Williams Phillips, Offg. C.J.
1. This appeal was argued on the assumption that the decision in Jagannatha Rao v. Viswesam : AIR1924Mad682 was correct, but when arguments were completed judgment was reserved until the decision of the Full Bench, to which the question of the correctness of the above ruling-had been referred, was available. That decision in Subramania Aiyar v. Sabapathi Aiyar I.L.R. (1927) Mad. 361 : 54 M.L.J. 726 has now confirmed Jagannatha Rao v. Viswesam : AIR1924Mad682 and therefore the original arguments hold good.
2. In this case the insolvent was adjudicated on 2nd December, 1919, and a partition deed executed on 26th November, 1919 has been held to be void as against the Official Assignee. On 1st April, 1920, the Official Assignee took out a notice of motion asking that the partition deed should be declared void and for an order that the interest of the minor sons in the family property should be vested in the Official Assignee. This motion formed the subject-matter of O.S.A. No. 49 of 1921 and the judgment is reported in Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 . It was then held that the interest of the minor sons in the property did not vest in the Official Assignee but that, inasmuch as the Official Assignee stood in the shoes of the insolvent, he could alienate the minor sons' interest in the joint property for the purpose of paying the insolvent's debts unless the debts were incurred for illegal or immoral purposes. It was also ordered that the Official Assignee should take possession of the joint property. The question to what extent the Official Assignee could sell the interest of the minors in order to discharge their father's debts was left undecided, but his right to exercise the powers of the father was duly recognised and the minor sons were parties to the order. O.S.A. No. 49 of 1921 was presented on 21st April, 1921 and the order was passed on 1st August, 1922. Subsequently the sons filed a suit O.S. No. 157 of 1922 in the Sub-Court of Madura for partition and what we have now to decide is what effect the filing of this suit has upon the rights of the Official Assignee, the contention on the part of the minors being that the filing of the suit constituted a separation of status in the family and that therefore the father's power to sell their interests is extinguished. Mr. K.S. Krishnaswami Aiyangar for the Official Assignee contested this proposition on three grounds. He first contended that the power of sale of his sons' interest that is vested in the father under the Hindu Law arises from and is co-extensive with the sons' pious obligation to pay the father's debts. There is a great deal of force in this argument, for it has frequently been held that the father's power to sell is derived from the sons' pious obligation to pay and consequently the logical conclusion might well be that the power and the obligation are co-extensive. The question does not appear to have been discussed in any of the reported cases, but it is now I think too late to put forward such a proposition for it has frequently been taken for granted that the father's power to sell ceases as soon as the sons acquire a separate divided interest in the property. This principle was enunciated in Krishnaswami v. Ramaswami I.L.R. (1899) Mad. 519 : 1899 9 M.L.J. 127 where the proposition was taken for granted, it being observed that.
The father under the Hindu Law is entitled to sell on account of such debt the whole of the ancestral estate. This necessarily implies that at the time the property is seized it remains the undivided estate of the father and the son. If the estate were divided the father could not sell what does not fall lo him in the division.
3. This case was followed in Rathna Naidu v. Aiyanachariar : (1908)18MLJ599 , and treated as authority for holding that where the estate is divided the father cannot sell what does not fall to him in the division. In Kameswaramma v. Venkatasubba Rao I.L.R. (1915) Mad. 1120 : 1915 27 M.L.J. 112 it was held that although a Hindu son is liable for the surety debt of his father to the extent of joint family property which came to his hands at partition, yet a decree for such debt obtained against the father before partition is not executable after partition against the son and the joint family property allotted to him, the decision being put upon the ground that when execution was taken out the property had ceased to be joint family. Again in Venkanna v. Srinivasa Deekshatulu I.L.R. (1918) Mad. 136 : 33 M.L.J. 519 Wallis, C.L., observes-
This Court has adhered to the view of Turner, C.J. in Ponnappa v. Pappuvayyaugar I.L.R. (1882) Mad. 1 and has held in a series of cases that, as the effect of partition is to put an end to the father's right to sell the son's share for an antecedent debt, it also puts an end to the creditor's right to sell the son's share to sale during his lifetime.
