1. These are two connected appeals arising out of execution proceedings. The facts which have given rise to this litigation between the parties are as follows:
Chotey Lall, appellant in appeal No. 498 had a brother named Basheshwar Das. Bameshwar Das, appellant in appeal No. 499 is the adopted son of Basheshwar Das. These three persons constituted a joint Hindu family, which possessed ancestral property. The decree-holder obtained a mortgage decree against Basheshwar Das on the basis of a mortgage deed, and in execution of which the mortgage property was sold. The sale proceeds, however, proved insufficient to discharge the mortgage debt; and so, the decree-holder applied for, and obtained a personal decree to the extent of the assets of Bhasheswar Das in the hands of his son Rameshwar Das. In execution of this decree one-half share in certain joint family properties have been attached. Both Rameshwar Das and Chotey Lall objected to the at-tachment on the ground that the properties attached were ancestral joint family properties of which they were the owners, and that they were not the assets of Bhaheshwar Das. The decree-holder in reply asserted that the attached properties were self-acquired properties of Basheshwar Das deceased. There was another point in dispute as to whether or not the attached properties were waqf; but it is not necessary to enter into the question at present, it has been found by the Court below that Basheshwar Das, his son Rameshwar Das, and Chotey Lall constituted a joint family, and that the properties now sought to be sold, were joint and ancestral. It held that the decree-holder was entitled to proceed against these properties inspite of the family of the judgment-debtor and of his brother being joint, and of the properties No. 1 and 6 being ancestral. The present appeal has been preferred against that decision of the learned Subordinate Judge.
2. The question for consideration is whether the son in a joint family, consisting of father, son and uncle, is under a pious obligation to pay the debt incurred by the deceased father, and whether the share of the son in the joint family estate can be attached and sold in order to pay the debt incurred by the father. There are conflicting decisions of this Court on this point.
3. In Lalta Prasad v. Gajadhar Shukul : AIR1933All235 , a Bench of two learned Judges of this Court held that:
The sons (which expression includes son's sons and son's son's so as) of a Hindu, who is the managing member of a joint Hindu family consisting of himself, his sons and his nephew and grand-nephews, are under a pious obligation to pay the debts contracted by the father (which are not for family purposes) to the extent of their interest in the joint family property provided the debts were not incurred for an illegal or immoral purpose. Every Hindu son is under a pious obligation to discharge his father's debts of this class, irrespective of the fact whether the father is or is not the manager of the joint family, or whether the joint family is or is not composed of persons other than the father and the sons.
The right of the father's creditor, who has obtained a decree for the debt of the father, to sell the son's interest in the joint family property in execution of his decree is based not on the father's right to alienate the sons' interest for his debts but on the pious obligation of the sons, and the creditor can pursue his remedy even though the father, having regard to the constitution of the family, cannot alienate the family property.
4. A totally different view was taken by another Bench of which one of us was a member. In U.P. Oil Mills Co. Ltd., v. Jamna Prasad : AIR1933All334 , it was held that:
The doctrine that the sons in a joint Hindu family are under a pious obligation to pay the father's debts not tainted with immorality to the extent of their interest in the joint family property is confined to a family consisting of father and sons. Where therefore the joint family consists of brothers and their sons, and one of the brothers dies leaving debts not tainted with immorality, the share of the deceased brother or of his sons in the family property is not liable for payment of the debts.
5. In view of this conflict of opinion we consider it desirable that the question should be considered by a larger bench. We, therefore, refer the case for the opinion on the following question:
Whether the share of a son in a joint family estate, owned by a joint family, consisting of a father, his son and father's brother, can be sold in execution of a decree to satisfy a debt incurred by his deceased father.
6. We direct that the case be laid up before the Honourable the Chief Justice for orders.
7. These appeals arise out of execution proceedings in the following circumstances. A family consisted of two brothers, Basheshwar Das and Chotey Lall and Basheswar Das's adopted son Rameshwar Das leaving out another branch which was admittedly separate. Basheshwar Das's son Rameshwar Das had not been adopted in 1897. In that year Basheshwar Das and the representative of the other branch made a possessory mortgage in favour of the predecessor of the respondent. A suit was brought by the mortgagees against Basheshwar Das and Chotey Lall without impleading Eameshwar Das, to enforce the mortgage against the representative of the separated branch as well as Basheshwar Das and in the suit Chotey Lall also was impleaded. The claim was decreed in 1924 and a preliminary decree was passed. Basheshwar Das died and the final decree was passed against both Chhotey Lal and Rameshwar Das. The mortgaged properties were sold up in execution, but the amount of the mortgage debt was not realised in full. On the 25th of August 1930, application under Order 34. Rule 6, C.P.C. was filed against the representative of the separated branch and Chhotey Lal and Rameshwar Das. The Court dismissed the application so far as Chhotey Lal was concerned but held that Rameshwar Das was liable to pay the debts of his father Basheshwar Das to the extent of the assets that had come into his possession; the question of the exact extent of such assets was left open for the execution department. An order was also made against the representative of the separated branch with which we are not DOW concerned.
8. The decree-holder proceeded to execute the decree against Rameshwar Das and attached what he called a half share in six items of the joint family property. Objections were taken by Chhotey Lal and Rameshwar Das to this attachment on the ground that the items were part of the joint family property which belonged to the son and the uncle jointly, and that accordingly the property was not liable to pay the personal debt of Basheshwar Das. The Court below has overruled those objections and ordered execution to proceed both against Rameshwar Das and Chhotely Lal so far as the interest of Rameshwar Das in the joint family property is concerned. Both Rameshwar Das and Chhotey Lal have appealed separately, and it is urged on their behalf that the undivided interest of Rameshwar Das in the joint property is not attachable and saleable because the property vested in a joint family and not only in son of the deceased debtor Basheshwar Das. These appeals came up before a Bench of this Court which has referred it to a larger Bench on account of an apparent conflict between certain observations made in certain recent cases of this Court. The case has been argued with great ability on both sides and Mr. Agarwala in particular has placed before us the texts under the Hindu Law as well as all the leading cases on the point that are in controversy.
