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Pannalal Baldev Das and anr. Vs. Mt. Naraini and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H9
AppellantPannalal Baldev Das and anr.
RespondentMt. Naraini and anr.
Cases ReferredSubramania Ayyar v. Sabapathi Ayyar A.I.R.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....khosla, j1. the facts which have given rise to this letters patent appeal may be briefly stated as follows:2. baldev das, the father of the present appellants, hypothecated some machinery in favour of mt. naraini and tilok chand. the machinery was at that time the property of the joint hindu family consisting of baldev das and his sons. the hypothecation deed was executed on 30th september 1928 and was for a sum of rs. 16,000. some years after this the sons of bladev das filed a suit for partition against their father. a preliminary decree for partition and then a final decree was passed on 20th july 1928. the joint family property was separated by metes and bounds and separate possession was taken by the father and the sons.3. on 5th october 1934, that is, more than six years after the.....
Judgment:

Khosla, J

1. The facts which have given rise to this Letters Patent appeal may be briefly stated as follows:

2. Baldev Das, the father of the present appellants, hypothecated some machinery in favour of Mt. Naraini and Tilok Chand. The machinery was at that time the property of the joint Hindu family consisting of Baldev Das and his sons. The hypothecation deed was executed on 30th September 1928 and was for a sum of Rs. 16,000. Some years after this the sons of Bladev Das filed a suit for partition against their father. A preliminary decree for partition and then a final decree was passed on 20th July 1928. The joint family property was separated by metes and bounds and separate possession was taken by the father and the sons.

3. On 5th October 1934, that is, more than six years after the final decree in the partition suit Mt. Naraini instituted a suit against Baldev Das for the recovery of the money due on the hypothecation deed. The sons of Baldev Das, who are the present appellants before us, applied to be impleaded in the case on the ground that the hypothecated property had fallen to their share on partition. The plaintiff resisted this application and declined to implead the sons. The sons' application was eventually dismissed and the suit continued against Baldev Das alone. Counsel for the plaintiff in that case made a statement that ha wanted a personal decree against Baldev Das only and gave up his claim against the hypothecated property. While the suit was still pending, that is, on 17th April 1935, Baldev Das died and his sons and widow were brought on record as his legal representatives on the application of the plaintiff. On 20th November 1935 the parties compromised the case and a decree in terms of the compromise followed. This decree was for the entire amount claimed by the plaintiff plus half the costs of the suit. The money was to be realized out of the property of Baldev Das in the hands of his sons.

4. The decree-holder then took out execution and attached certain property which had fallen to the share of the sons on partition. The sons objected that this property was not liable to attachment and sale in execution of the decree passed against Baldev Das. There were certain other objections also but it is to be observed that they raised no plea regarding the nature of the debt. They did not allege that the original debt was tainted with illegality, or immorality. The executing Court repelled the objections of the judgment-debtors and dismissed them. On appeal a single Judge of the Lahore High Court held that the separate property of the sons was liable in execution of the decree and that the decree-holder could attach this property. The appeal was accordingly dismissed and it is against this order of dismissal that the present Letters Patent appeal is directed.

5. The question for our decision, therefore, is whether under Hindu law a decree in respect of a pre-partition debt can be executed against the separate property of the sons where the partition took place before the suit upon which the decree followed was instituted. The decree-holder's case is based on the wording of Section 53, Civil P.C. The judgment-debtors' contention is that Section 53 does not apply to the facts of the case. In order to appreciate the point involved it is necessary to examine carefully the provisions of Sections 47, 52 and 53, Civil P.C. The relevant portion of Section 47 is in the following terms:

47(1). All questions arising between the parties to the suit in which the decree wag passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

* * * *

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Section 52 (1) runs as follows:

52(1). Where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

Section 58 runs as follows:

53. For the purposes of Section 50 and Section 52, 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 be deemed to be the property of the deceased which has come to the hands of the son or other descendant us his legal representative.

6. It is to be remembered that the Civil Procedure Code lays down rules of procedure and not of substantive law. Section 53 cannot modify, qualify or even attempt to interpret Hindu Law rules governing the rights of a son or his obligation to pay his father's debts. It does, however, prescribe the mode of procedure which a decree-bolder must adopt in order to realize his debt.