4. This case was also followed in Venkata Keddi v. Sathyanarayanamurthi (1917) 40 M.L.J. 473. In view of this long series of decisions and of the remarks in other judgments also Mr. Krishnaswami Aiyangar's contention that the father's right to sell is not extinguished by partition, at any rate when the partition has been effected by metes and bounds, cannot now be held to be correct law. It is, therefore, unnecessary to deal with the very lengthy argument addressed to us with a view to draw a distinction between an ordinary Hindu manager and a Hindu father, as upon this distinction the argument was largely based. However it is doubtful whether the power ceases until partition is actually effected as the debts can be provided for in the partition and this would have the effect of making the sons' shares liable even if this severance in status had taken place some time before. Further the sons' liability for the debts continues after partition : Jagannatha Rao v. Viswesam : AIR1924Mad682 and Subramania Aiyar v. Sabapathi Aiyar (1927) I.L.R. 51 Mad. 361 : 1927 54 M.L.J. 726; therefore the father's inability to sell their divided shares must be based on the principle that he cannot sell that in which he has no interest - vide Krishnaswami v. Ramaswami I.L.R. (1899) Mad. 519. Until partition by metes and bounds is effected the father still has an interest in all the property which he can enforce by providing for the debts out of the property before dividing the balance. What then is to prevent the sale of part of the property, to discharge the debt? It is suggested that in this case the payment of the father's debts can be provided for in the partition decree. This is true, and if no such provision is made the objection could be taken to the partition on the ground that it is not a bona fide partition. Supposing, however, that a partition were made privately and with the consent of all the members of the family and no provision was made for payment of the father's debts the consequence would be that the sons' share would be exonerated from liability, unless the creditors instituted proceedings separately against the sons. To allow such a partition would be to encourage multiplicity of litigation. In principle there can be no difference between a partition effected by decree and a partition effected by consent of parties; in either case a partition which did not provide for the payment of the father's debts would not be equitable or certainly could not be deemed to be bona fide. Why then should a partition be allowed until the father's debts are discharged? I would hold, therefore, that until a partition has actually been effected by metes and bounds a father's right to his sons' shares for the discharge of his debts remains unaffected.
5. Mr. Krishnaswami Aiyangar has put forward a further contention that, inasmuch as the right of the father to sell vested in the Official Assignee by an order of Court that order would have as much force as an attachment of the property before partition. The remarks in Krishnaswami v. Ramaswami I.L.R. (1899) Mad. 519 : 9 M.L.J. 127 would seen to imply that if the property had been seized in execution before partition the sons' divided share would have been liable for the father's debts. It was also held in Ramchandra v. Kondayya Chetty I.L.R. (1901) Mad. 555 that the son is liable for family debts incurred before partition to the extent of the family property which has fallen to his share. In this case the decision in Krishnaswami v. Ramaswami (1899) I.L.R. 22 Mad. 519 : 1899 9 M.L.J. 127 was distinguished on the ground that the son himself was sued by the creditor, whereas in the former case the decree was against the father alone. This principle has been upheld in Jagannatha Rao v. Viswesam I.L.R. (1901) Mad. 555 to which one of us was a party. The previous case-law has been elaborately discussed in that case and the liability of the son even after partition was affirmed. From all these cases, 'therefore, it would appear that the pious obligation laid down upon the son to discharge his father's debts is not extinguished by a mere partition. On this analogy it is argued that the sons in this case cannot evade the liability thrown upon them by the order in Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 by merely filing a suit for partition. Under Section 52 of the Transfer of Property Act a party cannot transfer or otherwise deal with any property directly in question in a proceeding in Court so as to affect the rights of any other party thereto under any decree or order which may be made therein. The ordinary effect of filing a suit for partition is to effect a severance in status of the family and it has been held that by the severance the right of the father to sell the son's property for his debts is taken away. It is perhaps difficult to bring the present case directly within the terms of this section and it is questionable whether the mere filing of a partition suit can be said to be dealing with the property, but even if it is not dealing with the property, it has the effect of taking away the rights of one of the parties in the family property and on the principle underlying the section it would seem that, during the prosecution of the present proceedings, the sons ought not to be allowed to plead that their own act has had the effect of diminishing the right of another party to the proceeding in contravention of an order of Court. Under the order of Court made before the partition the Official Assignee had power to deal with the sons' interests in the property for certain purposes, but if the contention put forward by the sons is upheld, that power has been taken away contrary to the order of Court by the mere act of filing a partition suit. To sanction such a proposition would be very dangerous, because in the event of the insolvency of their father the sons could always evade their liability by claiming partition before the family property is seized for the father's debts. Unless therefore it is clearly established that they have a legal right to do so, I think that the proposition ought not to be accepted. If the principle of Section 52, Transfer of Property Act, is applied, the act of the sons pendente lite would have no effect on orders subsequently passed in these insolvency proceedings. I would, therefore, apply this principle and hold that the partition suit has not the effect of taking away the Official Assignee's rights so far as they were established by the order already passed.
6. The case was also put forward in another form, namely that, if it is correct to say that, when joint property has been attached before partition, such attachment, being the taking of the property into the custody of the Court, precludes the sons from denying liability, similarly, in this case, the property having been taken into the custody of the Court through its officer, the Official Assignee, before the partition was effected, the act of partition would not absolve the sons from the liability incurred under that order if this is not the correct view the sons of an insolvent-debtor can always harass the Official Assignee in the exercise of his functions by merely filing a partition suit and causing a multiplicity of litigation.
7. I would, therefore, hold that in the circumstances of this case the filing of a partition suit, which merely effects a division in status and leaves the share of each coparcener undefined, would not defeat the Official Assignee's power to sell those shares for a proper purpose, i.e., for payment of such of the father's debts as are not illegal or immoral. As, however, my learned brothers take a different view their view must prevail.