9. It is quite clear that before the new Act came into force there was difference of opinion between the High Courts as to whether the liability of a Hindu son to pay his father's debt could or could not be enforced in the execution department. The view taken in this Court was that the remedy, if any, was by a separate suit, and that inasmuch as a Hindu son did not get the property of his deceased father as an inheritance or as a part of his assets he could not be treated as a legal representative of the deceased and that therefore, proceedings could not be taken against him in execution : see the cases of Lachmi Narain v. Kunj Lal Chote Lal (1894) 16 All. 494, Dharam Singh v. Angan Lal (1899) 21 All. 301, Narain Singh Misra v. Lalji Misra (1901) 23 All. 206 and Ram Singh v. Sobha Ram (1907) 29 All. 544, so far as the question of not allowing the creditor to proceed in the execution department was concerned a Full Bench of the Madras High Court in the case of Periasami Mudaliar v. Seetharama Chhettiar (1904) 27 Mad. 243, took the same view and suggested that a separate suit would lie. On the other hand, it was held in Bombay and Calcutta that the obligation of the son to discharge his father's debt was such as to make him liable in the execution department and there was no necessity for a separate suit: see the oases of Shivaram v. Sakharam (1909) 33 Bom. 39, and Amar Chandra Kundu v. Sebak Chand Chowdhary (1907) 34 Cal. 642, and the earlier cases referred to therein. It was obviously to set this conflict of opinion at rest that Section 53 was for the first time added in the new Code of Civil Procedure. Two kinds of cases frequently arise. A judgment-debtor may die before the decree has been fully satisfied in which case execution ordinarily proceeds against his assets in the hands of his legal representatives. This is provided for in Section 50 of the Code. Or a debtor may die and a decree may be obtained against his legal representative and it has to be for the payment of the money due out of the property of the deceased in the hands of such legal representative. This is covered by Section 52, Civil P.C. Section 53, Civil P.C. provides that for the purpose of both the above named sections
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 he deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
10. It seems to me obvious that it was not intended by the Legislature in any way to alter the liability of the property under the Hindu Law; but the object of enacting Section 53 was to make it clear that the same remedy which might have been available by a separate suit is equally available in the execution department, and that although strictly speaking it cannot be said that the joint family property in the hands of a son of a deceased Hindu owner is property which has come to his hands as the legal representative of the deceased, it must be deemed to have so come into his hands within the meaning of Section 51 and Section 52 of the Code. Section 51 provides in particular how execution can be taken out and one of the modes prescribed therein is by attachment and sale of any property. Again Section 60 under which attachment can be effected provides that all saleable property, moveable or immoveable, belonging to a judgment-debtor, or over which, or profits of which he has a disposing power which he may exercise for his own benefit, is liable to attachment and sale in execution of a decree. Then follow certain specified exceptions. The word 'property' has been used in all these sections in the same sense. Now the first point is that the word 'property' used in Section 53 does not mean any tangible property which is necessarily capable of being seized or possessed physically, but must include proprietary interest in such property. The word 'property' has, been used in the Code in the same sense in Sections 51 and 60 as well as at various other places. Nor does it seem to me that the expression 'in the hands of a son' necessarily means property which is exclusively in the hand of a son without any partner or coparcener. The expression stands for property belonging to the son or in which he has a proprietary interest and which may be in his actual or constructive possession, joint or exclusive.
11. The very use of the word 'deemed' indicates that the Legislature recognised that strictly speaking a Hindu son does not inherit the joint family property from his father, that he is not the legal representative of his deceased ancestor and is not in the ordinary sense liable to pay the debt under a decree against the assets of the deceased, but for purpose of procedure it has to be taken as if the property in his hands had come to him as part of the assets of the deceased and he may be his legal representative and should be proceeded against in the execution department. I do not think that Section 53 was ever intended to diminish or decrease the ordinary liability of a Hindu son which existed prior to the enactment of the section under the Hindu Law. The main point for consideration, therefore, is whether the liability of a Hindu son is confined to the case where he or his brothers and descendants are the only coparceners left in the family and that liability either ceases to exist or becomes enforceable if there happen to be other coparceners like a grandfather, uncle, cousin, etc Mr. Agarwala who has argued this case with great ability has placed before us various texts of the Hindu Law showing that the interest which a son acquires in the joint family property by reason of his birth is regarded as property or heritage which he obtains by reason of being born as the son of his father, though his rights come into existence from the moment of his birth. In part 2, Ch. 1, Section 1, pl. 2 and 3 of the Mitakshara it is laid down that the term heritage signifies that wealth. Which becomes the property of another solely by reason of relation to the owner, whether the same be acquired by means of unobstructed or obstructed inheritance, i.e., by survivorship or by succession. Inheritance in this section is stated to be one of the modes of acquiring property. It is now well settled that an undivided interest of coparcener in a joint family property can be attached and sold in execution of a decree for payment of a debt due from him personally. It is therefore, quite obvious that if the undivided interest of a coparcener were not property it would be difficult to see how it could be attachable and saleable in execution of a decree. Prima facie it would seem that the same principle might well apply to the case where there is not only a moral but also a legal liability of a Hindu son to pay his father's debt and that a decree can be executed against him by attachment and sale of his undivided interest in the same way and to the same extent as a personal decree could be executed against him.
12. In order to see the extent of the liability of the Hindu son it is necessary to boar in mind its basis. It rests on the pious obligation of the son to discharge his father's debts. The ground for it has been stated to be that a person who dies without paying his debts may be born in the house of his creditor as a slave or a servant or a woman or may be born as a quadruped as a mark of degradation. It is, therefore, the pious obligation of the son who has been born of his father to free his father from such penalty or calamity. It is not necessary to quote here the texts from Narad or Brihaspati as it is quite sufficient to quote a text from the Mitakshara, part 1, Ch. 6, Section 3, para. 17, p. 110, (Colebrook's translation).
The son born, without minding his own interest, must carefully release his father from the debt, go that he may not go to hell.
13. If this is the true basis of the pious obligation, then it would be obvious that such an obligation would continue, no matter whether the father has died leaving only sons and grandsons or there are some other coparceners in the family. It has been pointed out by their Lordships of the Privy Council in a case to be mentioned shortly as well as by a Full Bench case of this Court that under the strict Hindu Law the liability of the son to pay his father's debt was not confined to the assets in his hands censtituting the joint family property, but that it was even' personal. PI. 19 of the section of the Mitakshara just quoted shows that the son was liable to pay the debt of his father with interest, while the grandson was liable to pay the interest only and it was the grandson's son or the great grandson who could be forced to pay the debt only if he got some assets. In the Bombay Presidency the liability of the Hindu son to pay the debt even out of his own property was at one time enforced which necessitated the enactment of the Hindu Liability For Ancestors Debts Act (1866). In these Provinces however the 'liability does not appear to have been enforced except as against the joint property. Dr. Jha in his learned treatise on Hindu Law and its Sources (pp. 203 to 206) had collected together a considerable number of texts showing that the extent of this liability was very great and even extended to sons who had separated.