7. Before proceeding further it is as well to state one or two principles of Hindu Law which have a bearing on the facts of this case. In the first place, before partition a Hindu father has disposing power over the joint family property. A decree passed against the father as a member of the joint Hindu family can be executed against the separate property in the hands of his sons if partition takes place after the decree. This proposition is so well recognised that it is not necessary to cite any authority in support of it. In the second place, it is clear that a father has no disposing power over the separate property of his sons after partition. On partition the sons and other members of the original joint family become full owners of the property which falls to their share. From this it follows that if a money decree is passed against the father after the partition has been effected the decree cannot be executed against the separate property of the sons as long as the father is alive. This proposition is not universally accepted but the weight of authority is in favour of it.

8. Reference may be made to Kuppan Chetliar v. Masa Goundan A.I.R. 1937 Mad. 424, Firm Govindram Dtuarkadas Bombay v. Nathu Lal A.I.R. 1937 Nag. 45, Official Receiver Guntur v. Amara Seshayya A.I.R. 1941 Mad. 262, Ramachandra v. Annaji : AIR1944Bom59 , and Pirya Shankar v. Radhey Shiam : AIR1946All109 . It is, at any rate, clear that Section 53, Civil P.C., does not apply to a case in which the father is still alive. In the third place, it is clear that the sons have pious obligation to pay their father's just debts whether their father is alive, or dead. There is some difference of opinion as to the mode in which this obligation can be enforced. Soma Courts have held that the liability of the sons must be established in a civil suit so that the sons can have an opportunity of showing that the debt was tainted with illegality or immorality. Other Courts have taken the view that the separate property of the sons can be proceeded against in execution proceedings. Be that as it may, it is clear that the pious obligation of the sons to pay their father's debts exists even if the father ceases to have any disposing power over the sons' property on account of partition. it therefore, follows that the property in the hands of the sons is liable for the pre-partition debts of the father, but the question is how this liability is to be enforced, more particularly in the present case, and in what manner the provisions of Section 53, Civil P.C. are to be applied.

9. Counsel for the appellants contended that Section 53, Civil P. C. was enacted in order to prevent undivided sons after their father's death from contending that the property in their hands was not their father's property because it had come to them by survivorship and not by inheritance. He relied upon two cases (J. Mohideen Sahib v. Kotta Lakshmayya A.I.R. 1937 Mad. 813 and Atul Krishna Rao v. Lala Nandji A.I.R. 1935 pat. 275) Counsel for the respondent, on the other hand, contended that Section 53, Civil P.C. speaks of property in the hands of a son or other descendant which is liablo under Hindu law for the payment of the debt of a deceased ancestor' and such property is not limited to the property which has devolved upon the sons after the death of their father. It includes the property which came to them on partition even before the decree was passed. He relied upon the following cases: Vankata Narayana Rao v. Venkata Soma Raju A.I.R. 1937 Mad. 610), Bethanaswami Naidu v. Kannan A.I.R. 1948 Mad. 415, Matiomal Hassanand v. Tirithmal Kundanmal A.I.R. 1939 Sind. 258 and Pannalal v. Ramanand A.I.R. 1936 Lah. 193).

10. He also drew our attention to certain remarks made by Wort, J. in the Full Bench case Atul Krishna Rao v. Lala Nandji A.I.R. 1935 Pat. 275, relied upon by the appellants' counsel. Wort J. bad in that case dissented from the other two Judges hearing the case.

