Kumara Pillai, J.
1. This appeal arises out of a suit for partition. Plaintiff and defendant 2 are brothers, and defendant 1 is their father. According to the plaint allegations, plaintiff and defendants 1 and 2 constitute a joint Hindu family of which defendant 1 is the head and manager, and the plaint schedule properties (52 in number) belong to the said joint family, having been obtained by them under a partition of 1925 in the common family of which defendant 1 and his children had originally constituted a branch. Defendant 3 is the defendant 1's sister, and defendant 5 is her husband; Defendant 4 is the son of defendant 1's elder brother who had got divided from the branch of defendant 1, and defendant 6 is the wife of defendant 4. Defendant 7 is the wife of a brother of defendant 4.
On two promissory notes executed by defendant 1, one in favour of defendant 3 and another in favour of defendant 4, defendants 3 and 4 obtained two decrees against defendant 1 and caused the plaint properties to be sold in execution thereof, and they were purchased by defendant. 5 at the Court sales. Defendant 3 obtained her decree in O.S. No. 222, of 1937 of the District Munsiff's Court of Palghat, and Ext. B1 is the sale certificate obtained by defendant 5 for the auction purchase in execution of the decree in that suit. Defendant 4 obtained his decree in S.C. No. 323 of 1937, of the Subordinate Judge's Court, Palghat and Ext. B2 is a copy of the sale certificate obtained by defendant 5 for the auction purchase in execution of that decree. The sale under Ext. B1 was confirmed on the 9th November 1940 and the sale under Ext. B2 on the 5th August 1941,.
The plaintiff's case is that the decrees and execution proceedings and the sales in those two suits are all collusive and are not binding on him and his one-third share in the plaint properties as he was not a party to the suits and the execution proceedings and as defendant 1 was not impleaded therein in his capacity as the head and manager of the joint family and the two promissory notes themselves were executed by defendant 1 without receiving any consideration.
According to him, the promissory notes were not executed for discharging any antecedent debt and they were also' not executed for any debt actually incurred at the time of their execution, and so, the decrees, execution proceedings and sales are not binding on his share and he is entitled to have his share in the plaint schedule properties partitioned and recover possession of the same. The prayers in the suit were for a declaration that the decrees and execution sales were not binding on his share and for recovery of possession of his share with mesne profits after partition by metes and bounds and other allied reliefs.
2. Defendants 3 to 7 contested the suit. Their contentions, in short, were that the two promissory notes were fully supported by consideration and the two decrees, execution proceedings and sales were bindings upon the Joint family including the shares of the plaintiff and defendant 2 even though they were not expressly made parties to the suit, that the suit was not maintainable without a specific prayer for setting aside the decrees and execution sales, and that it was also barred by limitation under Article 12 of the Limitation Act. They admitted the partition of 1925 in the original family, but contended that some of the plaint properties were the self-acquired and separate properties of defendant 1 and were not included in that partition. In the summary, given in the lower Court's judgment, of the contentions of defendants 3 and 5 it is stated that those defendants had a contention;
'The suit properties cannot possibly be Joint family properties of the first defendant and his sons. They are more or less the self-acquisitions of the first defendant.'
Mr. N. Sundara Iyer appearing in this Court on behalf of defendants 3 to 7 stated that in giving the above summary the learned Subordinate Judge had misread the contentions of those defendants. In paragraph 2 of their written statement these defendants had stated: (After quoting the passage from the written statement in Malayalam, the judgment proceeded:) and this passage has been translated into English by ' the Court translator as;
'These defendants do not admit the allegation made in paragraph 2 of the plaint that, the plaint schedule properties were partitioned and allotted to the 1st defendant, without any liability whatever. The plaintiff should prove the facts set out in paragraph 4 of the plaint,''
According to Mr. Sundara Iyer, what was intended by paragraph 2 of the written statement was not a total denial of the fact that the plaint schedule properties were obtained by defendant is branch under the partition of 1925 but only a denial of the allegation that under the said partition there were no liabilities on the properties allotted to the branch of defendant 1. The partition of 1925 was expressly admitted in paragraph 3 of the written statement and in that paragraph, after admitting that partition the defendants went on to say that subsequent to the partition, defendant 1 had made certain separate acquisitions with his own funds and labour.
In the circumstances, we have no doubt that Mr. Sundara Iyer's statement about the defendants' contention is correct and that their contention was only that some of the plaint items were the separate and self-acquired properties of defendant 1 and that under the partition t,f 1925 there were debts charged on the properties which had been allotted to defendant 1's branch, The said partition was admitted by defendant 4 in paragraph 3 of his written statement. The fact that the two execution sales, Exts. B1 and B2, were benami for defendant 3 was expressly admitted by defendant 5 in the written statement Jointly filed by defendants 3 and 5, and it was also stated in paragraph 3 of, that written statement that defendant 5 had subsequently surrendered the benami right to defendant 3 by a registered document dated 21-6-45.
