1. The plaintiffs-respondents brought a suit No. 202 of 1917 against one Pandharinath and his brother Dattatraya and two others for account and for the balance due in respect of a partnership. A final decree was passed on October 19,1921, ordering Pandharinath, who was defendant No. 1 in the suit, to pay to the respondents (the original plaintiffs) the sum of money stated in the decree, Pandharinath, defendant No. 1, died in 1923. His brother Dattatraya, who was defendant No. 2 to the suit, had predeceased him.
2. The decree-holders (the present respondents) then filed a darkhast and attached certain properties belonging to the joint family. This darkhast was filed during the lifetime of Pandharinath, and the attachment was made when he was alive. On his death, the darkhast was withdrawn and a fresh darkhast was filed. It is this darkhast which led to the present second appeal.
3. The appellants who are the sons of Pandharinath filed an application in the darkhast proceeding. It was numbered as Miscellaneous Application No. 17 of 1926. They prayed for the release of the properties from the attachment or in the alternative they contended that it should be declared that only the one-eighth of Pandharinath was liable.
4. The application was filed on June 24,1926. It made no mention of any kind of immorality or illegality in respect of the debt which had led to the passing of the decree, and, on a reference to the proceedings in the darkhast, it appears that the sons really questioned the propriety of the attachment and did not feel themselves advised to raise a question as to illegality or immorality of the debt.
5. The learned Subordinate Judge, who decided the application and the darkhast, came to the conclusion for reasons which will be clear from his order that only the right, title and interest of the deceased Pandharinath in the properties under attachment could be sold, and as a consequence the right, title and interest of the sons and of the deceased Dattatraya were excluded from the operation of the order for attachment. The decree-holders filed an appeal. The present appellants did not object to the appeal on the ground that the order of the Court of first instance was not appealable. The appeal was decided on the merits.
6. At the bar, it seems to have been argued that the debt arose out of a partnership business, and was, therefore, not binding on the appellants, the sons of Pandharinath. The learned District Judge held that the debt was not of such a kind as could be regarded as illegal or immoral. Mr. Chitale for the appellants fairly conceded that he could not contest the legality or propriety of the debt simply because it arose out of the partnership transaction. The point is covered by authorities, and I need only refer to the recent decision in Annabhat v. Shivappa : AIR1928Bom232 , and to an earlier decision in Ramkrishna Trimbah v. Narayan ILR (1915) 40 Bom. 126, 17 Bom. L.R. 955 . It is, therefore, clear that, under Hindu law, it is the pious duty of the son to pay out of ancestral property the debts of the father incurred by him on account of trade-liabilities, even though the trade may have been started by the father.
7. Mr. Chitale's main contention was that the sons could not be said to be the representatives of the father for the purpose of B. 47, Civil Procedure Code, because, so far as their shares in the joint family property went, they claimed them in their own rights and could not be said to be the representatives of the father to the extent of their own interest in the family property. Whatever may have been the law on the point prior to the introduction of Sections 50 to 53 in the Civil Procedure Code, it is now clear that even if a creditor obtains a decree against the father and the father dies before the decree is executed, the decree can be executed under Section 53 of the Code of Civil Procedure by attachment and sale of the entire joint property in the hands of his sons, and the ancestral property in the hands of the sons is to be deemed to be the property of the deceased which had come to the hands of the sons as the legal representatives of the father : see Shivram v. Sakharam ILR (1908) 33 Bom. 39, 10 Bom. L.R. 939 and Hanmant Kashinath v. Ganesh Annaji ILR (1918) 43 Bom. 612, 21 Bom. L.R. 435 . If so, the question that had to be considered in the darkhast was one which fell within Section 47, Civil Procedure Code, and as a consequence the lower appellate Court had jurisdiction to hear the appeal filed by the decree-holders.
8. Mr. Chitale secondly contended that he should be given an opportunity of proving that the debt was immoral or illegal. I cannot see my way to grant the prayer. It is important to note that where the sons claim to exclude a joint family property from the operation of a decree passed against their father, the burden lies upon them to prove that the debt payable under the decree was for an immoral or illegal purpose. In the trial Court, where the darkhast proceedings went on, they had ample opportunity of giving evidence to allege and prove that the debt was for an illegal or immoral purpose. As stated above, they had applied to raise the attachment as far back as June 24, 1926, and the darkhast was disposed of on October 25, 1926. But in their application, it is admitted that they never put forth a contention on the ground of illegality or immorality of the debt and it could not, therefore, be said that they were prevented from giving evidence to prove that the debt could not bind them. I, therefore, fail to see any substance in the point. On this point Mr. Chitale referred to a decision in Namdev v. Vishnu : AIR1924Bom395 and certain remarks at p. 499 to the following effect that ' it is extremely inadvisable that the Court should be asked to decide upon the liability of a person by means of execution proceedings, when he is not a party to the suit, and is not mentioned in the decree which is sought to be executed and where no attempt has been made at the hearing to prove that such a person is liable.' I appreciate the force of these remarks but fail to see how they apply to the present case. As stated above, the appellants were parties to the darkhast and had ample opportunity to state their case and to prove that the debts were for an illegal and immoral purpose. They never cared to make use of the opportunity. They stood to lose their property if they failed to successfully oppose the attachment.
9. They did nothing to help themselves and must thank themselves if the prayer for an opportunity to give evidence is disallowed.
10. On the whole, I see no substance in the appeal, The appeal is dismissed with costs.