1. This is a first appeal by the original defendants Nos. 1 to 5 against the judgment and decree of the Civil Judge, Senior Division, Broach in special jurisdiction Suit No. 11 of 1955. The respondent Chhotubhai who was the origin. 1 plaintiff had filed the suit to recover Rs. 52,720/-with costs and running interest at 6 per cent from defendant No. 1 personally and from the joint Hindu family properties and other properties of defendants Nos. 3 to 5. The defendants Nos. 2 to 4 are the sons of defendant No. 1 and defendant No. 5 is the wife of defendant No. 1. It was alleged in the plaint that defendant No. 1 as manager of the Joint Hindu family of the defendant had appointed the plaintiff as Paka Adatia for the purpose of making purchases of timber for defendant No. 1 and sending the same to him. It was also alleged that in respect of these transactions there was a settlement of accounts between the plaintiff and defendant No. 1 on 16-8-1952 when it was agreed that the balance due to the plaintiff was Rs. 54,891. It was also alleged that there was a settlement of accounts also on 25-12-1952 when it was agreed that an amount of Rs. 58891/- was due to the plaintiff. According to the plaint, subsequently a payment of Rs. 8750 was made by defendant No. 1 to the plain-tiff leaving a balance of Rs. 45,141/-. The suit was filed to recover this amount together with interest amounting to Rs. 7679/-. He therefore, prayed for a decree for this amount against all the five defendants.
2. The main contention or the defendants was that the suit was not maintainable because it did not relate to all the transactions between the plaintiff and defendant No. 1. It was also denied that the business in timber carried on by defendant No. 1 was a joint family business. It was also denied that the business was carried on by defen-dant No. 1 as manager of the joint family. According to the defendants, the business was carried on by defendant No. 1 as his own independent business and defendants Nos. 2 to 5 were in no way liable in respect of the amount claimed in the plaint. It was also alleged in the plaint that there was a partition between the defendants on 8-4-53 and that the Partition was not genuine. This was disputed by the defendants.
3. The learned Civil Judge held that the suit was maintainable, that the suit was within limitation, that the business, to which the suit related was an ancestral or joint family business of the defendants, that it was carried on by defendant No. 1 as manage? of the joint Hindu family of the defendants and that alleged settlement of accounts between the plaintiff and defendant No. 1, dated 16th August 1952 and 25th December 1952 were proved. He also held that the writing dated 16th August 1952 was admissible in evidence, although it was not stamped. He also held that the defendants Nos. 2 to 5 were liable for the amount due to the plaintiff which was held to be Rs. 52,710/-. He also held that the partition alleged to have been effected between the defendant on 8-4-1953 was not bona fide and that notwithstanding the partition, all the joint family properties of the defendants including the shares shown in the partition deed to have be n allotted to defendants Nos. 2 to 5 are liable in respect of the plaintiff's claim. He also he'd that the plaintiff was not liable to show in the present suit the accounts relating to the part of the dealing between the parties not included in the plaint. On these findings the learned Judge decreed the plaintiffs suit
4. Defendants Nos. 1 to 5 have now come in appeal and the following points have been urged by the learned counsel for the appellants :-
(1) The suit is not maintainable because the suit was between a principal and an agent and because the suit did not comprise all the dealings between the parties.....
(2) The lower Court erred in its finding that the business of timber carried on by defendant No. 1 was a joint family business of the defendants.
(3) The learned Judge was wrong in holding that defendants Nos. 2 to 5 were liable for the debt of defendant No. 1 to the extent of the joint family property in their hands.
(4) Defendants Nos. 2 to 5 were also not liable under the theory of pious obligation because there was no pleading to that effect in the plaint and no issues were framed on the question of pious obligation.
(5) In any case, defendant No. 5 being the wife of defendant No. 1 is not liable for the debts of deft. No. 1.
(6) The theory of pious obligation must be deemed to have been abrogated by the Hindu Succession Act of 1956.
(7) The last point urged relates to the order for attachment before judgment and it is contended that the lower Court was wrong in ordering the attachment before judgment of the properties of defendant No. 1 and of the other dafendants.
5. As regards the amounts due, the defendants gave a Purshis at Ex. 77 which reads as follows:
'According to books of account of Nathubhai Motilal the plaintiff had outstanding of Rs. 54891/ in Aso Vad Bij of S. Y. 2008 and Rs. 9760/- are paid towards the said outstandings in year 2009 and Rs. 45131/- are outstanding as mentioned in Schedule by the plaintiff and we the defendants accept the total of Rs. 45131/- subject to the question of liability of defendants'.