3. Without allowing the parties to adduce any evidence and assuming that the plaintiff and defendants 1 and 2 constituted a joint Hindu family and that in execution of decrees obtained against the father for his personal debts joint family properties had been sold in execution, the lower court dismissed the plaintiff's suit in limine on the ground that once joint family properties had been sold in execution of a decree obtained against the father for his personal debts the sons could not seek a partition of the properties without praying for setting, aside the execution sale and that as, on the date of the present suit, i.e., 3rd January 1950, a suit for setting aside Exts. B1 and B2 would be barred under Article 12 of the Indian Limitation Act, the suit was not maintainable.
The lower court also took the view that in the absence of a plea in the plaint that the two decree debts were tainted with illegality or immorality it was not open to the plaintiff to impeach the said debts and that therefore on account of the pious obligation of the son to discharge his father's debts the two decrees and the execution sales were binding on the plaintiff. Against the decree dismissing his suit, the plaintiff has filed this appeal.
4. It is admitted by both sides that the plaintiff and his brother, defendant 2, were not ec nomine parties to the two suits, O.S. No. 222 of 1937 and S.C. No. 323 of 1937, and the execution proceedings thereunder. Defendant I was the sole defendant in both those suits, and the right sold in execution of the two decrees is described in Exts. B1 and B2 as the right of the defendant in the schedule properties. Thus, neither was the plaintiff a party to O.S. No. 222 of 1937 and S.C. No. 323 of 1937, nor was his share in the joint family properties expressly sold in execution of the decrees therein, and so without invoking the Hindu Law doctrine of the pious obligation of the sons to discharge the father's debts it would not be possible for defendants 3 to 7 to contend that 'the execution sales, Exts. B1 and B2, include the plaintiff's share also in the Joint family properties and are binding on him and his share.
According to the plaintiff, the doctrine of pious obligation cannot be invoked in the case of these two suits and the execution sales in respect of them because the two promissory notes on which the suits were filed were purely fictitious debts and they were not executed by his father, defendant 1, on account of any debt incurred by him either before or at the time of the execution of the pronotes. The plaintiff's case is that his father and mother had fallen out and defendant 1 was neglecting to maintain his wife and children and had executed the two pro-notes without consideration acting in collusion with his sister and nephew in order to defeat the just rights of his wife and children.
On behalf of defendants 3 to 7 it is contend-. ed by the respondents' counsel that once a decree, has been validly obtained against the father the question of the factum of the debt is conclusive so far as the sons also are concerned and that it is not therefore open to the sons to contend thereafter that there was no debt at all. It is further contended on their behalf that the decree against the father by itself creates a liability on him independent of the original transaction and that therefore the sons have a pious obligation to discharge that liability unless it is tainted by any immorality or illegality. In other words, the defendants' contention is that after a decree is obtained against a father and joint family properties are sold in execution of it, the execution sale must be taken to include the interests, of his sons also in the joint family properties unless they are able to show that the debt was tainted with illegality or immorality and that so far as the actual existence of the original debt is concerned the decree against the father is conclusive or operates as res judicata against the sons also.
5. Regarding the rights of a decree-holder who has obtained a decree against a Hindu father and the rights of the sons after the execution sale when joint family properties have been sold In execution, the Privy Council has said in Nanomi Babuasin v. Modhun Mohun, ILR 13 Cal 21 (A):
'Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against his creditors' remedies for their debts, if not tainted with immorality. On this important question of the liability of the Joint estate their Lordships think that there is now no conflict of authority.
The circumstances of the present case do not call for any inquiry as to the exact extent to which sons are precluded by a decree and execution proceedings against their father from calling into question the validity of the sale, on the ground that the debt which formed the foundation of it was incurred for immoral purposes, or was merely illusory and fictitious. Their Lordships do not think that the authority of Deendyal's case (4 Ind App 247 (PC)) (A-1), bound the court to hold that nothing but Girdhari's coparcenary interest passed by the sale. If his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit, or the creditor might legally procure a sale of it by suit. All the sons can claim is that not being parties to the sale or execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own. Assuming they have such a right, it will avail them nothing unless they can prove that the debt was not such as to justify the sale'.
The sentence, 'All the sons car, claim is that, not being parties to the sale or execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own', shows that the Privy Council was definitely of the opinion that even after the execution sale the sons were competent to question the factum of the debt: No doubt in that case the factum of the debt was not in question and the attack was only against the nature of the debt, and so these observations are obiter. But coming as they do from the Privy Council they are entitled to the greatest weight and respect, and they have also been followed in numerous other cases which will be referred to presently, in Kesar Chand v. Uttam Chand, 72 Ind App 165: (AIR 1945 PC 91) (B), the Privy Council has said :
'To make the ancestral property liable there must in reality be a debt due by the father. In the present case, the security bond was executed not for the payment of any debt due by Uttam Cnand but for payment of a debt which was due from third parties. Unless there was a debt due by the father for which the security bond was executed the doctrine of pious obligation of the sons to pay their father's debt cannot make the transaction-binding on the ancestral property.'