8. In this case the insolvent was adjudicated on 2nd December, 1919. A partition deed had been previously executed on 26th November, 1919. On 1st April, 1920 the Official Assignee took out a notice of motion asking that the partition deed should be declared void and for an order that the interest of the minor sons in the family property should be vested in the Official Assignee. This motion formed the subject-matter of O.S. A.No. 49 of 1921 and the judgment is reported in Official Assignee of Madras v. Ramachandra Aiyar I.L.R. (1933) Mad. 54 : 1933 43 M.L.J. 569. It was then held that the partition deed was void and that the interest of the minor sons in the property did not vest in the Official Assignee, but that, inasmuch as the Official Assignee stood in the shoes of the insolvent, the insolvent's rights as managing member so far as they can be exercised for his own benefit passed to the Official Assignee, that is, he can alienate the minor sons' interests in the joint property for the purpose of paying the insolvent's debts unless they were incurred for illegal or immoral purposes. The first part of the decision is in accordance with the later decision of the Privy Council in Sat Narain v. Behari Lal (1924) 52 I.A. 22 : I.L.R. 6 Lah. 1 : 1924 47 M.L.J. 857 and the second part of the decision is in accordance with the principle of law enunciated in the Full Bench decision of this Court in Balavenkata Seetharama v. Official Receiver, Tanjore : AIR1926Mad994 a decision on the Provincial Insolvency Act.
9. The Official Assignee then took out the present notice of motion praying (1) that it may be declared that the debts mentioned in the List A are binding upon the insolvent's sons, the garnishees herein; and (2) that the Official Assignee may be authorised to sell the interests of the minors in the joint family properties mentioned in Schedule B hereto; and for costs and other reliefs. It is these two prayers which are the subject of the reference to the Full Bench by our brother Kumaraswami Sastriar, J. Meanwhile, the sons have filed a suit for partition at Madura impleading the Official Assignee.
10. I will first take up the subject of the second prayer. On this point Mr. Krishnaswami Aiyangar, the learned Counsel for the Official Assignee, stated his contention in two ways : (1) Pie says that the Hindu father's right to sell is based solely on the pious obligation of the son to discharge the father's debts. As this Court has held in Jagannatha Rao v. Viswesam I.L.R. (1921) Mad. 621 : 1921 46 M.L.J. 590 (affirmed by a Full Bench after the hearing of the case) that the son is liable in respect of his father's pre-partition debts, he contends that the father's right to sell the sons' share continues even after partition(2) Assuming that his first contention should fail, at any rate, after the right to sell passed to the Official Assignee, the right is incapable of being lost or destroyed.
11. So far as the first branch of the first contention of Mr. Krishnaswami Aiyangar is concerned, it seems to me that though the Hindu Law might have evolved in some other way at the present day, it is too late for the contention. It seems to me that the basis of a Hindu father's right to sell his sons' share in the joint family property for antecedent debts is twofold : (1) There must be an antecedent debt of the father which is not illegal or immoral involving a pious obligation on the part of the son to pay it; and (2) the property must be joint family property of which the father was the manager. If either of these conditions is wanting the father has no right to sell. If the father's right to sell stands solely on the pious obligation of the son to pay his fathers debts independently of the property being joint, then it would follow that the father would be able to sell not only; he property of the son which was once joint, but which has ceased to be joint by partition, as is contended in the present case, but also the acquisition of the son by his own exertion and properties acquired by the son by inheritance from collaterals, such as maternal grandfather and others - a proposition which has never, at any time, been contended for - and the attempts that have been made on behalf of the creditors were attempts directed against the joint family property either to seize it in execution of the decree against the father alone for debts not illegal or immoral or to obtain title to it under sale or mortgage executed by the father alone for such debts ; and these rights of the creditors were upheld. As a corollary to these, the creditors also attempted to make the son liable for such debts even after partition. The attempts failed in three cases, until I and Jackson, J. decided in favour of the creditor in Jagannatha Rao v. Viswesam : AIR1924Mad682 (since affirmed by the Full Bench). But with one solitary exception it was never contended that the father could sell the self-acquired property of the son, or can sell after partition the son's property which has ceased to be joint by partition. The solitary exception which I referred to is the decision in Rathna Naidu v. Aiyanachariar : (1908)18MLJ599 . In that case Mr. S. Srinivasa Aiyangar contended for the exact proposition now contended for by Mr. Krishnaswami Aiyangar. There was a mortgage by the father of the son's share after partition. The argument was that the father had such power. It was decided that he had not. The case was referred to by Wallis, C.J. and Oldfield, J., in Kameswaramma v. Venkatasubba Rao I.L.R. (1915) Mad. 1120 : 1915 27 M.L.J. 112 in connection with the proposition that if by attachment and sale the son's share also is to pass, it should continue to be the undivided property of the father and son up to the date of attachment. In Jagannatha Rao v. Visiwesam I.L.R. (1924) Mad. 621 : 1912 46 M.L.J. 590 I pointed out that Rathna Naidu v. Aiyanachariar : (1908)18MLJ599 was a case where the father mortgaged the son's share after partition and distinguished it on that ground by saying 'obviously he has mo such power'. It is not, therefore, correct to say that there is no decision against the contention of the learned Counsel for the Official Assignee. But apart from that judgment, the whole history of the evolution of this branch of Hindu Law shows that the Official Assignee's contention must be negatived.
