1. This is a second appeal from a decision of the Additional Civil Judge of Bareilly who reversed a decree given by the Munsif of Havali, Bareilly, to the plaintiffs. The appeal is consequently by the plaintiffs, two minors, Pirya Shanker and Rambhander, sons of Nand Lal but under the guardianship of Mt. Bilaso Kunwar. Nand Lal, I should mention, is still alive.
2. The relevant facts are as follows. On 1st June 1925, Nand Lal took a loan of Rs. 600 on a pronote from Baldeo Prasad. At that time there was yet a third son of Nand Lal alive, by name Hari Shanker, who died sometime between 1926 and 1928. The father and the sons formed a joint Hindu family in 1925 but there was a partition between the father on one side and the three sons on the other. In Suit No. 290 of 1928 Baldeo Prasad obtained a decree against Nand Lal alone and in execution proceedings No. 414 of 1930 he attached the rights of Hari Shanker on the ground that as the result of the death of Hari Shanker after a partition those rights had passed to Nand Lal. The minor plaintiffs were not made parties. On 20th March 1931, the plaintiffs, who had no objection in the execution Court, brought the suit which has given rise to this appeal objecting that Hari Shanker's share in partition had not passed to Nand Lal but to themselves by survivorship as the three sons of Nand Lal had remained joint. As there had been a sale of the rights of Hari Shanker on 30th March 1931, defendants 3 to 5, namely Radhe Shiam, Jagdish Narain and Girja Shanker the auction-purchasers were impleaded. Between the date when the suit was filed and the date when the auction-purchasers had been impleaded, there had been an attempt to stop the sale by. an injunction which was in fact issued but apparently it was served too. late to prevent the sale. It was alleged in the plaint that Hari Shanker was joint with the plaintiffs, consequently Nand Lal had not succeeded to what according to the decree-holder had been the share of Hari Shanker. Hari Shanker and the two plaintiffs having remained joint after the partition, the property in which the three brothers were coparceners became the property in which the plaintiffs alone continued as coparceners. The relief claimed was a declaration that one-third of Mohal Zard mauza Surajpur Parwariya, owned and possessed by the plaintiffs which under decree No. 290 of 1928 passed by the Court of the City Munsif and put in execution as case No. 414 of 1930 in the Court of the Munsif Havali, Bareilly - Baldeo Prasad decree-holder versus Nand Lal judgment-debtor - had been advertised for sale as belonging to Nand Lal was not liable to be attached and sold. Baldeo Prasad, the decree-holder, and the three auction-purchasers put in separate written statements but they were to the same effect. They maintained that the three brothers were separate, so the share of Hari Shanker passed to his father and the proceedings in execution were in every way correct, but in any case the debt in connexion with which the sale had taken place was contracted before the partition relied upon by the plaintiffs who were liable to pay the same. In other words, the contention of these defendants was that there was a pious obligation on the part of the sons to pay that debt of their father, Nand Lal and the decree-holder could, while executing the decree against Nand Lal sell the property of the sons which was in this case originally the interest of the deceased son Hari Shanker. Both the Courts held that the father and the sons were separated but the sons inter se remained joint so that Hari Shanker never had any share which passed to his father. The first Court held that the decree-holder could not in those execution proceedings sell the property in suit as the sons had separated from their father before execution proceedings. The learned Munsif relied on Firm Govind Ram Dwarka Das, Bombay v. Nathu Lal ('37) 24 A.I.R. 1937 Nag. 45. He was careful to note that pure question whether the debt was binding on the plaintiffs or not did not affect the merits of this case. The lower appellate Court came to the conclusion that the decree-holder could in execution of that decree against Nand Lal sell the interest of Hari Shanker and, therefore, it dismissed the present suit. He relied principally on a Full Bench case of this Court, Bankey Lal v. Durga Prasad : AIR1931All512 and on the dissenting judgment of Wort J. in Atul Krishna Roy v. Lala Nadanji ('35) 22 A.I.R. 1935 Pat. 275.