In the Madras High Court the earliest case brought to our notice in which this question came up directly for decision is Ramaswarnayva v. Virasami Ayyar, ILR 21 Mad 222 (C). Shephard J. has said in that case:
'It is argued on behalf of the appellant that the only question which the son of a Hindu debtor can raise is as to the nature of the debt, and that he cannot question the existence of a debt which forms the foundation of a decree against his father. According to this contention it would be open to the father by confessing judgment to , procure by indirect means the sale of the entire 'estate when he could not lawfully alienate it by a voluntary conveyance. The limitation , which is imposed by Hindu Law on the father's power of alienation would become illusory.
But this is clearly not the law. Whether the sale is a voluntary or an enforced sale, its validity depends upon the existence of a past debt in satisfaction of which the sale is effected. If authority is needed, the dictum in Mt. Nanomi v. Modun Mohun (A), may be cited as showing that the son may question alike the existence and the nature of the debt in consequence of which the sale has taken place'.
In a later Pull Bench case relied upon by the respondents' counsel Periasami Mudaliar v. Seetharama Chettiar, ILB 27 Mad 243 (D), certain observations have been made to the effect that after the decree against the father the son can challenge the binding nature of the debt so far as his share of the joint family property Ss concerned only on the ground that it was tainted with illegality or immorality. These observations occur in the judgment of Bhashyam Ayyangar, J. at pages 251-252 of the report and are as follows;--
'In cases, therefore, where a, decree for money has been obtained against the father, but he dies before execution of the same, the, creditor has, besides executing the same against the son as legal representative the option of suing the son either on the original cause of action--if it be one in respect of which the son as such would be liable--or to enforce payment of the decree amount as a debt of record due by the father. In the former case the judgment against the father cannot be relied upon by the creditor as binding the son and he must prove and establish the cause of action or the alleged debt Just as If no such suit had been brought against the father and judgment obtained.
In the latter case, the Judgment as such would not bird the son and it will be admissible only to prove the existence of a judgment debt due by the father at the date of the judgment; and the only defence open to the son will be either that the decree debt is not one which is binding; upon him--as being illegal or immoral under the Hindu Law--or that the same has been discharged, whether such discharge (by payment or adjustment) has been recorded as certified (vide Section 258, Civil Procedure Code) or not.'
As pointed out in Thiruvenkata Mudaliar v. Muthu Aiyar, 14 Mad LJ 431 (E), and Firm Pirthiraj Ganeshdas v. Kishunlal, ILR 25 Pat 103: (AIR 1946 Pat 338) (F), these observations were purely obiter and they have not been followed in either of those cases. Overruling the creditor's contention that after the decree was obtained against the father it was not open to the sons to question the existence of the debt, the learned Judges who decided 14 Mad LJ 431 (E), have said;
'Though no doubt, there are some observations in the judgments of the learned Judges in the Pull Bench case referred to above, which lend support to this contention, it did not form the subject of the Pull Bench decision and we should be reluctant to hold that the son is no longer able to show that the debt which it is-being sought to charge upon him is not existent. Their Lordships of the Privy Council fully recognise this right of the son in Mt. Nanomi Babuasin v. Modun Mohun (A) where they observe that sons ought not to be barred from trying the fact or the nature of the debt, in a suit. We cannot accept the contention that this right is curtailed by the observations of the Judges of this Court above referred to.'
Referring to the observation of Bhashyam Ayyangar J. in ILR 27 Mad 243 (D), Sinha J. has said in ILR 25 Pat 103 at page 110: (AIR 1946 Pat 338 at p. 343) (F).
'On reference to the facts of that case it will appear that those observations, weighty as they are, are in the nature of obiter dicta. No such question, as has been raised in the present case, was mooted in that case. It will appear that a judgment had been obtained against the father but execution of the decree was refused against the joint family property. Thereupon a second suit was instituted against the whole family including the sons after the father's death. Upon the second suit, the main question in controversy between the parties was whether the second suit was in time and maintainable. Hence, in my opinion, it cannot be said that the point, directly arising for decision, in the present case, was at all present in the mind of the learned Judge who decided that case.'
