D.M. Bhandari, J.
1. This Civil Second Appeal arises out of a suit for a declaration filed by Shrimati Kanchan, wife of Dharamchand Gandhi plaintiff-appellant against Veer Chand Gandhi Respondent No. 10 and Jai Shanker Brahmin whose legal representatives are Defendant respondents Nos. 1 to 9 in this appeal. The case of the plaintiff-appellant is that Jai Shanker defendant had obtained a money decree for the recovery of Rs. 7,224-3-6 against Veerchand Gandhi defendant on 29-7-57 in execution of which he got attached two houses situate in village Kohra, more particularly described in Para. No. 2 of the plaint, These houses belonged to Vaneychand Gandhi son of Veerchand Gandhi who had separated from his father in Sambat 1987. The said Vaneychand made a gift of these two houses on 13-9-1955 and executed a registered deed of gift in favour of the plaintiff appellant who was the daughter-in-law of the donor.
The plaintiff-appellant filed an objection application under Order 21, Rule 58 C. P. C. in the executing Court which was dismissed summarily. She, therefore, filed the suit for a declaration that the said two houses were not liable to attachment and sale in execution of the decree obtained by Jai Shanker against Veerchand. The suit was contested by the decree holder. He denied that there was any partition between Veerchand and his sons or that the house in dispute belonged to Vaneychand. His case is that Vaneychand had executed the deed of gift only to defeat and defraud the creditors of his father Veerchand admitted the claim of the plaintiff, the trial Court decreed the suit. In appeal by the legal representatives of Jaishanker, the Civil Judge, Sirohi dismissed the suit holding that the partition between the father and his sons was not proved by the evidence on record and it was further not proved that the houses in dispute had fallen to the share of Vaneychand. Hence this Second Appeal by the plaintiff-appellant.
2. Learned counsel for the appellant has challenged the finding of the lower appellate Court that there had been no partition between Veerchand and his sons, but this is a finding of fact and cannot be challenged in the Second Appeal. Learned counsel for the plaintiff-appellant has argued that even Jai Shanker examined as witness on his behalf admitted that Vaneychand had been residing separately from his father Veerchand for more than 15 years. It may be mentioned that Jai Shanker has also stated that there was no partition and because of the quarrel between the members of the family Vaneyehand resided separately from his father. He has also stated that the houses in dispute were joint family property and they were got constructed by Veerchand and his sons. I find no reason to disturb the finding of fact of the lower appellate Court about partition in this Second Appeal. Thus on merits, the appeal has got no force.
3. Learned counsel for the plaintiff-appellant then raised a point of law that in the suit in which the decree was obtained not only Veerchand, but his sons, Vanaychand, Maganlal and Hindu Mal were also made defendants and that suit was dismissed against the sons, and, as such, the decreeholder cannot get his decree executed against the two houses in dispute which were in possession of Vanaychand and which had been gifted by the plaintiff-appellant even if they are held to be part of the joint family property. That the sons were parties in the main suit is also mentioned in the plaint and has been admitted in the written statement. But it has been stated therein that though Jal Shanker had filed the suit against Gandhi Veer Chand and his three sons, but the suit was withdrawn against the sons for the reason that the decree passed against the father would be binding on the sons, so far as the joint Hindu family properly was concerned.
A certified copy of the judgment of the Civil Judge, Sirohi was also filed by the plaintiff-appellant in the trial Court but there is no order for taking it on record. The judgment shows that Jai Shanker had withdrawn the suit against the sons. The contention of the learned counsel for the appellant is that since Jai Shanker defendant had made Vanaychand a party to the suit along with his father Veerchand and the suit was dismissed us against Vanaychand, the joint family property in his hands would not be attached and sold in execution of the decree obtained against the father. He has relied on the following cases: Raja Ram v. Raja Baksh Singh, AIR 1938 PC 7, Prahlad Das v. Dasarathi Satpathi, AIR 1940 Pat 117, Umakant Rai v. Jitendra Narain, AIR 1949 Pat 97, Ramkishun Lal v. Ugramohan Dass, AIR 1960 Pat 8 and Bijai Raj Singh v. Ram Padarath, AIR 1936 Oudh 139.