3. It has not been contended before us that when a father, while joint with his sons, contracts a debt which is not immoral and there has been partition before that debt is paid up, the creditor has no remedy against the sons. What has been urged before us is that if a decree has been obtained against the father alone after the partition, and execution is taken out of that decree, the decree-holder cannot realise his money by selling the share of any separated son in what at the time of the debt had been joint family property of the father and the sons. All that we have to decide, therefore, is what is the correct procedure, namely whether the creditor should have obtained a decree against the separated sons and then proceeded against their shares in what has been joint property or whether he could proceed against their property in the execution proceedings based on the decree against the father alone. There is considerable authority for the view that, while executing the decree passed against the separated father, the decree-holder cannot proceed against the shares of the separated sons. This view has been generally based on the principle that the father so long as he was joint with his, sons could sell the joint family property to pay his debts, provided of course they were not immoral, but that he could not after partition sell the shares of the separated sons, so the creditor of the father or the Official Eeceiver, if the father become insolvent, so to speak stepped into the shoes of the father, and could sell through the aid of the Court, that is to say in execution proceedings in the case of a creditor and in insolvency proceedings in the case of the Official Eeeeiver only when the father could sell. In Sat Narin v. Sri Kirshen Das their Lordships of the Privy Council stated that the father's power of sale for his debts exists only so long as the joint family property is undivided, and the capacity of the Official Assignee must be similarly limited; consequently, in their Lordships' opinion, this was rightly held in Office Assingnee v. Ram Chandra Aiyar ('28) 15 A.I.R. 1926 Mad. 735 and the decision in Sit Ram v. Beni Prasad : AIR1925All221 to the contrary effect was incorrect. Therefore their Lordships held that the sale of certain joint family properties by the Official Receiver before the sons and the father had separated could not be questioned by the sons but, as regards certain property not sold by the Receiver as to which the sons had sought partition they upheld the decision of the Punjab High Court that partition should be made after paying off the remainder of the father's antecedent debts in so far as the sons failed to show that they were immoral and illegal.
4. In Krishnasami Konan v. Ramasami Ayyar ('99) 22 Mad. 519 it was explained that the principle upon which the sons could not object to ancestral property being seized in execution for an unsecured personal debt of the father was that the father under the Hindu law was entitled to sell on account of such debt the whole of the ancestral estate which necessarily implied that at the time that the property was seized it remained the undivided estate of the father and the son. If the estate had been divided, the father could not sell what did not fall to him in the division and, therefore, the property taken by the son in partition could not be seized on account of sueh unsecured personal debt of the father even though the debt had been incurred before the partition, provided that the partition had not been made with a view to defraud or delay creditors. This was a second appeal and the lower appellate Court had held that the father's decree-holder could not attach and sell property which at partition had fallen to the son because though the son's own share was liable for the father's debt, it could not be taken on a decree to which the son was not a party. This was a case like the case before us in which the father was still alive. The same view has been held in other Madras cases and I need only refer to one. This is Kuppan Chettiar v. Masa Goundan ('37) 24 A.I.R. 1937 Mad. 424. It was held that a partition between a Hindu and his sons which is a genuine partition, a real transaction and not a mere sham, puts an end to the joint family and the power of the father to sell his sons' shares for his debts. Property allotted to the shares of the sons at such a partition is not, therefore, liable to be attached in execution of the money decree obtained subsequently against the father alone. Decisions to the same effect of other High Courts are the following. The first is Atul Krishna Roy v. Lala Nadanji ('35) 22 A.I.R. 1935 Pat. 275. It is in this case that there is that judgment by Wort J. on which the lower appellate Court relied. Two Judges held that where a suit filed against the father alone was decreed after partition was effected between the father and the sons and the father died though the sons were liable for the pre-partition debts of their father the decree against the father alone could not be executed against the separate shares of the sons and to such a case Sections 50, 52 and 53, Civil P.C. did not apply. The judgment of Wort J. was a dissenting judgment to this extent that he held that those sections did apply. This will not help in the case before us because the father is not dead. I am unable to see, therefore, that the learned Civil Judge against whose decision the appeal before us has been filed could obtain any help from the judgment of Wort J. In Firm Govind Ram Dwarka Das, Bombay v. Nathu Lal ('37) 24 A.I.R. 1937 Nag. 45 it was held that the creditor's right to proceed against the son's share in execution of a decree obtained against the father alone must case when the father's authority to sell the son's share is terminated as a consequence of the partition; and for the creditors to be able so to reach the son's share, the joint status of the father and son is sine qua non. After partition the proper course for the creditor is to obtain a decree against the son and execute it against the property which fell to Ms share at the partition.
