M. Lal, J.
1. All the six appeals have been filed by Mangoo Lal defendant-appellant against an order or a preliminary decree ordering the separation of the plaintiffs' one-fourth share in the six lots of property given in the plaint of each suit. All the suits involved a common question of fact and law and were disposed of by a common judgment and so was the first appeal. The present appeals are also the outcome of the same judgment given by the learned Civil Judge, Bijnor.
2. In each of the six suits the plaintiffs claimed one-fourth share in the Bhumidari plots detailed in each of them stating that the property was a joint family property and they had one-fourth share.
3. Three of the defendants in each suit filed written statements. They admitted that the property was joint family property. They also admitted that the plaintiffs had one-fourth share, but the only contest was that the debts had been incurred for the purposes of the family during the time the plaintiff's father was manager and also subsequently by the Manager, and consequently a provision should be made for the family debts, when the property is separated.
4. Both the courts below have taken the view that a provision for the payment of the family debts need not be made in such a partition suit. It is against these findings that these six appeals have been filed.
5. Learned counsel for the appellant has contended that when debts had been incurred for the purposes of family by the manager of the family, the family property remains liable for payment of these debts and consequently before the family property is allotted to the share of any member, a provision must be made for the family debts proportionate to the share of that particular member out of the property allotted to his share.
6. Learned counsel for the respondents has on the other hand submitted that it is not at all necessary to make such a provision because the law will take its course and if the law requires that family property shall remain liable for the payment of the family debts, it will be for the creditor to follow up the property in the hands of the member and realise his debts from the members or the family property according to his choice. It is also his contention that the creditors not being parties to the suit, it will not be possible to determine the debts or to make any provision.
7. I have heard learned counsel for the parties. The only point which arises for determination in all these cases is whether a provision for the payment of family debts, if any, should be made in the decree and if so in what manner.
8. So far as the question of making a provision for the payment of the family debts goes, learned counsel for the appellants has relied upon the Full Bench authority of K. Venku Reddi v. M. Venku Reddy, AIR 1927 Mad 471, in which it was laid down that
'In a partition suit between a Hindu father and sons the father is not bound to pay all the debts not incurred for immoral or illegal purposes, prior to the suit out of his own share, but the shares of the sons are also liable for that.'
This authority is supported by the observations of their Lordships of the Privy Council in the case of Sat Narain v. Sri Kishen Das wherein it was laid down:
'When the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable......There can be no doubt that it is a liability of the joint estate, and, it follows that it is right to make provision for the discharge of this liability on partition of the joint estate.'
The observations of their Lordships of the Supreme Court in Pannalal v. Mt. Naraini : 1SCR544 also support the same proposition of law. Their Lordships observed at page 176:
'We desire only to point out that an arrangement for payment of debts does not necessarily Imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors. Whether there is a proper arrangement for payment of the debts or not would have to be decided on the facts and circumstances of each individual case.'
9. There is no gainsaying the Fact that if a joint Hindu family is burdened with debt borrowed for family purposes either by the father or the manager, the members of such family, for whose benefit the debt was incurred, must remain liable for the payment of the debt. Such a liability cannot be enforced personally against the members, who had not borrowed the debt, but can only be enforced against the family property given in their share at the time of partition. All the members, who get a share in the property, must therefore contribute towards the payment of the debt according to their share in the family property. There is no difficulty in the proposition o[ law that when the manager of a family contracts debt for purposes of the family and the same are not illegal or immoral, the debt is binding on the family. But the difficulty which has arisen in these cases is in what manner is the provision to be made.
10. In none of the three cases cited above, it has been mentioned as to how a provision is to be made and at what stage of the suit, whether it should be at the time of the preliminary decree or at the time of the passing of the final decree. There would be no difficulty in making a provision in cases where the debt is ascertained and is also admitted to have been borrowed for family purposes. The difficulty will always arise in cases where the debt is not admitted, or where it is not admitted that the debt borrowed by a particular member was borrowed for the benefit, or for the purposes of the family.
These rases are of the latter type. The defendant-appellant has given a list of certain debts In his written statement stating that they are family debts, but the plaintiffs dispute not only the existence of debt but also the fact that those debts were borrowed for family purposes or for the benefit of the family. The question is as to what should be done for making a provision for payment of the family debts, if any, in such cases. These cases are also of a type where all the Family property has not been put into partition and the creditors are also not parties to the present suits. There is also no agreement between the members of the family about the debts, their amount or their nature or the purpose for which they were borrowed.
In such cases the only provision which can be made should be by making the shares of the members of the family allotted to them at the time of partition liable for payment of family debts, if proved to have been, borrowed for family purposesin proportion to their shares and then to leave the whole matter to the creditors to seek their remedy according to law either against the manager or the members, or both, and then leave it to the members how to realise the excess amount of debt paid over and above their shares.
Some other methods can also be thought of, for example, keeping sufficient family property joint in order to pay off the debts or by leaving the liability for the payment of the debts in the hand of the manager of the family by giving more property in his share, but both these methods are inapplicable to the present cases, primarily because all the property is not before the court and also because the debts and their purpose is also disputed. While agreeing with the learned counsel for the appellant that a provision should be made for the payment of the family debts contracted for family purposes and proved to be binding on the family, yet I do not agree with him that this provision should be made at the stage of the passing of the preliminary decree. The proper stage for it would be at the time of the passing of the final decree.
11. In view of what has been stated above' all the fix appeals fail.
12. All the appeals are hereby dismissed subject to the modification that at the time of the passing of the final decree a condition shall be imposed in that decree that each member shall be liable for payment of the family debts borrowed for family purposes and which have been proved to be binding on the family in proportion to his share in the family property. But no Order, in the circumstances of the cases, is made as to costs.
13. Leave to special appeal is refused.