This Purshis was signed on behalf of all the defendants. In view of this Purshis it is not necessary to go into the question as to the amount due to the plaintiff. The only question to be decided with respect to the amount is as regards the Liability of the defendants for this amount.
6. The first contention is that the whole suit is not maintainable because this is a suit between a principal and an agent and the suit admittedly did not comprise all the transactions between the parties. In fact, in the plaint it was stated that the right to file a separate suit in respect of other dealings was reserved. It is stated that other goods had been purchased by the plaintiff for defendant No. 1 and were sold under the instructions of defendant No. 1 as a result of which the plaintiff incurred a loss of Rs. 20,000/-, apart from commission charges. It is therefore, admitted that there were other dealings between the parties which are not the subject-matter of the present litigation. The learned counsel for the appellant relied on Godhanram v. Jahamall Puglia, ILR 40 Calcutta 335 and in particular, on the following observations at page 339;
''It is not disputed that the first defendant as agent was liable to render accounts to the plaintiff of all his dealings in the various transactions carried on by him as agent on behalf of the plaintiff. But what is argued is, that, in the absence of a special contract in that behalf the plaintiff cannot be permitted to select capriciously a single transaction and claim the fruits thereof, without an adjustment of the rights and liabilities of the parties in relation to other transactors. This contention is manifestly sound. It is well-settled that when accounts are taken, the agent is bound to make over to the principal whatever sums he has realised on his behalf; but the agent is equilly entitled to deduct expenses authorised by the principal and all proper expenses even though incurred for purposes not strictly legal. In the matter of this very transaction, if the plaintiff is entitled to the fruits of the decree the defendant may equally claim to be remunerated for his services as agent and to be reimbursed the litigation expenses. But the plaintiff docs not offer in the present litigation to reimburse or remunerate the defendant; he merely claims the entire sum realisable under the decree obtained by his agent against the third defendant; this demand is clearly untenable. The plaintiff might possibly have adopted the contract made by his agent and sued on it; butif he did so, he was bound to adopt it cum onereor not at all'.
The Calcutta case did not refer to a litigation between a principal and an agent of the dealings between them but it related to a contract entered into by an agent in his own name with a third party and subsequently a suit was brought by the principal against the agent for a declaration of his title to the decree obtained by the agent against the third party in respect of a contract entered into by the agent in his own name with the third party. The Calcutta case is, therefore, not applicable to the facts of this case. It is true that if a principal files a suit against an agent for settlement of accounts the suit should refer to all the dealings of he agents as an agent of the principal. But in this case this is a suit filed by the agent against the principal. Moreover, the plaintiff was admittedly a Paka Adatia. This fact is alleged in the plaint and is admitted by the defendants in their written statements. It is open to the plaintiff who was the commission agent of the defendants to file a suit in respect of the moneys due to him in respect of any of the transactions. This was not a stilt in which the plaintiff was to account to defendant No. 1. The suit was for the amount due to the plaintiff in respect of the timber delivered by him to defendant No. 1 and in respect of the commission charges due to him. The suit was maintainable although it did not include all the timber transactions between the parties. It was open to the defendants to claim a set off, but no such claim was made. In these circumstances, we hold that the suit was maintainable.
7. Regarding the finding of the lower Court that the timber business carried on by defendant No. 1 was a joint family business, it is a common ground between the parties that the father of defendant No. 1 was an agriculturist and did no business in timber. It is also common ground between the parties that defendant No. 1 himself started an independent business in timber and that when he did so defendant Nos. 2 to 4 were minors 'Ancestral business' as defined in the Hindu Law has a special meaning. Where a Hindu dies leaving a business and leaving male issue, the business becomes joint family business or ancestral business in the hands of the male issue. As regards adult members, the manager of a joint Hindu family cannot impose upon them the risk and liability of a new business started by him, unless the business is carried on with their consent -- express or implied or unless the joint funds were utilized for the business to the advantage of the joint family, or unless the business was adopted as a family business by the other members of the family who continue to enjoy the benefits of the same. But in the instant case the other members of the joint family were minors and there is no evidence to show that the business was adopted as a family business by the other member. We, therefore, held that the lower Court erred in holding that the timber business carried on by defendant No. 1 was a joint family business.
