N.G. Shelat, J.
1. The suit from which this second appeal arises was instituted by the plaintiffs-appellants in the Court of the Civil Judge (S. D.) at Godhra for a declaration that the deceased Shankerlal was discharged from his liability as a surety, and that the State of Bombay and its officers, servants and agents were not entitled to attach and sell their joint family property, and for a permanent injunction restraining them from selling the same without obtaining the decree against them from a competent civil Court and for costs of the suit against the defendant-State-the respondent in this Court.
2. The facts leading to this litigation do not appear to be much in dispute. On 26th September 1946 in an auction sale of the right to fell trees and remove wood and timber in the Ex-State of Deogadh Baria, held by the State, Patangdi Block No. 2 in Dudhia Mahal came to be purchased by one Abdulsatar Haji for Rs. 27, 225/-. Then in another similar auction sale held on 25th September 1947 one Kanjar Block No. 1 in Umaria Mahal was purchased by one Isuf Abudulraheman Dadi for a sum of Rs. 1,20,000/-. On the same day similarly, one Chhapari Block No. 1 in Bandhikpur Mahal was purchased by one Kalimudin Abdulhusein Baluwala for a sum of Rs. 1, 50, 025/-. Under the Rules of the then State of Baria relating to the auction of forest trees then in force, the Ijardar was required to pay one-fourth of the auction price as deposit immediately or to give a surety for that amount. The remaining three-fourth amount was to be paid in three equal instalments and for that also the Ijardar was required to give a surety. The contracts were accordingly entered into by these three Ijardars as per Exs 57, 60 and 63, and while the first is dated 26-9-1946, the other two are of the same date 25-9-1947. Thereby the contractors had agreed to act according to the conditions set out in the auction-sales held in respect of those forests and pay the amounts contemplated therein to the State. One of the conditions was that the State was entitled to recover the amount that may remain due from them as also from their heirs and legal representatives, or from their surety as per the surety bond executed by their surety by revenue process. One Shankerlal, the father of plaintiffs Nos. 1 and 2 and the, husband of plaintiff No. 3 had accordingly executed the three different surety bonds Ex. 58-dated 30-9-1946, Ex. 61 dated 3-10-1947 and Ex. 64 dated 13-10-47 in relation to those three contracts as per Exs. 54, 60 and 63 respectively. Those surety bonds provided that he had become a surety for the amount that was liable to be paid as per the instalments set out therein and in case he failed to pay the same, the State was entitled to recover the same from his property as also from his heirs and legal representatives. It may be stated here that none of these surety bonds provide that the amount shall be liable to be recovered by any revenue process, as has been stated in the three contracts referred to above.
3. The plaintiffs have then set out various circumstances in the plaint whereby they claimed that the liability of the surety-deceased Shankerlal had come to be discharged. According to them, as a result of communal riots in Godhra and round about villages towards the end of 1948, most of the contractors who were Muslims were not able to fulfil their contracts of cutting the trees and carrying away the timber as well, and paying the amounts due under the instalments to the State. On that account some of the sureties gave applications to the then State of Baria under Rule 8 of the Forest Auction Rules for attaching the properties and goods of the contractors within the State limits by way of revenue process and have the same sold in order to discharge their liabilities for the amount of Ijara to be paid by those contractors. That Rule further provided that if the surety had paid any amount to the State on behalf of the Ijardar towards the price of Ijara, the said amount or the amount which may enable him to discharge his liability under the bond would be paid to the surety from the amount of the auction. The case of the plaintiffs, was that in respect of all the three contractors or the Ijardars mentioned above, an application was given under that rule by deceased Shankerlal to the State and properties of those Ijardars had come to be attached. However, it is found that such an application was made in respect of only two of the Ijardars Isuf Abdulraheman Dadi and Kalimuddin Abdulhusein Baluwala. The prohibitory orders were issued by the State against the Ijardars restraining them from selling, mortgaging, gifting or in any other manner alienating any of their movable and immovable properties without the consent of the Ruler of the State. In pursuance of that order, the goods of the contractors lying in different forest-blocks had come to be attached. Thereafter, on 10th June 1948, the then State of Baria came to be integrated within the State of Bombay. After the merger, the Forest Department of the State of Bombay instead of selling the goods of the Ijardars which had come to be attached and paying the amount to the deceased surety, made those goods free without realising the amounts under the instalments which had become due from the Ijardars and, thus, destroyed the security of the surety without his consent. As a result of this, the contractors who had not paid their full amounts due, sold away the goods and took away the money. It is that way that the plaintiffs have alleged that the action on the part of the officers of the defendant-State operated to discharge the deceased surety of this liability.