The observations in ILR 13 Cal 21 (PC). (A), to the effect that even after the execution sale the sons have a right to question the existence of the debt were again followed by the Madras High Court in Subramonia Pillai v. Venkatarama Reddi, AIR 1930 Mad 257 (G),' wherein Ramesan and Jackson JJ. held that, when Joint family properties have been sold in execution of a decree obtained against the father without any words of limitation showing that it was only the father's share that has been sold, 'all that the sons can claim is to show that the debt is illegal or immoral 'or that the debt never existed' (italics, here in ' are ours) and the moment they failed to prove any of the specific circumstances their claim must fail.'
In support of this proposition the learned Judges referred to four cases at pace 258 of the report and the first among those four cases was Nariomi Babuasin v. Madhun Mohun (PC) (A). The question again came up for decision by the Madras High Court in Lakshmadu v. Ramudu, AIR 1939 Mad 867 (H). In that case also the observations in ILR 13 Cal 21 (PC) (A), were followed; and after quoting with approval the dictum of Shephard J. in ILR 21 Mad 222 (C), extracted above and pointing out that the observations of Bhashyam Ayyangar, J., in ILR 27 Mad 243 (D), were only obiter it was held therein that even after the decree against the father and the execution sale it was open to the sons to question the fact of the debt. At page 872 of the report in that case, the following observations also occur:
'The pious duty of a son which makes him liable to pay his father's debt assumes existence of certain debts which have to be paid. The question of illegality or immorality would only arise when the debts were incurred. If the debts were found not to be due it would be impossible to contend that the sons were liable to discharge what was not really a liability of their father.
* * * *It would have been unnecessary to discuss this point in such detail, had it not been for an observation in edition 10 of Mayne's Hindu Law, which was in the note at page 431 where it has been observed by the learned editor that in a suit upon a debt against the father he represents the son when they are not made parties so far as the factum of the debt is concerned and the judgment against the father itself creates a duty. A number of cases have been cited for this proposition but we have not been able to find any observations in these cases that such a plea is not open to the son. It is true that, a statement is to be found in most of them that the only defences open to the sons are those of immorality or illegality, but there is no specific reference that the son is not entitled to question the existence of the debt itself. In the absence of clear decision we cannot hold that the learned Judges were laying down the law differently', (i.e. differently to what was laid down in ILR 21 Mad 222 (C).)
Thus whenever the question has actxially come up for decision in the Madras High Court the observations in ILR 13 Cal 21 (PC) (A), have invariably been followed and the decision has always been that even after the decree against the father and the sale in execution of it the son has the right to question the existence of the debt.
6. In the Patna High Court the question has been very elaborately considered by a Division Bench in ILR 25 Pat 103: (AIR 1946 Pat 338) (F). Sinha J. who wrote the leading judgment in that case considered the question on first principles as well as in the light of the foot-note at page 431 of Mayne's Hindu Law, 10th edition, referred to in the extract from AIR 1939 Mad 867 (H), given above and the decisions relied upon by the learned editor in the said foot-note and also numerous other precedents. Discussing the matter on first, principles the learned Judge has said at pages 108 and 109 of the report (ILR Pat): (at p. 342 of AIR) :
'But it cannot be said that simply because a judgment had been recovered against the father for payment of money the sons are bound by that judgment in the sense that the father fully represented them for all purposes. If that were so, many a designing professional money-lender could recover judgment against a foolish and negligent father by questionable methods, and enforce that judgment against his sons, who will be left helpless in the matter except where they can prove the illegality or immorlity of the debt, which is not an easy matter. In any case, it may be easier for the sons to allege and prove that there was no debt than to prove that the debt had been incurred and the money thus borrowed spent upon Illegal or immoral pursuits. The decisions, relied upon by Mr. pas, all appear to have proceeded on the assumption that there was a debt owing from the father and only the nature of the debt had to be investigated. The father could be held to have been sued in his representative capacity only where it could be shown that the transaction was entered into by him as the leading member of the family, that is to say, where it could be shown that the transaction was for the benefit of the family or for the legal necessity of the family as a whole. Simply because he was the father of the family, and he was sued by a creditor cannot necessarily lead to the inference that the father had been sued in his representative capacity.
In other words, the father's representative capacity would be ascribed only to such transactions as could be justified with reference to the benefits and the needs of the family. Hence, on first principles it cannot be held that in every case where the father is sued in respect of an alleged debt, and he suffers a judgment to be given against him, he had acted in his representative capacity.'