8. Although defendant's Nos. 2 to 4 would not be liable for the debts of their father, including the timber business on the ground that thetimber business was a joint family business, still the question has to be considered whether defendants Nos. 2 to 4 would be liable in view of their pious obligation to pay the debts of their father. The learned counsel for the appellants has contended that the case of pious obligation was not made out in the plaint that no issue was framed on the question of pious obligation and that, therefore, it is not open now to make defendants Nos. 2 to 4 liable for the debts of defendant No. 1 on the ground of pious obligation of defendants Nos. 2 to 4. It is true that the case of pious obligation has not been specifically pleaded in the plaint But in para. 10 of the plaint, it is stated that for the dues of the plaintiff, all the members of the joint family are liable. In para. 11 of the plaint also it is alleged that the defendants' properties are liable for suit debts as the said debts were incurred before the deed of partition was executed and because all the defendants are made parties in the suit. Although there is no specific pleading on the ground of pious obligation, the case that all the defendants are liable for the debts of defendant No. 1 has been made out in the plaint. One of the issues i e., issue No. 1 framed by the lower Court is as follows:-
'Are defendants Nos. 2 to 5 liable? If so to what extent.'
This issue would cover the question whether defendants Nos. 2 to 5 are liable on any ground--whether defendants Nos. 2 to 5 are liable because the business is a joint family business, whether defendants Nos. 2 to 5 are liable because they are members of the joint family and whether defendants Nos. 2 to 5 are liable on the theory of pious obligation. It is not necessary in the plaint to mention all the grounds for holding that defendants Nos. 2 to 5 are liable. It is sufficient to mention that defendants Nos. 2 to 5 are liable, and the law under which defendants Nos. 2 to 5 would be liable for the debts of defendant No. 1 need not be pleaded. It is not necessary in the plaint to plead that under Hindu Law, sons of a father are liable by reason of the theory of Pious obligation for the debts of their father. It is true that under the Hindu Law sons arc liable under the theory of pious obligation to pay the debts of their father which are not immoral or Ayyavaharika, In one sense, it can be said that before the plaintiff can make the sons of a father liable for the debt of their father, the plaintiff must show that the debt is such a debt as would fasten liability on the sons, in other words, that the debt was not immoral and not Ayyavaharika. The question whether the plaintiff has succeeded in discharging the burden of proof on the question of liability of defendants Nos. 2 to 5 is another matter. But the question we are now considering is whether that question was before the lower Court and whether it arose on the pleadings. The learned counsel for the appellants has relied on Benaras Bank Ltd. v. Hari Narain their Lordships of the Privy Council made the following observations:-
'A further point was raised for the first time on behalf of the bank that the bank was at least entitled to a decree for the sale of the minors' interest in execution on the principle enunciated inthe second of the five propositions laid down by the Board in Brij Narain v. Mangala Prasad, 51 Ind App 129 : (AIR 1924 PC 50). But the point was not taken in the Courts below and as it might involve, as was conceded, questions of fact not yet tried if is not open to the bank to raise it at this stage,'
The second proposition laid down by the Board in 51 Ind App 129 : (AIR 1924 PC 50) is in the following terms:-
'If the manager of a joint family is the father, and the other members are his sons, he may, by incurring debt, so long as it is not for an immoral purpose lay the estate open to be taken in execution proceedings upon a decree for payment of that debt.'
The learned Counsel for the appellants also relied on another decision of their Lordships of the Privy Council in Hem Chand v. Pearey Lal, 45 Bom LR 275 : (AIR 1942 PC 64) where it was observed that the Court should not allow the parties before it to adduce evidence on points not raised in the pleadings or issues without amending the pleadings and raising the necessary issues. As alreday observed, the question of the liability of defendants Nos. 2 to 5 was pleaded in the plaint and disputed in the written statement and issue No. 7 related to the liability of defendants Nos. 2 to 5. In these circumstances, it is not necessary for the plaintiff to allege in the plaint that the liability of defendants Nos. 2 to 5 arose on account of various theories of Hindu Law.
9. Under he Hindu Law, pious obligation would rest On the sons only in respect of such debts of their father as are not immoral and as are not Avyavaharika. Before the liability can be fastened on the sons there must be a finding that there was a debt of their father and that the debt was neither immoral nor Avyavaharika. As it is the plaintiff who wants to fasten the liability on the defendants, it is for the plaintiff to show that there was a debt due by the father and that the nature of the debt was such that it was neither immoral nor Avyavaharika. In the instant case, how-ever, it is conceded that the debt arose on account of dealings in timber which had been purchased by defendant No. 1 through the plaintiff and for which defendant No. 1 had to pay the plaintiff. Obviously, such a debt would not be immoral on Avyavharika. The fact that the debt was incurred by the father in a trade started by himself does not affect this liability (Vide Annabhat Shankar-bhat v. Shivappa Dundappa, AIR 192S Bom 232 and Chattanatha Karayakar v. Ramchandra Iyer, (S) AIR 1955 SO 799) It was observed in ILR 52 Bom 376 : (AIR 1928 Bom 232).