14. Dr. Sen on behalf of the appellants has not really disputed the proposition that there is a pious obligation on a Hindu son to pay his father's debt whether the father is dead or alive and whether there are other coparceners living or not. His sole contention is that this pious obligation is not enforceable against the joint family property when there happen to be coparceners other than the son and his descendants. The argument is based principally on the ground that a Hindu son acquires an interest in the joint family property by reason of his very birth and does not derive it from his father and does not inherit any assets of his deceased' father and that therefore he is not truly speaking his father's legal representative. The other ground is that the joint family property does not belong exclusively to the son but to other coparceners, who are not under a similar pious obligation and that, therefore the property cannot ha available to the creditor, and even the son can take advantage of the fact that the property has become vested in other coparceners, some of whom are not personally liable to discharge the debt. But there seems to be no valid ground for drawing any such distinction. The pious obligation of the son to discharge his father's debt must subsist in both cases. If the undivided interest of the son can be attached and sold in execution of a decree against the son, there is no good ground why his legal obligation to pay his father's debt should not; also be discharged by attachment and sale of his undivided interests in the same manner. In this connection it is important to point out that in part 1. Ch. 6, Section 3, para. 19 pp. 110 and 111, of the Mitakshara a text of Brihaspati is quoted:
The sons must pay the debt of their father if proved, as if it were their own.
15. The liability to pay the debt is therefore co-extensive under the Hindu Law with the liability to pay their own debts. The Courts have now limited it to their interest in the joint family property only. Now if for a moment it be conceded that there is this legal liability to discharge the debt there seems to be no reason why the liability should become incapable of enforcement if an uncle or a cousin also happens to be in existence. The liability was independent of the nature of the estate and was dependent entirely on the nature of the debt due. If the debt was illegal or tainted with immorality there would be no pious obligation to pay the debt. But if such were not the case then the liability existed, no matter what the nature of the property taken by the son was. If that is so then it seems to me that the fact whether there are other co parcenersor not should make no difference because it is not the nature of the estate that is the chief consideration. Several cases came up before their Lordship of the Privy Council for consideration in which although the point was not in express terms decided, it certainly could have been raised and can be said to have been decided by implication. I may first mention the case of Deendyal Lal v. Jugdeep Narain Singh (1877) 3 Cal. 198, in which their Lordships laid down that the right, title and interest of one co-sharer in joint; ancestral estate may be attached and sold in execution to satisfy a decree obtained against him personally under the law of the Mitakshara, as well as in Bengal as in Bombay and Madras. The purchaser at such a sale acquired merely the right to compel a partition as against the other co-sharers which the judgment-debtor possessed and cannot seize possession of any share before partition. It is therefore settled that the purchaser of an undivided property sold in execution of a decree during the lifetime of the debtor for a separate debt, acquires the debtor's interest in such property with the power of ascertaining and realising by partition. In; Suraj Bunsi Koer v. Sheo Parshad Singh (1880) 5 Cal. 148 their Lordships laid down that under the Hindu Law, subject to certain limited exceptions, the whole of the undivided estate of a joint family is liable in the hands of sons for the debts of their father.
16. The case of Girdhari Lal v. Kantoo Lal (1875) 1 I.A. 321 is important. In that case there were two brothers Bhikari Lal and Bajrung Sahye and Bhikari Lal had a son, Kantoo Lal. Bajrung Sanyo's son, Mahabir Prasad, was born subsequently. The two brothers Bhikari Lal and Bajrung Sahye transferred certain family property in order to discharge their antecedent debts. A suit was instituted by Kantoo Lal and Mahabir Prasad to challenge the alienation. The trial Court held that as Mahabir Prasad was not born at the time of the transfer he bad no right to impugn the transaction. His suit was accordingly dismissed. The claim of Kantoo Lal was, however, decreed by the High Court on the ground that he was not bound by the transaction. Their Lordships of the Privy Council overruled this decision and dip, missed the claim of Kantoo Lal as well. On pages 330 and 331 it was pointed out that Kantoo Lal, by his birth, did not gain such an interest in the family property as prevented it from being liable to pay a debt which his father had contracted. Their Lordships quoted with approval the observation of Lord Justice Knight Bruce in Hunooman Prasad Pandey v. Mt. Babui Manraj Koeri (1854-57) 6 M.I.A. 393 that
unless the debt was of such nature that it was not the duty of the son to pay it, the discharge of it, even though it affected the ancestral estate, would still be an act of pious duty in the son and that by the Hindu Law the freedom of the son from the obligation to discharge the father's debt has respect to the nature of the debt and not to the nature of the estate, whether ancestral or acquired, by the creator of the debt.
17. In that case it would have been very well contended that inasmuch as Kantoo Lal was not bound to pay the debt of his uncle Bajrung Sahye, he was not liable to pay the debt of his father Bhikhari Lal because the joint family consisted not only of father and son but also an uncle. But this circumstance which was obvious on the face of it was not considered to be of any importance so far as the liability of Kantoo Lal was concerned.
18. In Bhagbat Prasad Singh v. Girja Koer (1888) 15 Cal. 717 their Lordships again laid down that a decree against indebted fathers, in a family consisting of fathers and sons, charged the family estate, and the sale in execution was not merely of the right, title and interest of the debtors but of the property being such interest. It was further held that the sons could not, without establishing affirmatively that the debts were contracted for an illegal or immoral purpose, succeed in a suit against the purchaser. In that case the family consisted of three fathers and three sons of each of them. Thus, every son had not only a father but also an uncle, and it might well have been urged that the liability of the son to pay his father's debt did not exist because the joint family did not consist of farther and son only but consisted of uncles and cousins as well. But this fact was not considered sufficient to entitle the sons to repudiate their liability to discharge the debts of their respective fathers. These oases can be distinguished on the ground that the fathers of all the sons bad joined in the transaction. But the principle underlying the decision is, to my mind, the same and these cases are certainly authority for the proposition that the liability of a son is not confined to the case where the joint family consists only of a father and sons and not of other coparceners.
