1. The plaintiffs in O. S. No. 405 of 1974, District Munsif's Court, Ranipet, are the appellants in this second appeal, which has been entertained on the following question of law-
'Whether on the death of Balaji of the sons of the second defendant, the 1/3rd share vested, in the mother, namely the second plaintiff without the liability to answer the second defendant's debts.'
In order to fully appreciate the circumstances under which this question has arisen for decision, a brief reference to the facts and the findings of the courts below is necessary. The first appellant is the son of the second respondent, while the second appellant is the wife of the second respondent. On 5-7-1968, the second respondent borrowed for family purposes certain amounts from the first respondent on a promissory note on the basis of which the first respondent instituted O. S. 318 of 1971. District Munsif's Court, Ranipet, against the second respondent and obtained a decree for the recovery of a sum of Rs. 3,562.50. In execution of that decree, in E. P. 73 of 1971, the first respondent attached not only the interest of the second respondent in certain properties, but also that of his undivided sons, viz., the first appellant and one Balaji. The first appellant preferred a claim with reference to a one third share in the properties attached, but that claim was not countenanced. The properties attached by the first respondent were thereafter brought to sale and in the sale held on 19-3-1973, the first respondent purchased the properties with the leave of Court. The second respondent filed a petition in O. E. A. No. 937 of 1973 to set aside the court sale and that petition was dismissed. Later, the sale in favour of the first respondent was confirmed on 21-3-1974, and possession of the properties was also delivered to him through court on 31-8-1974. Thereafter, the appellant instituted on 23-9-1974, O. S. 405 of 1974, District Munsif's Court, Ranipet, for a declaration of their title to the suit property and also for an injunction restraining the first respondent from interfering with their possession and enjoyment of the suit property or in the alternative for declaration of joint title of the appellants and a consequential permanent injunction and for other incidental reliefs. According to the case of the appellants, the first appellant and his brother deceased Balaji and their father, the second respondent herein, 'constituted members of a Hindu undivided family, which owned the suit property, viz., Survey No. 113/6 of an extent of 1.09 acres in Agaram Village in Arcot Taluk and other properties and that in order to prevent the dissipation of the properties by the second respondent, a division was effected at the instance of Panchayatdars between the first appellant, his brother Balaji and the second respondent and a Kur chit was also drawn up on 9-8-1962, under which the A schedule properties fell to the second respondent B schedule properties to the first appelant and the C schedule properties to the share of late Balaji. The further case of the appellants was that sometimes in 1972, Balaji died and under Sec. 6 of the Hindu Succession Act, the second appellant, the mother of Balaji, succeeded as heir to the estate of Balaji. The debt incurred by the second respondent and the decree obtained thereon by the first respondent in O. S. 318 of 1971, District Munsif's Court, Ranipet, in execution of which the property was brought to sale and purchased by the first respondent, were claimed by the appellants to be not for family necessity or benefit and therefore, not binding upon the appellants, who had already become divided members. The appellants also stated that after the division in the year 1962, the second respondent had no capacity to represent or deal with his sons' share and convey their interest as well. A further plea was also put forth by the appellants that the second respondent was given to bad habits and as such, the debt and the decree obtained thereon in O. S. 318 of 1971 as well as the execution proceedings would not bind them. The appellants also set up title to the suit property by adverse possession. The appellants also claimed that owing to the death of Balaji in 1972, his share passed on to his mother, the second appellant, and therefore, the debt will not be binding upon that share, but only upon the 1/3rd share of the second respondent.
2. The first respondent in the course of his written statement disputed the partition between the second respondent and his minor sons and the drawing of lists and allotment of properties thereunder, but maintained that the family continued to remain joint, of which the second respondent was the manager. The debt incurred by the second respondent was for family necessity and benefit, according to the first respondent and that such a debt was binding not only upon the second respondent, but also his sons, the first appellant and Balaji. According to the first respondent, the decree obtained in 0. S. 318 of 1971, District Munsif's Court, Ranipet, on the footing of such a debt was binding on the second respondent, first appellant and Balaji and their undivided interest in the family properties and also on the second appellant and therefore, no exception could be taken to the court sale. After referring to the court sale and the purchase therein of the suit property by the first respondent, the first respondent proceeded to state that he was in possession and enjoyment of the property pursuant to the Court auction sale in his favour and therefore, no relief could be granted in favour of the appellants.