'Under Hindu Law, sons are liable to pay the debts incurred by their father tn respect of trade transactions which are not illegal, immoral or Avyavharika.'
10. As regards the theory of pious obligation, it is also contended by the learned counsel for the appellants that the theory of pious obligation must be deemed to have b en abrogated by the Hindu Succession Act of 1956. in particular, by Sections 4 and 6 because under the new Law of Succession, the daughter also gets a share in the property, although she is not entitled to offerPindas to her father. The learned counsel for the appellants also relied on Mankuwar Asaram v. Mt. Bodhi Mukundi, : AIR1957MP211 where it was held that by reason of the Hindu Succession Act of 1956 reversionary rights under the Hindu Law must be deemed to have been abrogated. The reversionary rights under the Hindu Law imply that the widow has only a life interest or a limited interest; whereas under the Hindu Succession Act, 1956, a widow has full interest in the property. By reason of the provisions giving an absolute interest to the widow, the theory of reversionary rights must be deemed to have been abrogated. But that case of the Madhya Pradesh High Court is no authority for the view that even the liability under the theory of pious obligation stands abrogated by reason of the Hindu Succession Act of 1956. We therefore reject the contention of the learned counsel for the appellants on this point.
11. It is not necessary to consider the question whether the partition deed executed on 8th April, 1953 between the defendants is genuine or not. The learned Judge, however, has given a finding that the partition is not genuine and is not bona fide. It is necessary to consider this question because the sons are liable even for their father's pre-partition debt. As observed by the Full Bench of the Allahabad High Court in Bank yal v. Durga Prasad : AIR1931All512 ;
'If the members of a joint Hindu family governed by the Mitakshara law choose to decide the family property and to separate, wihout making any arrangement for the payment of the family debts, a creditor of the father is entitled to proceed against the separated shares given to the sons and grandsons of the father to enforce the payment of the debt if the debt is one which it is the pious duty of the sons and grand sons to Pay.'
Their Lordships of the Supreme Court also observed as follows in S. M. Jakati v. S. M. Borkar, : 1SCR1384 :
'Under Hindu Law the liability of the sons to discharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the life-time and after the death of the father and it does not come to an end as a result of partition of the joint family property. All that results from partition is that the right of the father to make alienation comes to an end.'
For these reasons we hold that defendant Nos. 2 to 4 are liable for the debts of their father --defendant No. 1--being the sons of defendant No. 1.
12. As regards defendant No. 5, the wife of defendant No. 1, however, there does not seem to be any principle of Hindu Law by which the theory of pious obligation is extended to the wife and no case has been cited by the learned counsel for the respondent in support of the view that defendant No. 5 is liable on the ground of pious obligation.
13. As regards interest on tie amount due, this question was given up at the hiring of the suit as mentioned by the learned Judge in his finding on issue No. 8. It is, therefore, not necessary to consider whether the learned Judge erredin arriving at the figures of Rs. 52,710/- and Rs. 45,131/-. The accuracy of these figures was not challenged at the hearing of the suit and the right to claim interest at 6 per cent, on 45,131/-was also not disputed at the hearing of the suit.
14. Another point urged related to the question of attachment b fore judgment. As we have held that the properties in the hands of defendants Nos. 1 to 4 are liable for the payment of this decretal debt the learned Judge was right in passing an order of attachment before judgment in respect of these properties. But he also passed the same order in respect of three houses, viz., houses bearing Municipal Nos. 2910 and 3110 at Ankleshwar which stand in the name of defendant No. 5 and house No. 3363 which stands jointly in the names of defendants Nos. 1 and 5. The learned Judge hold that all these three houses were also avail'ble to the plaintiff for attachment before judgment. This finding is also cha11anged by the learned counsel for the appellants. The plaintiff in his evidence has admitted that he has no personal knowledge as to the manner in which these houses were purchased. In his apllication for attachment before judgment the plaintiff stated that out of the income of the timber business, the defendants have purchased and built properties in different names. But the Plaintiff in his evidence has admitted that he has no personal knowledge as to how the properties were purchased. By consent of parties, the evidence given by one Kesivlal in another proceedings and the evidence given by defendant No. 1 in these proceedings were admitted in evidence. Even in that deposition, Kesavlal admitted that he had no personal knowledge. Apart from the evidence of the plaintiff and Keshavlal, there is no other evidence on behalf of the plaintiff. It it however, contended by the learned counsel for the respondent that the burden was on defendant No. 6 to show that the houses standing in her name were not purchased Benami. It is the contention of the plaintiff that the houses were purchased Benami in the name of defendant No. 6. The burden of showing this was, therefore, on the plaintiff. As the plaintiff did not adduce any evidence other than hear-say evidence regarding the alleged Benami nature of the purchase of these houses, it was not necessary for defendant No. 5 to go into the witness-box. There was no burden on defen-dant No. 5 to disprove the alleged Benam nature. No point can therefore, be made of the fact that defendant No. 5 did not go into the witness-box-Even assuming that the depositions of Kashavlal and defendant No. 1 in another precedings can be considered in this cases regards defendent No. 1 his story has not been believed by the learned Judge. His version is that the houses were purchased from the moneys of defendant No. 5 which she earned by her milk trade. It is true that defendant No. 5 did not go into the witness-box. All the parties gave a purshis, Ex. 90 which reads as follows:-
'We the parties to the suit declare that the deposition of the plaintiffs witness Kesavlal of Special Suit No. 9/55 and also deposition of the defendant in the said suit be read in the present suit and we give our consent for that and the saiddepositions be treated as depositions in this suit and the suit be decided accordingly.'