4. Thereafter the Forest Department of the Bombay State gave notices to the surety Shankerlal to which he replied that he was not liable for any amount under the surety-bonds in the circumstances set out here-above. In the meantime, Shankerlal died on 1-12-1948. After his death, the defendant-State tried to attach and sell the property of the plaintiffs as also of the deceased surety which had come to the plaintiffs by way of survivorship by following the procedure contemplated under the provisions of the Land Revenue Code. That led the plaintiffs to give a statutory notice contemplated under Section 80 of the Civil Procedure Code and after the period of notice was over, they have filed the suit from which this second appeal has arisen. The allegations in the plaint are that apart from the surety's liability having come to an end in the circumstances set out hereabove, since the plaintiffs have become the owners of the joint family property after the death of Shankerlal by survivorship, the properties were not liable to be sold for the debt of Shankerlal, which was, since it was a debt contracted by him by becoming a surety of those contractors, of an immoral character and that they were also not liable on that account. They further alleged that the property that had come to them by survivorship was not liable to be attached and sold by revenue process without obtaining a decree from a competent Civil Court. On those allegations, the reliefs set out hereabove have been claimed in the suit.
5. The defendant State resisted the suit inter alia contending that the surety bonds executed by the deceased surety were independent and separate contracts and had no connection with the Forest Auction Rules of Baria State and that the surety's liability had not come to be discharged as alleged by the plaintiffs on account of the acts of omissions and commissions on the part of the Forest Officers and that on the forest contractors having failed to pay the first instalment due on 31st May 1948, the officers of the Forest Department were entitled to issue notices to the contractors and the sureties for the payment of the outstanding dues. As to the liability of the plaintiffs, the defendant asserted that they were liable to pay the amount and their allegation about their having got the property by survivorship was not admitted. The orders passed by the State were, therefore, valid and it was entitled to recover the amount due by revenue process, and that the suit may be dismissed with cost.
6. The trial Court raised the issues arising out of the pleadings of the parties, and it found that the surety bonds were subject to Rule 7 of the Forest Auction Rules of Baria State and not subject to Rule 8 thereof; that the plaintiffs failed to prove that the defendant had handed over the attached property to the contractors without the consent of the deceased surety; that the deceased surety was not discharged from his liability on account of the acts done by the defendant's officers; that the action taken by the defendant's officers in attaching the properties of the plaintiffs was legal and valid; that the value of the subject-matter of the suit for the purpose of the pleaders' fees was Rs. 1, 09, 254-8-0 and that the plaintiffs were not entitled to the declaration and injunction sought for in the suit. In the result, the suit came to be dismissed with costs. Against that decision of 16th January 1957 by Mr. V.B. Wakade, Civil Judge (S. D.) Godhra, the plaintiffs preferred Regular Civil Appeal No. 24 of 1957 in the Court of the District Judge, Panchmahals at Godhra. The learned District Judge who heard the appeal had raised two points for determination viz. as to whether the deceased surety Shankerlal was discharged from liability under the surety bonds as alleged, and if not, whether the liability incurred by him under the surety bonds was an immoral debt. He recorded the findings on both the points in the negative and in the result, he dismissed the appeal and confirmed the decree passed by the trial Court. The appellants were directed to pay the costs of the respondents and bear their own. Aggrieved by that decision passed on 20th November 1958 by Mr. D. P. Desai, District Judge, Panchmahals at Godhra, the plaintiffs-appellants have come in appeal.
7. The only material point urged before me, is as to whether the joint family property in the hands of the plaintiffs after the death of surety Shankarlal which took place on 8-11-48 was liable to be proceeded with, for the debt of Shankerlal under the surety bonds Exs. 58. 61 and 64 executed by him in favour of the State, by revenue process under Section 187 of the Land Revenue Code, without having obtained any decree against them from a competent civil Court. It is not in dispute that so far as the contractors were concerned, having regard to the terms of their contracts Exs. 57, 60 and 63, the amounts due from them thereunder were liable to be realised by revenue process as contemplated under the provisions of the Land Revenue Code. So far as the liability of the surety in respect of those dues is concerned, by reason of the terms set out in the surety bonds Exs. 58, 61 and 64, it cannot be said that the recoveries could be made by revenue process, but having regard to paragraph 3 of Section 187 of the Land Revenue Code, such sureties are treated as revenue-defaulters and as provided therein, 'all persons who may have become sureties under any of the provisions of this Act or of any Act or Regulation hereby repealed, or for any such contractor as aforesaid for any sum of money shall, on failure to pay the amount or any portion thereof for which they may have become liable under the terms of their security bond, be liable to be proceeded against under the provisions of this Chapter as revenue defaulters and all the foregoing provisions of this Chapter shall, so far as may be, applicable to such persons. ' It is, therefore, clear that Shankerlal by reason of his being a surety of those contractors had become liable to be proceeded against under the provisions of Chapter XI of the Bombay Land Revenue Code, 1879. Such a question had arisen in an unreported decision of the High Court of Bombay in a case of Kodarlal Lallubhai v. The State of Bombay and Anr. in Civil Application No. 260 of 1952 where the Division Bench consisting of Chagla C.J. and Gajendragadkar J, as he then was, held that the sureties for such persons such as the contractors who fall under paragraph 3 of Section 187 of the Land Revenue Code were revenue defaulters within the meaning of the last paragraph of Section 187 and the amount due from them can, therefore, be recovered as arrears of land revenue under the provisions of that Chapter. That decision governs us, it being one prior to 1-5-60 in view of a Full Bench decision of this High Court in State of Gujarat v. Gordhandas Keshavji Gandhi III G.L.R. 269. So far there does not arise any difficulty. That decision, however, does not go to suggest much less lay down that the revenue process can as well extend after the death of such a surety, against the heirs and legal representatives or even the surviving coparceners in the family in respect of the debt due from the deceased surety.