12. The earliest decision establishing the father's right to sell the son's share in the ancestral property for antecedent debts not illegal and immoral is the decision 'of the Privy Council in Muddun Thakore v. Kanioo (1873) 1 I.A. 321 : 14 Beng L.R. 187. Their Lordships first put the question:
Could the son have said that because this was ancestral property which descended to his father from his grandfather, it was not liable at all to pay his father's debts?
13. They then quote a passage from Lord Justice Knight Bruce's judgment in Hunooman Pershad Pandey v. Mt. Babooee Munraj Kunwari (1856) 6 M.I.A. 421, which has now become classic, and proceed:
That is an authority to show that ancestral property which descends to a father under the Mitakshara law is not exempted from liability to pay his debts because a son is born to him...it being a pious duty to pay his father's debts; the ancestral property, in which the son as the son of his father acquires an interest by birth is liable to pay the father's debts.
14. Seeing that the case in Hunooman Pershad Pandey v. Mt. Babooee Munraj Kunwari (1856) 6 M.I.A. 421 is a case of guardian and manager of an infant heir, it is clear that the right to sell was based on the father's right of managership. Then we come to the decision of the Calcutta High Court in Sheo Pershad Singh v. Mt. Soorajbansee Kooer (1875) 24 W.R. 281, following the Muddun Thakore's case. In the same year we have the decision of Turner, O.C.J. and Oldfield, J., in Barkatullah Khan v. Rennie I.L.R. (1875) All. 17, where Oldfield, J., said:
The father by reason of his paternal relation and his position as head of the family and its manager is entitled to make a lawful disposition of the property in the interest of the family.
15. This decision expressly lays down that the basis of the father's right to sell consists of two grounds which I have set forth above, namely, managership and antecedent debt. We have next the Privy Council decision in Suraj Band v. Sheo Pershad I.L.R. (1882) Mad. 1, affirming the decision of the Calcutta High Court in Sheo Per shad v. Mt. Soorajbansee Kooer (1875) 24 W.R. 281 it was pointed out that
The rights of the coparceners in an undivided Hindu family governed by the law of the Mitakshara, which consists of a father and his sons, do not differ from the of the coparceners in a like family which consists of undivided brothers, except so far as they are affected by the peculiar obligation of paying their father's debts which the Hindu Law imposes upon sons and the fact that the father is in all cases naturally, and, in the case of infant sons, necessarily, the manager of the joint family estate, etc.
16. After referring at page 169 to Westropp, C.J.'s judgment in regard to the whole of the family, undivided estate, they refer at page 170 to the decision in the Muddun Thak ore's case and say:
It treats the obligation of a son to pay his father's debts, unless contracted for an immoral purpose, as affording of itself a sufficient answer to a suit brought by a son either to impeach sales by private contract for the purpose of raising money in order to satisfy pre existing debts.
17. In Ponnappa v. Pappuvayyangar I.L.R. (1882) Mad. 1 Turner, C.J., summing up the effect of the prior decisions at page 63, says:
An alienation of ancestral estate by a father to discharge a judgment debt not contracted for an immoral purpose cannot be disputed by a son
and at page 64he says:
Where there is an heritage and the son has taken an interest in the heritage, he thereby assumes an obligation which is not of a purely personal character, but an obligation incidental to his interest in the heritage. The observation of Lord Justice Knight Bruce in Hunooman Pershad Pandey's case and of Sir Barnes Peacock in Girdharee Lall's case point with sufficient clearness the obligation as an incident of the heritage.
18. In Namoni v. Modhun Mohun (1886) 13 I.A. 1 : I.L.R. 13 Cal 21 Lord Hobhouse observed at page 35:
Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt.
19. In the judgment of the High Court quoted at page 27 it was observed referring to the father,
The manager was the only ostensible owner representing the family to the world at large...when, joint ancestral property has passed out of a family either by a conveyance executed by a father in consideration of an antecedent debt...the sons cannot dispute it.
20. At page 32 Lord Hobh'ouse says:
The father's position in his capacity, of representative of the estate must be put on a level, as regards execution for debts clue from the family, with that of a widow representing the family estate.
21. In Krishnaswami v. Ratnaszvami I.L.R. (1899) Mad. 519 : 1899 9 M.L.J. 127 it was observed:
This necessarily implies that at the time the property was seized it remained the undivided estate of the father and the son. If the estate wee divided the father could not sell what does not fall to him in the division.
22. The word 'seized' here refers to seizing in execution which corresponds to the father's selling the son's estate in the case of a private sale, so that up to the date of attachment in the case of execution and up to the date of sale in the case of private sale by the father, the property must continue to be joint if the father's right to sell is to be subsisting.
23. It is not necessary to refer at great length to the decisions in Kuppanna Goundan v. Kumara Goundan I.L.R. (1910) M. 450 : 20 M.L.J. 561 and Kameswaramma v. Venkatasubba Rao I.L.R. (1915) Mad. 1120 : 27 M.L.J. 112 which relies on the former the case in Venkanna v. Srinivasa Deekshatulu I.L.R. (1918) Mad. 136 : 33 M.L.J. 519 and that in Venkata Rcddi v. Sathyanarayanamurthi 40 M.L.J. 473 which are all dealt with by me fully in Jagannatha Rao v. Viswesam I.L.R. (1924) 621 : 46 M.L.J. 490. All these decisions necessarily imply that the right of the father to sell was dependent on the property continuing to be joint ancestral property up to the date of the sale. In Mayne's Hindu Law, 9th Edition, the proposition is thus stated at page 411, Section 307 (a):
Where the son is joined in a suit against the father, this is for the purpose of enabling the Court to exercise the power of the father to sell family property in discharge of his debts, not being illegal or immoral.... After partition, of course, the son holds the share which is allotted to him free from any such liability.