The question is whether in view of the provisions of Section 165 of the Evidence Act, the parties can lead evidence in a manner other than that provided in the Evidence Act. Section 165 of the Evidence Act provides that the judgment must be based on facts declared by the Evidence Act to be relevant and duly proved. Two different views have been taken on this point of admisslbility by consent of depositions in former proceedings (Vide Ponnusami Pillai v. Singamn Pillai' ILR 41 Mad 731: (AIR 1919 Mad 848 (2)), Jainab Bibi v. Hyderally Saheb, ILR 43 Mad 609 ; (AIR 1920 Mad 547) (FB) and Ayyavar Thevar v. Secy. of State, AIR 1942 Mad 528). The learned counsel for the appellants also relied on Lakshman v. Amrit, ILR 24 Bom 591. In this case evidence of certified copies of depositions of some of the witnesses examined in another case was admitted, although those, witnesses were still living and not examined. Parsons, J., observed:-
'The relevancy of the evidence given by the witnesses in the former suit stands on a different footing. No doubt this evidence was not admissible in the present suit, because the witnesses who were alive, ought to have been called and examined. The evidence was, however, allowed to go in without protest on the part of the defendants and, as a consequence thereof, the plaintiff canceled his application to have his witnesses summoned. Under these circumstances it was not fair of the Judge of the Appellate Court to have questioned the admissibility of this evidence or right of him to have left it out of consideration altogether. When the parties, in order to save delay or expense or for any other reason, had refrained from, calling persons who were alive and had agreed or not objected in the admission of evidence given by them in some former Proceedings; albeit if was not strictly admissible and the Judge of the first Court had allowed this to be done the Judge of the Appellate Court ought to have accepted the evidence, and it was too late for him to have taken objection to the procedure. He might, no doubt, have required the party who had tendered the evidence to bring the witnesses before him to be examined, but in that case he was bound to give him an opportunity of doing so.'
Ranade. J., observed that in the appeal an objection was raised that the depositions should not have been admitted as evidence. The lower Appellate Court upheld the objection raised about the admissibility of this evidence, but Ranade, J., observed that, this it could not do under the circumstances stated above. He also observed that at least it should have remanded the case and permitted the appellants to give evidence which they had dispensed with by reason of the recording of the judgments and depositions in the old case as evidence in that suit. The learned Judge referred to the case of Chimmaji v. Dinkar, 11 Bom 320, where a copy of a copy had been admitted in evidence in the first Court without objection, and the Appellate Court had excluded the evidence as inadmissible and it was held that the Appellate Court had no power to reject such evidence at that stage. Under these circumstances, Ranade, J. held that the rejection of the depositions solelyon the ground that some of the persons were alive and might have been examined, seemed to be without sufficient justification and that the lower Appellate Court should have allowed the appellants an opportunity to give the evidence they had already tendered.
15. Under section 165 of the Evidence Act a judgment must be based upon facts declared by the Evidence Act to be relevant and to be duly proved. Section 5 of the Evidence Act reads as follows:-
'Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation. -- This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.'
Section 60 of the Evidence Act also provides that oral evidence must in all cases whatever, be direct, that is to say -- if it refers to a tact which could be seen, it must be the evidence of a witness who says he saw it. If the Evidence Act prescribes a particular manner in which evidence is to be given, evidence must be given in that manner and in no other manner. If under the Evidence Act. two alternative modes of giving evidence are permitted and if before the second mode can b3 utilized, certain conditions must be fulfilled, it is open to the parties to admit that those conditions are fulfilled, in which case the second manner of leading evidence is permitted under the Evidence Act. For instance, the production of a copy of a document is recognised in the Evidence Act which permits secondary evidence to be given if certain conditions are fulfilled. By admitting that those conditions are fulfilled in a case, parties do not vary the manner of giving evidence recognised in the Evidence Act. Parties can admit matters relating to the proof of documents. But they cannot admit by consent irrelevant evidence as relevant. (See Section 5 of the Evidence Act). Section 33 of the Evidence Act provides as follows:-
'Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable:
Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation. -- A Criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.'
