1. The 1st Respondent-Decree-holder had filed Special Civil Suit No. 8 of 1962 against Respondents 2 and 3 as well as against the appellants, who are Judgment-debtors 3 to 6. A decree was passed against Judgment-debtors 1 and 2 (Respondents 2 and 3) only for recovery of a sum of Rs. 16031-18 together with future interest and proportionate costs of the suit, The suit as against Judgment-debtors 3 to 6 (appellants) came to be dismissed. The Decree-holder sought to proceed against the shares of the appellants in the properties of the joint family alleging that judgment-debtor No, 1 is the father of Judgment-debtors 3 to 6, that the properties sought to be attached are the joint family properties of the judgment-debtors and that the judgment-debtors 3 to 6, being the sons of Judgment-debtor No. 1, are liable under the pious obligation to discharge the decretal debt and that their shares in the joint family properties are liable to attachment and sale. The judgment-debtors 3 to 6 resisted the claim of the Decree-holder contending that the claim is barred by res judicata since the suit had been dismissed against them. The execution Court rejected the contentions of Judgment-debtors 3 to 6 holding that the shares of the said judgment-debtors in the joint family properties are liable to be proceeded against. That order has been confirmed by the lower appellate Court. The Judgment-debtors 3 to 6 have filed the present second appeal.
2. In the suit it was alleged by the Decree-holder that the 1st Judgment-debtor is the father of Judgment-debtors 3 to 6, that they constitute a joint Hindu family which the father was the manager, that they were carrying on their family business under the name and style of 'Siddeswara Oil Mills' at Gadag, that all the defendants enjoyed and received the benefit of the dealings with the plaintiff in that suit. Judgment-debtors 3 to 6 in the suit pleaded that the oil Mill business is the new and exclusive business of their father and that therefore they were not liable for the suit claim. The Court held that the Oil Mill business was entirely a new business and that the suit claim is binding only on defendants 1 and 2 (Judgment-debtors 1 and 2) and not binding on defendants 3 to 6 i.e., Judgment-debtors 3 to 6, that only defendants 1 and 2 are liable for the suit claims and that the interest of defendants 3 to 6 in the joint family properties cannot be attached.
3. It is not the case of the appellants that the debt in question is an 'Avyavaharika' debt. What is contended by them is that since they were made parties to the suit and as the Court held in that suit that their shares and interest in the joint family properties are not liable for attachment, that it is not now open to the Decree-holder to seek to proceed against their shares and interest in the joint family properties in execution of the said decree and that the Decree-holder's claim is barred by res judicata. The attachment before judgment of the shares of the appellants and their interest in the joint family properties was ordered to be raised in that suit. That was in pursuance of the finding of the Court that the Oil Mill business is a new business an: that the shares and interest of the appellants in the joint family properties are not liable for the suit claim.
4. Mr. Swamy appearing for the appellants has relied on the decision in (Raja Ram v. Raja Baksh Singh). In that case, the suit was instituted against sons and grandsons on a mortgage deed executed by the deceased father. The debt was not contracted for any immoral purpose, The suit was decreed only against the sons as legal representatives of the father and it was dismissed as against the grandsons. The plaintiff sought to execute the decree not only against the sons but also against the grandsons and their interest in the family property. It was held that since the debt was not contracted for immoral purposes the grandsons were liable to pay the debt to the extent of their interest in the joint family property that the decree of the trial Court dismissing the suit against the grandsons was erroneous and that the remedy of the plaintiff was to have appealed therefrom. It was therefore held that the suit having been dismissed against the grandsons, they could not be made liable under the decree. This decision was Followed In AIR 1940 Pat 117 (Prahlad Das v. Dasarathi). In that case the suit was brought to enforce a simple mortgage against the mortgagors as well as their sons. The suit was decreed and the mortgage properties were sold in execution of the decree. Since the sale proceeds were insufficient to satisfy the decree, the mortgagee applied for a decree under Order 34, Rule 6, C. P. C. asking for a decree against the mortgagors only and not against their sons. Accordingly, a money decree waspassed against the mortgagors only. It was old that where the creditor impleads the sons of a Hindu debtor as parties to the suit along with their father, the sons being parties to the suit the father cannot be said to have represented them in the suit. In such a suit, if the Court passes a decree against the father only, it cannot be said that a decree has been obtained against the father both in his individual capacity and also as representing his sons and that such a decree against the father alone cannot be executed against the sons not because the sons were not under a pious obligation to pay the debt of their father which is neither illegal nor immoral, but because the procedure of enforcing their liability having been adopted, the Court refused to enforce it.
