1. This is a second appeal in execution of a decree obtained against one Kushaba and his son Vishnu. The decree is sought to be executed against Tukaram, another son of Kushaba, who is brought on the record as the legal representative of his brother and father. Tukaram being an agriculturist and the property not being specifically mortgaged, it could not be sold under Section 22 of the Dekkhan Agriculturists' Relief Act, and the decree-holder sought to execute the decree by attachment of the rent of the land due from the tenant and from other moveable property of Tukaram.
2. The learned Subordinate Judge held that the debt incurred by defendant No. 3's father was not tainted with illegality of immorality, that the land, the rent of which was sought to be.attached, was the self-acquired property of the father Kushaba, and that, though the decree could not be executed against the land as it was not specifically mortgaged, the decree-holder could proceed against the rent due from the tenant.
3. On appeal, the learned District Judge held that the rent of the property left by the deceased father which came into existence after the death of the father could not be considered to be the property of the deceased which came into the hands of Tukaram within the meaning of Sections 50 and 53 of the Civil Procedure Code, and that the rent was the result of the crops obtained by the labour, seed and the soil of which only the last one was left by the father to his son, and therefore, disallowed the application, but allowed it to proceed as regards other moveable property liable to attachment.
4. The question, therefore, in this second appeal, is, whether the rent of the land belonging to the father, which could not be attached as it was not specifically mortgaged, under Section 22 of the Dekkhan Agriculturists' Relief Act, is not liable to be attached in execution of the decree against the father. Before the passing of the Hindu Heirs Relief Act VII of 1866, a son or a grandson was liable to pay the debts of his father or grandfather even if no assets were inherited by him, and the son was liable to pay the debts of the deceased out of his own property provided the debts were not of an immoral or illegal character even though the father or grandfather left no property or left property insufficient to pay the debts: see Vyavahara Mayukha, Chapter v. Section 4, pl. 12, 16 and 17; Gharpure'e Translation, pp. 154 to 156; Stokes' Hindu Law, pp. 122 and 123; and Mitakshara on Yajnya-yalkya's verses 50 and 51. See Gharpure's Translation, pp. 76, 80 and 81, where the words (son whose paternal estate has not gone to another) are commented on. By the Hindu Heirs Relief Act VII of 1866, the liability of a son, grandson or an heir in respect of such debts is limited to paying the same out of and to the extent of the property of the deceased which such son, grandson or heir or any other person by his order or to his use has received or taken possession of and which remains unapplied. Under Section 50 of the Civil Procedure Code, where a decree is executed against a legal, representative he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of. Under Section 53, the 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 the property of the deceased which has come to the hands of the son or other descendant as his legal representative The property in suit belonged to the father and came to the hands of his son, but under Section 22 of the Dekkhan Agriculturists' Relief Act, it cannot be sold as it was not specifically mortgaged, Though the rent is the result of the crops obtained by the labour, the seed and the soil of which only the last one was left by the father to the son, the rent paid by the tenant to the son is paid on account of his ownership in the soil which was inherited by him. The land in the hands of the son could have been sold in execution of the decree against the father, and the accretion to the land and its rent cannot be considered to be exempt from the satisfaction of the decree against the father. It is true that the subsequent rents either recovered or recoverable by the son did not come into his hands at the time of the father's death. The liability of the son, as laid down by Section 2 of the Hindu Heirs Relief Act VII of 1866, in respect of the debts as the representative of his father, is limited to paying the same out of and to the extent of the property of the deceased which he or any other person by his order or to his use has received, or taken possession of, and which remains unapplied. The land in suit was received and taken possession of by the son as the representative of his father and has remained unapplied for the payment of the debts. The liability of the son extends to paying the same out of and to the extent of the property of the deceased which has come into his hands. If the land cannot be sold by virtue of Section 22 of the Dekkhan Agriculturists' Relief Act, the liability can be enforced out of and to the extent of the land inherited by the son and to the extent of 'the rents arising out of the land,' The proviso to Article 2 says that 'if any part of such property so received or taken possession of as aforesaid shall not have been duly applied by such son, grandson or heir, he shall be liable personally for such debts to the extent of the property not duly applied by him.' In the present case, the property being not liable to sale under the special provisions of the Dekkhan Agriculturists' Relief Act has not been applied by the son for payment of the debts of the father. It would, therefore, follow that he shall be personally liable for such debts to the extent of the property not duly applied by him. It was held in Unnopoorna Dassea v. Gunga Narain Paul (1865) 2 W.R. 296 and Jamiyatram Ramchandra v. Prabhudas Hathi (1872) 9 B.H.C.R. 116 that a Hindu heir is competent to alienate property inherited by him from the deceased before the payment of the debts due by the deceased on the ground that the property of a deceased Hindu is not so hypothecated for his debts as to prevent his heirs from disposing of it to a third person. But in the case of such alienation the heir is personally liable to the creditors of the deceased to the extent of the value of the property. Mayne in his Hindu Law, Ninth Edn., para. 304, p. 407, observes : '...But as soon as the property is inherited a liability pro tanto arises, and is not removed by the subsequent loss or destruction of the property, and still less, of course, by the fact that the heir has not chosen to possess himself of it, or has alienated it after the death.' In the case of Keval Bhagvan Gujar v. Ganpati Narayan I.L.R(1883) . 