An objection that a piece of evidence which wasconsidered by the Judge was irrelevant can be taken up for the first time in appeal. (See Miller v. Madhodas, 23 Ind App 106 (PC), Nathan v. Ambabai, ILR 44 Bom 192 : (AIR 1920 Bom 244) where it was held that erroneous omission to object to irrelevant evidence does not make the evidence relevant. Section 33 of the Evidence Act deals with relevancy and not with mode of proof. If evidence is irrelevant consent of parties cannot make it relevant. But under Section 32 of the Evidence Act, evidence given by a witness in a judicial proceeding is made relevant if certain conditions are satisfied, namely, that the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the Court consols unreasonable and the condition in the proviso to Section 33 is satisfied. It is only if these conditions are satisfied that evidence given in a judicial proceeding becomes relevant. The Court may hold that such evidence js relevant if it is satisfied by evidence or by admission of the parties that the requisite conditions are fulfilled. It is open to the parties to admit that a Particular witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or that his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable. These circumstances can be admitted by consent of parties. Purshis Ex. 90 may be treated as such an admission. But unfortunately in this case the deposition of one of the parties himself was sought to be admitted, viz. of defendant No. 1. Defendant No. 1 had himself signed the Purshis Ex. 90. In the face of this fact, it is impossible to hold that the conditions stated in Section 33 are fulfilled. Therefore, the Purshis of the parties cannot be treated as an admission of the conditions requisite under Section 33 because on the record itself these conditions are not fulfilled, defendant No. 1 having been present in the Court. It is conceded before us that Kesavlal was examined in the same Court from 11-11-57 to 15-11-57 and the purshis in question, viz. Ex. 90 was given on 13-11-1957. The Purshis cannot, therefore be treated as an admission of the circumstances required under Section 33, because the non-existence of the circumstances mentioned in Section 33 is itself proved by other evidence viz., by the presence of Keshavlal in the Court and by his examination by the very Court from 11-11-57 to 15-11-1957. The view taken by the Bombay High Court in ILR 24 Bom 591 was with reference to special circumstances. In that case, as a result of the purshis, a summons already issued had been cancelled. The circumstance that the parties cancelled their summonses to the witnesses does not exist in the instant case. This was also the circumstance found in AIR 1942 Mad 528 where reliance was placed on the principle of estoppel, but it is not necessary to go into the question whether there can be estoppel on a question of law, viz., on the question as to the admissibility of evidence. Although we hold in this case, mat the previous deposition of Keshavlal and of defendant No. 1 were wrongly taken intoconsideration, we agree with the view taken by the Bombay High Court that in such a case an opportunity should be given to the parties to summon the persons concerned whose depositions have been admitted on the record. In this case, we do Dot propose to do so because even if we refer to the evidence given in the former depositions, as already observed we find nothing in them which would help the plaintiff's case to prove the allegation that these properties have been purchased Benami in the name Of defendant No. 5. As regards one of the properties, however, the property stands in the names of defendants Nos. 1 and 5, viz., house bearing Municipal No. 3363 in Ankleshwar. So far as the interest of defendant No. 1 in this house is concerned, the order of the learned Judge attaching before judgment this property is correct. But we hold that the learned Judge erred in attaching the interest of defendant No. 5 in this house and houses Nos. 2910 and 3110 which stand in the name of defendant No. 5 alone. We have already held that the houses in Ankleshwar bearing Municipal Nos. 2910 and 3110 are the properties of defendant No. 5 which are not liable for the debts of defendant No. 1. These two properties will be excluded from the operation of the order of attachment before judgment. Similarly, the interest of defendant No. 5 in house No. '3363 will be excluded from the operation of the order of attachment before judgment.
16. Lastly, it is urged that the decree is for an amount of Rs. 50,000/- while the property attached is about Rs. 90,000/- in value. The application for attachment before judgment is at Ex. 7. In this application the whole property is valued at Rs. 90,000/-. But for the reasons already given, the two houses of defendant No. 5 and the interest of defendant No. 5 in house No. 3363 at Ankleshwar will have to be excluded because we have already held that defendant No. 5 is not liable for the payment of these debts.
17. Defendant No. 5 has one-fourth share in the property mentioned in the partition deed as allotted to defendants Nos. 2 to 5.
