debts normally  arises when  the father is dead, disabled or unheard of for a  long time.  No question of alienation of the family  property  by the father arises in these events, although it is  precisely under  these circumstances that the son is obliged  to  dis- charge  the  debts of his father.  As was said  by  Sulaiman A.C.J. in the case of Bankey Lal v. Durga Prasad(1):     "The  Hindu law texts based the liability on  the  pious obligation itself and not on the father’s power to sell  the son’s share."     It  is thus necessary to see what exactly is the  extent of the obligation which is recognised by the Hindu  (1)  (9931) 53 All. 868 at 876 (F.B.). 557 texts  writers  in regard to the payment by the  son  c  the pre-partition debts of his father.  Almost all the  relevant texts  on this point are to be found collected in the  judg- ments  of  Sulaiman A.C.J. and Mukherji J in  the  Allahabad Full  Bench  case  referred  to  above  A  text  of   Narada recites(1):      "What is left after the discharge of the father obliga- tion  and after the payment of the father’s debts  shall  be divided by the brothers so that the father, may not remain a debtor." Katyan also says(2):     "The  sons shall pay off the debts and the gift,,  prom- ised  by  the father and divide the  remaining  among  them- selves."  There is a further passage in Manu(3):     "After  due division of the paternal estate if any  debt or estate of the father be found out let the brother equally divide   the   same   among   themselves."       According to Yagnavalka(4):     "The sons should divide the wealth and the debts  equal- lyl."     It  is  true that the partition  contemplated  in  these passages is one after the death of the father. but when ever the  partition might take place, the view of the  Hindu  law givers  undoubtedly is that the binding debts on the  family property  would have to be satisfied or provided for  before

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the  coparceners can divide the property. In Sat  Narain  v. Das  (5), the Judicial Committee pointed out that  when  the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is  liable.   It was argued in that case on  behalf  of  the appellants  that  the pious obligation of the  sons  was  an obligation  not  to object to the alienation  of  the  joint estate by the (1) Narada., 13, 32. (2)Hindu Law in its Sources by Dr. Ganga Nath Jha, Vol. I. p quotation No. 211. (3)Chap. 9. v. 218. (4)  J.C.Ghosh’s Hindu Law, Vol. H, page 342. (5) (1936) 63 I.A. 384 72 558 father for his antecedent debt unless  they  were immoral or illegal,  but these debts were not a liability on the  joint estate  for which provision was required to be  made  before partition.   This  contention did not find favour  with  the Judicial  Committee and in their opinion, as they  expressed in the judgment, the right thing to do was to make provision for discharge of such liability when there was partition  of the joint estate. If there is no such provision, "the  debts are to be paid severally by all the sons according to  their shares  of  inheritance," as enjoined by Vishnu(1).  In  our opinion,  this  is  the proper view to  take  regarding  the liability of the sons under Hindu law for the  pre-partition debts of the father.  The sons are liable to pay these debts even  after  partition unless there was an  arrangement  for payment  of these debts at the time when the partition  took place. This is substantially the view taken by the Allahabad High Court     in the Full Bench case referred to above  and it  seems  to us to be perfectly in accord with the  princi- ples    of equity and justice.     The  question  now comes as to what is meant by  an  ar- rangement for payment of debts.  The expressions "bona fide" and "mala fide" partition seem to have been frequently  used in this connection in various decided cases. The use of such expressions  far from being useful does not unoften lead  to error  and confusion. If by mala fide partition is  meant  a partition  the  object of which is to delay and  defeat  the creditors  who have claims upon the joint family   property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it  by appropriate means.  So also a mere colourable partition  not meant to operate between the parties can be ignored and  the creditor  can enforce his remedies as if the  parties  still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parties  was to  defeat the claims of the creditors; if it makes  no  ar- rangement  or  provision for the payment of the  just  debts payable (1) Vishnu, Chap. 6, verse 36. 559 out of the joint family property, the liability of the  sons for  payment of the pre-partition debts of the  father  will still remain.  We desire only to point out that an  arrange- ment for payment of debts does not necessarily imply that  a separate fund should be set apart for payment of these debts before  the net assets are divided, or that some  additional property  must  be given to the father over  and  above  his legitimate  share  sufficient  to meet the  demands  of  his creditors. Whether there is a proper arrangement for payment of  the debts or not, would have to be decided on the  facts