8. The question then is as to whether the revenue process available to the State for recovering its dues from such persons can even extend beyond the life-time of those persons or that it would be essential for the State to establish its claim and obtain a decree from a competent civil Court so as to enable it to realise the dues from the estate in the hands of the persons such as the plaintiffs in the present case. In the first place, having regard to the terms of the surety bonds passed by Shankerlal, the father of plaintiffs Nos. 1 and 2 and husband of plaintiff No. 3, they do become liable for the debt of the father or his heirs and legal representatives and that would be confined to the estate of Shankerlal in their hands. It was, in this connection, urged that where the liability of the surety is contemplated, that liability would include that of his heirs and legal representatives, and no specific words such as 'heirs and legal representatives' are required to be put in Section 187 of the Land Revenue Code. That in a way appears to be quite correct, but it would be so to an extent of the separate or self-acquired estate of the surety that came to the hands of his heirs and legal representatives. It is clear and over which there is no dispute whatever that the heirs and legal representatives of the deceased surety are not personally liable for any such debt. They are not the revenue-defaulters as such, so as to be proceeded against under Chapter XI of the Land Revenue Code. Turning to Section 150 of the Land Revenue Code which lays down certain process for recovery of arrears of land revenue, we find that an arrear of land revenue may be recovered by the various processes set out in Clauses (a) to (f) of Section 150. Clause(a) refers to a process by serving a written notice of demand on the defaulter and Clause (b) by forfeiture of the occupancy or alienated holding in respect of which the arrear is due. Then Clauses (c) and (d) refer to the processes for recovering the amount by distraint and sale of the defaulter's moveable property and by sale of the defaulter's immovable property respectively. Clause (e) relates to the process for recovering the amount by arrest and imprisonment of the defaulter. The last Clause (f) relates to the process for the recovering the amount by attachment of the village or shares of villages under Sections 159 to 163 in the case of alienated holding consisting of entire villages or shares of villages On a plain reading of this Section 150, it appears abundantly clear that the process for recovering the amount as an arrear of land revenue is directed against the defaulter personally and defaulter's movable or immovable property. It is, therefore, clear that if the surety were alive, he could be put under arrest, if he was a defaulter. The amount due from him could have been recovered by distraint and sale of his moveable property. Even his own immovable property could have been put to sale under Section 155 of the Code for such dues to the State. It would follow therefrom that the defaulter's own property were to be made available for the dues outstanding against him. Thus that much property, which is of the defaulter-surety, after his death, in the hands of his heirs and legal representatives can be proceeded against under Chapter XI of the Land Revenue Code. So far even Mr. Patel, the learned advocate for the appellants has had nothing to say. It is equally clear that the property belonging to such heirs and legal representatives of the defaulter-surety cannot be proceeded against under the provisions of the Land Revenue Code, as they are in no way personally liable for the same, and they are in no way defaulters as contemplated under Section 187 of the Land Revenue Code.
9. The question then is as to whether the joint family property which has gone to such persons by survivorship, after the death of Shankerlal, can be proceeded against under the provisions contained in Chapter XI of the Land Revenue Code. This involves the consideration of the question as to whether, as contended by Mr. Desai for the respondent State, the prayers sought for in the plaint relate to only the property of deceased Shankerlal, inherited by the plaintiffs as his heirs and legal representatives, and if so, according to him, they can be proceeded against and no reliefs are available to the plaintiffs. On the other hand, Mr. Patel for the appellants pointed out by reference to recitals in the plaint that the prayers are in respect of the joint family property got by them as surviving coparceners in their joint Hindu family, after the death of Shankerlal, the father of plaintiffs Nos. 1 and 2, and it is contended that, under Mitakshara Hindu Law governing the Hindus, that property would be of plaintiffs Nos. 1 and 2 on death of their father, by reason of the rule of survivorship and not received by them as heirs of their father by succession, so that it can be proceeded against under Chapter XI of the Land Revenue Code. Before turning to the plaint, I would first refer to as to what a joint family property is, and as to the incidents attached to the same, as we find stated in a well-known Treatise on Hindu Law by Mulla.
