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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