The footnote at page 431 of Mayne's Hindu Law, 10th edition, has been extracted in I.L R. 25 Pat ]03: (AIR 1946 Pat 338) (F) and is as follows:
'Some of the dicta of the Privy Council and of the courts in India would entitle the son to dispute the fact of the debt also. I.L.R. 13 Ind. App 18 (A), ILR 21 Mad 222(C), Kishun Pershad v. Tipan Pershad, ILR 34 Cal 735 (I). It is fairly clear from the more recent decisions that in a suit upon a debt against the father, he represents the sons when they are not made parties so far as the factum of the debt is concerned and the judgment against the father itself creates the debt. Fraud or collusion, of course, will always be an exception. When a decree is passed against the father for a debt proved against him, it is not easy to see how the sons can dispute the father's liability under it except of course in respect of the nature of the debt regarding which the father could not represent the sons; Natesayyan v. Pormusami, ILK 16 Mad 99 (J), Joharmal v. Eknath, ILR 24 Bom 343 (K), ILR 27 Mad 243 (D), Karansingh v. Bhup Singh, ILR 27 All 16 (FB) (D, Indar Pal v. Imperial Bank Lid. ILR 37 All 214: (AIR 1915 All 126) (M), Mohan Lal v. Balaprasad ILR 44 All 649: (AIR 1922 All 310) (N), Ahdul Karim v. Ram Kishore ILR 47 AH 421: (AIR 1925 All 327) (O), Chander Pershad v. Sham Koer, ILR 33 Cal 676 (PJ.
All the cases relied upon in the foot-note in support of the proposition that the sons could not dispute the existence of the debt were carefully examined by Sinha J. at pages 109 to 111 of the report (of ILR Pat): (at pp. 342-343 of AIR), and he has summed up the result of the examination at pages 110 and 111 (of ILR Pat) : (at P 343 of AIR) as follows:
'But it will be observed that in none of those cases the exact question in controversy in this case was raised for the determination of the Court. In all those cases the existence of a debt owing from the father had not only been found in a suit against the father but had not been challenged by the sons. Hence, the only question in controversy in those cases was whether the sons could escape liability for payment of their father's judgment-debt in a suit to which they were not parties. Naturally, therefore, the Court in each case deckled that the sons could escape liability only if they established that the debt in question was tainted with Illegality or immorality.
* * * The observations, either of Mayne himself orof the subseqent editors of his book, having been:based on those decisions, are clearly no authorityfor the proposition contended for.'
After this summing up Sinha J. proceeded to consider in pages 111 to 117 (of ILK Pat) : (at pp. 343-346 of AIR), whether there were precedents in support of the view taken by the lower appellate court in that case that the sons were entitled to question the factum of the debt after the decree passed against the father and the sale in execution of it, and at page 117 of the report (ILR Pat) : (at p. 34 : of AIR), he reached the conclusion:
'It must be held that whenever the question in controversy between the parties in the present case has been directly raised in the Calcutta or the Madras or the Allahabad High Court, it has been answered in favour of the view taken by the lower appellate court.'
As pointed out in I.L.R. 25 Pat. 103 : (AIR 1946 Pat 338) (P), in the Lahore High Court also the same view has prevailed. A Full Bench of the Lahore High Court, with one Judge dissenting, has held in Maha Deo v. Ranbir Singh, A.I.R. 1944 Lah 220 (Q), that the sons are entitled to challenge the existence of the debt on which the decree against the father is passed when that decree is executed against them by reason of their pious obligation. Since all the cases cited before us on this question have been noticed and dealt with in the decision of Sinha J. in I.L.R. 25 Pat. 103 : (AIR 1946 Pat 338) (F), and we agree with the view expressed by that learned Judge it will be superfluous to discuss those cases here.
We hold that, in a suit brought by a Hindu son alleging that his share in the joint family properties was not liable to be sold in execution of a decree obtained against his father and that the sale in execution is not binding on his share he is not precluded by the decree against the father from questioning the existence of the debt on which that decree was obtained and that it is open to him to challenge the decree and the execution proceedings on, the ground that the original debt itself was non-existent or fictitious.
7. In the present instance, the plaintiff's case as set out in paragraphs 8 end 10 of the plaint was that the two promissory notes on the basis of which the decrees in O. B. No. 222 of 1937 and S. C. No. 323 of 1937 were passed were executed by defendant 1 for no consideration find that he had executed them in favour of his sister and nephew in order to defeat his wife and children with whom he had fallen out by bringing into existence two decrees against him and causing the properties to be sold in execution.
It was very clearly alleged in those paragraphs that the decrees were obtained and the sales brought about collusively. In the nature of those allegations the lower court was wrong in presuming without any evidence and without even giving the plaintiff an opportunity to prove his allegations, that the properties were sold for the personal debts of the father and that the execution sales were therefore binding on the plaintiff's share also on account of the doctrine of pious obligation.
8. It is however contended by the respondents' counsel that as the joint family properties have already been sold in execution of the decrees against the father the plaintiff is not entitled to recover possession of his share without getting the sales set aside and that, as a suit for setting aside the two sales, Exts. B1 and B2, would have been barred by limitation under Article 12 of the Indian Limitation Act on the 'date of the institution of the present suit, this suit is not maintainable.