11. Before discussing these cases it is necessary to examine the position of the appellants in the light of the provisions of Section 47, Civil P.C. On the death of Baldev Das the appellants were impleaded as his legal representatives. There is no doubt that the only pleas open to them were the pleas which Baldev Das himself could have raised. They could not, therefore, have been allowed to prove that the debt incurred by Baldev Das was tainted with illegality or immorality. A decree was then passed against the appellants. In execution proceedings, however, the appellants could have raised the plea that the separate property in their possession was not liable to attachment and sale because the debt of Baldev Das was tainted with illegality or immorality. There is no doubt that such a plea can be raised as was held in Shivram Dhondu v. Sahharam Krishna 33 Bom. 39, Tota Singh v. Partap Singh 13 I.C. 670 (Lah.) and a number of other cases cited on p. 495 of Chitaley's Civil P.C., Third Edn., vol. I. This plea raised a question relating to the discharge or satisfaction of the decree and the executing Court was bound to determine it. Again, the appellants could have objected that they were not the legal representatives of Baldev Das in respect of their property which had come to them on partition. The contention of the learned counsel for the appellants that if the decree could not be executed against their separate property during the lifetime of their father a fortiori it could not be executed after his death has really no force in it. While the father is alive the sons cannot be impleaded as his legal representatives and the pleas which are open to them after his death, are not open to them during his lifetime. After the father's death the sons are brought on record as his legal representatives and they become parties to the proceedings. As parties certain pleas are open to them and one of the pleas they can raise is that their own separate property is not liable in execution proceedings because the debt of their father was tainted with illegality or immorality. Therefore, it cannot be said that the father's death has worsened the position of the sons. Even during their father's lifetime the sons had a pious obligation to pay his debts and the creditor could certainly have brought a suit against the sons and established the liability of the separate property in their hands. In such a suit the sons can raise the plea that the father's debt was illegal or immoral and cannot, therefore, be realised out of their separate property. Such a plea is open to them even in execution proceedings when they are impleaded after their father's death. Therefore, their position is not in any way worse than it was while their father was alive. Section 53 clearly states that property in the hands of the sons (which?) is liable under Hindu law shall be deemed to be the property of the deceased. Under Hindu law the separate property in possession of the sons is 'liable' for the preparation debts of their father, and such property, in my view, clearly falls within the ambit of Section 53. It was argued that the reason for enacting Section 53 was that under Hindu law the sons do not inherit the property of their deceased father. They succeed to it by survivor, ship. That may be so, but the words of Section 53 are clearly wide enough to cover the property which has fallen to the share of the sons on partition. Such a wide interpretation of Section 53 does not entail any hardship on the sons, for the sons can raise the pleas which they could have raised [had a separate suit been brought against them (by the creditor.

12 I now proceed to examine the cases relied upon by the parties. Mohideen Sahib v. Lakshmayya A.I.R. 1937 Mad. 813 is a Single Bench decision of the Madras High Court and the judgment contains the following passage:

If a suit is brought against the father as the manager of his family, then the decree, although it purports to be against the father only, is in reality one against the family and in execution the share of the son can be proceeded against, because the decree is virtually one against the son as well as against the father. Even where it is not clear that the father is on record in the suit as the manager of the family, yet nevertheless the sons can be made liable in execution because their father has the power of selling his son's property for debts which are not illegal and immoral and the creditor has the right of selling not merely the father's property, but that property which the father has power to dispose of. If, however, the son is divided from his father, the father has no power of disposal over the son's property and the creditor who cannot have greater powers than the father is unable to bring the property of the son to sale in execution of the decree against the father. In a case like the present, where the partition took place even before the suit was filed, the case of the son is much stronger than if the partition had been after suit; for, the father's property is distinct from that of the son and the property of the son can be no more made liable for the debt of his father without a finding from a Court in a regular suit that it is so liable than can the property of a complete stranger be made liable for another person's debt, unless a Court after due enquiry in a regular suit has declared it to be so.

13 The reasoning in this passage appears to be based on the assumption that the sons cannot in execution proceedings raise the plea of the debt being tainted with illegality or immorality. But that in fact is not so. The sons can raise such a plea. Nor does it make any difference to the case that the father has no power of disposal over the son's separate property, for the liability of the son's share arises from his pious obligation to pay his father's debts, and it may exist even though the father has no disposing powers over the property.

