R.B. Mehta. J.
1. This is a second appeal against the judgment and decree passed by the learned Third Extra Assistant Judge, Ahmedabad, who varied the order and decree passed by the learned Civil Judge, Junior Division, Viramgam. The appeal raises a short point of Hindu Law in regard to a son's liability to discharge his father's debts.
2. Briefly stated the facts are as follows:
There was a firm of Virchand Dharamchand in Viramgam. A suit was filed being suit No. 551/1953 between the partners of this firm for dis solution and accounts. In that suit the plaintiff No. 1, Damanbhai Chhabil bhai Dhruv, was appointed a Receiver. The said firm has lands in the villages of Manserva and Dhdhna and their management was in the hands of the firm's Munim Tribhovandas Balchand Shah, defendant No. 1 in this suit. Tribhovandas had not accounted for the recoveries made by him on oehalf of the firm. A suit, being suit No. 2/7/41, was therefore filed against the Munim Tribhovandas for recovering the dues that were payable by him on a proper accounting of the management of the firm. In that suit a decree was passed for Rs. 1600/- odd against Tribhovandas, with costs and interest. It appears that a Darkhast No. 24/50 was filed early in 1950 in execution of the said decree and an amount of Rs. 25/- was realised in execution. Thereafter, another Execution Application was filed by the judgment-creditor firm against Tribhovandas in April 1960. In the second Darkhast. attachment was sought to be levied against the immoveable properties of the joint family consisting of Tribhovandas and his two sons Maneklal and Kanubhai, it being the attaching-creditor's case that the family was joint. Maneklal and Kanubhai took out claimants' proceedings alleging that the immoveable properties against which execution was sought to be levied belonged exclusively to them on the ground that there was a partition between the father and the sons in the year 1950 prior to the execution proceedings and that the properties in question had come to their share on partition and were not liable for the satisfaction of the decree passed against their father. In these Execution Proceedings the learned Civil Judge, Junior Division, upheld the claimants' objection. As a result the judgment-creditor filed the present suit against the father (defendant No. 1) and the sons (defendants No. 2 and 3) for a declaration that the partition between the father and the sons is a sham transaction and made with a view to defeat and delay the creditors and that it was, therefore, void and not binding on them and that therefore the properties which had allegedly come to the shares of the sons were liable to be attached and sold in execution of the decree against the father. In appeal, against this decision, the learned Third Extra Assistant Judge, Ahmedabad, held that there was an intention to separate between the father and the sons and that therefore there was a severance of status. In other words that the intention to separate was not sham. He held further that the physical partition by metes and bounds was however arrived at with intent to defeat and delay the creditors and was therefore not valid and binding on the plaintiff-creditors but as he held that there was a severance of status the judgment-creditor was entitled to proceed against the undivided share of the father in the whole family property and not entitled to proceed against the undivided shares of the sons. Against that decision the present appeal has been filed.
3. It may be stated that neither in the Execution Proceedings nor in-the suit was the question raised and decided as to whether the sons were liable under the pious obligation rule. It is contended in this second appeal that the sons are liable to pay the fathers debts which are not tainted with illegality or immorality under the pious obligation rule. It is conceded that the liability on the sons is not sought to be foisted on the ground of a family necessity or benefit to the estate. It may be stated that a passing reference was made on the point of pious obligation rule by the learned trial Judge though at the same time he stated that as the issue as such has not been raised no decision was necessary on that point. So far as the principle of Hindu Law is concerned there is no doubt that a son is liable to pay his fathers debts which are not tainted with illegality or immorality. This liability is not personal. It is limited to the sons interest in the coparcenery property (here we are concerned only with coparcenery property). If the son is joint with the father then a decree passed against the father alone is executable against the son even if the son is not a party to the suit against the sons interest in the joint family property; not only that but even if there is a partition after the decree is obtained but in which case the son to escape his liability is entitled to show that he is not liable on account of the pious obligation rule on the ground that the debt in question is tainted with illegality or immorality. In the present case the decree was passed against the father when the family was joint. After the decree was passed there was a partition in the year 1960. The judgment-creditors sought to attach the immoveable property coming to the shares of the sons. The sons were not made parties in the Execution Proceedings. The sons however objected to the execution on the ground that the properties had come to their share on partition and that the father had no interest in the same. The question of the liability under sons pious obligation rule as pointed out above was not raised and the claimants objections were upheld in the summary proceedings. The creditors then filed the present suit for a declaration that the partition was sham and fraudulent and with the object to defeat and delay the creditors and that therefore it was void and that the properties in the hands of the sons were liable to attachment. As pointed out above it was held by the learned trial Judge that the partition was sham and therefore the properties in the hands of the sons were liable to be attached and sold in execution. On appeal it was held that the partition was not a sham one that there was an intention to sever and that therefore there was a severance in status. But the learned Third Extra Assistant Judge also held that the partition by metes and bounds was fraudulent and to defeat and delay the creditors. He held that the physical partition by metes and bounds was invalid. It was also held that each coparcener had an undivided share and that fathers undivided share in the coparcenery property could only be taken in execution. Against this finding there is no challenge. The position therefore is that there is a severance of status and each coparcener has an undivided share in the properties in question. The position therefore is that a decree has been obtained against the father when the family was joint. After the decree there is a partition. The decree therefore having been obtained when the family was joint is executable against the sons even after the partition. In this case by reason of the finding of the learned Third Extra Assistant Judge the partition consists so far as the properties in question are concerned in a severance of the status. So it necessarily follows that the decree is liable to be executed against the sons undivided shares in the properties in question because of the pious obligation rule under which the sons are under an obligation to discharge their fathers debts which are not tainted with illegality or immorality. In other words the position is that the undivided shares of the sons in the immoveable property in question will be liable to be attached and sold in execution the proviso being that in the execution proceedings it will be open to the sons to raise a question that they are not liable under the pious obligation rule on the ground that the decretal debt in question is either illegal or immoral because it is an accepted rule that no such liability can be enforced against the sons unless they are given an opportunity to show that they are not liable for the debts under the Hindu Law. In this connection reference may be made to the case of Pannalal and Anr. v. Mst. Naraini and Ors. 1958 S.C.R. 544.
4. In these circumstances the declaration which this Court will give in favour of the appellants will be that the judgment-creditors will be entitled to proceed in execution against the sons in regard to their undivided shares in the immoveable properties in question of the joint family with a proviso that in the execution proceedings which may follow on this declaration the sons will be entitled to raise the question of their liability under the pious obligation rule. Of course the judgment creditors will be entitled to execute the decree against the undivided share of the father. There will be no order as to costs throughout.