10. It is not in dispute that Shankerlal along with his two sons who are the plaintiffs Nos. 1 and 2 formed an undivided joint Hindu family. Under Hindu Law, property is well divided into two classes, such as (a) joint family property and (b) separate property. The 'joint family property' can well be divided into two parts such as (I) ancestral property, and (2) separate property of coparceners thrown into the common coparcenary stock. The property jointly acquired by the members of a joint family with the aid of ancestral property becomes a joint family property. Such a joint family property is anonymous with the term 'coparcenary property. ' The incidents of joint family or coparcenary property are distinct from those which relate to separate or self-acquired property of any person whether he happens to be a member of the joint Hindu family or not. The joint family or coparcenary property is that in which every coparcener has a joint interest and a joint possession. No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. As observed by Their Lordships of the Privy Council in Katama Natchiar v. Rajah of Shivagunga 9. M.I.A. 539, 'there is community of interest and unity of possession between all the members of the family: ' Besides, no individual coparcener in a joint Hindu family, according to the Mitakshara Law, can predicate at any given moment what his share in the joint family property is, and he becomes entitled to a definite share only when a partition is to take place. The interest of a coparcener in such property fluctuates or diminishes by death or birth of a male issue in the family. Thus, in respect of an ancestral property or in other joint family property, a male issue of any of the coparceners acquires an interest by birth and with the death of any of the coparceners, the property does not remain to be one of the deceased, so as to go to his heirs by succession, but it goes to the other coparceners by survivorship. As against such a joint family property, the separate or self-acquired property can be exclusively of a person, though a member of a joint family, and no other member of the coparcenary, not even his male issue, acquires any interest in it by birth. It is not liable to partition. He can deal with it in any manner he chooses, and on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners.
11. With these incidents attached to the nature of the property such as the joint family property on one hand and the separate or self-acquired property on the other, if we now turn to the plaint, it appears that what is sought to be made out is that the State cannot proceed against any such joint family property having come to the hands of the plaintiffs by survivorship after the death of deceased surety unless a decree is obtained from a competent Civil Court and it cannot be proceeded against under the provisions of Chapter XI of the Land Revenue Code. Mr. Desai, the learned Assistant Government Pleader, on the other hand contends that the plaintiffs have all along referred to the property, which the plaintiffs want protection against, as one of deceased Shankerlal Mansukhlal and at no place they have stated about any such ancestral property in which the plaintiffs Nos. 1 and 2 had interest by birth. His further contention is that even the ancestral or joint family property in the hands of the plaintiffs, would be liable for the debt of the father, if not illegal or immoral, by reason of pious obligation on the part of the sons to pay the same. When that is so, such property can as well be proceeded against under the provisions of Chapter XI of the Land Revenue Code. Now, it needs hardly be said that the plaint has to be read as a whole and one has to find out the cumulative effect of the allegations made by the plaintiffs in the plaint so as to claim the reliefs that they seek in a Court of law. Besides, one has to take into account that the pleadings in the mofussil, more or less, are often found to be loose and they have, therefore, to be liberally looked at. Mr. Desai is in a way right when he says that the plaintiffs have all along referred to the property as one of Shankerlal and not specifically referred to as the same being ancestral property. Now turning to para 1 of the plaint, they have stated that they are the heirs of Shankerlal Mansukhlal. That sentence is immediately followed by another statement that they are the survivors according to Hindu Law. That appears to be a statement of fact suggesting that on one hand they are the heirs of Shankerlal Mansukhlal on the basis of the principle of succession, and having regard to the principles governing the joint Hindu family they are also the survivors in the joint Hindu family after the death of Shankerlal. Then while it is true that in para 6 of the plaint, as pointed out by Mr. Desai, they have referred to the property as belonging to Shankerlal Mansukhlal, but it cannot he lost sight of that at the same time and in the same sentence they have stated that the property has come to them by survivorship. In para 7 of the plaint, it has been made clear by stating that they have acquired by survivorship the properties belonging to their undivided Hindu 'family on the death of Shankerlal. In the relief clause also they have stated the same thing. It is unfortunate that the plaint has not referred to or given details of any immovable property which was sought to be sold by revenue process, as otherwise it would have been possible to make out clearly what they intended to have in the suit. It appears probable that they wanted to contend that after Shankerlal's death, no property either self-acquired or separate belonging to Shankerlal, or any joint family property in which he as a coparcener had a share, could be made liable by revenue process. At any rate, Mr. Patel's