14. The Patna case Atul Krishna Roy v. Lala Nandanji A.I.R. 1935 Pat. 275 was considered by a Full Bench of three Judges. Mohammad Noor and Agarwala, JJ., took the view that where a suit filed against the father alone is decreed after a partition is effected between the father and sons and the father dies, though the sons are liable for the prepartition debts of the father, the decree against the father alone cannot be executed against the separate share of the sons. Wort, J. dissenting took the contrary view. He held that the son's share is liable under Section 53 and no separate action against the son is necessary. The Judges forming the majority in this case laid emphasis on the fact that during the father's lifetime the son's property could not have been proceeded against' in execution proceedings. The obvious answer to this is that while the father is alive the sons are not parties to the execution proceedings whereas they do become parties when they are brought on record as his legal representatives after his death. But it has been held that in the execution proceedings, though the fact of the debt is not open to dispute, the character of the debt and its bearing upon the son's obligation to pay are matters which can be challenged as questions arising in the execution. (Cornish, J. in Venkata Narayana Rao v. Venkata Soma Baju A.I.R. 1937 Mad. 610. Wort J. in his dissenting judgment in the Patna case made the following observations:

Under Section 53, Civil P.C., what is liable to be taken is the property which is liable under the Hindu law for the payment of the debts of the deceased, and, if it is once decided that partition makes no difference and that the sons' share is liable, the question seema to be answered and the matter of procedure hardly comes into question. One of the reasons for the enactment of Section 53 appears to be to avoid the necessity of a separate suit, although one of the main reasons for that section was to meet the case set up by sons that they had taken by survivorship and the Code only applied to those oases in which property had come into the hands of a person by succession.

We thus find that there is the authority of three Judges only in favour of the appellants contention, namely, Horwill, J. in Mohudeen Sahib v. Lakshmayya A.I.R. 1937 Mad. 813 and Mohammad Noor and Agarwala, JJ. in Atul Krishna Ray v. Lala Nandanji A.I.R. 1935 Pat. 275. The weight of authority on the other side is much greater.

15. In Venkata Narayana Rao v. Venkata Soma Raju A.I.R. 1937 Mad. 610 a suit was brought against a father as representing the entire joint Hindu family. During the pendency of the suit a partition of the property took place. A decree was then passed against the father and execution was taken out against the separate property of the sons. When the matter came up before a. Full Bench of the Madras High Court the Court came to the conclusion that the property of the sons was liable in execution proceedings. Venkatasubba Rao and Venkataramana Rao, JJ. did not consider the application of Section 53, Civil P.C., but took the view that as the father had been originally sued in a representative capacity he must be taken to represent his sons even after the partition which had taken place during the pendency of the suit, and on this ground it was held that the decree could be executed not only against the father whose name appeared on the record of the case but also against the sons who must be deemed to be constructive parties. The third Judge, Cornish, J., however, went much further. He took the view that Section 53 covered the ease. He observed:

Apart from Section 53, a Hindu son could not be made liable in execution as his 'lather's legal representative in respect of property which was not property in which the father had any right or title at the time of his death. The language of the section seems to me sufficiently wide to include a liability incurred by the father which is enforceable against property in the hands of his son, whether the liability was incurred by the father in his capacity of manager or personally. In both oases it is the Hindu law which attaches to the property this liability.

Cornish, J. considered the Patna Full Bench ruling discussed above and remarked:

In Atul Krishna Roy v. Lata Natulanji A.I.R. 1935 Pat. 275 (F.B.) the view taken by one of the learned Judges, Agarwala, J. is that Section 53 is intended only to deal with the case of a joint Hindu family and to have no application to a separated Hindu family. As matter of history it is known that the section was introduced to set at rest a question upon which there had been a divergence of opinion in the Courts concerning the right of a decree holder to execute the decree after his judgment-debtor's death against ancestral property which had passed by survivorship to the judgment-debtor's' son. The state of the law previous to an amendment may be considered in the interpretation of the amending enactment, and it is permissible to use this knowledge for the purpose of ascertaining the remedy of alteration which the Legislature intended. But it is not a rule of construction that the language of an amending or new provision is to be limited to the particular matter intended to be altered if, in the ordinary and natural sense of the words employed, the enactment is capable of a wider application.

With these remarks with very great respect I entirely agree.