5. In Suranjmal Deoran v. Moti Ram Kalu ('40) 27 A.I.R. 1940 Bom. 22 it was similarly held that a decree passed after partition against the father alone for his pre-partition debts (though not immoral or illegal) was not binding on the separated son and after partition a decree must be obtained against the son if his separated share was to be held liable. The only decision referred to by learned Counsel for the respondents as supporting a contrary view is the Full Bench decision of this Court Bankey Lal v. Durga Prasad : AIR1931All512 . That was a case in which a father Lachhman Prasad and three of his sons, Asharfi Lal, Munna Lal and Jwala Prasad applied to be adjudicated insolvents on 30th August 1923, the fourth son Bankey Lal not joining in the application. On a technical objection being raised that there should be separate applications, the three sons filed such applications on 29th September 1923. On 6th September 1923 a suit for partition of the joint family property was filed on behalf of the minor sons of Jwala Prasad. A preliminary decree for partition was passed ex parte on 8th October 1923 and the final decree on 13th February 1924. Pour lots were prepared, one going to Bankey Lal and his sons, another to the sons of Munna Lal, a third to the sons of Jwala Prasad and the fourth to the members who had been the applicants for insolvency, namely Laehhman Prasad, the father, and the three sons, Asharfi Lal, Munna Lal and Jwala Prasad. Having sold the property allotted to the four insolvents the Eeceiver, as it proved insufficient to pay up the debts proceeded to seize the property of the other members of the family who objected that their shares were not liable. Of the five Judges that composed the Bench, four held that the Receiver could sell that property without having to bring a suit while the fifth Judge held that it was necessary for the Eeceiver to proceed by a suit in the proper Court to establish the liability of the non-insolvent members and on recovering a decree he could proeeed by way of execution. The majority of learned Judges based their view on the ground that the partition was not bona fide because no arrangement had been made for payment of the debts of the father and it must be held that the partition being invalid the property was still joint for the purpose of satisfying the debts of the creditors of the father who could have sold all the joint property and that right on insolvency vested in the Receiver. The facts in Sit Ram v. Beni Prasad : AIR1925All221 were that Ram Prasad was declared an insolvent on 18th May 1914 and a Receiver was appointed on 3rd June 1914. At that time the father of the insolvent was dead but the grand father and three brothers of the father were alive. In 1921 two minor sons of the insolvent sued for partition of their one-sixth share and obtained a preliminary decree in 1923. Before a final decree could be prepared, the parties compromised and the sons received certain property as their one-sixth share of the ancestral property. Then one of the creditors moved the insolvency Court to direct the Eeceiver to take possession of this property of the sons for the payment of their father's debt. The application was dismissed by the Small Cause Court Judge but it was allowed on appeal by the learned District Judge and the decision with a modification which is immaterial was upheld by the High Court. As far as I can see in this case too no arrangement was made at partition for payment of the father's debt. In Official Assignee v. Ram Chandra Aiyar : AIR1928Mad735 the father was adjudicated insolvent on 2nd December 1919 and the partition was effected on 26th November 1919. It was on 1st April 1920 that the official assignee took out a notice of motion asking that the partition deed should be declared void and for an order that the interest of the minor sons in the family property should be vested in the official assignee. It was held by a majority that the filing of a partition suit by the son would defeat the official assignee's power to sell the son's interest in the joint family property which accrued to him by reason of the insolvency of the father. It appears that in Sat Narin v. Sri Kirshen Das the decision of this Court in Bankey Lal v. Durga Prasad : AIR1931All512 was not brought to the notice of their Lordships of the Privy Council but as the facts in that case were in every way similar to the facts in Sit Ram v. Beni Prasad : AIR1925All221 it appears to me that they would have disagreed with the decision in Bankey Lal v. Durga Prasad : AIR1931All512 as much as they disagreed with the decision in Sit Ram v. Beni Prasad : AIR1925All221 and I feel that I must hold that after partition neither the Official Eeceiver, if the father is an insolvent, nor a creditor of the father can sell the property of the sons without obtaining a decree against them because the father himself could not sell the share that had gone to the sons by the partition. This is of course if the partition is not a mere pretence on the part of the father and the sons.