18. Although under Hindu Law, the strict principle of pious obligation does not apply to the wife the question has to be considered whether the property of the joint family which was allotted to the wife at the partition is otherwise liable for the payment of the debts. The partition dated 8-4-1953 was between the father-defendant No. 1, bis three sons and his wife. At that partition, a separate share was allotted to defendant No. 1 and at that time defendants Nos. 2, 3, and 4 were minors. The learned counsel for the appellants cited Section 315 of Mulla's Hindu Law in support of his proposition:
'A wife cannot herself demand a partition but if a partition does take place between her husband and his sons she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband.'
He also cited Shantaya Kotraya v. Mallappa Basappa. 40 Bom LR 1029 : (AIR 1938 Bom 500) in support of his contention that under Hindu Law, the mother is only entitled to receive a share equal to that of a son if the partition takes place between her husband and his sons or between thesons after her husband's death. But when there is such a partition in the family, the partitioning members can only distribute among themselves the property available for partition. The property available for partition is the joint family property. But a provision must be made for the Payment of the joint family debts which are payable out of the joint family properties and a provision must also be made for payment of personal debts of the father which are not Avyavaharik and for the maintenance of female members and also for the marriage expenses of unmarried daughters. If the wife is allotted a share out of the property available for partition, then her property is not liable for the payment of her husband's debts. We have therefore, to consider whether the wife has been allotted a share out of the property available for partition. In such a case, the question is not whether the partition is mala fide. As observed by their Lordships of the Supreme Court in Mt. Pannalal v. Naraini, : 1SCR544 ;-
'The question now comes as to what is meant by an arrangement for payment of debts. The expressions 'bona fide' and 'mala fide' partition seem to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful dots not unoften lead to error and confusion. If by mala fide partition is meant a partition the object of which is to delay and defeat the creditors who have claims upon the joint family Property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appropriate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parries was to defeat the claims of the creditors; if it makes no arrangement or provision for the payment of the just debts payable out of the joint family property the liability of the sons for payment of the prepartition debts of the father will still remain.'
The real question, therefore, is whether the wife has been allotted a share in the property which was available for partition. If at the time of partition, a reasonable and proper arrangement had been made for the payment of the debts of the joint family and for the payment of the debts of their father which are not Avyavaharik and the remaining property had been distributed between the persons entitled to shares therein, then it would be a case of partitioning the property available for being partitioned among the members entitled. If such an arrangement had been made the property allotted to the wife or even the property allotted to the sons would be free from the liability for the payment of the debts referred to above. As observed by their Lordships of the Supreme Court in : 1SCR544 :
'We desire only to point out that an arrangement for a payment of debts does not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demandof his creditors. Whether there is a proper arrangement for payment of the debts or not would have to be decided on the facts and circumstances of each individual case. We can, conceive of cases where the property allotted to the lather in his own legitimate share was considered more than enough for his own necessities and he undertook to pay off all his personal debts and release the song from their obligation in respect thereof. That may also be considered to be a proper arrangement for payment of the creditors in the circumstances of a particular case.'
The arrangement for payment of debts may be made in many ways: (1) by setting apart a separate fund or separate property for payment of such debts or (2) by putting the liability upon a particular person or persons by giving additional property to those, persons above their legitimate shares. A particular member of the family may agree to take the liability even it no such additional property is allotted to him over and above his legitimate share. Their Lord-ships of the Supreme Court have also observed in Sidneswar Mukharjee v. Bhuvneshwar Prasad. : 1SCR177 , that-
'It is settled law that even after partition the sons could be made liable for the pre-partition debts of the father if there was no proper arrangement for the payment of such debts at the time when the partition was effected, although the father could have no longer any right of alienation in regard to separated shares of the sons.'
Their Lordships were, of course, dealing with the liability of the sons. As already observed, the strict principle of pious obligation does not apply to the wife but the liability would be on the wife indirectly if at the time of the partition, she has been allotted a share not in the property available for partition, but in the property which was not available for partition.