16. The next case is Bethanaswami Naidu v. Kunnan A.I.R. 1943 Mad. 415. In this case Horwill, J. once again interpreted Section 53, Civil P.C., as applying to the property in the hands of the sons, wheiher it came to them on partition or by survivorship on the death of their father. In Matiomal Hassanand v. Tinthmal Kundanmal A.I.R. 1939 Sind. 258 the came view was taken by Davis J. C. and Weston J. The facts of this case were on all fours with the facts of the present case. There too a suit was brought against a father in respect of a prepartition debt which was neither illegal nor immoral. The father died during the pendency of the suit and his sons were joined as legal representatives. It was held that the interest of the sons in the family property, even though divided, was liable under the provisions of Section 53, Civil P.C., for satisfaction of the decree passed in the suit. The Judicial Commissioners referred to Radha Krishin Told Ram v. F. Jamna Das Ladhomal A.I.R. 1931 Sind 84 a previous decision in which the same view had been taken. Lastly, we have Panna Lal v. Ramanand A.I.R. 1936 Lah. 193. This was a case relating to this very family. Agha Haider J. held that the separate property of the sons (the appellants before us) was liable in execution of a decree against their father Baldev Das in respect of a prepartition debt. Therefore, while the appellants' case is supported by two decisions: Mohideen Sahib v. Kotta Lakshmayya A.I.R. 1937 Mad. 813, and Atul Krishna Roy v. Lata Nandanji A.I.R. 1935 pat. 275 expressing the views of three Judges, the case of the respondent is supported by five decisions Venhata Narayana Rao v. Venhata Soma Raju A.I.R. 1937 Mad. 610; Bethanaswami Naidu v. Kannan A.I.R. 1943 Mad. 415; Matiomal Hassanand v. Tinthmal Kundanmal A.I.R. 1939 Sind 258, Radha Krishin Tola Ram v. F. Jamna Das Badhomal A.I.R. 1931 Sind 84 and Panna Lal v. Ramanand A.I.R. 1936 Lah. 193. These decisions represent the views of no less than seven Judges. In addition there is the dissenting judgment of Wort J. in Atul Krishna Roy v. Lola Nandanji A.I.R. 1935 Pat. 275. This makes a total of eight Judges against three. I have in the earlier part of this judgment given my reasons for adopting a wider interpretation of Section 53, Civil P.C., than the one suggested by the learned Counsel for the appellants in the present case. The appellants could, during execution proceedings, have raised the plea that the original debt was tainted with illegality or immorality. They did not choose to do so. The property which fell to their share on partition is certainly liable under Hindu law unless it can be shown that the debt was immoral or illegal. That plea not having been taken and there being no finding to that effect the decree-holder must be allowed to proceed against the property which fell to their share on partition. Indeed, I am of the view that Section 47 bars a separate suit by the appellants. The pleas which they could] have raised in a separate suit can as well be raised in execution proceedings.

17. For these reasons I would dismiss this appeal and confirm the decision of the learned Single Judge in Chambers. In the circumstances of the case, however, I would leave the parties to bear their own costs throughout.

Teja Singh, J.

18. I agree in the conclusion reached by my learned brother and wish to add a few words.

19. The question involved in the appeal is purely one of law, namely, whether a decree-holder, who has obtained a money decree against the sons of his deceased debtor recoverable out of the property of the deceased, for a debt which was advanced at the time when the debtor and his sons constituted a joint Hindu family can, in execution of his decree, attach the property in I the hands of the sons which, though once joint, fell to the share of the sons after the debt was raised but before he obtained the decree.

20. The appellants' learned Counsel contended that since the decree was recoverable out of the property of the deceased debtor only that property could be proceeded against in the execution proceedings which belonged to the debtor at the time of his death and has since come into the possession of his sons. He further contended that the property which once belonged to the joint family consisting of the debtor and his sons but was later on partitioned between them and fell to the share of the sons could no longer be regarded as the property of the deceased debtor and accordingly it was not liable to attachment and sale in execution proceedings. In my opinion the contention suffers from two defects, (1) it ignores the provisions of the Hindu law according to which the entire joint family property is liable for the preparation debts of the head of the family when he happens to be the father or grandfather or great grandfather of the other members, provided the debt was neither illegal nor immoral and (2) that it is contrary to the procedure laid down in Section 52 read with Section 53, Civil P.C.