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and  circumstances of each individual case. We can  conceive of  cases where the property allotted to the father  in  his own legitimate share was considered more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in  respect thereof.  That  may also be considered to be a  proper-  ar- rangement  for payment of the creditor in the  circumstances of a particular case. After all the primary liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose.  If the arrangement made at the time of partition is reasonable and proper, an  unse- cured creditor cannot have any reason to complain. The  fact that he is no party to such arrangement is, in our  opinion, immaterial.  Of course, if the transaction is fraudulent  or is  not  meant to be operative, it could be ignored  or  set aside; but otherwise it is the duty of unsecured creditor to be  on his guard lest any family property over which he  has no charge or lien is diminished for purposes of  realization of his dues.       Thus,  in  our opinion, a son is  liable,  even  after partition  for the pre-partition debts of his  father  which are  not immoral or illegal and for the payment of which  no arrangement  was  made  at the date of  the  partition.  The question now is, how is this liability to be enforced by the creditor, either during the lifetime of the lather or  after his death ? It has been held 560 in  a large number of cases(1)--all of which  recognise  the liability  of the son to pay the pre-partition debts of  the father-that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition.  They concur in holding that a separate and independent suit  must be  instituted against the sons before their shares  can  be reached. The principles underlying these decisions seems  to us  to  be quite sound. After a partition takes  place,  the father  can  no  longer represent the family  and  a  decree obtained  against him alone, cannot be binding on the  sepa- rated  sons.  In the second place, the power exercisable  by the  father of selling the interests of the sons for  satis- faction  of his personal debts comes to an end  with  parti- tion.  As the separated share of the sons cannot be said  to belong to the father nor has he any disposing power over  it or  its profits which he can exercise for his  benefit,  the provision  of section 60 of the Civil Procedure  Code  would operate  as  a bar to the attachment and sale  of  any  such property  in execution of a decree against the father.   The position  has  been  correctly stated  by  the  Nagpur  High Court(2) in the following passages:      "To  say a son is under a pious obligation to pay  cer- tain debts is one thing; to say his property can be taken in execution  is  another. In our view, property  can  only  be attached  and sold in execution if it falls within the  kind of property that can be attached and sold. What that is,  is found by looking at section 60. When one looks at section 60 one finds that the property in question should either belong to  the judgment-debtor or he should have a disposing  power over  it.  After partition, the share that goes to  the  son does not belong to the father and the father has no  dispos- ing  power  over it. Therefore such property does  not  fall within section...............  It by no means follows that a son cannot  (1)   Vide  Kameswaramma v. Venkatasubba, 38  Mad.  1   20; Subramanya  v.  Sabapathi, 51 Mad. 361; Thirumala  Muthu  v.

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Subramania,  A.I.R. 1937 Mad. 458; Surajmal v. Motiram  1939 Bom. 658; Atul Krishna v. Lala Nandanji, 14 Pat. 732; Govin- dram v. Nathulal, I.L.R,. 1938 Nag. 10.  (2) Jainarayan v, Sonaji, A.I.R. 1938 Nag. 24 at 29 561 be  made  liable. He could be made liable for  his  father’s debts if he had become a surety; he can be made liable under the  pious  obligation rule.  In neither of the  cases  put, could  his liability take the form of  having  his  property seized  in execution and sold without any prior  proceedings brought  against  him,  leaving him to  raise  the  question whether  his liability as surety or under the pious  obliga- tion rule precluded him from claiming in execution."       It is not disputed that the provision of section 53 of the  Civil Procedure Code cannot be extended to a case  when the lather is still alive.     We now come to the last and the most controversial point in  the  case, namely, whether a decree passed  against  the separated sons as legal representatives of a deceased debtor in  respect of a debt incurred before partition can be  exe- cuted against the shares obtained by such sons at the parti- tion ? As has been said already, the shares of the separated sons  in  the family property may be made  liable  for  pre- partition debts, provided they are not tainted with immoral- ity and no arrangement for payment of such debts was made at the time    the partition. The question, however, is whether this can be done in execution proceedings or a separate suit has to be brought for this purpose.  Mr. Kunzru argues  that what could not be done during the lifetime of the lather  in execution  of a decree against him cannot possibly  be  done alter  his death simply because the lather died  during  the pendency of the suit and the sons were made parties  defend- ants not in their own right but as representatives of  their deceased  lather. It is pointed out that the  appellants  in the  present case were not allowed to raise any  plea  which could  not have been raised by their father and  they  never had any opportunity to show that they were under  Hindu  law not liable for these debts.  