19. In the case of Amar Chandra Kundu v. Sebak Chand (1907) 34 Cal. 642 Mitra and Holmwood, JJ., had a case in which the joint ancestral property belonged to a brother and brother's son who had taken it as survivors. The decree-holder applied for realisation of the balance of the debt due after the mortgaged property had been sold and sought a money decree against the widow and a minor son of the deceased debtor as well as the other coparceners. The learned Judges stated:
The real question in the case relates therefore to the undivided half share which on partition might have been allotted to the debtor and his son, and which has by survivorship come to be the undivided half share of his son. Is this share or any smaller share of it capable of being attached and sold under the decree in execution a decree which was personal against the debtor. The law is now well established that sons and grandsons are legally bound to pay the debt of their father or grandfather to the extent of the assets which the father or grandfather could claim during his life-time inasmuch as it is the pious duty of the sons and grandsons to pay their ancestral debt unless the debt was incurred for an immoral purpose. The creditor is entitled to follow such debt in the hands of the sons and grandsons and the burden of proving non-liability is on the sons and grandsons. The question whether remedy could be had in the execution department was referred to a larger bench which answered the question in the affirmative.
20. In Shivram v. Sankharam (1909) 33 Bom. 39 a money decree had been obtained against the father of an undivided Hindu family governed by the Mitakshara law and was sought to be executed against his sons to the extent of the ancestral property that had come to their hands even though the debt had been incurred for the sole purposes of the father. There were other co-paroeners of the joint family as well and the decree-holder wanted to execute the decree against the interest of the son only in the joint family property. The learned Chief Justice in delivering the judgment of the Court considered that the undivided share sought to be attached in the ancestral property had devolved exclusively upon the sons by right of survivorship on their father's death and held not only that it could be proceeded against by the creditor but also that it could be done in the execution department.
21. In Periasami Mudaliar v. Seetharama Chettiar (1904) 27 Mad. 243 a Full Bench of the Madras High Court had a case in which a decree was sought to be executed against the joint family property in the possession of certain sons and other members of the family. The plaintiffs had sought execution both, against the undivided brothers of the deceased and his sons but as against the former the suit had been dismissed and the claim had been decreed against the sons only. All the learned Judges agreed that the sons were liable and that the liability could be enforced in the execution department. Bhashyam Ayyangar, J. in particular dealt with the question of the liability of the sons under the Hindu Law and did not make any exception in their favour in a case in which there are other coparceners of the family alive. As a matter of fact, there were such other coparoeners in that case.
22. In a Division Bench ruling of this Court viz: Babu Singh v. Bihari Lal (1908) 30 All. 156 it was held that the transfer of family property by one brother and the eldest son of a deceased, in order to discharge the antecedent debt of the two brothers was binding on the sons of the brother who was alive although at the time of the transaction there were other coparceners of the family alive. It is not necessary to consider in this case whether the view expressed therein that the elder brother could not transfer the family property in order to discharge his own father's debt was correct. I now come to a still clearer pronouncement of their Lordships of the Privy Council. In Surendra Mohan Singh v. Hari Prasad Sinha a mortgage deed had been executed by two brothers who were joint. At pp. 46 and 47 (of 24 A.L.J.) their Lordships observed as follows:
As to the remaining contention on behalf of the defendants based on what is said to be the law of the Mithila School that no member of a Hindu joint family subject to the law of the Mithila School is bound to pay the debt of an ancestor which was contracted jointly by the ancestor with another member of the joint family. That proposition thus broadly stated is a wide one, and would apply in the case of a son or a grandson of the ancestor who was under a pious duty to pay the debt of his father or his grandfather whether he was or was not in possession of assets which had come down to him from his father or his grandfather. That is a startling proposition. The law of the Mithila School is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila School is departed from the law of the Milakshara. Assuming that it was a debt which, if contracted by the father or grandfather alone, it was the pious duty of the son or of the grandson to pay, it is difficult to understand on what principle of the law of the Mithila School it was not a debt which it was the pious duty of the son or grandson to pay if it were contracted jointly with another who was a member of the joint family.
23. No doubt in this case the debt had been contracted jointly by the father and other members of the family, but the fact also remains that there were other co-parceners alive and yet the liability of the son did not vanish merely because there were such other co-parceners. The learned Counsel for the appellant has very strongly relied on the case of Binda Prasad v. Raj Ballabh Sahai : AIR1926All220 which no doubt helps him. That case was decided by Mukerji, J. and myself, and both of us agreed that where there are other co-parceners alive in the family the liability of the Hindu son to pay the father's debt out of the joint family property does not exist under Section 53, Civil Procedure Code. or under the Hindu Law. Unfortunately none of the cases which I have referred to above were cited before us and the question of law was treated as a matter of first impression. I certainly took the view that the liability of the Hindu son to pay his father's debt under Section 53, Civil Procedure Code, could be enforced only if he could be treated
as the legal representative of the deceased with, regard to the property sought to be attached] (p. 275 of 21 A.L.J.),
and then concluded that in such a case the crucial date would be the date of the death of the deceased and not the date of the attachment of the property. In that case there was a grandfather who bad survived on the death of the father, but the whole share in the family property was sought to be attached and not only the share of the grandfather. I held that the joint family of which the grandfather was a member was not liable to discharge the debt of the father and that therefore the grandson was also protected and the decree could not proceed against him. I must confess that as no authorities were cited before me I overlooked the fact that Section 53' itself contemplates that the Hindu son is not the legal representative of his father but that he is 'deamed' to be so, for purposes of Sections 50 and 52. Therefore the basis of my conclusion was wrong. My learned brother, Mukerji, J., came to the same conclusion. He held that although there was a liability under the Hindu law on the sons to pay their father's debt and that liability could be sought in execution as well, the test which one had to sea was whether the joint family property could be realised on the death of the debtor for the payment of his debts. The learned Judge held that as there could be no doubt that the debtor could not sell the property at the time he died in order to pay off his own debts, he not being the head of the family, there was no liability of the sons to pay their father's debt. The learned Judge observed:
In my opinion the test is that the property which the father could sell in his lifetime is the only property that could be pursued by his creditor on his death in the hands of his son.