21. As regards the liability of the sons for the debts of their father the law is summed up in para. 290 of Mulla's Hindu Law, edition 1946. This is what the learned commentator says:

Where the sons (which expression throughout includes Bon's eons and Eon's son's sons) are joint with their father and debts have been contracted by the father in his capacity of manager and head of the family for family purposes, the SOUB as members of the joint family are bound to pay the debts to the extent of their interest in the coparcenary property.

Later on it is stated:

Where the sons are joint with their father, and debts have been contracted by the father for his own personal benefit, the sons are liable to pay the debts provided they were not Incurred for an illegal or immoral purpose. The liability to pay the debts contracted by the father, though for his own benefit, arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara law to discharge the father's debts, where the debts are not tainted with immorality.

22. It is stated in Clause (3) and (4) of the section that the pious obligation of the sons to pay the father's debts exists whether the father be alive or dead and lasts till the liability of the father subsists. Clause 2 is to the effect that the liability of the son is not personal, but is limited to his interest in the joint family property. If the son and the father separate and there is partition of joint family property the son is not liable for the debts contracted by the father after partition. So far as the pre-partition debts of the father are concerned Mulla's opinion as contained in Clause 6 of para. 290 reads as below:

It is now held by all the Courts in India that the son is liable after partition for a debt contracted by the father before partition. But if the suit is filed after partition against the father only the decree cannot be executed against the son.

23. I shall show hereafter that the second part of the clause does not lay down the correct law, but there can be no doubt regarding the soundness of the first part subject to this condition that the debt must not be tainted with immorality of illegality. Reference in this connection is invited inter alia to Annabhat Shankarbhat v. Shivappa Dundappa A.I.R. 1928 Bom. 232, where it was held by Division Bench of the Bombay High Court that even if partition between father and sons is proved, sons who are divided are liable for the debts of the father to the extent of the family, property which comes to them under the partition. The learned Judges observed that according to the case of Hunoomanpersaud Panday v. Mt. Babooee Munraj Koonweree 6 Moo. I.A. 393 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, and it is the pious duty of the son to pay the father's debts, and the ancestral property, in which as the SOB of his father he has acquired an interest by birth, is liable for his father's debts.

24. The other case in point is Raghunandan v. Moti Ram A.I.R. 1929 Oudh 406 where it was held by a Full Bench of three Judges that the son is liable to pay the personal debta of his father out of the joint family property that has come into his hands on partition before the decree for such debts is passed in favour of the creditors against father alone, provided the debts are. incurred by father when father and son constituted a join Hindu family and were neither illegal nor immoral. This is what Stuart, J. observed:

It appears to me that it is a necessary corollary from the principle laid down by their Lordships of the Judicial Committee that the family property is liable in execution to satisfy a decree on a debt incurred by the father as manager of the joint family property where the other members are the sons that the property will remain liable even if it is subsequently partitioned. The liability is with the property and tho acts of the members of the family cannot divest the property of that liability.

In fairness to the learned Counsel for the appellants I must observe that he admitted the correctness of the proposition that joint family property in the hands of the sons remains liable for the pre-partition debts of the father, but what he urged was that in order to enforce this liability it was necessary for the creditor to obtain a decree against the sons and it is not open to him to attach it in execution of the decree against the father alone. I am inclined to think that in a case of this kind, when the sons were a party to the suit in which a decree was passed no other suit can be brought against them by the creditor to determine the liability of the property. Section 47, Civil P.C., stands in his way, because it is clearly laid down in that section that all questions arising between the parties to the suit in which the decree was passed and relating to the execution, discharge and satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit and the question whether or not a particular property in the hands of the judgment-debtor is or is not attachable is a question relating to the execution of the decree. The contention of learned Counsel that this would cause real hardship to the judgment-debtor inasmuch as it would not give him any opportunity of raising a proper defence, has no force, because though he cannot question the existence of the debt itself it is always open to him to urge that the debt was tainted with illegality or immorality and consequently no part of joint family property was liable for its satisfaction. This was the view taken by the Bombay High Court in Shivram Dhondu v. Sakharam Krishna 83 Bom. 89. It was held that a money decree obtained against the father of an undivided Hindu family governed by the Mitakshara law can be executed after his death against his sons to the extent of the ancestral property that has come to their hands and if the son against whom the decree is sought to be executed as representative of his father takes the objection that the debts are tainted with immorality, he can do so under Section 244 of the Code which corresponds to Section 47 of the present Code. The same view was taken by a Pull Bench of the Calcutta High Court in Amarohandra v. Sebak Chand 34 Cal. 642. A different view was taken by the Madras and Allahabad High Courts, but as has been rightly pointed out by Mulla in his Commentary under Section 53 (Civil P.C. by Mulla, Edn. 1941, p. 223) these decisions are no longer law.