24. In Sahu Ramchandra v. Bhup Singh (1917) 44 I.A. 126 : I.L.R. 39 All. 437 : 33 M.I.J. 14, a decision which gave rise to some conflict of opinion as to the nature of the antecedent debt ultimately set at rest in Brij Narain v. Mangal Prasad (1923) 51 I.A. 129 : I.L.R. 46 A. 95, but which on this point is authoritative, Lord Shaw of Dumferline observed at page 443:
The law of the Mitakshara has, however, given to the father in his capacity of manager and head of the family certain powers with reference to the joint family property. The general principle in regard to that matter is that he is at liberty to effect or to dispose of the joint property in respect of purposes denominated necessary purposes.
25. At page 446 his Lordship said:
A perusal of the numerous authorities will show that where a joint family property has been sold out and out...these rights are not to be defeated.
26. At page 444 again his Lordship observed:
Responsibility to meet the father's debts is one thing aid the validity of a mortgage over the joint estate is quite another thing.
27. Mr. Krishnaswami Aiyangar contended that, if it were true that the father's managership is also a necessary element as the basis of the father's right to sell, a junior member of a Hindu joint family who is however a father cannot sell the share in the property which belongs to his branch consisting of himself and his sons, for, ex hypothesi, he is not the manager. The answer to this contention is that he is the submanager of the branch consisting of himself and his sons. To enable him to be a manager it is unnecessary that he should have possession of any part of the family which ex hypothesi is with the main manager. That he is a manager is clear from the fact that he could be sued by creditors for debts whether incurred by himself only, not illegal or immoral, or for the benefit of his branch so as to bind his own branch. He can sue for a division of the share of his branch and he can sell the share of his branch for antecedent debts not illegal or immoral. All these are acts of managership, and where he expressly abandons managership he cannot do these things. It is because he is the manager he can represent his sons in the various acts just enumerated. I am, therefore, of opinion that the first contention for the Official Assignee fails; and once there is a division in status as by a suit for partition, the father's right to sell is at an end. This is also the view taken not only by the dissenting Judges (my Lord Chief Justice and Srinivasa Aiyangar, J.) but also by Jackson and Anantakrishna Aiyar, JJ. and is also implied in the judgment of Waller, J. who says that the partition should provide for the discharge of debts out of the joint property.
28. I now proceed to consider the second contention for the Official Assignee, namely, that once the power passed to the Official Assignee, it is incapable of being lost. On this matter it is first suggested that the son's partition suit is affected by some lis pendens or some kind of res judicata by reason of the order in Official Assignee of Madras v. Ramachandra Aiyar 1922 54 M.L.J. 569. For the purpose of dealing with this contention we must first see what the order of the appellate court in that appeal is Schwabe, C.J., there held that the Official Assignee was entitled to joint possession along with the sons and that the power of the father passed to the Official Assignee,. He then observed:
I expressly refrain from deciding anything as to what the respective rights of the parties will be hereafter. It is for the Official Assignee to decide after examining the nature of the debts whether he can exercise the insolvent's right, as managing member, of selling the assets for the benefit of the creditors.
29. It seems to me that what the Bench was deciding in that case was the right as it stood at the time of the judgment. This is clear from the use of the word 'hereafter'. That the Official Assignee had power to sell at the time cannot be denied, but it cannot be said that that decision meant to decide that the Official Assignee's power will continue even after partition, a question to which their Lordships did not address themselves. On the other hand they expressly abstained from expressing any opinion on the changes of rights that might occur thereafter. Again it cannot be said that their Lordships expressed an opinion or passed a decision to the effect that the power is a power incapable of being destroyed, once it vested in the Official Assignee. I am, therefore, unable to say that the son's action tries to achieve something which has been already adjudicated in Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 . Again it cannot be said that there is any lis pendens in the case. It is true that insolvency proceedings are pending in the High Court but to attract the operation of Section 52 of the Transfer of Property Act there must be a pending litigation and one of the parties to the Us should deal with the property so as to affect the other party to the lis. In the first place I doubt if there is any pending litigation to which the sons are parties. I doubt if the pendency of an insolvency petition, by reason of which there is an undischarged insolvent, and his properties are vested in the Official Assignee so that they may be utilised for paying off the creditors, can be regarded as a pending litigation. Assuming that it is one, I do not see how the sons can be regarded as parties to it. It is true that at one time there was a question between the sons and the Official Assignee as to the bona fides of a partition deed. That question was finally decided by the High Court in Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 . After that decision, and up-to now, there has been no litigation between the Official Assignee and the sons. Secondly, there is no dealing with the property by the sons in this case. The sons filed a suit for partition. It cannot be said that the mere filing of the suit for partition is improper dealing. The Official Assignee and the sons get joint possession by reason of the decree in Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 . I do not think it can be said that their Lordships meant or intended that the joint possession should continue until the Official Assignee effects sales. But Schwabe, C.J., by saying that it was for the Official Assignee to decide whether he could exercise the father's right, meant no such thing. Where there is an inconvenient situation like joint possession between private merchants at Madura and the Official Assignee at Madras, a suit for partition, which will put an end to such a position, is the proper thing to do. A private partition with improper allotments of shares is, of course, mala fide and stands on a different footing. Anyhow