24. In view of the authorities to which our attention has been drawn in this case, I must say, with great respect, that there is a clear distinction between the inability of a coparcener voluntarily to sell his undivided interest and the ability of his creditor to attach his undivided interest and to sell it. The true, test is not whether the father could have voluntarily sold his undivided interest, but the true test is whether the debt was pf such a nature that the creditor could have realised the debt by attachment and sale of the father's undivided interest. No doubt it is quite correct to say that a son doss not receive property from his father on his death but acquires an interest by birth and becomes entitled to a larger share by survivorship on the death of other members. But in that case, unfortunately, the position was not considered purely from the point of view of the pious obligation of the son to discharge his father's debt, which is quite independent of the question whether or not there are other co-parcener's in the joint family. This case appears to be the first in which a departure was made from the position which had been assumed, if not Actually decided, in all the previous cases referred to above. It is possible to urge that in the Privy Council cases as well as in the other cases of the High Courts in India, this question had, by necessary implication, been decided. But even assuming that these cases did not decide this question directly as it was not raised, one thing is quite clear, that the question could have been raised, and if accepted, would have furnished a fatal objection to the claim of the creditor to proceed against the family property. No doubt a particular case is authority for the propositions which it actually decides and the observations made therein have to be read in relation to the facts of that case. But when we have a long series of decisions in which a certain crucial point is either indirectly decided or assumed, there is a strong presumption that the learned Judges accepted that point to be correct.
25. In Brij Narain v. Mangal Prasad A.I.R. 1924 P.C. 50 their Lordships of the Privy Council observed as follows:
It is true that the point was not actually taken so far as it appears in any of these oases, but when a long series of oases extending over a long period of time, when parties were represented by eminent counsel, are decided in a way where, it a plea, which is evident, had been taken and upheld the decision would have been the other way, there arises an irresistible conclusion that the plea was not taken because it was felt to be bad.
26. These remarks apply with particular cogency to the point under consideration before us.
27. Ajudhia Prasad v. Data Ram : AIR1931All131 was a case where the rights and interest of only the father in the half share of the joint family property had been sold. That finding was sufficient for the disposal of that case and Young, J, and myself held that the grandson's interest could not, in view of that circumstance, be ordered to be sold afresh. We, however, went on to observe that there was no authority in support of the contention that the interest of the minors in the joint family property should be held liable to be sold in execution of a decree against their father when their grandfather is alive and is the head of the joint family. We pointed out that he case had been cited before us which would support that contention, and from the statement of the second proposition by their Lordships of the Privy Council in Brij Narain's case A.I.R. 1924 P.C. 50 we inferred that as that proposition had not been stated in its widest scope the joint property was not liable for the debt of the father who was a mere co-parcener along with the grandfather. We thought that on principle 'in the absence of any express authority to the contrary' the interest of the minor grandsons should not be liable for the personal debt of the father when the grandfather was alive. Apparently in delivering the judgment, I had in mind the principle underlying the decision in Binda Prasad's case : AIR1926All220 though that case was not specifically referred to. No other authority was cited before us and we made this observation, which was in the nature of an obiter dictum, as a matter of first impression and deduction from the restricted scope of the proposition laid down by their Lordships.
28. The extent of the liability of a Hindu son for the payment of his father's debt came up for consideration before a Full Bench of this Court consisting of five Judges including Mukerji and Young, JJ. and myself : Bankey Lal v. Durga Prasad : AIR1931All512 . Three other learned Judges concurred in the judgment delivered by me and with its reasons. Mukerji, J. deliver, ed a separate judgment but arrived at the same conclusion. All the relevant texts and the leading authorities were placed before the Full Bench by learned Counsel for the parties which were referred to in the course of the judgment. In this connection we had also to consider the effect of the decision in Ajudhia Prasad v. Data Ram : AIR1931All131 and both Young, J, and myself, who had been responsible for that decision, agreed that the remark quoted above in that judgment was an obiter dictum. I said as follows:
We thought that in principle it seemed to follow that in the absence of any authority to the contrary the interests of the minor grandsons could not be held liable for the personal debt of the father when the grandfather was alive and was the manager. I must confess 4hat on a reconsideration I now think that this observation was incorrect. My learned brother, Young, J., concurs in this view.
29. As noted above Banerji and Bennet, JJ., agreed with me both as to the conclusions and as to the reasons on all points. It is, therefore, obvious that the basis of the decision in Ajudhia Prasad's case : AIR1931All131 as well as of the previous case of Binda Prasad : AIR1926All220 was destroyed as a result of further consideration. Another point of importance to note is that in this Full Bench case we had also to point out that the proposition laid down by their Lordships of the Privy Council in Brij Narain's case A.I.R. 1924 P.C. 50 relating to joint families could not be considered as giving 'an exhaustive list, so as to exclude the liability of a separate son.'
30. Indeed it is easy to see how there can be numerous other propositions which are now well established and which do not come within the limited scope of the five propositions which their Lordships were pleased to lay down as the result of the authorities which they then considered. For example, a transfer may be upheld not only on the ground of legal necessity but also if the transferee proves that he bad acted in good faith and had taken the transfer after having made adequate enquiry as to the existence of legal necessity. It has been held, at least in this Court, that the transfer may also be up-held on the ground of benefit to the estate. The five propositions do not deal with the liability of grandsons or great-grandsons and there is absolutely no reason to imagine that their Lordships intended to exempt them from liability when it is well recognized under other decisions. Again different considerations arise when the family property has been sold in execution at a decree and has assed out of the family and gone into the hands of a stranger, in which case the burden is on the son to establish that the debt was tainted with immorality or illegality. It is not necessary to enumerate other points which are equally well established. It therefore follows that the mere fact that their Lordships have not referred to such a liability in the propositions laid down in Brij Narain's case A.I.R. 1924 P.C. 50 does not by any means imply that no such liability exists.
31. In that Full Bench case, sons who had separated, were held liable to pay their father's debt out of the property which they had got on partition although no arrangement had been made for the payment of the debts and no responsibility for the payment of the debts had been thrown on the sons or grandsons. We all agreed that the creditor had the right to enforce payment of his debt by proceeding against the properties received on partition by the several members of the family and the receiver could seize property allotted to the other members of the family who had not become insolvents. Mukerji, J. in his elaborate judgment also dealt at length with the liability of the Hindu son to pay his father's debts. The learned Judge observed:
On the Hindu law texts, texts which are of undoubted authority, the liability of a son or grandson to pay the ancestral debt stands supreme and stands irrespective of whether he has got or not any assets of the father or grandfather. It is also clear on the original Hindu rule of law why a father or grandfather had an absolute right to have recourse to the entire family property including the shares of his sons and grandsons to pay his own debts.