3. Before the learned District Munsif, Ranipet, on behalf of the appellants, Exts. A.-I and A.-2 were marked and PWs. 1 to 3 were examined, while on behalf of the first respondent Ext. B. 1 to B. 3 were filed and he was also examined as DW1. On a consideration of the oral as well as the documentary evidence, the learned District Munsif found that the division in 1962 and the allotment of properties to the second respondent and his sons, viz., the first appellant and Balaji was not satisfactorily established and that the family continued to remain undivided. The debt incurred by the second respondent, which later on ripened into a decree in O. S. 318 of 1971, District Munsif's Court, Ranipet, was found to have been incurred by the second respondent for purposes of family necessity and so binding upon the first appellant and Balaji as well. It was further found that the execution proceedings in O. S. 318 of 1971 would be binding upon the appellants and that the court auction sale could not be in any manner impugned by them. On these conclusions, the suit was dismissed. Aggrieved by this, the appellants preferred an appeal in A. S. 192 of 1976 Sub-Court, Vellore, The learned Subordinate Judge, an a reconsideration of the evidence, found that the division and the allotment of properties to the respective parties at such a division in 1962 were not proved and that the debt incurred by the second respondent was only for family benefit or necessity and it was not open to the appellants to question the decree or debt. It was also found by the learned Subordinate Judge that in so far as the first appellant was concerned, he had not instituted a suit within a period of one year after the rejection of his claim under 0. 21, R. 63, C. P.C. and that, therefore, he could not agitate his rights in relation to the property in this suit. Dealing with the contention that by reason of the operation of S. 6 of the Hindu Succession Act, 1956, the second appellant succeeded to the share of Balaji absolutely and therefore, her one-third share cannot be affected by the court sale, the learned Subordinate Judge held that the debt having been incurred by the second respondent long prior to the death of Balaji the second respondent was competent to bind even the interest of Balaji. So long as the debt was incurred for a lawful and binding purpose. In this view, the judgment and decree of the trial court were confirmed and the appeal was dismissed.
4. When the second appeal originally came up for hearing Sethuraman, J., felt that the date of death of Balaji and the date on watch the suit property was attached in execution of the decree in O. S. 318 of 197f, District Munsif s Court, Ranipet, would assist in satisfactorily deciding the question raised in the second appeal and called for a finding in that regard. By an order dated 27-1-1982, the learned Principal Subordinate Judge Vellore, submitted a finding to the effect that Balaji died on 17-10-1970 and not in 1972, as claimed by the appellants in their plaint and that the attachment over the property was effected on 23-11-1971. To this finding, the first respondent has filed objections. It is thereafter the second appeal has again come up for further hearing on the findings so submitted.
5. Before proceeding to consider the Point urged in the second appeal, it would be necessary to advert to certain aspects over which there is no controversy between the parties. It is accepted by the appellants that there was no partition and allotment of properties to the members of the family in the year 1962, but that the family continued to remain undivided at all relevant times. The concurrent finding of the courts below that the debt incurred by the second respondent, which later ripened into a decree in O. S. 318 of 1971, District Munsif's Court, Ranipet, was for binding purposes and for family necessity and Balaji's undivided interest was also bound, is accepted by the appellants
6. The learned counsel for the appellants submitted that under S. 6 of the Hindu Succession Act (hereinafter referred to as the Act), on the death of Balaji on 17-10-1970 leaving behind him, his mother, the second appellant herein who is a female relative specified in Class I of the schedule to the Act, the undivided 1/3rd interest of Balaji devolved upon her by an intestate succession and, thereafter, it became her exclusive property and as such, the pious obligation of Balaji to discharge the debt incurred by the father, the second respondent, ceased even before the court sale took place on 19-3-1973. It was also pointed out that the effect of S. 6 of the Act is to bring about a partition among the members of the undivided family of the second respondent immediately before the death of Balaji and that the divided share of Balaji cannot be subjected to the liability under the decree obtained by the first respondent in O. S. 318 of 1971, District Munsif's Court, Ranipet. Per contra, the learned counsel for the first respondent submitted that the pious obligation of the sons of the second respondent in existence ever since the debt was incurred and as in this case, it has been found that the debt had been incurred for valid and binding purposes, the Pious obligation of the sons to discharge such a debt from out of their shares in the family property subsisted right through and the mere interposition of a heir by reason of S. 6 of the Act cannot either put an end to that liability or enable the second appellant to take the property free from that liability. It was further submitted that even if Balaji himself prior to his death had entered into a partition in respect of the family properties and had obtained some properties towards his share without making any arrangement in such a partition for the discharge of the binding debt which had ripened into a decree, the share of Balaji would have nevertheless been liable to pay the binding debt and therefore, the second appellant, who had merely stepped into the shoes of Balaji by operation of statute,cannot claim higher rights. The learned counsel for the first respondent also pressed into service the well recognised principle that no -person can be permitted to take the estate of another free from debts binding on it.