19. Applying these principles to the facts of the instant case, we have to see (1) whether reasonable and proper arrangement had been made at the time of the partition for payment of the debts of the father which are not Avyavaharik and (2) whether the wife had been allotted a share in the properly which was available for partition. On the second question, we have to see whether any provision had been made for payment of the debts and also for the maintenance of female members and for the marriage expense of unmarried daughters. It is conceded in the instant case that in the family there were no unmarried daughters, or females entitled to maintenance. If we look at the partition-deed, we notice that no arrangement whatsoever was made for payment of the debts of the father. There were no joint family debts. When the partition made no arrangement for payment of the debts of the father, which, according to defendant No. 1, amounted to about one and half lacs. It is not necessary to consider the question whether the arrangement is reasonable and proper because, in fact, there was no arrangement at all. It is also clear that the wife was allotted a share in the property which exceeded the property which was available for partition. On both these grounds, the liability of the wife for payment of the debts of her husband which are not Avyavaharik remains. This result is achieved not by applying the principle of pious obligation but by applying the principle that at a partition only the property available for partition can be divided and by applying the principle that at a partition a reasonable and proper arrangement; must be made for payment of the debts of the joint family and the debts of the father which are not Avyavaharik.
20. It is also contended that, in fact, the wife is not entitled to a share because there has been no partition by metes and bounds between her sons. The learned counsel for the respondents relied on Shri Gopal v. Mt. Jiinak Dulari, : AIR1946All289 , Full Bench, which relied on a judgment of the Privy Council in Pratapmull Agarwalla v. Dhanbati Bibi, . Their Lords Joy of the Privy Council held that the following observations in Beti Kunwar v. Janki Kunwar, ILR 33 All US correctly represent the Mitakshara law on the point:
'It is only when the sons actually divide, the property and effect a complete partition that the mother can get a share. There is nothing' in the Mitakshara from, which we may infer that upon a mere severance of the joint status of a Hindu family a mother can claim a share.'
They also held that 'the following observations of Miter, J. in Sheo Dayal Tewaree v. Jucloonath Tewari, 9 Suth WB 61 were correct:
'According to the Mitakakara law, the mother or the grandmother is entitled to a share when sons or grandsons divide the family estate-between themselves, but that she cannot be recognised as the owner of such share until the division is actually made as she has no preexisting right in the estate except a right of maintenance.''
In the instant case there has been no partition by metes and bounds between the sons, although the share of the father has been separated by metes and bounds. In view of the principle laid down by the Privy Council the wife would be not entitled to a share at the time of the . partition because at the partition the scares of the sons had not been separated by metes ailtl bounds. She would be entitled to such a share only when the sons effect a partition between themselves by metes and bounds of the property then available for partition. The fact that the sons are minors is immaterial for this purpose,
21. The learned counsel for the appellants also relied on Section 14 of the Hindu Succession Act, 1956 and contends that the share of the wife became her absolute properly. He relied on Kotturuswami v. S. Veerawa, : AIR1959SC577 where it is held that Section 14 of the Succession Act has retrospective effect. Section 14 of the Hindu Succession Act, 1956 provides that any property possessed by a female Hindu, whether acquired before or after the commencement of 'this Act, shall be held by her as full owner thereof and not as a limited owner. The word 'possession has been construed by their Lordships of the Supreme Court in the same case. Possession referred to in Section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possessionof a guardian or a trustee or an agent of the female owner would be her possession for the purpose of Section 14. The word 'possessed' is used in Section 14 in a broad sense and in the context possession means the state of owning or having in one's hands or power. But even this broad sense would not apply to the possession of defendant No. 5 because at the time of the partition, it cannot be postulated that her right of possession had reference to any particular item of the property. If Section 14 is to be applied, she would become an absolute owner of her sons' property also. We are, therefore, not prepared to accept the contention of the learned counsel for the appellants regarding Section 14 of the Hindu Succession Act of 1956
22. Learned counsel for the appellants admits that the debts of defendant No. 1 exceeded Rs. one and a half lacs. His contention is that the share allotted to defendant No. 1 at the time of partition was of the value of about Rs. 60,000/-, but according to him, defendant No. 1 had separate property of the value of Rs. 40,000/-. Even according to the learned counsel for defendant No. 1, the total value of the separate property of defendant No. 1 and of his share in the partitioned property would amount to rupees one lac. It is, therefore, clear that there was no reasonable or proper arrangement for the payment of his debts.
23. As observed by their Lordships of the Supreme Court the primary liability to pay the debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose. If the arrangement made at the time of the partition is reasonable and proper, unsecured creditors cannot have any reason to complain. In view of these observations we order that execution proceedings should be taken first against the property of defendant No. 1 including his separate property and the property allotted to his share at the time of the partition and only after that property is exhausted, the execution proceedings should proceed against the remaining property.
24. As regards the order for attachment before judgment, in view of the fact that the decree is for about Rs. 60,000/- and in view of the fact that the property included in the application for attachment before judgment is valued at about Rs. 90000/-, we order that the attachment should be raised on the properties mentioned in Paras. 5 and 6 of Schedule to Ex. 7.
25. Subject to the above modifications, the order of the lower- Court is confirmed and the appeal is dismissed with costs.