6. Apart from that, however, I do not think the circumstances are the same in the case of a partition during insolvency proceedings and partition when there are no such proceedings pending. In the case of insolvency proceedings it is difficult for the sons not to know of them so that possibly the partition is intended against the creditors. I would, however, here remark that as the consensus-of opinion is that the interests of the sons-can be proceeded against if a suit is brought, against them, a partition cannot really. adversely affect the creditors. On the other hand, when there are no insolvency proceedings pending the sons may be unaware of the fact that the father had certain debts-and their application for partition may in no way be intended to affect the remedies-of creditors of whose existence the sons have no knowledge. In Bankey Lal v. Durga Prasad : AIR1931All512 the learned Judges could only state in general terms-what partitions in their opinion would be mala fide or bona fide. Sulaiman Ag. C.J., who wrote the judgment adopted by the majority stated that for the partition to be bona fide either all the existing debts of the father, which are not tainted with illegality or immorality, should be discharged before the division of the property takes-place or at any rate adequate arrangements-for their payment should be made. This may be done by dividing the assets as well as-the liability among all the members, or by allotting sufficient property to the father in the first instance to satisfy all his debts, together with interest, which his creditors-can claim within a reasonable time, and then giving him his legal share in the remainder on a par with his sons:
If the family sits down to divide up the gross assets without making any arrangement for the payment of the outstanding debts, it is obviously ignoring the claims of the creditors. Such a partition cannot but be a mala fide one.
7. I take this last sentence to mean 'wilfully ignoring the claims of the creditors' for, if a person is not aware of the existence of a thing he cannot be said to ignore it. If then the sons did not know of the existence of a. certain debt of their father and they made no provision at partition for its discharge, I do not see how it can be said that they ignored the debt so as to make the partition mala fide. Here comes the difference between a partition during insolvency proceedings and otherwise because as I have said it is probable that the sons knew of the insolvency but there is no reason to presume that the sons knew how many debts their father had. He may tell them at the partition or he may not. In the present case we have before us a partition decree showing what the father got but the decree does not show whether it represents that share to which the father was entitled on partition or whether it represented a larger share namely his share after payment of the debts plus something extra to pay his debts. There is nothing in the view held in Bankey Lal v. Durga Prasad : AIR1931All512 to prevent the property being divided according to the share in Hindu law provided the debts were equally divided for if each son took a liability proportionate to his share it would be an arrangement to pay the debts. The decree in the present case says nothing about the debts but it may well be that the father and the sons had agreed about the division of debts and merely asked for a decree for the partition of the property. In my opinion, there is no evidence that there was not any arrangement made to pay the debts and in the absence of evidence I cannot say that one is entitled to presume whenever there is a partition that no arrangement has been made about the payment of debts. That the partition was genuine has been admitted by the decree-holder himself as he proceeded against the property, which forms the subject-matter of the suit, as having come by partition to Hari Shankerand on his death to Nand Lal nor did he allege that he was entitled to proceed against the property in suit because the partition was what according to Bankey Lal v. Durga Prasad : AIR1931All512 would amount to a mala fide partition. I am of opinion, therefore, that the partition in the present case must be regarded as a bona fide partition even on the principle adopted in Bankey Lal v. Durga Prasad : AIR1931All512 and consequently the property in suit could not be sold in execution proceedings based on the decree passed on the father alone.
8. I would, therefore, allow the appeal and setting aside the decision of the lower appellate Court, grant the plaintiffs a declaration. The form of the declaration should be that the zamindari property to the extent of one-third in Mohal Zard, village Surajpur Parwariya, tahsil Nawabganj, district Bareilly, was owned and possessed by the plaintiffs and the proceedings in execution case No. 414 of 1930 in the Court of the Munsif Havali Bareilly based on decree No. 290 of 1928 passed by the Court of the City Munsif terminating in an auction sale of the property in favour of Eadhey Shiam, Jagdish Narain and Girja Shanker were of no effect against the proprietary rights of the plaintiffs in that property. I would give the plaintiffs their costs throughout.