contention is now confined to the joint family property that came to the plaintiffs after Shankerlal's death by survivorship, and according to him, that cannot be made liable to be proceeded against by revenue process under Sections 150 and 155 of the Land Revenue Code. If it related to Shankerlal's self-acquired property, there was no difficulty whatever, and as I said above, it could be proceeded against even by the revenue process under Chapter XI of the Land Revenue Code. Consequently no relief of injunction can be given to the plaintiffs in respect of such property which came to their hands by succession. However, the use of the words about their having got the property by survivorship and that again coupled with the fact of their being members of an undivided joint Hindu family, one can irresistibly conclude that the relief sought for is in respect of such property viz. the joint family property of which the plaintiffs Nos. 1 and 2 have become owners by survivorship and not against any separate property of the deceased. In fact some evidence has been led in the suit with regard to certain properties belonging to the plaintiffs. Two documents Exs. 119 and 120 have been produced by them to show that those properties were of the ownership of Mansukhlal Zaverbhai i. e. the grand father of the plaintiffs Nos. 1 and 2 and that way the ancestral family property. In that property, the plaintiffs Nos. 1 and 2 had interest by birth, and with the death of their father they became the exclusive owners in respect of that property. While such a point was before the trial Court, it does not appear to have been considered in the first appellate Court presumably as not raised before it. At any rate, that appears to be one of the main points in the suit invoking relief in respect thereof. The point, however, is one of law relating to the position of law governing the properties belonging to the members of the joint family, it is allowed to be considered by this Court.
12. Mr. Desai's contention then is that even if the property after the death of Shankerlal, was of the plaintiffs, it was liable for the debt of their father provided it was neither illegal nor immoral. Both the Courts have found that the debt was neither illegal nor immoral and since it was contracted by the father, by reason of the principle of pious obligation even the joint family property in the hands of the sons, the other coparceners were liable for the same. With that proposition of law governing the Hindus, there is no dispute. But what remains to be considered is as to whether such a property can be said to be the surety's property in any sense of the term viz. the defaulter's property as contemplated under Section 187 of the Land Revenue Code, so as to be proceeded against by the revenue process laid down in Chapter XI thereof. As already stated hereabove, such a property is not a defaulter's property i.e. the surety's property. It ceased to be his property no sooner he died and it has not come to his heirs by succession. But the plaintiffs Nos. 1 and 2 have become full owners thereof by survivorship in their own right with the death of their father- they having formed an undivided joint family. Now, the liability to pay the debts contracted by the father arises from an obligation of religious and pious nature which is placed upon the sons under the Mitakshara Law to discharge the father's debts and that pious obligation remains to the extent of their share in the joint family property. Thus, their liability to pay such a debt arises neither out of the security bonds passed by their father nor by reason of the provisions contained in Section 82 of the Indian Forest Act, nor under Section 187 of the Land Revenue Code as the property no longer was of deceased defaulter as such, but by reason of the principle of pious obligation to pay the father's debts out of even the joint family property. That is as stated above, subject to the condition that, it was neither illegal nor immoral. Before being required to pay the same, they have a right to challenge the character of that debt and be satisfied about their liability as such in respect of any such debt. Not only that but they are entitled to be satisfied that no amounts by way of repayments were paid either by the original contractor for whom their father had become a surety or by their father towards the dues to be paid. Since the claim against the surety is co-extensive with the liability of the original debtor who had become liable to the State, there might arise various other questions such as the contractor having become liable to damages by reason of his having unlawfully removed or damaged the property of the State or the like. All such questions have to be taken account of by the sons when they are called upon to meet the liability of their father. That can only be done provided the claim is sought to be established against them in a proper Court of law. The right to proceed against such property, belonging to the plaintiffs being liable to pay the debt of the father, may be there, but to say that it can be proceeded against under Chapter XI of the Land Revenue Code, can hardly be accepted in any way tenable by reason of the mere fact that the State happens to be the creditor. To do so, is to deprive the plaintiffs of their legitimate right to challenge the nature and extent of the debt of their father, unless there has been some machinery provided in law for determing such questions arising, before the property is proceeded against under Sections 150 and 155 of the Land Revenue Code. Unless therefore, any such forum were established under the provisions of the Land Revenue Code, it was competent only to a civil Court to determine all such questions that are likely to arise before any amount is sought to be realised from them.