7. The principle relating to the liability of the sons for debts incurred by the father may be briefly recapitulated. In respect of debts contracted by the father, even for his personal benefit, at a point of time when he is joint with his sons, the sons are liable to pay such debts, unless the debts were incurred for immoral or illegal purposes. This liability of the sons, which had its origin in an obligation of piety and religion, has since metamorphosed into one of legal liability but this 'does not, however, extend to debts tainted with immorality. The liability is not, however, personal in the sense that the creditor of the father cannot proceed either against the person or separate Property of the sons, but such liability is Restricted to the interest of the sons in the family property. It is settled that if the debt is contracted by the father after partition, the son cannot be made liable If, however, the debt is a pre-partition debt, the share of the sons would be liable even after partition, if the debts of the father are not immoral or illegal and the partition arrangement does not make any provision for the discharge of such debts. In case a creditor institutes a suit for the recovery of a debt against the father before partition and obtains a decree, the sons would be liable to discharge the decree passed against the father even after the partition. Even in respect of a pre-partition debt, it a suit is instituted against the father, after partition, but he dies and his separated sons are impleaded as legal representatives, the remedy of the decree-holder against the shares allotted to the sons on partition, would be in execution and not by way of an independent suit. If, however, after partition, a suit is instituted against the father on a pre-partition debt and a decree is obtained against him, such a decree cannot be executed against the sons and a separate suit has to be brought against the sons in order to enable creditor to realise the amounts out of their shares, though the liability of the sons for the payment of the pre-partition debts admits of no doubt. Thus the liability of the interest of the sons in such cases to discharge the debts incurred by the father is undisputed, though the method and manner of its enforcement by the creditor would vary and the sons must be afforded every opportunity, be it in a suit or execution proceedings to question the binding nature of the debt' or liability.
8. In this case, it has earlier been noticed that the debt in question was incurred for purposes binding on the son Balaji and his undivided share in the family properties. Indeed, the finding in this regard has not been challenged at all. In the normal course, therefore, the first respondent would be entitled to proceed against the undivided interest of Balaji in the family properties for the realisation of the debt under the decree obtained against the father, the second respondent, even when the family continued to remain undivided. Whether See. 6 of the Act brings about any change in this regard may now be considered. Sec. 6 of the Act runs as under:
'6. Devolution of interest in coparcenary property- when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act;
Provided that, if the deceased had left behind him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.'
9. The first part of this section sets out in bold relief an affirmation and re-statement of the well-known principle of devolution by survivorship, of the interest of a Hindu, who dies having such an interest in Mitakshara coparcenary property, upon the surviving members of the coparcenary. The proviso is really limited in scope and in the nature of an exception to the normal operation of the rule of survivorship. In other words, if a male Hindu, who dies after 17-6-1956 leaving behind him surviving a female relative specified in Class I of the schedule or a male relative specified in that class claiming through such female relative, then, devolution of such interest by survivorship, does not take place; but instead the interest of the deceased in the Mitakshara coparcenary properties would roll down by testamentary or intestate succession. Beyond this, the proviso does not purport to bring about any other change or free such interest from the burden or liability to which it is already subject. There being no question of testamentary succession in this case, as Balaji had not left any Will, the effect of the proviso would be to bring about a devolution of the interest of Balaji on the second appellant. Explanation I to, Sec. 6 of the Act furnishes a formula to measure the interest upon which survivorship or testamentary or intestate succession, as the case may be, may operate. The quantitative content of that interest had to be ascertained on the footing that a notional partition had taken place immediately before death, irrespective of whether he was entitled to claim a partition or not. Even this explanation merely enables the ascertainment of the interest of the deceased at the time of his death for purpose of operation of either survivorship or succession, intestate or testamentary, but does not have the effect of relieving such interest from the burden or obligation to be available for the satisfaction of binding debts. The family continues unaffected as before with all its properties, assets, liabilities and obligations, excepting that in a case governed by the proviso, a heir or a legatee is introduced into the family as a person entitled to succeed to the interest of a deceased male member. Explanation I does not go beyond this. Explanation 2 precludes a person who had already separated himself from the coparcenary before the death of the deceased or his heirs from claiming a share in the devolving interest as on intestacy. It