1. This is a plaintiff's appeal arising out of a suit for a declaration as to the extent of the share which the plaintiff has acquired by purchase. The plaintiff is the son of Kanhai Lal, who held a simple money decree, No. 371 of 1923, against Mathura Prasad, who is a member of a joint Hindu family. The joint family consists of Data Ram whom we shall call the grandfather, Data Ram's son Mathura Prasad whom we shall call the father, and Mathura Prasad's three minor sons whom we shall call the grandsons. The debt was a personal debt of the father Mathura Prasad. The decree-holder attached a half share in the joint family property and objections appear to have been raised by Data Ram which were disallowed presumably because his half-share had not been sought to be attached. Fresh objections were filed on behalf of the minor grandsons. On 13th October 1923 the decree-holder applied to the Court stating that he had attached only the right and interest of Mathura Prasad and that the objectors, namely, the minor grandsons, had no concern with it. The vakil for the minor objectors stated that if the Court ordered that only the rights and interest of Mathura Prasad would be sold he would not lead any evidence.
2. On 5th January 1924 the Court ordered that the rights and interest of the judgment-debtor without specification of shares should be sold and that the objections be allowed to that extent. Obviously this referred to the half-share which had been attached and sought to be put up for sale. On 20th March 1925 the rights and interest of Mathura Prasad in this half-share were sold and purchased by Ajodhia Prasad, the son of the decree-holder. The name of the grandfather Data Ram alone stood recorded in the revenue papers and the auction-purchaser therefore felt a considerable difficulty in applying either for the mutation of names in his favour or applying for partition in the revenue Court. He has accordingly instituted the present suit for a declaration as to the extent of his right in the property purchased by him. The minor defendants pleaded that in the execution proceedings the decree-holder expressly confined his attachment and sale to the rights and interest of the father Mathura Prasad and exempted the interests of the minor objectors and that therefore their interests had not passed. They also pleaded that the plaintiff was not entitled to sell more than one-eighth share in the entire estate, which alone would fall to the lot of Mathura Prasad at a complete partition of the family property.
3. The learned Subordinate Judge has held that the plaintiff has purchased only the share of Mathura Prasad which amounted to one-eighth in the joint family property. He has decreed the claim to that extent and dismissed the rest of it.
4. After the passing of the decree the plaintiff applied to the Court for review of judgment on the strength of a judgment inter partes dated 13th July 1925 stating that they had not come to know of its existence before the suit was decided. The learned Judge did not expressly reject this judgment but thought that inasmuch as the previous suit had been dismissed on the ground that as framed it was not maintainable it would not operate as res judicata.
5. The plaintiff has appealed to this Court and all these points are again urged before us.
6. The previous suit was brought by the minor sons for partition of the family property alleging that the decree No. 371 of 1923 against Mathura Prasad was not binding against them inasmuch as the debt had been incurred without any family necessity. The defence was that the debt was binding on the sons because it was not tainted with immorality and further that the plaintiffs could not maintain the suit for partition of a part of the family property. The learned Subordinate Judge decided both these issues against the plaintiffs holding that the debt not having been contracted for an immoral purpose the whole estate was liable for the debt in execution of the decree, and that the suit as brought was not maintainable. For these reasons he held that the plaintiffs were not entitled to any relief and he dismissed the suit. If it were necessary to rely upon this judgment we might have been inclined to hold that the view of the Court below that the judgment did not operate as res judicata was not correct. We may refer to the case of Midnapur Zamindary Co. Ld. v. Naresh Narayan Roy A.I.R. 1924 P.C. 144. The point as to the liability of the whole estate for the debt was directly raised and decided and was one of the grounds for the dismissal of the suit. It is immaterial to consider which finding was absolutely necessary or came first in strict logical sequence.
7. We however think that before admitting this judgment the Court had to be satisfied that it could not be discovered with due diligence. The suit had been brought against Kanhai Lal, the father of the present plaintiff, and was decided while the execution proceedings were pending. It is difficult to believe that Ajodhia Prasad was not aware of that litigation, but even if he were not aware of it, he could with due diligence have discovered its existence. There is therefore no good reason for admitting this judgment as a fresh evidence under Order 47, Rule 1, Civil P.C.
8. Furthermore even if that judgment were admitted, it would only operate as res judicata on the question of the liability of the whole of the half-share for the debt due from Mathura Prasad. Even if the whole of the half-share was liable, the question remains how much of it was actually put up for sale. On the facts stated above the decree-holder in order to meet the objection of the minor grandsons stated that he had only put up for sale the rights and interest of Mathura Prasad with which the objector had no concern. Thus it was only the rights and interest of Mathura Prasad which were put up for sale and purchased by the present plaintiff. In view of the express statement we cannot hold that the entire interests of Mathura Prasad and his three sons were sold at auction. The form of the sale certificate drawn up is ambiguous or perhaps misleading. The Court had not decided that the whole of the half-share should necessarily be sold. What it had ordered was that the rights and interest of Mathura Prasad in the half share should be sold.
9. We also think that there is no authority in support of the appellant's 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. This fact is admitted in para. 3 of the plaint. No case has been cited before us which would support this contention. After the pronouncement of their Lordships of the Privy Council in Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61, it became extremely doubtful whether there was any pious obligation on the sons to pay their father's debt during his lifetime. In the leading case of Raja Brij Narain Rai v. Mangala Prasad Rai A.I.R. 1924 P.C. 50, their Lordships have summarized the propositions which follow as a result of the existing authorities. The first two propositions are stated in the following words:
The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua the manager except for purposes of necessity; and '2. If he is the father and the reversioners are the sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.
10. It is quite clear that the liability of the whole estate to be taken in execution proceeding upon a decree for payment of the father's debt is stated to be in the case when the managing coparcener happens to be the father of the other coparceners who are his sons. Their Lordships did not state the proposition in its wide scope that, even if the debtor is the father though not the manager, the liability of the estate remains. A mere coparcener in a joint family does not represent the whole family in its transactions with the outside world unless he is the manager. In the present case Data Earn, the grandfather, has a joint interest in the property and so have the grandsons. It cannot be said that the joint undivided property in which Data Ram has an interest in any case is liable for the debt of Mathura Prasad, who is a mere coparcener. On principle it seems to follow that in the absence of any express authority to the contrary the interest of the minor grandsons should not be held liable for the personal debt of the father when their grandfather is alive and is the manager of the estate and represents them to the outside world. At the time of the partition the sons may have a right to demand separation of their shares also, and if the shares of all) the members of the family are separated Mathura Prasad's share would only be one-eighth of the entire estate. We therefore think that the decree passed by the Court below was correct. The appeal is dismissed without any order as to costs as no one appears for the respondents.