1. Moti Lal and others, plaintiffs, obtained a simple money-decree against Jatan Singh. He died, and the plaintiffs decree-holders applied to attach certain property in the possession of Jagannath Singh claiming that Jatan Singh was the uncle of Jagannath Singh and that they formed a joint Hindu family. Various objections were taken by Jagannath Singh under Section 47 of the Civil Procedure Code. The Trial Court held that Jatan Singh was the uncle of Jagannath Singh but said that as the decree was clearly a personal degree, and was not passed against Jatan as the katta of a joint family, there was no obligation on Jagannath Singh to pay Jatan Singh's debt, and that the property was not liable to attachment and sale. The decree-holders appealed and the learned Subordinate Judge held that, under Section 53 of the Civil Procedure Code, the words 'or their descendant' included a nephew and, therefore, reversed the finding of the Trial Court and remanded the case for trial of the other issues.
2. Jagannath Singh comes here in appeal against the order of remand. The point turns on the interpretation to be put on Section 53 of the Code of Civil Procedure. This Section was introduced into the Code by Act V of 1908. It says that, for the purpose of Section 56, property in the Hands of a son or other descendant which is liable under the Hindu Law for the payment of debt of the deceased ancestor in respect of which a decree has been passed shall be deemed to be the property of the deceased which had come into the hands of the son or other descendant as his legal representative. It is noteworthy that the son or other descendant cart only be charged if the property is liable under Hindu Law for the payment of debt of a deceased ancestor. Sir Earnest Trevelyan in the second Edition of his Hindu Law, at page 323, sums up the law in the following words:
Apart from the obligation of a son or grandson to pay the debts of his father or grandfather out of co-parcenary property, the Hindu Law, like other systems of Law, requires the person who succeeds to the property of another as heir or devisee to pa3r the legal debts of such other person, whatever may be the purpose of such-debts to the extent of the assets received by him. There is no obligation upon any other co-parcener who has acquired rights by survivorship to pay the debts of the deceased co-parcener.
3. It seems, therefore, that under Section 53 it is only the son or lineal descendant who comes within the scope of the section. We are fortified in this view by the decision of the case of Chunilal Harilal v. Bai Mani 46 Iad. Cas.745 : 42 B. 504 : 20 Bom. L.R. 660. In this view the appeal succeeds and the order of remand must be set aside and the decree of the First Court restored with costs in all Courts including in tins Court fees on the higher scale.