4. On the other hand, learned counsel for the decree holder-respondents has relied on Firm Kumaji Sare Mal v. Kalwa Devadattam. AIR 1958 Andh Pra 216, Indar Pal v. Imperial Bank, AIR 1915 All 126, Periaswarni v. Vaithilingam Pillai, AIR 1937 Mad 718, V. Venkatanarayana Rao v. Venkata Somaraju, AIR 1937 Mad 610 (FB) & Kumbakonam Mutual Benefit Fund Ltd. v. C. Ramaswami, AIR 1946 Mad 396.
5-6. Before I take up these cases into consideration, I may refer to certain decisions of their Lordships of the Supreme Court which lay down the law on the question of the liability of sons to the debts of their father, the term 'sons' being construed as including grandsons and great grandsons. In Panna Lal v. Mst. Naraini, AIR 1952 SC 170, Mukherjea J., as he then was, delivered the judgment of the Court, and observed, as follows :--
'It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the lather is alive or dead, vide Brij Narain v. Mangla Prasad, 51 Ind App 129: (AIR 1924 PC 50). Thus it is open to the father, during his life lime, to effect a transfer of any joint family property including the interests of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such suit and obtain an adjudication from the Court that the debt was a proper debt payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. These propositions can be said to be well recognised and reasonably beyond the region of controversy, vide Girdharee Lall v. Kantoo Lall, (1873-74) 1 Ind App 321 (PC); Muddum Thakoor v. Kantoo Lall (1873-74) 1 Ind App 333 (PC), F. N. Suraj Bunsi v. Sheo Prasad, (.1878-79) 6 Ind App 88 (PC); 51 Ind App 129: (AIR 1924 PC 50)'.
7. In S. M. Jakati v. S. M. Borkar, AIR 1950 SC 282 at p 287, it was laid down that :--
'Therefore unless the son succeeds in proving that the decree was based on a debt which was for an immoral or illegal purpose the creditor's right of seizing in execution of his decree the whole coparcenary property including the son's share remains unaffected because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in satisfaction of the judgment obtained against the father alone. Sripat Singh v. Prodyot Kumar Tagore, 44 Ind App 1: AIR 1916 PC 220'.
8. Again in Virdhachalam Pillai v. Chaldean Syrian Bank Ltd., Trichur, AIR 1964 SC 1425, Gajendragadkar J. (as he then was), approved the proposition laid down by their Lordships of the Privy Council in AIR 1924 PC 50. The second proposition laid down by the Board was that:
'If the managing coparcener of a joint undivided estate is the father and the reversionaries are the 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 proceeding upon a decree for payment of that debt.' (Page 56)
The latest case on the point is AIR 1964 SC 1425, wherein it has been observed, as follows :--
'The authorities to which it is wholly unnecessary to refer, have firmly established the following and the position is not in doubt :
(1) A father can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of that debt.
(2) The father can, so long as the family continues undivided alienate the entirety of the family property to the discharge of his antecedent personal debts subject to their not being illegal or immoral.
In other words, the power of the father to alienate for satisfying his debts, is co-extensive with the right of the creditors to obtain satisfaction out of family property including the share of the sons in such property.'
The rule of Hindu Law that the sons are bound to pay the debts of the father has been construed as granting the father disposing power over the interest of the sons in the joint family property which he can exercise for his own benefit. A creditor who has sued the father alone and obtained a decree against him has the right to attach and sell in execution of his decree the interest of the father and the sons in the joint family property. Section 60 C. P. C. lays down that not only the property of the judgment debtor but the property over which the judgment-debtor has a disposing power which he may exercise for his own benefit, can be sold and attached in execution of a decree. It if not necessary that the sons should be made a party even to the execution proceedings. The sons may, of course, raise an objection that their share in the joint family property is not liable for the debts of the father as the debt was avyavaharika.
9. Now take a case in which a creditor has made the sons as defendants to the suit along with their father. A creditor may have done so for the purpose of obtaining a personal decree against the sons or for the purpose of estopping them from raising any objection in execution in future when the sons' shares would be sought to be attached and sold. If a personal decree is obtained against the father and the sons, there can be no question that the entire property of the father and the sons can be brought to sale. If a personal decree is obtained against the father only but the decree is passed also against the sons limiting their liability to their interest in the joint family property, the interest of the sons can be attached and sold in execution of such a decree because the sons could have got their share exempted by showing that the debt was an avyavaharika debt in the main suit. Had the sons raised such a plea in the main suit, no decree could have been passed against the sons.