32. Recently there have been two more cases of this Court which, though not directly in point, have referred to the extent of the liability of the Hindu sons in terms which are apparently not reconcilable. In Lalta Prasad v. Gajadhar Shukid : AIR1933All235 , Iqbal Ahmad and Kisch, JJ., had to consider whether the sons of a Hindu owner who was the manager of a joint family consisting of himself, his sons and his nephews and grand-nephews, are under a pious obligation to pay the debts contracted by the father (which are not for family purposes) to the extent of their interest in the joint family property, provided the debts were not incurred for an illegal or immoral purpose. The learned Judges came to the conclusion that
every Hindu son is under a pious obligation to discharge his father's debts of this class, irrespective of the fact whether the father is or is not the manager of the joint family, or whether the joint family is or is not composed of persons other than the father and the sons.
33. Iqbal Ahmad, J., in delivering the judgment of the Court relied on the Full Bench case of Bankey Lal v. Durga Prasad : AIR1931All512 and did not follow the opinion expressed in Binda Prasad's case : AIR1926All220 . He dissented from the observations made by Courts Trotter, C.J. that
the doctrine of pious obligation is 'an Illogical relic of antiquity unsuited to any but a primitive and patriarchal society' and is not to be extended beyond the limits made binding by decisions of unquestionable authority.
The learned Judge observed:
No doubt, judicial decisions have, in various respects modified the obligation of sons with respect to the payments of debts of their father as recognized by original texts but it is manifest that the obligation rests on the religious duty of the son to discharge his father's debts, and I can discover no justification for holding that the sons of a father who is not the manager of the joint family are under no such religious obligation or that if the joint family consists of members over and above the father and the son there is no such obligation on the sons. To put it in another way, every Hindu son is under a religious obligation to discharge his father's debts of the class mentioned above irrespective of the fact whether the father is or is not the manager of the joint family or whether the joint family is or is not composed of persons other than the father and the sons. I find it difficult to understand and impossible to appreciate why the sons of the junior members of a joint Hindu family or the sons of a manager of the family which also comprises brothers and nephews of the manager should be absolved from the pious obligation which so far as the Hindu law texts go, is imposed on every Hindu son irrespective of the limitations contended for by the learned Counsel for the appellant.
34. The learned Judge then proceeded to consider certain other observations made in the Full Bench case as well as the propositions laid down by their Lordships of the Privy Council in Brij Narain's case A.I.R. 1924 P.C. 50 and came to the conclusion that he could find support in them for his conclusion. No doubt that question in that case arose in a regular suit and not in the execution department. But so far as the liability of the son under the Hindu law, as interpreted by the British Courts, is concerned, that case directly decided that the liability did not vanish merely because there were coparceners in the family other than the father. The U.P. Oil Mills Co., Ltd. v. Jamna Prashad : AIR1933All334 was a case in which the Official Liquidator had applied to the Company Judge for an order that certain persons should be brought on the ret. cord as contributories in place of a deceased Hindu son. The original contributories were brothers, some of whom had died, and the objectors were the sons of those brothers who were still alive. The son of one of the deceased brothers raised a further plea that he could not be taxed with the liability. Mukerji, Ag. C.J., in delivering the judgment of the Court remarked that the doctrine of pious obligation to pay the father's debt would be available only where there is a family consisting of father and sons.
35. The learned Judge held that where the family consists of brothers and nephews also, the position is entirely different and there is no liability even on the sons of the debtor unless it be proved that the debt was incurred in circumstance which would make it binding on the family or that there was benefit to the family. The' learned Judge based the decision on the ground, among others, that the debtor could not sell any portion of the family property, not even his own share, to pay that debt and followed Binda Prasad v. Raj Ballabh : AIR1926All220 in holding that unless there be an attachment in the lifetime of the debtor his interest would pass by survivorship to the remaining members of the family and the creditor would be without any remedy whatsoever. Although this also was not a case of the execution of a decree nor even of a regular suit nevertheless the basis of the decision is certainly contrary to the basis of the decision in Lalta Prasad's case : AIR1933All235 and in this sense the two decisions are conflicting.. The learned Judge also remarked that
the Full Board of seven Judges in Brij Narain's case A.I.R. 1924 P.C. 50 proceeded to lay down entire propositions of Hindu law on the question of' payment of debts
which observation was not quite in consonance with the view expressed by the Full Bench in Banky Lal's case : AIR1931All512 . Recently the question has come up for consideration both in Lahore and in Madras. In Devi Das v. Jada Ram A.I.R. 1933 Lahore 857, a division bench of the Lahore High Court held that the liability of the son, grandson and great-grandson to pay the debts of their ancestor was not a personal one but they were under a pious obligation to pay their father's debt to the extent of the family property in their hands; and this obligation is not taken away simply because their father dies in the lifetime of their grandfather and so the son's share can be attached and sold in execution of a decree against them as representatives of their father. The attention of the learned Judges was not drawn to the remarks made in the Full Bench case of Bankey Lal : AIR1931All512 but the decision in Binda Prasad's case : AIR1926All220 only was relied upon by counsel. The learned Judges dissented from the view expressed therein and Addison. J., in delivering the judgment of the Court remarked:
With very great respect I am unable to follow the reasoning. I can see no reason why the sons should not remain under their pious obligation to pay their father's debts although their grandfather is alive. They are members of the joint family by reason of the fact that their father pro-created them. They are liable to pay their debts to the extent of the joint family property in their hands.... I am unable to understand how the family property escapes liability completely merely because he (the father) dies in the lifetime of the grandfather.
36. The learned Judges did not agree with the view that the crucial date was the date of the father's death. I have already pointed out that on a reconsideration I had expressed a different view in the Full Bench case. I should also like to point out that in Binda Prasad's case : AIR1926All220 I had proceeded on the wrong assumption that the decree was being executed against the son as the legal representative of his father and it was on that account that I had thought that the crucial date would be the father's death. It now seems to me that as the present tense is used in Section 53, the crucial date may well be the time of the execution. In Virayya v. Parthasarathy Appa Rao A.I.R. 1933 Madras p. 690, a division bench of the Madras High Court held that every Hindu son is under a pious obligation to discharge his father's debts unless they are illegal or immoral irrespective of the fact whether the father is or is not the manager of the joint family or whether the joint family is or is not composed of persons other than the father and sons. Curgenven, J., pointed out that Ajudhia Prasad's case : AIR1931All131 had been subsequently considered by the Full Bench in Bankey Lal's case : AIR1931All512 and that the Judges who had decided it on reconsideration came to the conclusion that it had not been correctly decided and then remarked:
It is certainly difficult to understand upon what logical basis the principle of a son's pious obligation should be identified with the liability of a coparcener of a joint undivided estate for a family debt contracted by the manager.