13. In this connection, I was referred to an unreported decision of the High Court of Bombay in Special Civil Application No. 1360 of 1954 in the case of Ahmed & Co. and Ors. v. The State of Bombay decided on 31st August 1954. In that case, the petitioner had entered into a contract with the Government of Bombay for falling, collection and removal of trees in respect of a certain forest and a certain sum was deposited for the due performance of that contract. The duration of the contract was 7 months and 28 days. In June 1953 the possession of Coupe No. 76 was banded over, but thereafter on 13th July 1953 the amount deposited by him was returned. Later on 1st April 1954 a notice was sent to him by the Divisional Forest Officer to the effect that 129 trees had been wrongfully cut from adjoining area of Coupe No. 76 in contravention of the terms of the agreement and calling upon him to pay the sum of Rs. 5361/- for damages, and a sum of Rs. 5361/-by way of penalty, and that way in the aggregate a sum of Rs. 10, 772/-. An intimation was thereafter given to him that if he failed to pay the above amount within seven days, steps will be taken to recover that sum as arrears of land revenue. That led him to file a writ petition under Article 226 of the Constitution of India. The question arose as to whether any such amount can be recovered as arrears of land revenue under the provisions of the Land Revenue Code. The Division Bench of the Bombay High Court then held that the ordinary law is that the liability of every citizen must be determined by a civil Court. It is open to the Legislature to provide for a special machinery or to decide how that liability should be determined in a particular case, but when the Legislature does not choose to do so, the jurisdiction of the civil Court remains unaffected and uninterferred with. An argument was advanced by the learned Advocate General for the State that Section 85 of the Act impliedly conferred the power on the Forest Officer to determine the liability of the contractor under the bond or the agreement and that argument was rejected by saying that 'it would be opposed to all cannons of construction to impose a liability upon a party without the determination of his liability by a Court of law, except when the Legislature expressly sets up a tribunal or authority to determine the liability and ousts the jurisdiction of the civil Court to determine the liability.' If looked at from this point of view, it appears clear that for any such question as also for the determination of other questions such as with respect to the payment or realisation made either from the contractor or from the deceased surety or in respect of the matter as to whether a particular property is the separate property of the plaintiffs or was of the deceased, we find no machinery provided under the provisions of the Land Revenue Code. To allow the State to have recourse to summary process of realising the dues as arrears of land revenue under the provisions of the Code would be tantamount to deny the right of meeting any such claim against the deceased person. That right cannot be taken away and in my view, the proper remedy for even the State would be to file a suit and obtain a decree so as to entitle it to recover the same by sale of any such property. 14. Mr. Desai, the learned Assistant Government Pleader for the respondent-State, then relied upon a case of Manickam Chettiar v. Income-tax Officer, Madura and Anr. A.I.R. 1938 Madras 360. In that case, the creditor had obtained a money decree against one Govinda Rao and in execution thereof his movable properties were attached and brought to sale. That debtor Govinda Rao was required to pay a sum of Rs. 301-13-0 by way of income-tax under an order of assessment. Since he did not comply with the notice of demand for payment, a penalty of Rs. 10/- was imposed by the Income-tax Officer because of the default and that way the amount due by the assessee came to be Rs. 311-13-0. Before the sale, the Income-tax Officer filed an application in Court asking for an order directing the payment to him from the sale proceeds when the sale took place, for the amount due to Government by the debtor. The District Munsif ordered the balance, after deducting the costs of execution, to be paid to the Income-tax Officer. The question arose as to whether the Court had power to order the payment of moneys due to Government on the mere application said to have been presented under Section 151 of the Civil Procedure Code. The Full Bench of the Madras High Court held that 'the right to payment being indisputable, justice requires that it should be paid out to the Crown and formal application for payment has been made'. Then it was observed that there was no reason why the Crown should not be allowed to apply to the Court for an order directing its debt to be paid out of moneys in Court belonging to the debtor, without having to file a suit, but then they added that 'it must be a debt which is not disputed or is indisputable. ' In that case the debt represented money due to the Crown under the Income-tax Act and the demand of the Income-tax Officer was not open to question. If we turn to Section 46 of the Income-tax Act, it becomes clear that under Sub-section (2) of Section 46 the Income-tax Officer has to forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from the assessee the amount specified as if it were an arrear of land revenue. Then comes the proviso which says that without prejudice to any powers of the Collector in this behalf, he shall, for the purpose of recovering the amount, have, in respect of the attachment and sale of debts due to the assessee, the powers which under the Civil Procedure Code, a Civil Court has in respect of attachment and sale of debts due to a judgment-debtor for the purpose of the recovery of an amount due under a decree. In other words, in the first place, with the issue of a certificate the amount due from the assessee was indisputable and secondly it amounted as it were, in the nature of a decree which could be executed by a Civil Court and that way by the Collector for the purpose of recovering the same as arrears of land revenue. In the present case, we find no such provision as we have in Sub-section (2) of Section 46 of the Income-tax Act, and, at any rate, it is perfectly open to the plaintiffs to challenge the correctness or otherwise of the amount due from the deceased surety before the properties in the hands of the plaintiffs were liable to be met for the same. That can be done by filing a civil suit as the surety who was liable to the State, is already dead.