8 Bom. 220 it was held that in this Presidency under the provisions of Bombay Act VII of 1866, where a Hindu dies intestate leaving property, his son is liable to his (the father's) creditors to the extent of the value of the property although the property may not have come into the son's possession but remains in the hands of third persons. In the present case, the land has not been applied for the payment of the debts of the father and cannot be sold in execution of the decree under Section 22 of the Dekkhan Agriculturists' Relief Act. He could have mortgaged the property to the decree-holder for the payment of the decretal amount, and could have thus enabled the decree-holder to realise the debt, or could have mortgaged or sold the property and applied the proceeds for payment of the decretal amount. In so far as the son has failed to apply the property to the payment of the debts of the father he is, under the proviso to Section 2 of Act VII of 1866, personally liable to the extent of the property not duly applied by him. The separate property of the son could in such a case have been liable for the satisfaction of the debts of the father on account of his failure to apply the property inherited by him to the satisfaction of the debts of the father. In the present case, the rents of the very property which has been inherited! from the father are sought to be attached. I think, thereof that the rents of the property inherited by the son as the representative of his father, though they did not come into his hands at the time of the death of the father, are liable for the satisfaction of the father's debt to the extent of the property which is inherited by him and which has not been duly applied by him for the payment of the decretal amount.
5. Another point was discussed at the hearing of this appeal as to whether the Collector could not have acted under the second clause of Section 22 of the Dekkhan Agriculturists' Relief Act on the authority of the decision in the case of Hirachand v. Hansabai (1922) 25 Bom. L.R. 76. It is urged on behalf of the appellant that the absence of the words 'or heir' after the word! 'judgment-debtor' in the second para, of Section 22 does not necessarily lead to the inference that the alternative remedy provided by the second clause of Section 22 could not be enforced against the heir of an agriculturist, and that the word 'judgment-debtor' is used in reference to the agriculturist mentioned in the preceding words of the second para, of Section 22, It is, however, not necessary to go into the question as no application has been made udder the second para, of Article 22 of the Dekkhan Agriculturists' Relief Act.
6. I would, therefore, reverse the decree of the lower appellate Court and restore that of the Subordinate Judge with costs of this Court and of the lower appellate Court on the respondent.
7. The facts are that respondent's father and brother, Kushaba and Vishnu, had executed a money bond in favour of one Prabhakar Govind, who ultimately became an insolvent. The Official Assignee sued Kushaba and Vishnu, and respondent Tukaram was added as a party, but ultimately his name was struck out, Kushaba and Vishnu have since died and Tukaram's name was brought on the record as the legal representative of his father and brother. These proceedings took place in the Sangli State Courts, and the decree was then transferred to the Islampur Court for execution.
8. It is sought to be executed against Survey No. 132/5 of Takari, which was originally acquired by KuabaRs. As Tukaram is an agriculturist and the property was not specifically mortgaged, it cannot, owing to the prohibition in Section 22 of the Dekkhan Agriculturists' Relief Act, be brought to sale. But execution was obtained from the learned Subordinate Judge in the shape of an order prohibiting the tenant from paying rent to Tukaram and one directed to Tukaram and forbidding him to receive the rent. The difficulty is due to the facts stated above. On appeal the learned District Judge held that the rents as never having belonged to the original debtors, could not be diverted in this manner in favour of the decree-holder, and reversing the original Court's order, dismissed the application for execution.
9. Now it is clear that the son of a Hindu is liable to the fall extent for his father's debts, though in this Presidency his liability has been limited to the extent of the assets coming into his possession, by the Hindu Heirs Relief Act, VII of 1866. The land in question could, therefore, have been sold, for it was the father's self-acquired property, and it is not anyone's case that the debts in respect of which execution is sought were contracted for an immoral or illegal purpose. It is only the special provision of the Dekkhan Agriculturists' Relief Act which comes in the way of the sale of the land.
10. The learned District Judge's real reason for refusing execution was, that the rent now accruing could not be considered as having been the property of the deceased, which to be made liable it was required to be, under Section 53 of the Code of Civil Procedure.
11. There are no authorities on the point, but it does not appear to me that the fine distinction drawn by the learned District Judge is a real one. The only value of the property, so long as it is let, is its rent, and it seems to me the right to enjoy the income is as much part of the property of Kushaba coming to the appellant's hands, as is the land itself. In fact, I think the distinction drawn by the learned District Judge is not tenable, and cannot avail to defeat the execution creditors.
12. I agree that the District Court's deore4 must be reversed and the application for execution must be restored and be proceeded with according to law. Appellants to have their costs, both in this and in the District Court, from respondent who will bear his own in both these Courts.