Suppose in such a suit, the sons do not plea that the debt is an avyavaharika debt, yet the suit is dismissed against the sons, but decreed against the father, is it open to the decreeholder to execute his decree against the sons' shares in the joint family property? It is clear that if no personal decree was claimed against the sons and only a decree that their share in the joint family property was liable under the decree, then the dismissal of the suit against the sons will estop the decreeholder from attaching and selling the shares of the sons in execution of the decree against the father. The question, however, presents some difficulties in which a personal decree is claimed against the sons and nothing is said about their liability so far as their shares in the joint family property is concerned; and the suit has been dismissed against the sons. In such a situation, it will have to be considered whether the doctrine of constructive res judicata enunciated in Section 11 C. P. C. can be attracted.
10. Learned counsel for the appellant has argued that a decree obtained against the father can be executed against the shares of the sons in the joint family property as the father may be taken to be representing the sons in the main suit, but there is no representation by the father of the interest of the sons when in the main suit the sons have been made defendants and that it docs not matter whether suit is dismissed as withdrawn or on merits. In other words, his contention is that the decree obtained against the father is executable against the interest of sons in the joint family property on the ground that the father is deemed to be representing the sons in the main suit and when in the main suit, the sons are made defendants, there can be no such representation.
He has further amplified his argument by saying that the creditor had two alternative remedies for enforcement of his right against the interest of the sons. One was to obtain a decree against the father by suing him alone and seeking the execution of such decree against the interest of the father and sons in the joint family property. The other remedy was to obtain a decree against the father and the sons. If the creditor availed himself of the second remedy and had failed to obtain a decree against the sons, he could not turn round and say that the decree should be executed against the interest of the sons in the joint family property as the father must be deemed to be representing the sons in the main suit.
He has laid considerable importance to the authority of their Lordships of the Privy Council in AIR 1938 PC 7. In that case, a simple money decree was passed against the estate of Badrisingh and Chandrika Singh who had executed a mortgage deed in favour of Raja Ram. At the time of the filing of the suit Badrisinph had died and his two sons and five grandsons were made defendants to the case. The suit was dismissed against the grandsons. The decree-holder applied for execution of decree not only against Chandrika Singh and the two sons of Badrisingh but also against the grandsons and their interest in the family property notwithstanding that they had been dismissed from the suit with costs. Their objection was dismissed by the executing court but was accepted by the High Court and the decree-holder filed a second appeal to the Privy Council.
The appeal was dismissed with the following observations:--
'Their Lordships are of opinion that the decision is correct. If the debt in question was not contracted for purposes regarded as immoral by the Hindu Law, and if the respondents being grandsons of Badri Singh were liable therefor to the extent of their interest in the joint family property, then the Subordinate Judge's decree of 13th May 1931 was erroneous. The appellant should have appealed therefrom, claiming that, instead of dismissing the suit as against the respondents, the Subordinate Judge should have given decree against them in like manner as against defendants 1 to 3, namely as representatives of Badri Singh, for a sum to be realised out of any property of Badri Singh come to their hands. Such a decree passed in accordance with Section 52 Civil P. C. would have attracted the operation of Section 53, and the respondents' interests in the Joint property would have been liable to attachment under the decree, notwithstanding that such interests were not 'property of the deceased' in the strict meaning of those words. The same result might have been attained in more ways than one, had the appellant recovered judgment against Badri Singh in his lifetime. But the interests of the respondents cannot be regarded as property of their deceased ancestor come to the hands of their coparceners, defendants 1 to 3 or any of them. The respondents having been dismissed from the suit with costs cannot be made liable under the decree.'
The aforesaid observations of their Lordships lay down that a decree obtained against the father during his lifetime can be enforced against the interests of the sons and grandsons in the joint family property, but if after the death of the father, a suit is filed against the sons or grandsons, and the suit is decreed only against the sons and not against grandsons, the interest of the grandsons in the joint family property is not liable to be sold in execution. The proper course to adopt for the creditor was to take up the matter in appeal and obtain a decree against the grandsons. In other words, the court must be deemed to have held that the interest of the grandsons is not liable for the payment of debt and this matter cannot be reopened in execution at the instance of the decree-holder. This decision must be taken to be based on the application of the doctrine of res judioata, and cannot be applied to a case where the suit has been withdrawn against the sons.