25. The reports of some of the cases decided under the old Code go to show that when the joint family property in the hands of a son of the original debtor was attached the defence was sometimes raised that because the property devolved on the son on the death of the father by virtue of survivorship and not by succession, it could not be regarded the property of the deceased. The words of Section 252 of that Code, which corresponds to Section 52 of the present Code were:

If the decree be against a party as the legal representative of a deceased person, and the decree be for money to be paid out of the property of the deceased, it may be executed by the attachment and sale of any such property.

So when a person happened to be the head of a joint Hindu family difficulty was experienced in holding whether the property of the joint family could be regarded as the property of the deceased within the meaning of the section. Consequently some Courts took the view that if the creditor desires to obtain a remedy against the ancestral property, or any part of it, in the hands of the son, he must seek that remedy in a suit against the son, but he had no right to attach that property in execution of the decree obtained against the debtor. Refer inter alia to Lachmi Narain v. Kunjilal 16 All. 449 and Rameswaramma v. Venkatasubba Rao A.I.R. 1914 Mad. 328. It was principally with a view to solve this difficulty that Section 53 of the Code of 1908 was enacted. The section reads as follows:

For the purposes of Section 50 and Section 52, 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 be deemed to be the property of the deceased which has come to the hands of the son or other descendant as his legal representative.

26. I have pointed out above that the objection of the learned Counsel for the appellants that the joint family property in the hands of the SOUB of the original debtor cannot be attached in execution proceedings runs counter to this section. As I read the words of the section it appears to me to be a sort of explanation to Sections 50 and 52. It may be that by enacting it the Legislature merely intended to solve the difficulty mentioned above but now that it is the part of the law the Courts must give full effect to it and not limit its scope to the narrow purpose which the framers of the Code may have had in mind originally. This view is supported by two Bench decisions of the Chief Court of Sind, Radhahrishen Tolaram v. Firm of Jhamandas Radhomal A.I.R. 1931 Sind 84 and Matiomal Hassanand and Ors. v. Tirithmal Kundanmal A.I.R. 1939 Sind. 258. The following observations made by the learned Judges in the second case may be quoted:

But the second question then raised by Mr. Dipchand for the appellant is that even if the property in the hands of the sons be liable for the debts of the father, nevertheless they cannot be made liable in execution proceedings; their liability can only be determined and enforced in a separate suit...and his argument is that Section 53, Civil P.C., is to be read with Section 52, Civil P.C., and was not intended to apply to a case such as this where joint family property is in the hands of the sons not as the result of the death of the father but as the result of partition. But this point has been dealt with by the Bench of this Court in the case of Radtiakrishen Tolaram v. Firm of Jhamandas Radhomal A.I.R. 1931 Sind 84, referred to above. It is pointed out that Section 53 is as comprehensive as it can be. It does not limit the liability of ancestral property to property devolving by survivorship, and Rupchand A.J.C., who gave judgment, was of the opinion that it would apply equally to ancestral or joint family property which came into the possession of the son or other descendant on a partition made between him and his ancestor.