9. I entirely agree. The material facts, as found by the Courts below, are these. Nand Lal, defendant 2 in the suit out of which this appeal has arisen, and his three sons', Hari Shanker, Priya Shanker and Ram Chandra, were in the year 1925 members of a joint Hindu family which owned certain zamindari property on 1st June 1925. Nand Lal borrowed a sum of Rs. 600 from Baldeo Prasad, defendant 1 in the present suit, and executed a pronote. In the year 1926 a suit was filed by Hari Shanker, Priya Shanker and Earn Chandra against their father, Nand Lal, for partition of the joint family property. It was suit No. 127 of 1926. It was decreed on 26th January 1927, and, by the decree, a portion of the property was allotted to the father, Nand Lal, as representing his share in the family property and the rest of the property was allotted to the three sons, who. as stated above, were the plaintiffs in that suit. Sometime later, one of the three sons, viz., Hari Shanker, died, and his brothers, Priya Shanker and Ram Chandra, remained in possession of the whole property which had come to the three sons under the partition decree. Both the Courts below have found that the three sons of Nand Lal had remained joint after the partition effected by the decree passed in the suit mentioned above. Thus, on Hari Shanker's death, Priya Shanker and Ram Chandra became owners by right of survivorship of the whole of the property which had been allotted to the three sons by the decree in the partition suit. In the year 1928 Baldeo Prasad brought a suit on the pronote against Nand Lal alone - Suit No. 290 of 1928 - and obtained a decree for the recovery of a certain sum of money. He then proceeded to execute the decree by attachment and sale of certain property; but the property which he sought to attach and sell was not the property which had come to his sole judgment-debtor, Nand Lal, under the decree passed in the partition suit (suit No. 127 of 1926) but a one-third share of the property which was in possession of Priya Shanker and Ram Chandra. The allegation on which the decree-holder, Baldeo Prasad, based this prayer was, not that there had been no partition in the family of Nand Lal or that the partition which had been effected was invalid or mala fide or sham, but that, under the partition which had taken place, the three sons of his judgment-debtor, Nand Lal, had also become separate from one another and that therefore Hari Shanker deceased was the owner of a defined one-third share in the property which had been allotted to the three sons and that that share had, on Hari Shanker's death, passed by inheritance to the father of the deceased, namely, the judgment-debtor Nand Lal. The Court ordered the property to be attached as prayed by the decree-holder. Thereupon, on 20th March 1931, the present suit was filed by Priya Shanker and Ram Chandra for a declaration that the zamindari property which Baldeo Prasad wanted to be attached and sold in execution of the decree in Suit No. 290 of 1928, (viz., the zamindari property to the extent of 1/3 in Mohal Zard, Mauza Suraj-pur Parwaria) on the allegation that it belonged to his judgment-debtor, Nand Lal, did in fact belong to the plaintiffs, Priya Shanker and Earn Chandra, and was not liable to be attached and sold in execution of the said decree. An application for an injunction restraining Baldeo Prasad from putting the property to sale before the decision of the suit, was also filed and the Court ordered notice to issue and also granted an ad interim injunction. The order, however, did not apparently reach the sale officer in time and the property was put to sale and was purchased by Eadhey Shyam, Jagdish Narain and Girja Shanker. The confirmation of the sale, however, was stayed, The auction-purchasers, Eadhey Shyam, Jagdish Narain and Girja Shanker, were impleaded aB defendants 3, i and 5 in the suit. Omitting certain proceedings which took place, and, in consequence of which, the plaintiffs had once before to come to this Court in second appeal - those proceedings being no longer material - we come to 2nd June 1937, when the suit was decreed by the Munsif. It may be mentioned that two written statements had been filed, one by the decree-holder, Baldeo Prasad, and the other by the auction-purchasers, Radhey Shyam, Jagdish Narain and Girja Shanker, but they were practically in identical terms. After alleging that the three sons of Nand Lal had also become members of divided families and that the share of Hari Shanker had passed by inheritance to the judgment-debtor, Nand Lal, they raised a further plea in the following words:
The debt in connexion with which the sale took place was contracted before the partition, relied upon by the plaintiffs, who are liable, according to law, to pay the same.
This was para. 9 in Baldeo Prasad's written statement and para. 10 in the written statement of the auction-purchasers. The Munsif, after holding that the three sons of Nand Lal had remained joint after the partition effected by the decree in Suit No. 127 of 1926 and that therefore Nand Lal had not inherited anything from his deceased son, Hari Shanker, but that the property in suit belonged to the plaintiffs, observed as follows:
Under ordinary circumstances the sons have a pious duty to pay of their father's debts, but in case of separated sons, unless they had been given the chance to contest their liability in the suit, they would not be liable for the father's debts in execution of any decree passed against their father behind their back. I am supported in this view by the ruling reported in Frim Govind Ram Dwarka Das, Bombay v. Nathu Lal ('37) 24 A.I.R. 1937 Nag. 45. I therefore hold the plaintiffs are not bound by this decree. The pure question whether this debt is binding on the plaintiffs or not will not affect the merits of this case.
