1. This second appeal arises out of a suit instituted b the respondent No. 1 for a declaration that the properties described in certain paragraphs of the plaint were not liable to be attached and sold in execution of the decree in Civil Suit No. 7-B of 1937 passed on 23-3-1939 by the Additional District Judge, Buldana, on the ground that those properties were allotted to his share at a family partition.
2. It is common ground that Nyahalchand, father of the respondent No. 1, was indebted to the defendant No. 1, Amrit, now deceased and represented here by his legal representatives, to the extent of Rs. 39,000 or so upon a pro-note. The defendant No. 1, therefore, instituted a suit against Nyahalchand on the basis of the pro-note and eventually obtained a decree against him. During the pendency of that suit, a partition was effected by Nyahalchand between himself and his son, the respondent No. 1. At that partition, the properties referred to in the suit were allotted to the share of the respondent No. 1.
3. After the defendant No. 1 obtained a decree against Nyahalchand, he attached various properties which formerly belonged to the joint family consisting of Nyahalchand and his son, the respondent No. 1. Thereafter, the respondent No. 1 instituted the suit, out of which this second appeal arises, in the Court of the Additional District Judge, Akola. The Court returned the plaint to the plaintiff for presentation to the proper Court. Thereupon, the respondent No. 1 preferred an appeal before the Nagpur High Court, which was dismissed. Eventually the respondent No. 1 presented his plaint before the proper Court at Khamgaon. That Court, decreed his suit. An appeal taken by the defendant No. 1, therefore, came up in appeal before this Court. He died during the pendency of the appeal and, therefore, his legal representatives have been brought on the record in his place.
4. The only point which was urged by Mr. Kulkarni on behalf of the appellant is that the debt being a pre-partition debt of the father, the properties which were allotted to the share of the respondent No. 1 at the partition can be reached even in execution in realizing that debt. In support of this contention, the learned counsel relied upon the decision of their Lordships of the Supreme Court in Pannalal v. Naraini, : 1SCR544 , and also on the decisions in Ganpatrao v. Bhimrao, : AIR1950Bom278 and Venkatarathna Rao v. Venkata Subbaih, : AIR1950Mad136 . He also relies upon Sidheshwar v. Bhubneshwar, : 1SCR177 . In the first mentioned case it has no doubt been laid down that 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. But this decision also lays down one more thing, and that is, that after the partition takes place, the father can no longer represent the family and a decree obtained against him alone cannot be binding on the separated sons. According to this decision, a separate suit has to be instituted by the creditor against the sons for reaching the property which was allotted to the sons at the partition. This decision has approved of the view taken by the Nagpur High Court in Firm Govindram Swarkadas, Bombay v. Nathulal ILR (1938) Nag 10: AIR 1937 Nag 45. In that case, Niyogi J., who delivered the judgment of the Court has observed:
'Corresponding to the sons' pious obligation the father enjoys the right of alienate his sons share in joint family property along with his own. The power implies that the father has a saleable interest in his sons' share. This power to sell or the saleable interest in the sons' share in the joint property is available to the father so long as he is joint with his sons. Partition severs the sons' interest from that of the father and with it the father's saleable interest in the sons' share also comes to an end. When a creditor of the father obtains a decree against him alone while he is joint with his sons he is entitled to execute that decree against the sons interest as well for the reason that under Section 60 of the Civil Procedure Code all saleable property 'belonging to the judgment-debtor or over which or the profits of which he has a disposing power which he may exercise for his own benefit' is liable to be attached and sold in execution of a decree against him. That section presupposes that the judgment-debtor is capable of exercising his disposing power on the date of the attachment. The creditor's power to bring to sale the property owned by the judgment-debtor or in which he has disposable interest is so-extensive with the power of the judgment-debtor to dispose of his property or property over which he has a disposing power. It must follow that when the property ceases to be the judgment-debtor's or the judgment-debtor loses his disposing power over it the creditor's power also come to an end, and the decree obtained by him becomes incapable of being executed against that property.'
Their Lordships have also quoted with approval the following passage from another decision of the Nagpur High Court, Jainarayan v. Sonaji, ILR (1938) Nag 136 : AIR 1938 Nag 24 :
'To us, however, it appears equally plain that to say a son is under a pious obligation to pay certain 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 disposing power over it. Therefore, such property does not fall within Section 60 ..... It by no means follows that a son cannot be made liable. He could be made liable for his father's debits 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 taken 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 obligation rule precluded him from claiming in execution.'
It seems to me, therefore, that this decision of their Lordships, instead of helping the appellants, concluded them. The Bombay decision upon which reliance is placed is to the effect that the sons' interest in the former joint family property can in similar circumstances be reached in execution if they are made parties thereto. In that case, the partition was effected after the decree was passed. Secondly, it seems to me that the view taken in that case is not consistent with that taken by their Lordships of the Supreme Court. I may mention that one of the decisions which their Lordships approved was that of a single Judge of this Court in Surajmal Deoram v. Motiram Kalu, : AIR1940Bom22 . In that case, the learned Judge held that a decree passed after partition against the father alone for his pre-partition debts (though not immoral or illegal) is not binding on the separated son and that after partition, a decree must be obtained against the son, if his separated share is to be held liable.
5. The Madras decision on which reliance is placed is to the effect that where a decree has been obtained against the father in a representative capacity, then there is nothing further that the creditors need do, and that they can, even if there has been a partition between the father and the sons, reach the property in the hands of the sons. That decision does not held the appellants because it does not appear in this case that the father of the respondent No. 1 was at all sued in a representative capacity.
6. As regards the decision in : 1SCR177 , it is sufficient to say that it has no application whatsoever to the case before me. In that case, the property which was attached and sold in execution was a share in the joint family property, and not the son's separated property.
7. For the reasons I hold that the decree appealed from is correct and dismiss the appeal with costs.
8. Appeal dismissed.