1. This appeal arises out of execution proceedings in O.S. No. 723 of 1935. That was a suit brought by the assignee of a promissory note executed by one Nanjappa Goundan in 1930, and was brought against Nanjappa Goundan alone. A decree was granted against Nanjappa Goundan in 1935. Subsequently Nanjappa Goundan became insolvent. In 1937 Nanjappa Goundan and his four sons partitioned their property. In 1938| the decree-holder sought to execute his decree against the family property which had thus passed into the ownership of the sons. Three of the four sons claimed that this could not be done. Both the learned District Munsiff of Udumalpet and the learned District Judge of 'Coimbatore decided against them and ordered execution to proceed. This is a second appeal by the three sons.
2. It is first objected by the decree-holder (respondent 1) that no appeal lies, the argument being that as the appellants filed a claim petition their only remedy is by suit. But the very point upon which both Courts rejected the claim was that in essence the appellants were parties to O.S. No. 723 of 1935 being represented therein by their father. From decisions based upon this reasoning there must obviously be a right of appeal. The preliminary objection therefore must be overruled.
3. In holding that Nanjappa Goundan's sons were represented by Nanjappa Goundan in O.S. No. 723 of 1935 both Courts have relied upon the Full Bench ruling reported in Venkatanarayana v. Somaraju : (1937)2MLJ251 . but they have done so in very brief judgments and without any adequate discussion of the significance of that decision or of its applicability to the facts of this case. It is impossible, I think, to read Venkatanarayana v. Somaraju : (1937)2MLJ251 . as establishing the universal proposition that whenever the manager of a joint Hindu family is sued the members of the family must be deemed to be represented by him. Whether they are or are not so represented is a question of fact depending upon many things, the nature of the claim, the language of the plaint, the subject-matter of the suit, and the issues which require decision before the decree can be given. In Venkatanarayana V. Somaraju : (1937)2MLJ251 . the suit was for mesne profits realised from property enjoyed as a joint family property, and there was no possibility of conflict between father and son upon the issues involved. Here the suit was upon a promissory note. If the sons had been specifically impleaded they could have resisted it upon grounds which were not open to the father. No doubt the father recites in the promissory note that he has borrowed money 'for family expenses' and this assertion is repeated in the plaint, but it was an unnecessary assertion the truth of which was not put in issue. All that the decree-holder had to prove if proof should be necessary at all was that the money was in fact borrowed. He did not implead the sons, he asked for no adjudication which would necessarily have the effect of binding them, and relies now solely upon the doctrine of pious obligation. It seems to me impossible in these circumstances to say that Nanjappa Goundan was even sued as the representative of his family still less that he in fact represented it.
4. What then is the position if the appellants be held not to have been parties to the suit 1 They are now separated from their father and this case falls exactly within the scope of Kuppan Chettiar v. Masa Goundan : AIR1937Mad424 . which has been followed with approval by Official Receiver, Guntur v. Seshayya : AIR1941Mad262 . Those cases lay it down that the remedy of a decree-holder against the father who wishes to proceed in such circumstances against the sons' shares lies not in execution but in the filing of a separate suit.
5. I am asked by the learned advocate for the respondent 1, however, not to follow these decisions, but, to refer this matter to a Full Bench. In support of this request he refers to the opinions expressed by the learned Judges in Venkatanarayana v. Somaraju : (1937)2MLJ251 . doubting the correctness of the law as laid down in Kuppan Chettiar v. Masa Goundan : AIR1937Mad424 . I am not prepared to accede to this request in the peculiar circumstances of' this case. If the sons were not constructively parties to the decree, then any liability of theirs based upon the doctrine of pious obligation can extend only to the discharge of their father's debts and the question of the discharge of those debts is now one for the Insolvency Court. The question therefore whether respondent 1's proper remedy against the appellants would in other circumstances be by execution or by suit is purely academic when the appellants' father has been adjudicated an insolvent.
6. This appeal must therefore be allowed, and the execution petition dismissed with costs throughout as against the appellants.
7. Leave refused.