The argument is that when joint family properties have been sold in execution of a decree obtained against the father the auction purchaser obtains by the sale all the co-parcenary rights including the interests of the father and the sons, and if the debt is one in respect of which there is no pious obligation on the part of the sons to discharge the same, it is for the sons to have the sale set aside In appropriate proceedings, and until it is so set aside the sale is binding upon the sons and their shares, and so a suit for partition by a son of joint family properties which have been sold in execution of a decree obtained against the father is not maintainable without a specific prayer for setting aside the sale, and such a suit in so far as the prayer for setting aside the sale is concerned is governed by Article 12 of the Indian Limitation Act.
This contention also has found favour with the lower court. The plaintiff's reply to it is that when joint family properties are sold in execution of a decree to which the father alone is a party and in respect of which the sons have no pious obligation, the execution sale does not pass to the auction purchaser the sons' interests in those properties and that therefore it will be sufficient for the sons to obtain a declaration that the execution' sale does not bind them and their share and it is not necessary for them to get the execution sale set aside.
9. It is now well settled that in respect of a debt which the sons are under a pious obligation to discharge it is open to the creditor to sue the father alone and in execution of the decree obtained against him attach and sell the interests of the father and the sons in the joint family properties, and that in such a case the auction-purchaser obtains the interests of both the father and the sons in the joint family properties, and the sale is binding upon the sons and their shares also even though they are not eo nomine parties to the suit and the execution proceedings.
Because of this it may be possible to contend that when the interests of the sons have been expressly sold in execution of a decree obtained against the father alone the sale must be deemed to have been effected on account of the rule of pious obligation and that therefore the sale is binding on the sons and their interests also until it is set aside and so a prayer for setting aside the sale is necessary if the sons seek for recovery of possession of their shares in the properties thus sold in execution. But that is not the case here.
The sons' shares have not been expressly sold under Exts. B1 and B2, and what has been sold thereunder is only the right, title and interest of the judgment-debtor who was the father (defendant 1). Even in such a case the auction-purchaser might obtain by the court sale the interests of the sons also if the debt was one which the sons were bound to discharge on account of their pious obligation. But it cannot he contended that in every case of a 'sale of joint family property in execution of a decree obtained against the father alone the sale is not merely of the interests of the father but includes the interests of the sons also. The Privy Council has said in ILR 13 Cal 21 (A),
'If his (father's) debt was of a nature to support a sale of the entirety he might legally have sold it without suit or the creditor might legally procure a sale of it by suit.
X X X X X XIf the expressions by which the estate is conveyed to the purchaser are susceptible of application either to the entirety or to the father's coparcenary interest alone (and in Deendyal's case there certainly was an ambiguity of that kind), the absence of the sons from the proceedings may be one material consideration. But if the fact be that the purchaser has bargained and paid for the entirety, he may clearly defend his title to it upon any ground which would justify a sale if the sons had been brought in to oppose the execution proceedings.'
These observations would show that'-from the mere fact of a sale of joint family properties in execution of a decree obtained against the father alone it cannot be assumed that the sale was not merely of the father's interest but included also the son's interests and that the nature of the debt and the circumstances in which the execution sale was held are also material for deciding whether the sale was only of the father's interest or included the interests of the sons also in the joint family properties.
Although even in the case of a debt admittedly incurred by the father for immoral purpases it would be open for the decree-holder to attach and sell the right, title and interest of the Judgment-debtor in his joint family properties, it can hardly be contended that the execution sale in such a case would include not only the rights of the father in the joint' family properties but those of the sons also. The same principle must hold where it is clearly proved that the debt is one in respect of which there was no pious obligation at all on the part of the sons to discharge it.
Dealing with the question of the applicability of Article 12 of the Limitation Act to suits in which the sons are seeking to avoid a sale held in execution of a decree obtained against the father alone, the Madras High Court has said in AIR 1939 Mad 867 (H):
'Article 12 would apply only if the sale is held to be binding on the plaintiffs. If the plaintiff's interest is, On the other hand, found-not to have been sold or the sale is held to be void against them this Article cannot be permitted to stand in their way and they will be entitled to the relief claimed by them.
X X X X X XThe matter in our view would have to depend on the finding whether a debt was contracted by the father as the manager of the joint Hindu family so as to be binding on the sons which It would be their legal or pious obligation, to repay. If, on the other hand, the debt is found not to have been due or to have been incurred for purposes which were immoral or illegal a decree obtained in respect of such a transaction would not bind the sons and the sale held in, execution could not be held to be binding on them so as to necessitate a prayer for setting it aside particularly when the property was purchased by either the decree-holder himself or ever, by a stranger having knowledge of the circumstances in which the debt was contracted.'
