Shiv Dayal, J.
1. This second appeal arises from a suit for joint possession of 3/4th share of the appellants in the land sold in execution of a decree against their father. The suit was resisted by the purchaser and the decree-holders. The trial Court dismissed the suit not only on the merits but also holding that the suit was not competent being barred by Section 47 of the Code of Civil Procedure. The first appellate Court dismissed the plaintiffs' appeal, although it held that the suit was not barred by Section 47, Civil Procedure Code.
2. Shyamlal and Ramanuj inexecution of their decree against Shan-kardutt. father of the appellants, got attached and sold the suit lands. They were purchased by Sanatkumar (respondent No. 1). After the decree was passed against him. Shankardatta died and the execution proceeded against his sons, the appellants. When the sale took place the appellants were party to the execution proceedings.
3. After the sale, this suit was brought by the appellants. The main contention in the suit was that Shankar-dutta was addicted to gambling and the debts for which the lands were sold were Awyawaharik. that is, immoral. The trial Court found the issue not proved. The first appellate Court affirmed that finding against the plaintiffs.
4. In this second appeal. two new points have been raised for the appellants. It is first contended that by virtue of Section 6 of the Hindu Succession Act, 1956. as soon as Shankardatta died, his death effected a notional partition of the ancestral property so that what could be sold in execution of the decree was merely the share of Shankardatta. which would have fallen to his lot. if there had been a partition of the joint family properties immediately before his death. The second contention is that it was for the decree-holders or the purchaser to prove what was actually sold, that is. whether it was the entire estate sold, or merely the interest of the deceased Shankardatta and for this purpose, they should have produced documentary evidence from the record of the execution proceedings.
5. In my opinion, the first contention is misconceived. The Hindu Succession Act has not interfered with the Hindu Law relating to Mitakshara coparcenary as it stood immediately before the commencement of that Act except on two points. The first is contained in the proviso to Section 6 and the second in Section 30 of that Act. The latter partly encroaches upon the Mitakshara Law that a coparcener in a joint family cannot make a valid gift or bequest of his interest in the coparcenary property so as to defeat the rights of survivorship of the other members to this limited extent that by virtue of that section a coparcener is competent to dispose at will his undivided interest in the coparcenary property. I shall now deal with the effect of the proviso to Section 6.
6. Under the Hindu Law. as it was in force before the commencement of the Hindu Succession Act. 1956. theundivided interest of a coparcener in joint family property, on his death,devolved by survivorship upon the surviving members of the coparcenary. This rule is still maintained in Section 6 of the Act. but the proviso creates adeparture to a limited extent.
7. The proviso enacts that if thedeceased coparcener leaves surviving (a) a female relative specified in Clause I of the Schedule or (b) a male relative specified in that clause who claims through such female relative then the interest of the deceased in the Mita-kshara coparcenary property devolves on his own heirs according to the provisions of this Act either by testamentary or intestate succession, as the case may be but not by survivorship; and the undivided interest of the deceased will be deemed to be that share in the property which would have been allotted to him if a partition of the property had taken place immediately before his death. Thus the interest ofa deceased coparcenary, if he died without making a testamentary disposition of it. devolves by intestate succession upon his heirs who are among the 12 preferential heirs specified in Clause I of the schedule.
8. However, it may be noted that this provision merely incorporates the concept of a notional partition for the limited purpose of enabling succession and computation of the interest of the deceased coparcener which, otherwise, would have devolved by survivorship and also for the ascertainment of the shares in that interest of the heirs specified in Clause I of the schedule. Subject to such carving outof the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the joint family continues without disruption. It is not correct to think that in a case where the proviso to Section 6 comes into play, the status of the joint family is disrupted on the death of ,a coparcener. The purpose of the legal fiction introduced by these provisions is limited,
9. The above position may be summarised thus:--
(1) The Hindu Succession Act. 1956, has left undisturbed the law relating to Mitakshara coparcenary and coparceners, as it was in force prior to the commencement of the Act. except in so far as that law is modified by Section 30 and the proviso to Section 6 of the Act. (21. On the death of a coparcener, if he is survived by such female or male relative as is specified in the proviso to Section 6. by operation of the Explanation I to that proviso. a notional partition is deemed to have beeneffected immediately before the death of such coparcener, by which the share of the deceased is separated. The share so separated thus devolves by virtue of the proviso, on the personal heirs of the deceased instead of vesting in the other coparceners by survivorship. (3) The legal fiction, which brings about such notional partition, does not prevail any farther. Such a partition does not bring about disruption of the coparcenary. It is only the interest of the de-ceased which is separated. The coparcenary. minus the interest of the deceased continues with its own incidents, The surviving coparceners continue as such.