The Privy Council case was relied on in AIR 1940 Pat 117. In that case, the plaintiff had brought a suit to enforce a simple mortgage executed in his favour by the defendants Nos. 1 to 3. Their sons were also impleaded as Defendants Nos. 4 to 8. The suit was decreed and the mortgaged property was sold in execution of the decree. The sale-proceeds were insufficient to satisfy the decree and the appellant applied for a personal decree against Defendants 1 to 3 only and not their sons Defendants Nos. 4 to 6. A money decree was passed against Defendants Nos. 1 to 3 and in execution of it, the plaintiff sought to sell the shares of Defendants Nos. 4 to 6 in the joint family property. The High Court held that this could not be done, and made the following observations:--
'In a case where a creditor of a Hindu debtor wants to enforce the pious obligation of his sons to pay his debts, the debt not being illegal or immoral, if he so LIkes he can implead the sons also in his suit. If he obtains a decree against them as well, no question can arise. The decree being against the sons in terms can be executed against their share of the joint family property. As the sons are parties to the suit the father cannot be said to have represented them in the suit. But if in such a suit the Court rightly or wrongly refuses to pass a decree against the sons and passes a decree against the father only, the decree cannot be said to have been obtained against the father both in his individual capacity and also as representing the sons and such a decree against the father not being a decree against the sons cannot be executed against them, not because they were not under a pious obligation to pay the debt of their father which, as I have assumed, was neither illegal nor immoral, but because the procedure of enforcing their liability having been adopted the Court refused to enforce it. The Court may be wrong but the decree is there. The creditor may however sue the father only and a decree obtained in such a suit if the debt was not illegal or immoral is effective against the sons also as they, though not parties by name, were represented by their father and must be deemed to have been parties to the suit. If, however, the debt was for immoral or illegal purposes the father cannot represent the sons and the decree obtained in such a suit is not against the sons and the question of the nature of the debt can be gone into in the execution proceedings.'
There are also observations to the effect that-
'if a father is sued for his personal debt, not tainted with immorality or illegality, he represents in the suit his sons who are joint with him and a decree thus obtained against, him must be taken to be a decree against his sons also.' (Page 118)
The Patna High Court followed this case in AIR 1949 Pat 97 and AIR 1936 Oudh 139 and both these cases have relied on the decision of their Lordships of the Privy Council in AIR 1938 PC 7. In AIR 1936 Oudh 139 the mortgagee had brought a suit on the basis of a mortgage deed executed by the father against the father and his sons and grandsons. The relief claimed in the suit was that a decree for sale be passed against the mortgaged property, and in case the mortgaged property could not be sold, a money decree be given and the court granted a money decree against the father. In execution of the money decree the decree-holder sought to attach and sell the joint family property, to which the sons and the grandsons filed objections. It was held that the decree could not be enforced against the interests of the sons and grandsons, The following observations may be quoted:--
'Stress was laid by the learned counsel for the decreeholder on the fact that the prayer for relief in the plaint did not in terms ask for any relief making the appellants' interest in the family property liable for the debt. We have already observed that in the light of the pleadings of the parties and the circumstances of the case the interpretation to be placed upon the aforesaid prayer, in our opinion is that it was intended to make the interest of the sons and grandsons in the joint family property liable for the plaintiffs claim. But even if it were conceded that the relief in question sought for nothing more than a personal decree against the sons and grandsons, still we are of opinion that the plaintiff must be held to be barred from enforcing the decree against the interest of the appellants by the rule of constructive res judicata as well as by the provisions of Order 2, Rule 2 Civil P. C.' (Pp. 140-141)
This again is a case in which rule of constructive res judicata is applied.
11. On the other hand, there are the observations in AIR 1958 Andh Pra 216 that even if a decree is obtained against the father personally, that decree could be executed against the sons' share as they are liable for the father's debt, and that the sons could escape liability only on the ground that the debt was immoral or illegal one, and further that the result is the same even if the sons were made parties to the suit originally and were exonerated. In this case, the decisions of their Lordships of the Privy Council in AIR 1938 PC 7 was referred to and it was pointed out that that decision had not overruled the decision of the Full Bench of the Madras High Court in Periaswami Mudaliar v. Seetharama Chettiar, (1904) ILR 27 Mad 243 (FB). The Full Bench decision of the Madras High Court has laid down the law that a decree against the father by its own force creates a debt as against ham which his sons are under an obligation to discharge and which can be recovered from the joint Hindu family property in the hands of the sons. It was pointed out that the Privy Council had applied the principle of res judicata to a case in which the grandsons had been made parties to the suit and the suit had failed as against them.