He accordingly granted to the plaintiffs a decree for the declaration prayed for. The auction-purchasers, Eadhey Shyam, Jagdish Narain and Girja Shanker, went up in appeal to the lower appellate Court. That Court agreed with all the findings of fact recorded by the Munsif, but allowed the appeal and dismissed the suit on the ground that the sons of Nand Lal, although there had been a partition between them and their father, were under a pious obligation to pay off their father's pre-partition debts and that therefore the decree-holder, although he had obtained the decree after the partition against the father alone, was entitled in execution of that decree to proceed against the property which had come to the sons under the partition. The plaintiffs, Priya Shanker and Earn Chandra, have therefore brought this second appeal.
10. Mr. C.B. Agarwala for the plaintiffs-appellants referred to the following cases Rathan Naidu v. Aiyanachariar ('08) 18 M.L.J. 599, Krishnasami Konan v. Ramasami Ayyar ('99) 22 Mad. 519, Lakshmana Chettiar v. Govidrajulu Naidu ('10) 8 I.C. 4131, Kamshwaramma v. Venkata Subba Row ('14) 1 A.I.R. 1914 Mad. 328, Jagannath Rao v. Viswesan ('24) 11 A.I.R. 1924 Mad. 682, Thirumalamuth v. Subramania ('37) 24 A.I.R. 1937 Mad. 458, Kuppan Chettiar v. Masa Goundan ('37) 24 A.I.R. 1937 Mad. 424, Sinnammal v. Sattiya Goundan ('38) 25 A.I.R. 1938 Mad. 578, Rangaswami Gounden v. Kandaswami Goundan ('42) 29 A.I.R. 1942 Mad. 732, Atul Krishna Roy v. Lala Nadanji ('35) 22 A.I.R. 1935 Pat. 275, Firm Govind Ram Dwarka Das, Bombay v. Nathu Lal ('37) 24 A.I.R. 1937 Nag. 45 and Surajmal Deoran v. Moti Ram Kalu ('40) 27 A.I.R. 1940 Bom. 22 He also referred to Mulla's Hindu Law, 9th Edn. para. 290(6) at p. 337 and to para. 2 in small type, beginning 'if there is a partition...' at p. 340, under para. 292(2).
11. Mr. G.S. Pathak for the respondents mainly relied on the decision of the majority of the learned Judges in Bankey Lal v. Durga Prasad : AIR1931All512 . He also referred to the cases in Venkata Narayana Rao v. Venkata Somaraju ('37) 24 A.I.R. 1937 Mad. 610 and Panna Lal v. Ramanand ('36) 23 A.I.R. 1936 Lah. 193. He strenuously urged that the lower appellate Court was right in dismissing the suit on the ground that, having regard to the doctrine of pious liability, the decree-holder in the present case was entitled to execute the decree which he had obtained against the father alone after the partition, by attachment and sale of the property which had come to the sons under the partition. My learned brother has discussed the important decisions bearing on the question under consideration, and it is not necessary for me to go over the same ground. I should like, however, to observe that, in my opinion, the whole insistence of Mr. Pathak on the doctrine of pious liability is, on the facts of this case, entirely beside the point. The question that arises here is not whether an obligation - pious or otherwise - exists. It may be assumed for the purposes of this case that it does exist. The question which arises in the present case, however, is as to the procedure which must be followed for the enforcement of that obligation by the person who claims to be the obligee.
