1. In this case the present 2nd defendant obtained a decree for maintenance against the 3rd defendant and recovered in execution Rs. 637 which she was allowed to draw on giving security under Section 253 C.P.C. The surety was the 1st defendant, the father of the plaintiff. The decree was reversed by the High Court, and the 1st defendant as surety was ordered to pay the 3rd defendant the money which had been recovered from him by the 2nd defendant under the decree. The order was made under Section 253 C.P.C. which read with Section 583 C.P.C. was applicable to security for the performance of appellate decrees according to Thirumalai v. Ramayyar. I.L.R. (1889) M. I. This decision has been questioned before us on the ground that it is inconsistent with the later decision in Arunachellam v. Arunachellam I.L.R. (1891) M. 203. decided by the same Judges. In that case the security had been given pending an appeal to the Privy Council, and it was necessary to invoke the aid of Section 610. C.P.C. to render Section 253 applicable to the case. The learned Judges apparently were of opinion that it might have been invoked but for the fact that in 1888 a special proviso had been introduced into Section 610, that, in so far as the order awards costs to the respondents, it may be executed against a surety therefor to the extent to which he has rendered himself liable in the same manner in which it may be executed against the appellant. With great respect it appears to me that what we have to look to is the meaning of Sections 253 and 610 as originally enacted in 1877. The fact that the legislature eleven years later in 1888 inserted a proviso in Section 610 only shows the interpretation, which the framers of the amendment were disposed to place upon the sections as they then stood. This interpretation is not authoritative, and in these circumstances the addition of the proviso is no reason for modifying the opinion which the Court would otherwise have arrived at on the construction of the original sections. Even where a proviso of this kind is introduced into a section at the time of enactment, it is often done ex abundanti cautela and it by no means follows that the operation of the section is affected thereby. In these. circumstances I prefer to follow the earlier decision of the learned Judges in Thirumalai v. Ramayyar I.L.R. (1889) M. 1. which has been cited with approval in Chettikulam v. Venkatachala Reddiar v. Chettikulam Kumara Venkatachala, Reddiar I.L.R. (1905) M. 377. more especially as this interpretation of the sections had been adopted in the express provisions of the present Code. I am therefore of opinion that the order was rightly made against the 1st defendant.
2. This order the: 3rd defendant executed against property which fell to the plaintiff at a partition between himself and his father, the 1st defendant, after the date of the order against the father. The plaintiff objected that the properties were not liable to attachment, and on the rejection of his claim filed the present suit to establish his right. The defence in the lower Court was that the partition was collusive and inoperative, but the lower Courts, rejected this contention and gave the plaintiff a decree.
3. In Second Appeal the point has been taken that, even supposing the partition to have been good, the present 3rd defendant is none the less entitled to execute the decree against the plaintiff, to the extent of the joint family property which has come to him, the order being equivalent to a decree which he obtained against the plaintiff's father before the partition. The order under Section 253, may, I think, be considered as equivalent to a decree against the father, and it appears to be now settled in this Court that a suretyship liability such as this, is one which a Hindu son is under a pious obligation to discharge.
4. I think it is also clear that plaintiff as a Hindu son is liable for the debt to the extent of the joint family property which came to his hands at partition Ramachandra Padayachi v. Kondayya Chetty I.L.R. (1901) 24 M. 555. The only question then is, is a decree for such a debt obtained against the father before partition executable after partition-against the son and the joint family property alloted to him. In Krishnasami Konan v. Ramasami Ayyar I.L.R. (1899) M. 519., where the father had contracted the debt before partition, and a suit had been brought and a decree passed against him after partion, it was held that the decree could not be executed against the properties which had fallen to the son on partition, because the principle upon which the son cannot object to ancestral property being seized in execution for an unsecured personal debt of the father is, 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 attached it remains the undivided property of the father and the son. The same view has been taken under very similar circumstances by Miller & Krishanasivami Aiyer JJ. in Lakshmana chettiar v. Govindarajulu Naidu (1910) 8 M.L.T. 349. -see also Rathna Naidu v. Aiyanachariar : (1908)18MLJ599 . It is sought to distinguish these cases on the ground that the order equivalent to a decree was made against the father in this case before the date of partition; but this circumstance does not appear to make any difference, as, at the date of execution, the property now in question had ceased to be joint family property, and the cases refered to on the other side Jagabhai Lalubhai v. Bhukandas Jagjivandas I.L.R. (1886) B. 37. Deendyal Lal v. Judgeeb Narain Singh (1877) 4. I.A. 247., Suraj Bunsi Koer v. Sheo Proshad Singh (1879) 6. I.A. 88. Nanomi Babuastin v. Modhun Mohun I.L.R. (1885)13 C. 21. and Govind v. Sakharam I.L.R. (1904). B. 383. were all cases in which the property remained joint and so subject to alienation by the father in satisfaction of his debt. Lastly it had been attempted to base an argument on Section 53 of the present Code which provides, that for the purpose Sections 50 and 52. property in the hands of a son which under the Hindu Law is liable for the payment of the debt of his deceased father in the respect of which a decree has been passed shall be deemed to be property of the deceased father which has come to the hand of his son as his legal representative. This stationary fiction however only applies to the case of a deceased father, and we should not be justified in extending it to a case where father is still living or in inferring, as has been suggested, that as the decree could under the section be executed against the property in question if the father was dead, it must be a fortiori be executable against the same property when the father is alive. The answer is that the legislature has not made any such provision. In the result the second appeal fails and is dismissed with costs.
5. I concur.