37. The learned Judge agreed with Iqbal Ahmad, J's. observation made in Lalta Prasad's case : AIR1933All235 and quoted them with approval and remarked:
It seems to us that this is the only reasonable principle to adopt upon this point and we agree with the view so expressed.
38. In the result it was held that the liability of the sons continued even after the father's death although there were other co-parceners left and that the liability was to the extent of their interest in the family property. It seems to me that both on authority and principle there is no good ground for holding that the pious obligation of a Hindu son disappears if there happen to be coparceners other than the father and his descendants. It has already been pointed out that tinder the Hindu law the liability was very extensive and existed independently of there being any assets in the hands of the sons or not. On grounds of equity and justice the Courts have confined this liability to the extent of the joint property in the hands of the son. But there seems to be no justification for restricting the liability still further and making it non-existent if there are other members as well, that is, confining the liability to that special case when the family consists of only the father and the sons. It is obvious that the true basis of the liability for the pious or religious obligation on the part of the son to discharge his father's debt subsists no matter what the constitution of the family may be. I would therefore accept the view expressed by Iqbal Ah mad and Kisch, JJ., in Lalta Prasad's case : AIR1933All235 so far as the liability of the Hindu son is concerned. It is not necessary in this case to consider the other points decided by the Bench in that case. The lower Court has held that as only a half share in the joint family property has been attached and the same belongs to Rameshwar Das, son of the deceased, the objection should be dismissed. It would be more appropriate to order the attachment of the undivided interest of Rameshwar Das in the joint family property which he would be entitled to get on partition and to sell it with the right, in the purchaser to enforce such a partition. As it is only the undivided interest of Rameshwar that is sought to be attached, Chotey Lall, the brother of the deceased, has no locus standi to objeofc to it. I would therefore answer the question referred to us in the affirmative subject to this reservation that the word 'share' referred to of the son which is estimated in the application as being half at the present moment.
39. I concur, and as I was a member of the Bench which decided the unreported case of Kewal Ram v. Reoti Lal Second Appeal No. 413, I wish to add a few words. The decision in that case directly supports the contention of the appellant. In that case one Manak Chand was a member of a joint Hindu family and died leaving debts. His creditor obtained a decree against his son Yad Ram for recovery of the debt due from Manak Chand from the property of the deceased in the hands of Yad Ram. In execution of this decree the creditor sought to attach Yad Ram's share in the joint family property and specified the extent of this share as being one-third. The co-parcenary body consisted of Yad Ram, the son of the deceased debtor, and of two brothers of the deceased debtor. The brothers raised objection to the application for attachment on the ground that they had an interest in the whole of the joint family and no share of it could be attached in execution of a decree against Yad Ram. The Bench of this Court took the view that the objection must prevail. The creditor in his application for attachment sought to attach a one-third share in the joint family property, as being the property of the deceased in the hands of Yad Ram. We held that as the brothers were interested in every portion of the joint family property therefore no share of the joint family property could be attached and sold in execution of the decree obtained by the creditor against the property in the hands of Yad Ram. This decision is undoubtedly in favour of the appellant in this case. The judgment in the case referred to is very brief and no authorities were cited. It appears that the case was not fully argued. However this may be, I have now had the advantage of hearing the very complete and able arguments advanced, by learned Counsel on both sides and am now definitely of opinion that the decision in that case was erroneous. Although the creditor in that case purported to seek attachment of a one third share of the joint family property he really intended to attach the undivided interest of Yad Ram in the property, and in my opinion such interest was attachable and saleable in execution of the decree. After the undivided interest had been attached and sold the purchaser would acquire the right to demand a partition and on partition he would obtain possession of a one-third share in the property, assuming that the share of Yad Ram had not been increased or decreased by births or deaths amongst the coparceners in the meantime. Only in that sense the application of the decree-holder was for attachment of a one-third share in the property. When he specified a one-third share in the property we must understand him to have meant that Yad Ram's undivided interest in the property would amount to a one-third share after partition had been effected. If the decree-holder had expressed his meaning more precisely it is possible that the decision would have been in his favour. In any case I think that the decree-holder would have been entitled to attach and sell the undivided interest of Yad Ram; so the decision was incorrect.
40. Learned Counsel for the appellant has admitted the pious obligation of the son to discharge the debt due by his father but he contends that such pious obligation cannot be enforced in the circumstances of the present case, because there is no property 'in the hands of the son' which could be attached and sold. He argues that the language of Section 53 of the Code of Civil Procedure contemplates only a case where the joint family consists only of a father and his descendants and provides that in such a case when the father dies the joint family property which is exclusively in the hands of the descendants would be liable for the payment of the debt due by the father or ancestor. In the present case the coparcenary body consists of the son and the brother of the deceased debtor. In such circumstances it is argued that no part of the joint family property can be said to be 'in the hands' of the son and therefore there is no property which can be attached and sold for realisation of the debts due by the deceased debtor. I am unable to accept this contention. It is conceded that the son has an undivided interest in the joint family property and that this interest must be held to amount to 'property' since it is certainly liable to attachment and sale in execution of a decree passed against the son personally. It is conceded, therefore, that the son's interest amounts to 'property' but it is argued that it is not tangible property and therefore it cannot be held to be property 'in the hands' of the son. In my opinion the language of Section 53 does not justify this contention. I think the expression 'in the hands of the son' amounts to nothing more than belonging to the son or in the proprietary possession of the son and would apply to property other than tangible property. The undivided interest is admittedly property and in my opinion this undivided interest may fairly be held to be 'in the hands' of the son as it certainly belongs to the son and may be said to be in his proprietary possession. I see no reason, therefore, why the undivided interest of the son should not be held to be 'property in the hands of the son' within the meaning of Section 53. If such property is further held to be liable under Hindu Law for the payment of the debt of the deceased ancestor then the property must be deemed to be the property of the deceased which has come to the hands of the son as his legal representative. As the learned Chief Justice has dealt fully with the question of the liability of the property under Hindu Law for the payment of the debt of the deceased father I do not wish to say anything more on that point. There seems to be nothing in Hindu Law or in authoritative judicial decisions which would limit the pious obligation of the son to pay the debts of his father (to the extent of his interest in joint family property) to such cases only where the son is the exclusive owner of the joint family property. I agree to the views expressed in the case of Lalta Prasad v. Gajadhar Sukul : AIR1933All235 on this point and in the cases of Devi Das v. Jada Ram A.I.R. 1933 Lahore 857 and Virayya v. Parthasarathi Appa Rao A.I.R. 1933 Madras 690. I agree therefore that the objection to the application for execution should be dismissed and attachment should be ordered of the undivided interest of the son in the items specified of the joint family property.