5. Mr. Bhatta appearing for the 1st respondent relied on the decision in AIR 1940 Mad 544 (Krishnan Naidu v. Somi Naidu). In that case, in a suit on a promissory note executed by the father alone the sons were impleaded on the ground that the debt was incurred for family necessity. The trial Court dismissed the suit. In the appellate Court, the plaintiffs decided not to ask for a decree against the sons who were dismissed from the suit. The appellate Court passed a decree against the father only. It was held that the decree-holder could proceed to execute the decree against the sons' interest in the family property relying on the decision in (1904) ILR 27 Mad 243 (FB). The decision in was held not to have overruled the decision in (1904) ILR 27 Mad 243 (FB). The decision of the Privy Council was distinguished on the ground that the decree was passed against the father after the sons had been dismissed from the suit, and that the passing of the decree gave to the decree-holders a new right which they could enforce against the sons. In that decision, the two decisions of the same Court in AIR 1937 Mad 718 (Periasami Mudaliar v. Vaidhilingan Pillai)and : AIR1929Mad898 (Doraiswami v. Nagasami) were relied on. In : AIR1937Mad718 , the suit was filed against the father and his sons but before judgment was passed the suit was withdrawn as against the sons. It was held that the withdrawal of the suit as against the sons did not exonerate them and that the result of the withdrawal was not to bring into operation the rule of res judicata embodied in Section 11, C. P. C. but only to entail the statutory penalty enacted in Order 23, Rule 1, that no fresh suit could be instituted against the sons on the same cause of action. In : AIR1929Mad898 it was held that a decree passed against a father personally after the sons had been exonerated could be executed against the sons' interest in the family property in respect of the decree debt passed against the father.
6. The Madras decisions have been considered in : AIR1952All337 (P. A. Maha Nirvani v. Bindeshri Prasad). In that case the suit was instituted on a simple mortgage deed against the mortgagor as well as his sons. It was found that the document was not proved to have been duly attested, since the deed contained a personal covenant to pay the amount a simple money decree was passed against the mortgagor only. The suit was dismissed as against the sons. It was held that since the sons were parties to the suit along with their father, the father could not be deemed to represent his sons and since the simple money decree was passed against the father alone and the suit was dismissed against the sons, the decree could not be executed against the interest of the sons in the joint family property. The decisions in (1901) ILR 27 Mad 243 (FB) (Periasami Mudaliar v. Seetharama Chettiar), AIR 1940 Mad 544 and : AIR1937Mad718 were distinguished.
7. In (Kanchan v. Babu Bhai) the suit by the creditor had been filed against the father as well as his sons, but the suit was withdrawn against the sons for the reason that the decree passed against the father would be binding on the sons so far as the joint Hindu family property was concerned. The decision in AIR 1940 Mad 544 was followed, It was held that the liability imposed on the sons under the doctrine of pious obligation cannot be evaded except on the ground that the court has refused to recognise the right of the creditor to execute his decree even against the interests of the sons in the joint family property in the main suit brought against the sons. In case there is an express refusal by the court, that would be conclusive with regard to the liability of the sons. The result may also be implied by invoking the doctrine of constructive res judicata. But to a case in which the creditor has withdrawn the suit against the sons, the doctrine of res judicata would not beapplicable and the decree obtained against the father could be executed against the interest of the father and his son. Since the suit against the sons was withdrawn in that case, it was held that the doctrine of res judicata would not apply.