15. Another case of M.R. Radhakrishnan and Anr. v. The Union of India represented by Secy. to Govt. of India and Anr. reported in : 35ITR142(Mad) , was also referred to with a view to show that no such suit was necessary to be filed for recovering any such amount. In this case also the amount said to be recovered was the income-tax amount due from the assessee who happened to be the father of the plaintiffs in the suit. The sons had filed the suit for a declaration that their share in the joint family property was not liable for the debt which according to them was an avyavaharika debt. It was held that the liability of the father to pay tax could not be brought under the category of avyavaharika debt hence the sons could not escape their liability to discharge it. Besides, it was held that under the proviso to Section 46(2) of the Income-tax Act, the Collector for recovering the amount of tax due has the power which under the Civil Procedure Code the civil Court has for the purpose of recovering an amount due under a decree. That way under Section 60 of the Code in execution of a decree against the father the entire family property can be brought to sale on the ground that the decretal debt is binding on the sons. Now, in this case it is worth noting that the father was also alive and he was the second defendant in the suit. The liability, as already pointed out while considering the effect of the previous case, was indisputable and final and as the proviso to Section 46(2) of the Income-tax Act indicates, it amounted to in the nature of a decree passed by a civil Court. The only power to recover the same was given to the Collector by revenue process. That way neither of these two cases will have, therefore, any application to the facts and circumstances of this case.
16. One other case of Chaganti Raghava Reddy v. State of Andhra (now Andhra Pradesh) reported in : AIR1959AP631 , was then relied upon to show that by virtue of the theory of pious obligation the interests of the son in the joint family property are answerable for the debts of the father and the whole of the joint family assets are liable for the debts of the father by reason of this doctrine provided they were not incurred for illegal or immoral purposes. A decree obtained against the father can be executed against the interests of the sons in the joint family property if the debts are not immoral or illegal and then it has been observed that the priority which a State has got in regard to the payment of income-tax extends to a liability founded on the principle of pious obligation if the debts are not vitiated by any illegality or immorality. Then following the case of A.I.R. 1938 Madras 360, it is said that the State can invoke the inherent powers of the Court under Section 151, Civil Procedure Code, and it is not essential that a decree should be obtained in order to claim prior payment. Great stress was laid on this decision by Mr. Desai in saying that in the case before us also the debt is not tainted with immorality or illegality and that by virtue of pious obligation the sons are liable for the debts of the father and that way the entire joint family assets were liable for the debts of the father. When that is so, according to Mr. Desai, there arises no question that a separate suit was required to be filed against the sons and by implication they are entitled to proceed against them for recovering the amount as arrears of land revenue by recourse to the provisions contained in Chapter XI of the Land Revenue Code. In this case also, as pointed out in two other cases, having regard to Section 46(2) of the Income-tax Act and the proviso thereto, when a certificate is issued for the arrears of income-tax amount, the amount is indisputable and is final. Besides, that liability becomes a liability as it were, under a decree passed by a civil Court, and that way recoverable by revenue process by the Collector. The case before us is, therefore, quite distinct in those two respects, and it has, therefore, no applicability to this case. What is needed is, therefore, a decree against the deceased surety, and if the surety died before recovering the debts due to the State from him, and no decree is passed against him, the State cannot proceed against his sons in so far as their property is sought to be availed of for their father's debt. If the debtor such as the father was alive, he is able to represent the estate sought to be made liable whether it is the joint family property or separate property. If a decree is passed against him, such a decree, though his sons are not made parties thereto in the suit, can be executed against even the joint family property in the hands of his sons. The reason behind all this is that there has been a proper representation both with regard to the members of the family who were sought to be made liable as also the property in their hands. Unless that is done either by obtaining a decree by due course of law or by reason of a fiction created by law as has been done by proviso to Sub-section (2) to Section 46 of the Income-tax Act, it would not be either proper or permissible to allow the State to realise its dues from the sons on account of their liability arising out of any such pious obligation to pay the debts of their father.
