Alfred Henry Lionel Leach, O.C.J.
1. These two appeals are from a judgment of Bell, J., delivered in a second appeal. Appeal No. 51 of 1945 has been filed by the holder of a mortgage decree and Appeal No. 53 of 1945, by the purchaser of the property at the sale held by the Court in execution.
2. The mortgage was executed by a Hindu father on behalf of himself and |nis three minor sons. They constituted a joint family. On the 24th June, 1935, in O.S. No. 91 of 1935, of the Court of the District Munsiff of Kumbakonam, the mortgagee obtained a preliminary decree and on the 13th November, 1935, a final decree. The price realised for the hypotheca in execution fell short of the amount due under the decree by Rs. 308-4-0. On the 7th January, 1941, the decree-holder filed an application for a personal decree against the father and his two surviving sons, limited so far as the sons were concerned to their interests in the family estate. One of the sons had died before the application was filed. One of the two surviving sons (the first respondent in these appeals) was a minor. The decree-holder experienced some difficulty in serving the first respondent and on the 30th July, 1941, he filed a memorandum indicating his intention of withdrawing the application for a personal decree so far as the first respondent was concerned. It would appear that by this time the first respondent had become a major. As the result of the decree-holder having decided to withdraw the application against the first respondent a personal decree was passed against the father and his other surviving son, limited, of course, so far as the latter was concerned to his interests in the family property.
3. The decree-holder then applied to execute the personal decree by the attachment of certain family properties. The attachment was ordered and the properties were in due course sold. Within a month of the sale the first respondent applied to the Court of the District Munsiff of Kumbakonam for an order setting aside the sale in so far as it affected his one-third share in the properties. The District Munsiff dismissed the application on the ground that the pious obligation rule of Hindu Law applied. The first respondent appealed to the Subordinate Judge of Kumbakonam without success. The Subordinate Judge held that the case was governed by Krishnan v. Sami : AIR1940Mad544 . The first respondent then appealed to this Court. The appeal was heard by Bell, J., who considered that the governing authority was Venkataranga Reddi v. Chinna Sithamma : AIR1941Mad440 and consequently allowed the appeal, but he gave leave to appeal.
4. We consider that the Subordinate Judge rightly held that this case fell within Krishnan v. Sami : AIR1940Mad544 . It was there held that where a decree was obtained against a Hindu father, it could be executed against the interests of his sons in the joint estate, notwithstanding that they had been dismissed from the suit. It was argued that in Raja Ram v. Raja Baksh Singh (1938) 1 M.L.J. 41 : I.L.R. 13 Luck. 61, the Privy Council had overruled the judgments of the Full Bench of this Court in Periaswami Mudaliar v. Seetharam Chettiar (1903) 14 M.L.J. 84 : I.L.R. 27 Mad. 243, but this contention was rejected and the Court followed Periaswami v. Vaithilingam Pillai : AIR1929Mad898 (Varadachariar and Pandrang Row, JJ.) and Doraiswami v. Nagaswami : AIR1929Mad898 (Coutts-Trotter, C.J. and Pakenham Walsh, J.) where it was held that the with-drawal of the suit against the sons does not exonerate them from liability under the pious obligation rule.
5. As the question now under discussion may perhaps arise again we would emphasise what the Privy Council actually decided in Raja Ram v. Raja Baksh Singh (1938) 1 M.L.J. 41 : I.L.R. 13 Luck. 61 (P.C.). There two members of a joint Hindu family, Badri Singh and Chandika Singh, executed a mortgage in favour of the appellant. On the 25th August, 1930, the mortgagee brought a suit to enforce the mortgage. By that time Badri Singh had died, but his two sons and five grandsons were joined as defendants as his legal representatives. The grandsons were dismissed from the suit. A decree was obtained against the other defendants and in the execution proceedings which followed the decree-holder sought to realise the interests of. the grandsons in the hypotheca as well as the interests of the sons. The Privy Council held that the grandsons' interests could not be sold because they had been dismissed from the suit. Their Lordships, however, were careful to indicate that if the suit had been brought during the lifetime of Badri Singh and judgment recovered against him, the position would have been different.
6. Their Lordships said:
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 of the Code of Civil Procedure 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 important sentences so far as the question under discussion is concerned are the last two. The decision in Raja Ram v. Raja Baksh Singh (1938) 1 M.L.J. 41 : I.L.R. 13 Luck. 61 (P.C.) turned on the fact that the suit had not been brought during the lifetime of the grandfather.
7. In Venkatarangareddi v. Chinna Sithamma : AIR1941Mad440 a new situation arose. A decree for mesne profits had been obtained against a Hindu father and his undivided sons, but the decree-holder had allowed it to become time barred. The father was precluded from raising in execution proceedings the plea of limitation by reason of a previous order passed against him alone. As the decree was enforceable against the father the decree-holder sought to execute it against the shares of the sons also by reason of the pious obligation rule. The learned Judges (Wadswordi and Patanjali Sastri, JJ.) considered that the matter was no longer one of Hindu law but was one which was governed entirely by the Code of Civil Procedure. They took pains to distinguish the case from Periaswami v. Vaithilingam Pillai (1937) 47 L.W. 60, Doraiswami v. Nagaswami : AIR1929Mad898 and Krishnan v. Sami but considered that the last mentioned case was only intended to apply to cases where the creditor's suit against the sons has been dismissed ' as withdrawn ' without any adjudication, expressed or implied, on his claim against them. We are not inclined to accept such a limited construction of the judgment in Krishnan v. Sami : AIR1929Mad898 (which I delivered). We agree, however, that if the dismissal of the sons from the suit can be read as amounting to a decision by the Court that their interests in the family property are not liable for the debt, the pious obligation rule cannot be applied against them in execution of the decree obtained against the father. Much depends on the circumstances under which the dismissal takes place. Notwithstanding that the rule has been described as archaic, it is still very much a rule of Hindu law and, as has been pointed out on other occasions, the Court is bound to give effect to it.
8. As the present case falls within Krishnan v. Sami (1938) 1 M.L.J. 41 : I.L.R. 13 Luck. 61 (P.C.), the appeals must be allowed and the order of the District Munsiff restored with costs throughout, payable by the first respondent.