12. As I have already pointed out, the doctrine of res judicata cannot be attracted in the cases of withdrawal of the suit. This distinction has been pointed out by Varadachariar, J. in AIR 1937 Mad 718. The sons were also impleaded along with the father by the creditor in that suit but later on the suit against the sons was withdrawn. A decree was passed. It was argued that the decree must be read as having impliedly negatived the liability of the sons for the amount then claimed and that their interests in the family property could no longer be made liable for that decretal debt. This contention was over-ruled with the following observations:--
'In answer to the contention based on what happened in C. S. No. 30 of 1921, we may observe that it is not possible to hold that Section 11, Civil P. C. has any application to the circumstances of this case. Explanation V to that section can be invoked only in respect of any adjudication made by the Court. The fact that the plaintiff who in the first instance asked for a decree against the joint family property so far as the interests of the minor sons therein were concerned, subsequently withdrew his claim as against them, can only bring the case under Order 23, Rule 1, Civil P. C. The result of such a withdrawal is not to bring in the operation of the rule of res judicata embodied in Section 11 but only to entail the statutory penalty enacted in Order 28, Rule 1, itself, viz., that no fresh suit can be instituted against those defendants on the same cause of action. It cannot therefore be said that anything that happened in O. S. No. 30 of 1921 amounted to an adjudication, whether express or implied, that the sons are liable in respect of the claim in that suit.' (p. 719)
This case was followed by the Madras High Court in Krishnan Naidu v. Somi Naidu, AIR 1940 Mad 544 and AIR 1946 Mad 396. Both of these eases referred to the Privy Council case (1) and distinguished it on the ground that the dismissal of the suit against the grandsons in the Privy Council case amounted to a decision in their favour on the question of their liability. The Allahabad High Court in AIR 1915 All 126 overruled the objection that the question of res judicata could be attracted to a case where a son is impleaded as a party in a suit brought upon a promissory note executed by his father but subsequently the claim as against the son was withdrawn and a decree was passed against the father alone. It was held that the creditor could not be put in a worse position as regards the execution of his decree then he would have occupied if he had not impleaded the son.
13. The argument of the learned Counsel is that even when the suit has been dismissed as withdrawn, the decree obtained against the father in a suit brought against the father and sons cannot be executed against the sons as it must be taken that by filing a suit against the sons, the creditor had destroyed the foundation for an argument in his favour that the father had represented the sons in the main suit. I may, however, point out that the liability of the sons is on account of the pious obligation imposed on them to discharge the debt of their father, a doctrine which has its foundation in religious tenets. The father may or may not represent the son is the suit in which the decree has been obtained against the father, yet the sons we under a pious obligation to discharge the debt of the father which obligation has been construed by the courts of law as affording a right to the creditor to execute his decree even against the interest of the sons in the joint family property. Such liability imposed on the sons cannot be evaded except on the ground that the court has refused to recognize this right of the creditor in the main suit brought against the sons. If there is express refusal, there is the end of the matter. But in a given case such result may also be implied by invoking the doctrine of constructive res judicata. But to a case in which the creditor has withdrawn the suit against the sons, there can be no application of the doctrine of res judicata and a decree obtained against the father can be executed against the interest of the father and the sons. The doctrine of representation of junior members of the family by the karta or manager may be invoked to those oases in which the suit has been filed against the karta and manager of the joint Hindu family and a decree has been obtained against him, and an execution of such a decree is sought by attachment and sale of the entire joint Hindu family property.
14. It is not necessary to invoke the doctrine of representation of the sons by the father for the proposition that the creditor can attach and sell the interest of the father and the sons in the joint family under a decree obtained against the father alone. My humble view is that this right of the creditor flows from the principle of Hindu Law that the creditor has is posing power over the entire joint family property including the interest of the sons for payment of a debt which is not avyavaliarika.
15. In this view of the matter, the appellant who claims under Vaneychand cannot succeed as Vaneychand could not raise the objection that his interest in the property could notbe sold in execution of the decree obtainedagainst the father. The appeal has, therefore,no force and is dismissed with costs.