17. In this respect, Mr. Patel has referred to a case of Pannalal and Anr. v. Mt. Naraini and Ors. A.I.R. 1962 Supreme Court 170. After considering various authorities, the principles governing the liability of the sons for the debts contracted by the father either before or after partition have been laid down in the case. The first principle is that the son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self-acquisitions. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice. Another principle laid down therein is that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead. Then while considering the question as to whether a son is liable, even after partition for the preparation debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition it was observed that 'it has been held in a large number of cases-all of which recognise the liability of the son to pay the pre-partition debts of the father-that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition. They concur in holding that a separate and independent suit must be instituted against the son before their shares can be reached. The principles underlying these decisions seem to us to be quite sound. After a partition takes place, the father can no longer represent the family and a decree obtained against him alone, cannot be binding on the separated sons. In the second place, the power exercisable by the father of selling the interests of the sons for satisfaction of his personal debts comes to an end with partition. As the separated share of the sons cannot be said to belong to the father nor has he any disposing power over it or its profits which he can exercise for his benefit, the provision of Section 60, Civil P. C, would operate as a bar to the attachment and sale of any such property in execution of a decree against the father. ' In other words, the same principles by way of analogy can well govern a case where the father is dead and no decree has been passed during his life-time in respect of his debts which are sought to be met out of the joint family property in the hands of the other surviving coparceners. It is, therefore, clear that if no decree is obtained during the life-time of the father, there is no authority which lays down that the sons who had no opportunity to meet any such claim as against them on account of their peculiar liability arising out of the principles of Hindu Law governing the debts of a father, are liable, and the State cannot recover that debt on the basis that the amount that they claim against the deceased-surety is the indisputable amount. Nor can it be said that any property which they seek to proceed against is the property liable for the amount without having any machinery to determine those questions which the sons are entitled to arise before the property in their hands can be taken under the revenue process contemplated in Chapter XI of the Land Revenue Code. The mere fact that the entire joint family property with plaintiffs is liable for the debt of the father, which again if found to be not illegal or immoral, cannot justify us to say, that such a summary procedure can extend to the sons without their having any opportunity to meet the same. That can only be done, in a suit properly instituted in a Civil Court, and the amount can then be realised in pursuance of a decree obtained against them, by due process of civil law. While liability may extend, the procedure that could be applied to the surety cannot extend against his sons and their property when the property is held as their own by reason of their being surviving coparceners in the family.
18. In the result, therefore, if the surety were alive, it was open to the State to recover the dues from him under the provisions contained in Chapter XI of the Land Revenue Code. If the surety had left any separate or self-acquired property which has devolved by succession on his heirs and as such are in possession thereof, it is liable to be met by reason of summary procedure permissible to the State as it is the property of the defaulter-surety as contemplated under Section 187 read with Section 150 of the Land Revenue Code. But as the property sought to be attached in this suit is the ancestral or the joint family property which has come to the plaintiffs as the surviving coparceners of an undivided Hindu family, there is no interest left in the defaulter-surety as such and that the remaining co-parceners become the owners thereof and, therefore, the summary procedure permissible to proceed against the defaulter surety or his property is not available to the State. The remedy would be by way of obtaining a decree from a competent civil Court before putting the property to sale, in execution thereof, even though that property is available for the father's debts. That is the only way how the plaintiffs would have a legitimate light to meet the claim made against them or the property in their hands and have all the questions considered and determined by the Court.
19. In so far as the question of the discharge of the debt due from the surety is concerned, there is no point raised before this Court except by saying, and to which even Mr. Desai, the learned Assistant Government Pleader, has no objection, that the declaration in that respect may well be given saying that the amount due under the surety bonds Exs. 61 and 64 shall be such amount minus the amount paid by the contractors in respect of their contracts as per Exs. 60 and 63 and such other amount as may have been recovered by the State by sale of their property attached under Rule 8 of the Forest Auction Rules. No other point has been urged before this Court.
20. In the result, therefore, the decree passed by the trial Court and confirmed by the first appellate Court shall be set aside. The liability arising under the surety bonds Exs. 61 and 64 shall be to an extent of the amount contained therein minus the amount paid by the contractors as per the contracts Exs. 60 and 63 dated 25-9-1947 and such other amount as may have been recovered by the State by sale of their property attached under Rule 8 of the Forest Auction Rules then prevailing in the then Baria State.
21. The State shall be further restrained from recovering any amount by revenue process such as contemplated under Chapter XI of the Land Revenue Code by proceeding against the ancestral or joint family property in the hands of the plaintiffs without obtaining a decree in due course of law from a competent civil Court. It shall be, however, open to the State to recover the amount from any other separate or self-acquired property of deceased Shankerlal Mansukhlal in the hands of his heirs or legal representatives such as the plaintiffs in this suit under the provisions of Chapter XI of the Land Revenue Code. In the circumstances of the cases, there shall be no order as to costs.