Jagat Narayan, J.
1. This is a decree-holder's execution second appeal against an appellate order of the District Judge, Bhilwara holding that the decree cannot be executed by the attachment and sale of ancestral properties in the bands of the sons of the deceased surety Hirachand on the basis of a decision of the Privy Council in Kesar Chand v. Uttam Chand AIR 1945 Privy Council 91. 72 I.A. 165.
2. The decree which is now being executed was obtained by the firm Kamalnain Hamirsingh against Ghisu Lal principal debtor and Hirachand surety. It provided for the payment of the decretal amount in six monthly instalments of Rs. 700/- each The present execution application was filed on 8-5-59 against the sons of Hira Chand surety, as he had died. A prater was made for the attachment and sale of some immovable properties belonging to the sons which have been found to be ancestral by the learned District Judge on appeal. The question which arises for decision in this case is whether the ancestral property in the hands of the sons can be attached and sold in execution of a surety debt of the father.
3. I have heard the learned Counsels for the parties and have perused the decisions cited at the Bar. I am of the opinion that the statement of law contained in Article 298 of Mulla's Hindu Law is supported by the majority of authorities and should be followed in this case also The law is stated thus-
Surely : According to Yagnavalkya : There are three classes of sureties to win sureties (1) for appearance, (2) for confidence, and (3) for payment Brihaspadds a fourth class which is very much similar to the third and differs from it in this respect that whereas a surety for payment binds himself personally to pay the loan, in the other form he undertakes to produce the property of the debtor, out of which the creditor may obtain satisfaction.
In the first two classes the liability of the surety is purely personal and does not extend to sons except where the surety obtains a pledge from the debtor to ensure his safety, and in such cases the creditor is entitled to realise his claim from the pledge even if the surety is dead. In the other two classes, viz. when the surety undertakes to pay off the debts or to produce the goods of the sons are liable to discharge the obligation incurred by the father but their liabiltiy extends to making good the principal of the loan and not the interest.
4. The above statement of law finds support from the other commentaries on Hindu Law as noted below : (1) Mayno 1953 Edition p. 401. (2) Gupte 1945 Edition p.p.7 22-33 (3) Raghavachariar 1965 Edition p. 333-334.
5. The decision of their Lordships of the Privy Council in Kesar Chand v. Uttam Chand AIR 1945 Privy Council 91. 72 I.A. 165 is distinguishable on facts. A stay of execution proceedings under a final mortgage-decree against 3 minors was granted by an order of the High Court during the pendency of an appeal; which provided that security should be furnished in the form of a charge on immovable property. A security bond was thereupon executed by the guardian of the minors which provided that 'I hereby stand as-surety for the minors and agree that in the event of the appellate court's decision being against the judgment-debtors, my movable and immovable properties, detailed hereinafter, shall be liable for making good the deficiency', if the amount under the decree was not recovered in full. The appeal before the High Court was compromised, and the mortgage decree in terms thereof also provided that the property should remain under attachment and that 'the security furnished by the surety shall also stand.' The mortgage debt not having been paid in time the decree-holder had the mortgaged property sold in execution and the decretal debt not being thereby realised in full items of ancestral immovable property belonging to the guardian only one of which was covered by the security bond, were sold in execution. On a claim by the two sons and the grandson of the guardian who constituted with him the joint Hindu family to set aside the sale as not binding on them and for possession of the ancestral properties so sold, it was held the security bond must be considered in the light of the Court directing security to be given and that so viewed, and on construction, it did not impose any personal liability on the guardian, but only created a charge on the specified properties. There was, therefore no debt due from him, and ancestral properties not covered by the security bond could not be validly sold in enforcement of it. Further, there being no debt due from the guardian but from third parties, the doctrine of the pious obligation of the sons to pay their father's debt could not make the transaction binding on the ancestral property, and accordingly the secured property, also could not be sold.
6. Although the decision is not very happily worded, the basis of the decision appears to be that in the absence of antecedent liability by the rather he could) not charge family ancestral property as security for another's liability so as to bind his sons. This is in accordance with a series of decisions of the various High Courts in India following the decision of the Privy Council in Brij Narain v. Mangla prasad AIR 1924 P.C. 50. According to the second proposition laid down in this case if the alienator is the father and the reversioners 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. According to the third proposition if he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt it would not bind more than his own-interest. In a case where the father hypothecates ancestral property as security for the payment of debt of another person, he burdens the estate without legal, necessity or without benefit to the estate and therefore, such hypothecation of the; ancestral property is not binding on the sons. The following decisions where the father hypothecated ancestral property under a surety bond are based on the above reasoning:
Satrohan Singh v. Umadutt AIR 1935 Oudh. 455 Ganga Saran v. Ganeshi Lal AIR 1939 Oudh. 225 Venkataramanna v. Mangamma AIR 1944 Mad. 457.
7. I accordingly hold that the ancestral property of respondents No. 1 to 5 is liable to attachment and sale so far as the principal amount due against the principal judgment debtor is concerned. In accordance with the decisions on which' the statment of law contained in Mulla's commentary is based the decree-holder is not entitled to recover interest from such property. Some decisions held that even interest can be recovered e.g. Chakhan Lal v. Kanhaiya Lal AIR 1929 All. 72, But in my opinion they do not lay down the law correctly.
8. The appellate court has observed that the decree-holder may proceed against the personal property of Hirachand, if so advised. The decree-holder cannot now proceed against the personal property of Hira Chand, if any, as his execution application will be barred by limitation under Article 136 of the new Limitation Act.
9. The appeal is allowed in part as indicated above. The cross-objection is also allowed.
10. In the circumstances of the case, I leave the parties to bear their own costs of the appeal and the cross-objection.