It is undoubtedly true that  no liability  can be enforced against the sons unless they  are given  an opportunity to show that they are not  liable  for debts under Hindu law; but this opportunity can certainly be given to 562 them  in execution proceedings as well. A decree  against  a father alone during his lifetime cannot possibly be executed against  his sons as his legal representatives. As  we  have said already, the decree against the father after the parti- tion could not be taken to be a decree against the sons  and no  attachment and sale of the sons’ separated shares  would be permissible under section 60, Civil Procedure  Code.  The position, however, would be materially different if the sons are  made  parties to the suit as legal  representatives  of their father and a decree is passed against them limited  to the  assets  of the deceased defendant in  their  hands.   A proceeding for execution of such a decree would attract  the operation  of section 47 of the Civil Procedure  Code  under which  all  questions relating to execution,  discharge  and satisfaction  of the decree between the parties to the  suit in  which  the decree was passed  or  their  representatives would have to be decided in execution proceedings and not by a  separate  suit.  Section 52 (1), Civil  Procedure   Code, provides that when a decree is against the legal representa- tives of a dead person and is one for recovery of money  out of  the  properties of the deceased, it may be  executed  by attachment,  and sale of any such property. Then comes  sec-

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tion 53 which lays down that "for purposes of section 50 and section 52 property in the hands of a son or other  descend- ants which is liable under Hindu law for payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as  his legal  representative."  It is to be noted that  before  the Civil  Procedure Code of 1908 came into force, there  was  a conflict  of opinion as to whether the liability of a  Hindu son to pay his father’s debts could or could not be enforced in  execution proceedings. Under the Hindu law an  undivided son  or other descendant who succeeds to the joint  property on  the  death of his father or other ancestor  does  so  by right  of survivorship and not as heir. In the old Code  the term "legal representative" was not defined and 563 the  question arose as to whether the son could be  regarded as  the  legal  representative of his father  in  regard  to properties  which  he got by survivorship  on  the  father’s death  and  whether  a decree against the  father  could  be enforced  in  execution against the son or a  separate  suit would  have to be instituted for that purpose.  It was  held by the Madras and the Allahabad High Courts that the liabil- ity could not be enforced in execution proceedings,  whereas the  Calcutta  and the Bombay High  Courts  held  otherwise. Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts. One reason for  introducing this section may have been  or  undoubtedly ,was  to  enable the decreeholder to  proceed  in  execution against the property that vested in the son by  survivorship after  the death of the father against whom the  decree  was obtained; but the section has been worded in such a  compre- hensive  manner that it is wide enough to include all  cases where a son is in possession of ancestral property which  is liable  under the Hindu law to pay the debts of his  father; and either the decree has been made against the son as legal representative  of the father or the original  decree  being against the father, it is put into execution against the son as  his legal representative under section 50 of  the  Civil Procedure Code. In both these sets of circumstances the  son is deemed by a fiction of law to be the legal representative of  the deceased debtor in respect of the property which  is in his hands and which is liable under the Hindu law to  pay the  debts  of the father, although as a matter of  fact  he obtained  the property not as a legal representative of  the father at all.       As  we  said  have already, section 53  of  the  Civil Procedure Code being a rule of procedure does not and cannot alter  any  principle  of substantive law and  it  does  not enlarge or curtail in any manner the obligation which exists under  Hindu law regarding the liability of the son  to  pay his  father’s debts.  It however lays down the procedure  to be  followed in cases coming under this SectiOn and  if  the son is bound under Hindu law to 564 pay  the father’s debts from any ancestral property  in  his hands --and the section is not limited to property  obtained by  survivorship  a1one--the  remedy  of  the   decreeholder against such property lies in the execution proceedings  and not by way of a separate suit  the son would certainty be at liberty  to show that the property in his hands is for  cer- tain  reasons not liable to pay the debts of his father  and all these questions would have to be decided by the  execut- ing court under section 47, Civil Procedure Code. This seems to  us to be the true scope and the meaning of  section  53,