there is no dealing with property. Thirdly, the action of the sons cannot be said to affect the Official Assignee's right. If the suit for partition ends in the evasion of the son's liability for pre-partition debts, then, of course, it does affect and it is dangerous to allow such a result. But all that is contended for the respondent is not that the substantial right of the Official Assignee to proceed against the sons for the father's debts is lost, but only one of the several remedies open has been extinguished. Now the Official Assignee has got several remedies against the sons : first, as representing creditors, or associating himself with them, he can file suits against the sons, obtain decrees and sell the sons' share also; and secondly, in the partition suit now pending at Madura, wherever it may be tried ultimately, at Madura or Madras, he can apply for the creditors to be made parties, so that the findings as to the nature of the debts may bind all and ask for a decree providing for the payment of such debts as are not illegal or immoral see Venku Reddi v. Venku Reddi I.L.R. (1926) Mad. 535 : 1926 52 M.L.J. 387. There is possibly a third remedy open. We have held in the connected Full Bench decision that, in garnishee proceedings, a question can be decided by the Insolvency Judge if necessary. This power is subject only to his discretion, but he is not bound to go into all questions that arise before him. In the present case the Judge sitting in insolvency may, if he thinks proper, decide the questions raised by the Official Assignee as between himself and the sons, provided the sons fill the character of the garnishee. These are matters for him to determine. The Official Assignee can then obtain formal decrees. The only remedy lost to the Official Assignee is the right of selling the sons share by private sale. This is merely a processual right. The substantial right of the Official Assignee to enforce the debts due to the creditors against the sons remains by reason of our decision in Jagannatha Rao v. Viswesam : AIR1924Mad682 . One mode of enforcing it, a right which is merely ancillary and auxiliary to the main right, out of several modes, is all that is lost. Seeing that the right to partition is an unimpeachable right which every member of a joint tenancy or a tenancy-in-common possesses see Girja Bai v. Sadashiv Dhundiraj (1916) 43 I.A. 151 : I.L.R. 43 Cal. 1031 : 1916 31 M.L.J. 455; and it is even proper where the Official Assignee at Madras and some merchants at Madura are in joint possession, it cannot be said that it is an undesirable consequence as the result of a partition suit, namely, putting an end to the right of private sale,, seeing that the liability of the sons for the debts remains and can be enforced by other methods. I regret I have to differ from my Lord on this part of the case.
30. The second ground on which the point has been argued is that, after passing to the Official Assignee, the power becomes incapable of being destroyed and Mr. Krishnaswami Aiyangar compares this to the case of an attachment of the property in the hands of the father in execution of a money decree. As I think there is no analogy between the two and as it is necessary to see the real consequence of the attachment of joint family property, I proceed to consider the matter at some length. Where a creditor obtains a personal decree against the member of a Hindu family, who is not a manager or father, but is only a junior member without sons, and proceeds to attach his share of the family property, and if he afterwards dies, the attached property may be sold in spite of his death. But if there is no attachment before the death, his share of the property cannot be sold because his property has survived to the rest of the family who are not parties to the decree. But if the creditor obtained a money-decree against the manager of the whole family or against a member who has sons and the judgment-debtor dies before the decree-holder attaches his property, the decree can be executed against the rest of the family or the sons as the case may be. In the first case they are represented by the original defendant in>the suit and in that sense were parties to it, and there is no question of the property surviving to persons who are not parties to the suit so as to escape execution. In the second case the sons can be brought in as legal representatives under Section 53 of the Civil Procedure Code. Except in these two cases, attachment of the property before the death of the judgment-debtor is merely to prevent the operation of survivorship and to enable the execution to proceed (vide Mayne's Hindu Law, Sections 330-2). The essence of the attachment is to earmark the property as the property of the judgment-debtor for the purposes of execution. These characteristics of an attachment cannot apply to a bare power to sell which cannot be attached and so earmarked and cannot be said to survive to other members of the family. Again, when we remember that the power passes to the Official Assignee by reason of his 'standing in the shoes of the father' as Schwabe, C.J., pointed out, it is opposed to all illegal conception to say that it becomes a larger power in the hands of the Official Assignee. The power when it comes into existence is a power which has a terminus ad qum, namely, the date of separation in status. Air the time the power exists it has inherently by its very nature the quality of being extinguished by separation in status or a bona fide allotment of shares. How can such a quality be taken away from it simply because the power passes from the father to the Official Assignee. We are not here dealing with the case of an interest being vested in the Official Assignee and then being divested away from him. When it is said that the power in the Official Assignee is extinguished by reason of partition it is not suggested that the power is taken away from him and vested again in some other person, but it is extinguished by an event which had always the property of so extinguishing it. In Sheobaran Singh v. Mt. Knlsum-un-nissa (1927) 54 I.A. 204 : I.L.R. 49 All. 367 : 1927 52 M.L.J. 658 dealing with a case of insolvency where the actual right was the right of pre-emption, Viscount Dunedin observed:
It seems to their Lordships that this overlooks one of the fundamental principles of all arrangements for the realisation and distribution of a bankrupt's property. In every system of law the term may vary, but in all there is an official, be he called an assignee or trustee or any other name, and that official is by force of the statute invested in the bankrupt's property. But the property ht takes is the property of the bankrupt exactly as it stood in his person with all its advantages and all its burdens.