8. In (1904) ILR 27 Mad 243 (FB), a simple money decree was obtained against the father alone who constituted a joint family with his sons. Thereafter he died before the decree could be executed. The decree-holder was unsuccessful in his attempt to execute the decree against the family property in the possession of the sons. Thereupon, he instituted a suit against the sons and some other members of the family. Before the High Court, the substantial question raised was whether the cause of action for the second suit should be taken to have arisen on the date of the decree against the father in the earlier suit. It was held that independently of the debt arising from the original transaction, the decree against the father by its own force created a debt as against him, which his sons were under an obligation to discharge unless they show that such debt was illegal or immoral. The second suit was held to be within the period of limitation on this account. There was no question of enforcement of a simple money decree against the sons in the joint family property by means of execution proceedings in that case. Moreover, the first suit had been filed against the father only and the sons had not been impleaded. It was therefore not a case of the suit having been dismissed against the sons but decreed only against the father. In AIR 1940 Mad 5-14, the suit must be deemed to have been actually withdrawn at the appellate stage so far as the sons were concerned. The same was the position of the sons in : AIR1937Mad718 . It was because of the withdrawal of the suit against the sons that it could not be deemed that the sons were exonerated and the rule of resjudicata embodied in S. 11 of C. P. C. was held inapplicable. In such circumstances there would be no adjudication in the suit that the sons are not liable in respect of the decree debt. I am therefore in respectful agreement with the view expressed in : AIR1952All337 and AIR 1940 Pat 117.
9. Mr. Bhatta relied on the decisions in : 1SCR177 and : 1SCR1384 . In : 1SCR177 (Sidheshwar v. Bhubneshwar) it has been held that if the debts have been contracted by the father and they are not immoral or irreligious the interest of the sons in the coparcenery property can always be made liable for such debts and that the sons need not be made parties in the suit against the father on the basis of a promissory note executed by him. It was further held that the obligation of the son is not a personal obligation but it is one confirmed to the assets received by theson as his share of the joint family property or to his interest in the same. It was further held that even after partition the sons can be made liable, for the pre-partition debts of the father although the father could have no longer any right to alienation with regard to the separated shares of the sons'. In : 1SCR1384 (S. M. Jakati v. S. M. Borkar) it has been held that even though the father's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition, the right of the judgment-creditor, who has obtained a decree against the father, to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons. In both the above-said two decisions the suit was filed only against the father and the sons had not been impleaded.
10. Mr. Swamy relied on the decision in (1867) 11 Moo Ind App 50 (PC); (Srimut Rajah Moottoo Vijaya Raganadha Bodha Gooroo Swamy Periya Odaya Taver v. Katama Natchiar, Zemindar of Shivagunga). In that case, in the first suit which was for recovery of zamindari, the question of genuineness of the alleged testamentary paper relied on in the second suit was raised in the plaint. The Judicial Committee of the Privy Council found that the Zamindari was self-acquired property and descended to the heirs and was capable of being devised. It therefore became material to determine the question with regard to the alleged testamentary paper. But the appellant contended that the instrument was not testamentary and was never intended to have the effect of devising the property. He subsequently instituted a suit founded on an allegation contradicting his earlier stand and insisting upon the said document having been a valid will and testamentary. It was observed that when a plaintiff claims an estate and the defendant being in possession resisted that claim, he is bound to resist it upon all the grounds that is possible tor him according to his knowledge then to bring forward and that the appellant must be precluded from setting up such a case. This decision was followed in (1879) ILR 4 Cal 190 (PC) (Doorga Persad Singh v. Doorga Konwari). In that case, a Hindu widow obtained a decree for possession of certain lands to which she claimed to be entitled as mother and heiress of her deceased son. One of the defendants to that suit subsequently brought a suit against the widow alleging that he and not the widow had become entitled to the property on the death of the widow's son under Kulachar or family custom, which excluded female heirs, and gave him a preferential right among male heirs and thereby sought to recover possession of the same lands from her. It was held that the decision in the former suit that the widow was entitled to the land as mother and heiress to the deceased son was conclusive against thepresent plaintiff and the party to that suit, and that the plaintiff was barred by the adjudication from recovering the possession from her on the ground that she was not the heiress and that he is entitled to the property upon the death of her son.
11. In the present case it is true that the question of pious obligation did not arise in the suit, but that was a question which might and ought to have been urged by the decree-holder in his suit as the basis of the liability of the sons. Since he did not assert that claim it must be held that it is barred by constructive res judicata, under Explanation 4 to Section 11 of the Code of Civil Procedure.
12. Therefore, the decree-holder is not entitled to attach and sell the interests of the sons in the joint family properties. This appeal is therefore allowed and the orders of the lower courts are set aside. Parties shall bear their own costs in this appeal.
13. Appeal allowed.