Even in the case of debts which the sons were bound to discharge on account of their pious obligation, when the execution sale does not expressly include the sons' interests the Question, whether it passes only the father's interest in the property sold or the entire coparcenary rights including the sons' interests, would depend upon the circumstances of each case. In Mayne's Hindu Law, 11th edition, it is said at pages 420-421:
'A creditor may enforce payment of the personal debt of a father, not being illegal or immoral, by attachment and sale of the entire interest of father and sons in the family property and it is not absolutely necessary that the sons should be parties either to the suit itself or to the proceedings in execution.
The question whether the execution sale passes only the father's interest in the property sold or the whole property including the sons' interest depends upon the form of the execution proceedings including the sale proclamation and sale certificate as well as upon the proceedings in suit in which the decree was made. While the absence of the sons in the execution proceedings may be a material consideration, there is no rule that the coparcenary interest will not Pass by an execution sale where the suit was against ,the father alone.
The question in each case will be whether the purchaser bargained and paid for the entirety of the interest. It is not a question of what the Court could have done or what it ought to have done but what it did and what was put up for sale and what was purchased. This is in each case a mixed question of law and fact as to what the court intended to sell at public auction, and what the purchaser expected to buy.
The court cannot sell more than the law allows, but if it appears as a fact that the court intended to sell less than it might have sold or even less than it ought to have sold, and this was known to the purchasers, no more will pass than what was in fact offered for sale. Where the son intervenes in execution and fails to get a definite decision in his favour that it is only the father's share that should be sold, the inference is that the entirety of the estate passes to the purchaser at the court sale. It is the substance and not the mere technicalities of the transaction that should be regarded.
Where a defendant possesses both an individual, and a representative character, and where he was sued for a debt which would bind the whole family which he represents, & where execution is taken out against him under the decree, the court is at liberty to look at the judgment to see what was intended to be sold under his right, title and interest, and may treat the decree as binding the whole family which, is represented by the defendant, and properly executed against the Joint family property.'
The Privy Council has said in 'Mahabir Pershad v. Moheswar Nath Sahai, ILR 17 Cal 584 (R), that the question whether by the sale of the right, title and interest of the judgment-debtor in the suit the coparcenary rights of his sons also have been obtained by the auction purchaser is dependent upon the nature of the debt and upon the proceedings in execution.
In Swaminatha v. Krishnaswami, AIR 1947 Mad 213 (S), wherein the question arose for decision whether a sale in execution of a decree obtained against the father alone on a promissory note executed by him was a sale, merely of his interest in the Joint family property or whether it included the rights of his sons also, Patanjali Sastri J., has observed:
'It is not by reason of the father having represented the son in the suit that the son's interest is bound and passes at the execution sale but by reason of his pious obligation to , pay his father's personal debt and the correlative power of the latter to sell family property including the sons' share for the discharge of such debts, a power which the court in execution exercises for the benefit of the judgment-creditor.
X X X X X X'It is not the form of the decree or the frame of the suit but the nature of the debt that determines the son's liability.'
10. Learned counsel for respondents referred to Kishori Chandra v. Suraj Narain, CS) AIR 1955 Pat 386 (T), and Panchapagesa v. Rajamani, AIR 1947 Mad 72 (U), and Narayana v. Venkataswami, AIR 1926 Mad 1190 (V)., in support of his contention that when joint family properties are sold in execution of a decree obtained against the father the sale is binding upon the son's share also until it is set aside in appropriate proceedings and that a suit brought by the son for recovering possession of his share after such execution sale is governed by Article12 of the Limitation Act. In (S) AIR 1955 Pat 386 (T), it was said:
''It is well settled that a suit brought by a son after attaining majority for setting aside the sale of his share sold at an auction sale held in execution of a decree against the father is governed by Article12. When therefore the auction purchaser buys the share of the son in execution of the decree obtained against the father, the son cannot claim his share without having the sale set aside. Of course, if the alienation is void the son need not sue to set aside the sale.'
Paragraphs 8 and 9 of the judgment in that case (page 387 of the report) would show that it: was clearly found in that case that the original debt was supported by consideration and necessity binding upon the sons also and that this finding was not challenged in appeal by the sons. It is further clear from the extract from the judgment given above that it was also assumed that the sons' shares were actually sold in execution.
As the debt in that case was not a fictitious or non-existent debt and as it was also not illegal or immoral the sons' shares were clearly liable to be sold in execution, and even a sale of the right, title and interest of the judgment-debtor would have passed to the auction-purchaser not only the father's interest in the joint family properties but also the sons' interests.
That case is therefore no authority for the proposition that in every case of a sale in execution of a decree obtained against the father the sons' interests also pass to the auction-purchaser irrespective of the question whether the son had a pious obligation to discharge the debt or not. In AIR 1947 Mad 72 (U), the suit was brought, by two sons for redemption and recovery of possession of their two-third share in certain mortgaged properties which had been gold in execution of a decree obtained against their father on a promissory note executed by him for the interest due in respect of the mortgage amount.