Both Section 50 and Section 52 provide that when the original debtor is dead and the decree is to be executed against his legal representative the latter is liable only to the extent of the property of the deceased and if such property is available it can be attached and sold in execution proceedings. There is no question of a separate suit. The only condition that has to be satisfied is that the property is the property of the deceased and if this is done, liability of the property for attachment and sale cannot be questioned. Section 53 defines the term 'property of the deceased' when the deceased was a Hindu and constituted joint family with his legal representatives against whom the decree is sought to be executed and lays down that such property shall be deemed to be the property which is liable under Hindu law for the payment of the debts of the deceased. I have already shown, and learned Counsel for the appellants does not controvert this position, that joint family property remains liable for the debt of the father, even after partition, provided that the debt is neither illegal nor immoral. From this it follows that such a property can be attached and sold in execution proceedings against the legal representatives of the deceased debtor just as if the property was owned by the deceased in his own right and came to the hands of his legal representatives on the former's death on sue cession.

27. Learned Counsel for the appellants cited a number of cases to support his contention but, if I may say with due deference, most of them do not appear to me to have paid full consideration to the words of Section 53. In Atul Krishna Roy v. Lala Nandanji A.I.R. 1935 Pat. 275 Khwaja Mohamad Noor and Agarwala, JJ. took the view that favours the appellants. The former learned Judge while discussing Sections 50, 52 and 53 made the following observations:

Section 53 provides that the property in the hands of the son or other descendants liable under the Hindu law for payment of the debt of a deceased ancestor is respect of which a decree has been passed shall, be deemed to be property of the deceased etc. These three sections only mean that the death of a debtor will make no difference and properties which could have been seized in his lifetime can be seized even after his death. These sections do not mean that a property which could not have been proceeded against, in the life-time of a deceased debtor can be taken when he is dead, simply because those who hold the property from before his death have now become judgment-debtors as his representatives. As I have held that a decree against the father alone obtained after separation is not executable against the separated property of the sons, Sections 50 and 53 have no application.' With all respect the concluding words of the learned Judge are not in conformity with the principles of Hindu law and as is mentioned in Clause (6) of Section 290 of Mulla's Hindu Law all the High Courts are now agreed that joint family property in the hands of the sons, even after partition, is liable for the father's pre-partition debts, provided they are not illegal and immoral. The fact that father alone was sued or that the suit was instituted or the decree was obtained after partition cannot make any difference. Wort, J. who wrote the dissenting judgment made the following remarks:

Under Section 53, Civil P.C., what is liable to be taken is the property which is liable under the Hindu law for the payment of the debts of the deceased, and, if it is once decided that partition makes no difference and that the sons' share is liable, the question seems to be answered and the matter of procedure hardiy cornea into question. One of the reasons for the enactment of Section 53 appears to be to avoid the necessity of a separate suit, although one of the main reasons for that section was to meet the case set up by sons that they had taken by survivorship and the Code only applied to those cases in which property had come into the hands of a person by succession.

I respectfully agree with these remarks and my opinion is that the weight of authority is also in favour of the view taken by Wort, J.

28. In addition to the cases mentioned by my learned brother I may refer to the following: In Kishan Sarup v. Brijraj Singh and Anr. : AIR1929All726 a creditor of a Hindu father, who constituted a joint family with his two minor sons, brought a suit against the father alone for the recovery of his debt and got the family property attached before judgment. Thereupon the minor sons brought a suit for partition of their share against the father. The creditor was not a party to this suit. His suit was decreed later on. The suit for partition by the sons was also decreed. Then the sons sued the creditor for a declaration that the two thirds share which the partition decree declared them to have in the family property was not liable to be proceeded against in execution of the decree obtained by the creditor. It was held that the sons' share separated by the partition could be sold in execution of the creditor's decree against the father.

29. In Nand Kishore v. Madan Lal and Anr. A.I.R. 1936 Lah. 64, it was held by Beckett, J. that a creditor has a right to proceed against the Joint family property in execution of a decree against father before partition takes place and this right is not lost when a portion of the joint family property passes into the occupation of one member of the family under a partition. The learned Judge followed Kishan Sarup v. Brijraj Singh : AIR1929All726 and Bankey Lal v. Durga Prasad : AIR1931All512 , in preference to Subramania Ayyar v. Sabapathi Ayyar A.I.R. 1928 Mad. 657 F.B.


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