10. Examined in that light, it must be said that on the death of Shan-kardatta his 1/4th undivided interest would be deemed to have been separated by notional partition (since it is not in dispute that the proviso to Section 6 came into play in his case). This means that Shankardatta's 1/4th share devolved on his heirs specified in Clause I of the schedule which include the appellants. while the remaining 3/4th was the remaining share of the appellants by virtue of their being the surviving coparceners. What Shri Pandey contends is that this l/4th share alone was liable to be attached and sold in execution of the decree against Shankardatta after his death but not the appellants' 3/4th share, because after the said notional partition, the property of the appellants was not liable for the debts of their father. In my opinion, the latter part of this contention must be rejected.
11. The law on the subject may be recapitulated thus:-- (1) The sons are liable to pay the debts contracted by their father for his own personal benefit at a time when he was joint with them, but they are not so liable if the debts were incurred for an immoral or illegal purpose. (2) This liability of the sons to pay their father's debts arises from an obligation of piety and religion but that liability does not extend to| the debts which are tainted with immorality. (3) This liability however is not personal and the father's creditor is not entitled to proceed against the person or separate property of the sons. The liability is limited to their interest in the joint family property. (4) The sons ere not liable for a debt contracted by the father after partition. (5) However, even after partition, the sons are liable for pre-partition debts of their father subject to the same condition that they are not immoral or illegal. (6) If a suit is instituted against the father before partition for the recovery of pre-partition debt.the sons are liable even after partition, to satisfy the decree passed against their father. (7) If a suit in respect of a pre-partition debt was brought after the partition, but the father died pending the suit, and his separated sons are brought on record as his legal representatives, the remedy of the decree-holder against the shares obtained by the sons on partition, lies in execution proceedings and not by way of a separate suit. See Pannalal v. Mst. Naraini. 1952 SCR 544 = (AIR 1952 SC 170). where the view taken by majority in the Full Bench decision in Atul Krishna Roy v. Lala Nandanii, ILR 14 Pat 732 = (AIR 1935 Pat 275) has been disapproved. (8) If. however a suit is instituted against the father after partition, the decree passed against him cannot be executed against the sons and a separate suit will have to be brought against the sons before their shares can be reached, although the liability of the sons to pay the pre-partition debts of the father is beyond doubt. See 1952 SCR 544 = (AIR 1952 SC 170) (supra), where the position stated in Jainaravan v. Sonaji. AIR 1938 Nag 24 - ILR 1938 Nag 136 was held to be sound (9) The above propositions relating to the pious obligations of sons, grandsons and great-grandsons to pay their ancestral debts to the extent of their interest in the joint family property are not affected by the Hindu Succession Act 1956.
12. Judged by the above tests since in the present case, the debts were incurred by Shankardutta before the notional partition which would be deemed to be brought about by the fiction contained in the proviso to Section 6 of the Hindu Succession Act and the Explanation I to that proviso and since a suit had been instituted against Shankardatta and a decree passed in it in his lifetime that decree itself could be executed against the appellants who were brought on record as his legal representatives. Therefore, the 3/4th share of the appellants in the joint family property was liable to pay the judgment debt and the sale in favour of Sanatkumar was valid. The first contention is. therefore, rejected.
13. Regarding the second contention, there was no pleading nor issue and in my opinion neither was necessary. It was the plaintiffs' case that the suit land was sold in execution of the decree which means that the entire land was sold. This point was not taken either in the trial Court or in the first appellate Court. It being a mixed question of law and fact cannot be allowed to be raised here for the first time.
14. This brings me to the question whether the appellants' suit was competent. The trial Court had answered this question in the negative but the first appellate Court answered it in the affirmative. The decision of the first appellate Court runs counter to the ruling of the Supreme Court in 1952: SCR 544 = (AIR 1952 SC 170) (supra). There, it is held that a decree passed in a suit in respect of pre-partition debt against the father can be executed against the shares obtained by the sons on partition and that is the exclusive remedy of the decree-holder. His remedy does not lie by way of a separate suit. In such execution proceeding, the son is at liberty to show that the property in his hands is not liable to pay the debts of his father. All these questions fall within the purview of Section 47 of the Code of Civil Procedure. Therefore, a separate suit is barred. Accordingly this suit was not competent.
15. The appeal is dismissed with costs.