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Civil  Procedure  Code. In our opinion the correct  view  on this  point was taken by Wort J. in his dissenting  judgment in the Full Bench case of Atul Krishna v. Lala Nandanji  (1) decided  by the Patna High Court. The majority  decision  in that case upon which stress is laid by Mr. Kunzru  overlooks the point that section 47, Civil Procedure Code, could  have no application when the decree against the father is  sought to  be  executed against the sons during  his  lifetime  and consequently  the  liability of the latter must have  to  be established in an independent proceeding.   In cases  coming under sections 50 and 52 of the Civil Procedure Code on  the other  hand  the decree would be capable of  being  executed against  the sons as legal representatives of  their  father and  it would only be a matter of procedure whether  or  not these  questions should be allowed to be raised by the  sons in  execution proceedings under section 47, Civil  Procedure Code.      It remains only to consider what order should be passed in  this  case having regard to the principles of  law  dis- cussed  above.  The High Court, in our  opinion,  was  quite right  in  holding  that the question of  liability  of  the property obtained by the appellants in their share on parti- tion  with  their  father, for the decretal dues  is  to  be determined  in the execution proceeding itself and not by  a separate  suit.  It is not disputed before us that the  debt which  is  covered by the decree in the present  case  is  a pre-partition debt.  The sons,  (1) (1935) 14 Pat. 732. 565 therefore,  would  be  liable to pay  the  decretal  amount, provided the debt was not immoral or illegal and no arrange- ment was made for payment of this debt at the time when  the partition  took place.  Neither of these questions has  been investigated by the courts below.  As regards the immorality of  the  debts, it is observed by the High  Court  that  the point  was not specifically taken in the objections  of  the appellants  under  section 47, Civil  Procedure  Code.   The validity  of the partition again was challenged in a way  by the  decreeholder  in  his reply to the  objections  of  the appellants, but the courts below did not advert to the  real point that requires consideration in such cases. The  parti- tion  was  not held to be invalid as being a  fraud  on  the debtor  but the question was not adverted to  or  considered whether  it made any proper arrangement for payment  of  the just debts of the father. In our opinion, the case should be reheard  by the trial judge and both the points referred  to above  should be properly investigated. The  appellants  did raise a point regarding their non-liability for the decretal debt,  in  the  suit itself when they were  brought  on  the record  as  legal representatives after the death  of  their father.  The court, however, did not allow them to raise  or substantiate  this plea inasmuch as they were held  incompe- tent  to  put forward any defence which the  father  himself could  not  have taken.  Having regard  to  the  conflicting judicial  decisions  on the subject, the  appellants  cannot properly  be blamed for not raising this point again in  the execution  proceedings.   We think that they should  now  be given  an opportunity to do so.  The result is that  we  set aside the judgments of the courts below and direct that  the case  should be heard de novo by the Subordinate  Judge  and that the appellants should be given an opportunity to put in a fresh petition of objection under section 47 of the  Civil Procedure Code raising such points as they are competent  to raise. The decreeholder would have the right to reply to the same.  The court shall, after hearing such evidence  as  the

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parties might choose to adduce, decide 73 566 first of all whether the property attached is the  ancestral property  of  the appellants and is liable to pay  the  just debts  of their father. It will consider in this  connection whether  the  debts are illegal or immoral and as  such  not payable by the sons.  If this question is answered in favour of  the  appellants, obviously the execution  petition  will have to be dismissed. If on the other hand it is found  that the  sons are liable for this debt, the other  question  for consideration would be whether there was any proper arrange- ment  made at the time of the partition for payment  of  the debts of the father. The court below will decide these ques- tions in the light of the principles which we have indicated above  and will dispose of the case in accordance with  law. In the event of the appellants being held liable for payment of  the  decretal debt, it would be open  to  the  executing court  to make an order that the decreeholder should in  the first instance proceed against the separate property of  the father  which  was allotted to him on  partition  and  which after  his  death devolved upon the sons; and only  if  such property  is not sufficient for satisfaction of the  decree, then  the decree could be executed for the  balance  against the  ancestral  property  in the hands  of  the  appellants. There will be no order for costs up to this stage.   Further costs will follow the result. Agent for the appellants: Tarachand Brijmohan Lal. Agent for  the respondents: Mohan Behari Lal. 567