1. The respondent in this appeal is the Official Liquidator of the Imperial Bank of Aligarh and this appeal arises out of execution proceedings taken under a decree obtained by the Bank, on the 24thof April, 1910, against one Moti Lal, the father of the two appellants, on the basis of a promissory note, executed by Moti Lal alone. The sons were also impleaded as defendants to the suit, but as they were not parties to the promissory note, the suit as against them was withdrawn.
2. The family to which Moti Lal belonged consisted of himself and the two sons and his brother, and thus Moti Lal on partition would have been entitled to a one-sixth share. When the decree was obtained it was put into execution and the interest of Moti Lal, i.e., a one-sixth share in certain property was put to sale. It was again put into execution, as this did not satisfy the decree against Moti Lal and the decree-holder sought to put the remaining fire-sixths share to pale. The brother Babu Lal and the two sons filed objections. Those of Babu Lal were allowed and his share was released. The objections of the two sons were disallowed and hence the present appeal.
3. The ground of objection in the court below as entered in the petition filed jointly by the brother and sons, was merely that the attached property belonged to the objectors and not to the judgment-debtor and was therefore not liable to be sold. The lower court's judgment, however, shows that the case presented to it was:
(1) That there had been a partition in July, 1910, i.e., just after the Bank's decree had been obtained, under which Moti Lal had separated, leaving his sons still joint with his brother and therefore the attached property was not liable.
(2) That the liability of the son's share was res judicata because the Bank after making the sons parties to the suit withdrew it as against them.
4. The court below held (1) that the alleged partition was one collusively and fraudulently made, if at all, to defeat the creditor and therefore could not rid the sons of their liability for the father's debt, quoting the ruling in Krishnasami Konan v. Ramasami Ayyar (1899) I.L.R. 22 Mad. 519 and (2) that the rule of res judicata did not apply to the circumstances of the case.
5. In their memorandum of appeal the grounds taken are really only three in number. The first, fourth and fith relate to the partition. The second and third relate to the question of res judicata. The sixth is a fresh plea that the debt is not of such a nature as to bind the sons.
6. At the first hearing of the appeal it was stated that the pleas as to the partition and res judicata would not be pressed but at a subsequent hearing it was stated that the plea as to the legal effect of the partition would not be dropped. Nothing has been said on the sixth ground of appeal.
7. The plea mainly pressed before us is that the decree-holder, not having obtained a decree against the sons, is not entitled in law to execute the decree against the shares of the sons; that if he wishes to make their shares liable he must bring a separate suit.
8.The other point taken is that, Moti Lal having separated, the share of the sons is no longer liable for the father's debt and there id no sufficient evidence to show that the partition was a collusive or a colourable transaction. In regard to the former, the present case is very similar to the case of Shiam Lal v. Ganeshi Lal (1906) I.L.R. 28 All. 288. The facts there were that a Hindu father borrowed money on a promissory note which he alone executed. A suit was instituted against him and his son on the basis of the promissory note. It was dismissed as against the son on the ground that he was no party to the promissory note. It was decreed against the father. In execution of the decree the family property was attached and sold. The son thore upon instituted a suit for a declaration that the decree could not be properly executed against his interest in the family property in view of the fact that the suit had been dismissed against him and for possession of his share. It was held by a Bench of this Court that he was not entitled to any such declaration, as the dismissal of the suit left him in the same position as if he had not been impleaded, i.e., it left him liable as a Hindu son to pay any debt of his father not shown to be tainted with immorality, and as the question of immorality had not boon raised his suit must fail. This ruling was followed by BANEBJI J. in Channu Tewari v. Dwarka (1906) 3 A.L.J. 433. Prime facie a decree obtained against A cannot be executed by the attachment and sale of B's property, i.e. if B objects. But the petition of a son in a joint Hindu family is, by reason of his pious duty to pay his father's debt not incurred for immoral purposes, very different from that of an ordinary third party. In Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Cale. 21 their Lordships of the Privy Council say (at page 35) : - 'Destructive as it may be of the principle of independent co-parcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt or against his creditors remedies for their debts, if not tainted with immorality.' A creditor having obtained a decree against the father, therefore, is entitled to put to sale the family property, i.e., the court can do that which the father himself would be empowered to do under the law. The son whose interests are threatened is entitled to an opportunity of contesting both the factum and the nature of the debt and there is nothing in law to prevent him from coming into court in the execution department and preventing, if possible, on these two grounds the passing of his interests to the auction purchaser. If the points are decided against him, the court in execution can put the property to sale.
9. No plea of immorality or non-existence of the debt has been pressed before us, nor indeed is there anything in the suit itself to raise even a suspicion as to the factum or nature of the debt.
10. In regard to the alleged partition between Moti Lal on the one side and his brother and sons on the other, I would point out that the plea was at first dropped and then revived, and I have no hesitation in holding that if any such partition was formally made it was only a colourable transaction carried through with a view to defraud and defeat the Bank. The facts noted in the lower court's Judgment leave no doubt in my mind on this point. The appellants cannot be allowed to defeat the respondent in this manner. In this view it is unnecessary to decide the question whether, if a bond fide partition had taken place, the decree-holder would, in execution of his decree obtained against the father alone, be able to attach and sell the son's separate share or whether it would be necessary for him to bring a. fresh suit as held in Krishnasami Konan v. Ramasami Ayyar (1899) I.L.R. 22 Mad. 519. I do not wish it to be considered that I agree with this ruling. There is a good deal perhaps to be said for the opposite view, but it is unnecessary to decide the point in the view I take of the facts. I would dismiss the appeal.
11. I concur generally, though I should be disposed to insist more strongly than my learned colleague has done on the finding against the alleged partition. That being found against the appellants, the joint family property in the hands of the father and his sons remains liable, at any rate to the extent of their total shares. If execution had been taken out in the first instance against the shares of the father and the sons, I do not see how the sons could have avoided execution except on proof of the non-existence of the debt or of its being tainted with immorality. The question is whether the creditors are put in a worse position in this particular case by reason of the fact that they brought their suit in the first instance against the father and sons jointly, or by reason of the fact that they took tout execution in the first instance against what they described as the father's share in the joint family property. As to the first point, it seems to me that the creditors made a mistake in impleading the sons along with the father, but recognized that mistake in time, and cannot be put in a worse position as regards the execution of their decree than they would have occupied if they had simply sued the father on his unsecured debt and obtained a money-decree against him, as they actually did. With regard to the second point I do not think it can be held that the decree-holders, in taking out execution against a certain specified share as the property of Moti Lal, thereby admitted that no other share in the same property was capable of attachment in execution of their decree. Their position admits of being stated thus : - 'To the extent of a one-sixth share no one will deny that this property is liable to attachment and sale in execution of our decree : We therefore try, first of all, whether our decree cannot be satisfied by the sale of this share.' Finding that the decree could not be so satisfied, they claimed to proceed against the rest of the joint family property. The sons cannot defeat) this claim except on grounds which could have been successfully pleaded if the share of the father and that of the sons had been jointly attached in the first instance. I concur in dismissing this appeal.
12. The order of the Court therefore is that the appeal is dismissed with costs.