31. Though by reason of the decision of the Privy Council, in Sat Narain v. Behari Lal (1924) 52 I.A. 22 : I.L.R. 6 Lah. 1 : 1924 M.L.J. 857 the actual share of the sons does not vest in the Official Assignee the property of the father and his power certainly pass, but they pass on the principle of the above decision exactly as they stood in the hands of the father with all the advantages and all the burdens. One of the disabilities attached to the power is that it is extinguished on a division in status. To say that it continues in the hands of the Official Assignee after division is not to say that he gets it exactly as it stood in the father's hands. For these reasons I am of opinion that the power as passed to the Official Assignee cannot enlarge the nature of the power and add to it qualities which it did not possess before. All the other remedies open to the Official Assignee, whatever they are, continue as before. The sons' liabilities continue as before and they can be worked out by suitable proceedings but not by private powers of sale. It seems to me, that, to accept the contention of the Official Assignee is to hold that their Lordships of the Judicial Committee, in deciding Sat Narain v. Behari Lal (1924) 52 I.A. 22 : I.L.R. 6 Lah. 1 : 1924 M.L.J. 857 were wisely making a distinction without a difference and evidently to get round that decision. If it is desired to avoid the consequences of that decision, legislation is the only remedy.
32. As to the final prayer, I have already indicated above my views about it. If the Judge sitting in insolvency thinks it serves any purpose that he should enquire into the binding nature of the debts so far as the sons are concerned and make a declaration on it he may do so, provided the sons fill the character of garnishees or he may leave it to the original suit when the matter is bound to be enquired into : Venku Reddi v. Venku Reddi I.L.R. (1926) Mad. 535 : 1926 52 M.L.J. 387. These are my answers to the questions referred to the Full Bench.
Madhavan Nair, J.
33. I have had the advantage of reading the judgments of my Lord the Officiating Chief Justice and of Mr. Ramesam, J. As the facts are fully stated in those judgments, it is not necessary to re-state them. The facts show that after the adjudication of the father as an insolvent and the vesting of his rights in the Official Assignee the minor sons of the insolvent instituted a suit in Madura for partition of the joint family properties. The Official Assignee now seeks to sell privately the interests of the sons in those properties. The minors argue that the institution of the partition suit effects a severance of the joint family status and, therefore, the father's right to sell the sons' interests in the joint family property has been extinguished and consequently the power of the Official Assignee who steps into the shoes of the father is also extinguished. This argument is met by the counsel for the Official Assignee in two ways : (1) Since the power of the father to sell the sons' interests for his antecedent debts not illegal or immoral is based on the doctrine of pious obligation, logically speaking, the operation of the principle cannot be affected by the severance of the joint family status between the members of the family; consequently, despite the suit instituted by the minors, the Official Assignee representing the father can effect a sale of the sons' interests in the joint family properties. I am willing to admit that the argument is not without force, but the weight of the case-law is overwhelmingly against the contention. My learned brother, Ramesam, J., has referred to all the well-known cases which establish the father's right to sell the sons' share in the ancestral property for an antecedent debt not illegal or immoral starting from the earliest Privy Council decision in Girdharee v. Kantoo (1873) 1 I.A. 321 : 14 Beng. L.R. 187. These decisions show that, to enable the father to sell the sons' share in the joint family property for an antecedent debt not illegal or immoral, the property must be family property of which the father is the manager. Though the father under the Hindu Law is entitled to sell the entire ancestral estate to discharge his antecedent debt which is neither illegal nor immoral, it has been held that, if the estate is divided, the father could not sell what does not fall to him in division see Krishnaswami v. Ramaswami I.L.R. (1899) Mad. 519 : 1899 9 M.L.J. 127. This case has been followed in Rathna Naidu v. Aiyanachariar : (1908)18MLJ599 , where the very contention now put forward by, Mr. K.S. Krishnaswami Aiyangar was overruled. The decisions in Kameswaramma v. Venkatasubba Rao (1915) I.L.R. 38 Mad. 1120 : 1915 27 M.L.J. 112, Venkanna v. Srinivasa Deekshatulu I.L.R. (1918) Mad. 136 : 1918 33 M.L.J. 519 and Venkata Reddi v. Sathyanarayanamurthi (1917) 40 M.L.J. 473 are all decisions of this Court against the view contended for on behalf of the Official Assignee. I do not discuss those decisions as I cannot usefully add anything about them to what is contained in the two judgments just now delivered. I agree that the first argument should be overruled.