The sons' case was that as the sale in execution of the decree in the suit on the promissory note was in violation of the provisions of Order 34 Rule 14. C. P. C., and as they were also not parties to the said suit the decree and execution sale were not binding on them.
The High Court held that the suit was governed by Article12 of the Limitation Act as the violation of O. 34, R. 14, C. P. C., rendered the sale only voidable and not void and the sale was binding on the sons until it was set aside.
It was further held that the fact that the sons were not eo nomine parties to the suit was of no consequence as the father could represent their interest and the decree obtained against him for a debt binding on the sons could be executed against their shares also. The question whether the sons were bound by the execution sale and their shares also could be deemed to have been sold when in execution of a decree obtained against the father for a debt which they were under no pious obligation to discharge, did not srise for consideration and was not decided in AIR 1947 Mad 72 (U). On the other hand the debt in the promissory note suit was one binding on the sons, and it was expressly stated at page 73 of the report;
'It Is not alleged that the mortgage created by the father WPS not binding on the sons; for such a debt due by the father, the interest of the sons also in the joint family property can be brought to sale. In a decree obtained against the father alone, the sons' interest can be proceeded against.
x x x x x xAs stated already, the father was there and he could represent their interests and the decree obtained against him for a debt binding against the sons could be executed against the sons' shares also.'
Therefore this case also is no authority for the proposition contended for by the respondents,
11. The generally accepted view is that in a case in which a decree has been obtained against the father alone for a debt in respect of which the sons have a pious obligation the court gets the power to sell the sons' shares also in execution of the decree because of their pious obligation to discharge the debt an obligation on account of which the father himself has the right to sell the sons' interest also.
If in respect of a particular debt the sons have no pious obligation the father can have no right to sell the sons' shares in discharge of that debt and it would naturally follow that the court, which in executing the decree only exercises the right of the father to sell the sons' shares, has no power in such a case to sell the sons' shares. Therefore, when joint family properties have been sold in execution of a decree obtained against the father alone and the sale certificate does not show whether what was sold was the interest of only the father or the interest of both the father and the sons and the right is described in the certificate merely as the right, title and interest of the judgment-debtor, the question whether the sale was only of the father's interest in the Joint family properties or whether it included the rights of the sons also can be decided only after considering whether the decree was one which the sons were bound to discharge by reason of their pious obligation and in the light of the proceedings in execution.
If the decree was obtained collusively on a fictitious or non-existent debt or if the debt on which the decree was obtained was illegal or immoral, there would be no pious obligation on the sons, and so the execution sale could only be of the father's rights in the joint family properties and would not bind the sons or their shares. Likewise, if it is seen from the execution proceedings that what was intended to be sold and what was bargained for and paid for was only the father's, interest and not the entire coparcenary rights the execution sale cannot be taken to include the rights of the sons also.
As pointed out in AIR 1939 Mad 867 (H), if the sons' interest is found not to have been sold or the execution sale is void as against him, it is unnecessary to make a prayer for setting aside the sale in a suit for recovering possession of his share, and Article12 of the Limitation Act can have no application.
12. In the above view of the law we have taken the question whether the present suit is barred by Article 12 of the Limitation Act or not cannot be decided without deciding whether the two execution sales, Exts. 11 and B2, were merely sales or the rights of defendant 1 in the plaint properties or whether those sales included the rights of the plaintiff also and were binding on him and his share; and for deciding whether the sales, Exts. B1 and B2 included the plaintiff's right also and were binding on him and his share it is necessary to consider the question whether the plaintiff was bound to discharge the decrees in O, S. No. 222 of 1937 and S. C. No. 323 of 1937 by reason of the sons' pious obligation to discharge his father's debts.
As pointed out already if the debts for the recovery of which those suits were filed were purely fictitious or non-existent as alleged by the plaintiff and the decrees were obtained collusively there would be no liability on the plaintiff to discharge the decree-s by reason of his pious obligation. Therefore in any view of the case the decision of the question whether the promissory notes sued upon in O. 8. No. 222 of 1937 and S. C. No. 323 of 1E37 were supported by consideration or not and whether the decrees in those two suits were obtained collusively on purely fictitious debts was very essential for, a proper disposal of the suit, and the lower Court was not right in dismissing the-suit without allowing the plaintiff an opportunity to adduce evidence on those questions.
The judgment and decree of the lower court are therefore set aside and the suit is remanded to that court for a fresh trial and disposal according to law and in the light of the observations made above. At the new trial the parties will be given an opportunity to adduce evidence regarding all their contentions and the lower court should dispose of the suit again only after recording findings on all the issues arising on their pleadings. Costs of this appeal will abide the result of the remand.