41. The facts leading to these connected execution appeals have been mentioned in the judgment of the learned Chief Justice and the entire case law has been reviewed by him. As I agree generally with his conclusions it is not necessary for me to cover the same ground. The decree which is sought to be executed was passed on 10th February 1931, against Rameshwar Das to the extent of the assets of Bisheshwar Das that may have come in his possession. The Court below has held that the decree-holder is entitled to proceed against the half share of the joint family property now in the possession of Rameshawar Das and Chotey Lall. The debt was incurred by Bisheshar Das who died leaving behind him as members of a joint Hindu family his brother Chhotey Lall and his son Rameshwar Das. It has been found that the debt was not tainted with immorality or illegality.
42. It is contended before us by Chhotey Lal and Rameshwar Das that in view of the provisions of Section 53, Civil P.C. the, order of the Court below is wrong. It is argued that the property which is sought to be attached and sold is not 'in the hands' of Rameshwar Das. I cannot agree with this contention. Although no individual member of a joint Hindu family, under the Mitakshara law can, while the family remains undivided, predicate of the joint and undivided property that he, that particular member, has a definite share, yet it is well settled that a decree-holder in execution of a decree against a Hindu coparcener on the basis of his personal debt can attach and sell his undivided coparcenary interest, and when he hag done so he acquires the power of ascertaining and realising it by partition, Suraj Bans Kuer v. Sheo Prasad Singh (1880) 5 Cal. 148. It is clear therefore that an undivided: coparcenary interest is property under Sections 51 and 60, Civil P.C. 'belonging to the Judgment debtor' or what may be stated' in different language, 'in the hands of the judgment-debtor.' There is no warrant for limiting the scope of property to, tangible property alone. Rameshwar Das therefore has property in his bands. Jointly with Chhotey Lal he has the entire family property in his hands and exclusively he has an undivided interest in his hands. This undivided interest shall be deemed to be the property of Bisheshwar Das provided it is liable under the Hindu law for the payment of the debt of Bisher, shwar Das which has come into the hands of Rameshwar Das as Bisheshwar Dap's legal representative within the meaning of Section 53, Civil P.C. and is available to the decree-holder in execution of the decree obtained by him on 10th February 1931. I have then got to see whether this undivided interest is liable under the Hindu law for the payment of the debt of Bisheshwar Das. Now, Section 53, Civil P.C. does not enunciate any rule of substantive law nor does it in any way affect the existing Hindu law. Under the Hindu law the son is under a pious obligation to pay the debts of his father provided they are not tainted with illegality or immorality and ex hypothesi the present debt is not so tainted. I can find no justification for holding that this pious obligation ceases to exist when the father leaves a brother, a nephew or other coparcener as well. This pious obligation rests not on the constitution of the family or the nature of the estate, but on the facts of his sonship and the nature of the father's debt. In Girdharee Lal v. Kantoo Lal (1875) 1 I.A. 321, their Lordships of the Privy Council said at p. 331 that the rule is as stated by Lord Justice Knight Bruce:
The freedom of the son from the obligation to discharge the father's debt has respect to the nature of the debt and not to the nature of the estate whether ancestral or acquired by the creator of the debt.
43. In Sourendra Mohan Sinha v. Hari Prasad Sinha their Lordships of the Privy Council at p. 47 (of 24 A.L.J.), observed:
The law of the Mithila School is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila School has departed from the law of the Mitakshara. Assuming that it was a debt which, if contracted by the father or grandfather alone, it was the pious duty of the son or of the grandson to pay, it is difficult to understand on what principle of the law of the Mithila School it was not a debt which was the pious duty of the son or grandson to pay if it were contracted jointly with another who was a member of the joint family.
44. The ancient texts and the decided cases are against the contention of the appellant. The case in Ajodhia Prasad v. Data Ram (1907) 34 Cal. 642, must be deemed to have been overruled by the Pull Bench cases, reported in the same volume, of Bankey Lal v. Durga Prasad : AIR1931All512 : see the observations of Sulaiman, Ag. C.J., at p. 929 (of 1931 A.L.J.). The only other case which favours the appellant is the case of the Official Liquidator U.P. Mills Co., Ltd. v. Jamna Prasad : AIR1933All334 . With great respect to the learned Judges who decided that case I cannot agree with the view that the doctrine of the pious obligation of the son to pay the father's debt is based upon the right of the father to sell the family property. I regret, I cannot also agree with the' dictum of Coutts-Trotter, C.J., in the Full Bench decision of the Madras High Court in Subramania Ayyar v. Sabapathy Aiyar A.I.R. 1928 Mad. 657, that the doctrine of pious obligations is
an illogical relic of antiquity unsuited to any but a primitive and patriarchal society.
45. The case of Binda Prasad v. Ballabh Sahai : AIR1926All220 , and the unreported case of Keival Ram v. Reoti Lal Second Appeal No. 413 of 1929, decided by Banerji and King, JJ., on 3rd December 1930, proceeded upon the interpretation of Section 53, Civil P, C, but according to my view the son has an undivided coparcenary interest in his hands which shall be deemed to be the property of the deceased. All the other cases cited at the Bar and. mentioned by the learned Chief Justice favour the respondent either directly or by implication. It remains only to notice the argument of Mr. Panna Lal counsel for Chhotey Lai. His contention was that when a decree-holder proceeds to execute a decree obtained against a Hindu coparcener on the basis of his personal debt he attaches and sells only the right of the coparcener to effect a partition, and as in the present case the coparcener who created the debt is dead, and as a dead man cannot effect a partition, the decree-holder has no remedy. The fallacy underlying this argument is that it omits to take notice of what is well established that the decree-holder attaches and sells the undivided interest of the coparcener in the family property and it is only after he has done this that he proceeds to ascertain and realize the interest by effecting a partition.
46. I therefore agree with the view that the decree-holder is entitled to attach the undivided interest of Rameshwar Das in the joint family property and answer the question referred to us in the affirmative, subject to the reservation proposed by the learned Chief Justice.