34. The second argument that is advanced on behalf of the Official Assignee is that, since the power to sell came to be vested in the Official Assignee by an order of Court, that power can be exercised by him unaffected by the change in the relationship of the parties introduced by the partition suit instituted by the minors. The order giving the Official Assignee power to sell was passed by this Court in Official Assignee of Madras v. Ramachandra Aiyar I.L.R. (1922) Mad. 54 : At one stage of the argument Mr. Krishnaswami Aiyangar suggested that the order would have the force of res judicata so far as the minors are concerned as they were also parties to that order; but he did not press the point as it is clear that the order does not constitute any bar by res judicata. Though the order in Official Assignee of Madras v. Ramachandra Aiyar I.L.R. (1922) Mad. 54 stated that the power of the father passed to the Official Assignee, the Court refrained from deciding anything as to what the respective rights of the parties will be hereafter and stated that it was for the Official Assignee to decide whether he could exercise the father's right. This clearly shows that the order did not decide whether Official Assignee's power to sell will continue even after the partition which is the question we are called upon to decide. Only the respective rights of the parties as they stood at the time were decided by that order. It cannot obviously have the force of res judicata.
35. It is then argued that the minor's partition suit is affected by the doctrine of lis pendens. It is difficult to see how the doctrine can be made to apply to the facts of the present case. Under Section 52 of the Transfer of Property Act, a party to a pending litigation cannot deal with the property involved in the litigation to the detriment of the other party's rights under any decree or order that may be made therein except under the authority of the Court. Assuming that insolvency proceedings are pending in the High Court, to make the section applicable there must be a dealing with the property by one of the parties. It cannot be said that the filing of the suit for partition by the sons amounts to a dealing with the property. The argument that, since the institution of the partition suit effects a severance of joint family status, the right of one of the parties in the family properties is taken away by the minors' suit during the pendency of the insolvency proceedings cannot also be accepted. It is true that under the order in Official Assignee of Madras v. Ramachandra Aiyar I.L.R. (1922) Mad. 54, the Official Assignee has the power to deal with the sons' interests in the family properties in certain circumstances, but the suit for partition does not put an end to that right. The sons, by instituting the suit for partition, are only exercising their legitimate right. By exercising the privilege which the law allows them, the right of the Official Assignee to proceed against the sons' interests in the joint family property is not put an end to. As Ramesam, J., points out in his judgment, only one of the remedies open to the Official Assignee is extinguished by the exercise of this right. He cannot any longer sell the joint family properties by private sale; that is all; all the other remedies for enforcing the right of the creditors are still open to him. He can institute suits against the sons and enforce the decrees in such suits by selling the sons' interest.
36. The right of the Official Assignee to institute suits for realising debts due to the creditors is preserved to him by the decision in Jagannatha Rao v. Viswesam : AIR1924Mad682 . The correctness of the decision is not challenged before us. It has been affirmed by the decision of the Full Bench in Subramania Aiyar v. Sabapathi Aiyar I.L.R. (1927) Mad. 361 : 1927 54 M.L.J. 726. Again, in the suit now filed by the sons, the Official Assignee and the creditors may apply to be made parties and by proper procedure can obtain decrees which they can execute against the sons' interests.
37. Lastly it is argued that the power to sell the sons' interests, which vested in the Official Assignee by the order of Court, has the same force as attachment of the property before partition and that it cannot be extinguished by the institution of the partition suit. It seems to me that the power vested in the Official Assignee by the order of the Court to sell the sons' interests in the joint family property cannot, with regard to its quality and nature, be compared to attachment of the property. It is clear that, so far as the minors' shares are concerned, no interest in property, is vested in the Official Assignee by the order of Court, Sat Narain v. Behari Lal (1924) 52 I.A. 22 : I.L.R. 6 Lah. 1 : 1924 47 M.L.J. 857; what he gets is only a power to sell the interests of the minors in the joint family properties and this power he gets by reason of his standing in the shoes of the insolvent father. Necessarily, therefore, he gets such power subject to its inherent defect, which is, that it can be put an end to by separation in status or by a bona fide partition between the members of the joint family. As pointed out by Lord Dunedin in Sheobaran Singh v. Mt. Knlsum-un-nissa (1927) 54 I.A. 204 : I.L.R. 49 All. 357 : 1927 52 M.L.J. 658, with reference to the right of preemption in a case of insolvency,
The property he (the Official Assignee) takes is the property of the bankrupt exactly as it stood in his person with all its advantages and burdens.
38. The same may be said of the power to sell the sons' interests in the joint family property that passes to the Official Assignee by virtue of the insolvency of the father. The Official Assignee gets the power with all its advantages and burdens. One of the burdens or defects, as I have already pointed out, is that it can be extinguished by separation in status of the members of the joint family. It, therefore, follows that by force of the suit for partition instituted by the minors the Official Assignee in this case loses his power to sell the joint family properties by private sale. On this argument I respectfully agree with the opinion of Ramesam, J.
39. In the result I would hold that the filing of a partition suit by the sons would defeat the Official Assignee's power to sell the sons' interests in the joint family properties which accrued to him by reason of the insolvency of the father.