John Beaumont, Kt., C.J.
1. This is an appeal from the Assistant Judge of Belgaum. The plaintiff sued on a promissory note dated August 13, 1935, and made by the father of the defendants. The father died before the filing of this suit, and the defendants were sued on the promissory note as the legal representatives of the father. The plaint alleges that the executant of the promissory note, namely, the father, is dead and the defendants are his sons, and the estate of the deceased is in their possession. These allegations were not denied in the written statement. There is no allegation in the plaint that the father and the sons were joint; and I think the learned Assistant Judge was right in saying that this is a suit on a promissory note, and is not a suit which is based on the liability of the sons of a Hindu father to pay his debts under the doctrine of pious obligation. The learned Judge dismissed the suit on the ground that the sons of a Hindu are not his legal representatives within Section 2(11) (the definition clause) of the Civil Procedure Code. The definition is: 'Legal representative' means a person who in law represents the estate of a deceased person.
2. As was recognised by the Privy Council in a very recent case of Sir Jamshedji Jeejibhoy, Bart. v. Sorabji Warden : (1940)42BOMLR719 , P.C. the method of recovering a debt against the estate of a deceased person1 is not the same in India as it is in England. In England there must be an executor or administrator who is the legal personal representative, and through that channel alone can the debt be recovered. If the legal personal representative admits assets, a decree can be passed against him for payment of the debt; if he does not admit assets, the Court can only direct payment of the debt by the process of administering the estate. But in India Hindus, in particular, are not bound to take out letters of administration, and it is, in my opinion, well settled that a Hindu son can be sued for the separate debt of his father, and is liable to the extent, at any rate, of the separate estate of his father come to his hands. The cases to which we have been referred, Narayanasami v. Samidas (1883) I.L.R. 6 Mad. 293, Bapuji Auditram v. Umedbhai Hathesing (1871) 8 B. H. C. R. 245, and Lallu Bhagvan v. Tribhuvmi Motiram (1889) 13 Bom. I.L.R. 653, establish this. I think that Lallu Bhagvan v. Tribhuvan Motiram goes too far in saying that a decree is bound to be passed against a sort of a Hindu on proof of debt and without any evidence that there are assets of the father which have come to the son's hands. The Court seems to have overlooked the Bombay Hindu Heirs' Relief Act (Bom. VII of 1866), which provides that no son of a deceased Hindu shall, merely by reason of his being such son, be liable to be sued for any of the debts of such deceased Hindu, and then in effect provides that he is only liable to the extent of the deceased's assets which have come to his hands and have not been duly accounted for. It seems clear therefore that the son can plead in defence that no assets of the father have come to his hands. I think, however, that the cases to which I have referred establish the liability of a son of a separated Hindu to be sued for his father's debts, and I think the view of the Privy Council expressed in Sir Jamshedji Jeejibhoy's case (supra at p. 733) supports this position. The learned Assistant Judge took the view that, reading the definition Section 2(11) and Section 53 of the Code together, it was impossible to say that a son of a Hindu was his legal representative. Section 53 deals in terms with cases arising under Section s 50 and 52. Section 50 deals with a decree passed against a judgment-debtor, and not fully executed at the date of his decease, and enables the decree to be executed against the legal representative of the deceased. Section 52 deals with the case of a decree passed against a party as the legal representative of a deceased person. Section 53 provides that, for the purposes of Section 50 and Section 52, that is to say in executing those two classes of decrees, property in the hands of a son or other descendant which is liable under Hindu law for the 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. The learned L Asistant Judge seems to have thought that that Section provides that the son shall be deemed to be the legal representative and, therefore, implies that he is not in fact the legal representative. But that is not, I think, the correct construction of the Section. The finction introduced is not in treating the son as the legal representative, but in treating the property which has passed to the son as a surviving coparcener as being property of the deceased come to the hands of the son. Section 53 arises in execution, and its exact operation does not fall for consideration in this case.
3. The only real question, which we have to determine, is whether the son is the legal representative. If he is, then a decree passed against him falls within Section 52, and that may bring into operation Section 53 in execution. But at the moment we are not concerned with the operation of Section 53, except to point out that it does not in any way negative the claim of the son to be a legal representative within Section 2(11).
4. Reliance was placed in the lower Court on a decision of this Court in Chunilal Harilal v. Bai Mani (1918) I.L.R. 42 Bom. 504 That was a case in which an injunction obtained against two members of a joint Hindu family was sought to be executed against the surviving coparceners, and that is a different case from the present case, in which we are concerned only with a money decree. I must confess that I have felt great difficulty in understanding what the learned Judges in Chunilal Harilal v. Bai Mani really intended to decide, but most of their rather obscure reasoning is directed to the construction of Section 53, with which we are not concerned at the present moment. No doubt, Mr. Justice Beaman says (p. 509): 'On no construction of the words 'legal representative' can members of a joint Hindu family be brought within the definition now contained in our Statute.' Mr. Justice Heaton says that the sons do not fall within the meaning of the definition of ' legal representative.' No doubt, a survivor of a coparcenary does not, in respect of the property which survives to him, represent the estate of the deceased coparcener, but it does not follow from that that, where the survivor is a son of a deceased coparcener, he may not be the legal representative of the estate of the deceased. It is almost inevitable that in every case the father must leave some property which belongs to him separately, even if it be only his wearing apparel. As indicated above, if there is no estate descended to the son, that can be pleaded as a defence to the suit. In so far as Chunilal Harilal v. Bai Mani (supra) conflicts with this view, I think it is not good law. It was adversely criticised in Ganesh Sakha-ram v. Narayan Shivram (1931) 55 Bom. I.L.R. 709.
5. In my judgment, the son of a Hindu, where there has been no appointment of an executor or administrator, in law (that is the personal law, in this case Hindu, law) represents the estate of his father and is, therefore, the legal representative within the meaning of Section 2(11), and where, as here, there is an allegation that the estate of the father is in the hands of the son, the son is liable to have a decree passed against him for the father's debt, to be recovered only out of any assets of the father which come to his hands, and 'are not duly accounted for.
6. The appeal, therefore, must be allowed with costs throughout, and a decree passed against the defendants as legal representatives of their father, limited to the property of the father come to their hands, and not duly accounted for There will be a decree for Rs. 5,000 with interest at eight per cent. per annum from August 13, 1935, down to the date of the suit, and thereafter at six per cent. per annum. The Judge in execution to consider the question of instalments.
N.J. Wadia, J.
7. I agree.
8. I agree.