12. The essence of the matter may be put thus. If A is under an obligation to pay a sum of money to x, and no decree has been obtained by x against A, can X walk into the Court and ask it to attach and sell the property of A for the realisation of the money which, according to him, A is under an obligation to pay to him? If I may say so with great respect, the judgments of Varadachariar J. in Thirumalamuthu v. Subramania ('37) 24 A.I.R. 1937 Mad. 458 and in Kuppan Chettiar v. Masa Goundan ('37) 24 A.I.R. 1937 Mad. 424 are illuminating, and the reasons given by the learned Judge for his decision in those cases are, in my opinion, unanswerable. It may be pointed out that the position of the father's decree-holder in the case before us is weaker than it was in the cases mentioned above. As has been noted above, it has not even been suggested in the present case that the partition was not real or was other than bona fide. In fact, the case of the defendants themselves proceeded on the footing that there had been a geniune partition. It was also not suggested that the partition had been entered upon with the intention of defrauding the father's creditors. Furthermore, we have examined the partition decree. There is nothing in it to show the respective values of the property allotted to the father on the one hand and to the sons on the other. For ought we know to the contrary the property allotted to the father might have been of greater value than that allotted to the sons in order that the father might be able to satisfy the debts of his creditors. If Mr. Pathak's arguments are accepted, the result would be that, even where a larger or more valuable share in the property is allotted at the partition to the father with the avowed object of enabling the father to meet the claims of his creditors, and the father squanders away his property without satisfying the debts due from him, the share allotted to the sons would continue to be liable for the satisfaction of the father's debts.
13. But, apart from what has been said in the preceding paragraph, the arguments that used to be advanced as to the bona fide or mala fide nature of the partition and other similar arguments have now been rendered untenable by the observations of their Lordships of the Privy Council in Sat Narin v. Sri Kirshen Das . I entirely agree with what Varadachariar J. has said in his judgment in Kuppan Chettiar v. Masa Goundan ('37) 24 A.I.R. 1937 Mad. 424 with regard to the effect of that decision of their Lordships.
14. Mr. C.B. Agarwala for the appellants contended that the Full Bench ruling of this Court in Bankey Lal v. Durga Prasad : AIR1931All512 must be taken to have been overruled by the judgment of their Lordships of the Privy Council in Sat Narin v. Sri Kirshen Das mentioned above, and he referred to the opinion expressed in Mulla's Hindu Law, ninth edition, para. 265 particularly in Clause (d) of Sub-para. (2) of that para. (308-309). He also pointed out that the Full Bench decision of the Madras High Court in Office Assingnee v. Ram Chandra Aiyar ('28) 15 A.I.R. 1926 Mad. 735, which Mukerji J., declined to follow in the Full Bench case of this Court mentioned above, has been approved by the Privy Council. I do not think that it is necessary for us for the purposes of the present case to consider whether this contention is well-founded, for, this case is distinguishable on the facts from the Full Bench case. For one thing, there has been no insolvency here and no question of the application of the provisions of Section 4, Provincial Insolvency Act, arises. For another, it was held in that case - whether the reasons for that conclusion were sound or unsound, it is not for us to say - that the partition in that case had been mala fide whereas in the case before us such a contention is not even open to the decree-holder.
15. The question whether the partition was real, in the sense that a severance in status has actually taken place, will of course always have to be considered. If the partition was not real in this sense, then it was a mere pretence and the family continues to be joint. I should also like to add that the judgment of the High Court at Nagpur in Frim Govind Ram Dwarka Das Bombay v. Nathu Lal ('37) 24 A.I.R. 1937 Nag. 45 is, if I may say so with great respect, very instructive. The only other case in which I consider it necessary to refer is the Full Bench case of the Patna High Court in Atul Krishna Roy v. Lala Nadanji ('35) 22 A.I.R. 1935 Pat. 275 In the case before us the father is still alive. Thus no question under Section 53, Civil P.C., arises and even the judgment of Wort J. is of no assistance to the respondents.
16. My conclusion, therefore, is that, if Baldeo Prasad thinks that he has any claim against the sons of Nand Lal, he must first bring a suit against the sons for the enforcement of that claim. If the Court grants him a decree then and then alone can he take out execution against the property which fell to the sons at the partition. The position at the present moment is that he is executing a decree, not against his judgment-debtor but against persons against whom he has never obtained a decree.
17. The appeal is allowed and the decree of the lower appellate Court is set aside. The plaintiffs are granted a declaration that the zamindari property to the extent of one-third in Mohal Zard, village Surajpur Parwaria, tahsil NaWabganj, district Bareilly was owned and possessed by the plaintiffs and the proceedings, in execution case No. 414 of 1930 in the Court of the Munsif, Havali Bareilly based on decree No. 290 of 1928 passed by the Court of the City Munsif terminating in an auction sale of the property in favour of Radhey Shyam, Jagdish Narain and Girja Shanker were of no effect against the proprietary rights of the plaintiffs in that property. The plaintiffs are allowed their costs throughout.