has been already noticed that the juxtaposition of a female relative specified in class I of the schedule to the Act or a male relative in that class claiming through such a female relative or a legatee does not bring about arty other change in the family. Applying this to the instant case, at best, the second appellant was placed in the position of Balaji with reference to his interest which he died possessed of, subject to his obligations. In other words, the second appellant, no doubt, succeeded to the undivided 1/3 share of the deceased Balaji in accordance with the provisions of Sec. 6 of the Act, but it did not bring about the disruption of the family or the freeing of Balaji's interest from its liability to pay debts. It may be that in such a situation, the father, who could have otherwise sold the sons interest, may not be in a position to do so, as one son had died and his interest had devolved on another and that cannot be subjected to any further control by the' father. It must be remembered that this ~ precisely would have been the position,, if a partition had taken place between the father and the sons. But even in such cases, it has been uniformly held that despite the partition wherein no provision is made for the discharge of valid and binding debts, the share of the sons could still be made liable to answer such claims. This would be on the footing that the liability on the share of the sons, exists right from the inception of the binding debt and not only from the time the debt is sought to be recovered or enforced, as otherwise the shares of the. sons might -enjoy a holiday, as it were,, from liability, between the date of the incurring of the debt, and the date of the. birth of the son or the date of enforcing the same or the obtaining of a decree on the debt. In such a case, if between the date of the incurring of the debt and its enforcement by instituting a suit, or obtaining of a decree, a partition should take place, the share of the son may not be liable, but that is not the established position in law. The liability of the sons commences when the binding debt is incurred and continues till the liability subsists. Otherwise, a father or even his sons desiring to avoid payment of binding and lawful debts, can enter into a partition well timed and then claim that the partitioned or separated shares are no longer liable to meet the binding debts. To avoid this situation, the theory of pious obligation subjects the shares of the sons to such a liability. This would be logical as well in that the male issues acquiring an interest by birth only in the property, should also pay the binding debts to the extent of such property, both during the lifetime of the father and after his death, till the liability subsists. Therefore, the mere fact that the property had changed hands by one's own volition or owing to operation of law would not make any difference to the liability of the share of the sons. It also seems that if the liability for a debt on the shares of the sons exists from the inception of the debt, then no subsequent act of the parties or event could be permitted to defeat the right of the creditors to realise the same from such property. In this case, it would be all the more so, as the family had continued to remain undivided when the binding debt was incurred and the decree was obtained and the family continued to remain so. However, in order to realise the binding debt from out of the shares of the sons, it is not necessary that such liability should be fastened or charged upon the shares of the sons. The liability in cases like this, must be understood in the ordinary sense that the estate of a person who owes a debt is liable to Pay it, when the estate is reduced to separate possesssion or when it passes on to another upon the death of that person. The only case nearest to the instant one brought to my notice is Chinta Lakshminarasayya v. Laghuvarapu Papayya, : AIR1955AP97 , where Subba Rao, C. J. (as he then was) had occasion to deal with this question, though not under the provisions of the Act. Therein, the mother who succeeded to her son's estate, made certain alienations to discharge the debts binding upon her son's estate and these were challenged by the reversioners. It was found that the transactions were entered into to discharge the debts incurred by her husband and other similar debts incurred by her during the minority of her son, whom she succeeded. Even so, it was contended that the mother succeeding to the estate of her son, had no power to deal with or alienate any part of her son's estate to discharge the debts of her husband, which her son was liable to pay on the principle of pious obligation. In considering this contention, Subba Rao, C. J. (as he then was) after referring to the texts and the decisions in Saradambal v. Subbarama Ayyar, AIR 1942 Mad 212 and Abdul Hameed Sait v. Provident Investment Co. Ltd., : AIR1954Mad961 (FB) observed at page 98 as under-
'It follows from the aforesaid observations that the liability of the son is a legal liability binding on the joint family estate. During the lifetime of the father, the father can alienate the son's interest also in the joint family to discharge his debts. A creditor of the father may realise the debt from the entire estate. Even after the father's death, the entire joint family property in the hands of the son would be liable for the father's debts, provided it is not incurred for illegal and immoral purposes. If so, at the time of the son's death, his estate consists of not only his assets, but also his liabilities whatever may be the source or origin of that liability. A heir succeeding to the estate-it is immaterial whether the heir takes a limited estate or an absolute estate-takes both the assets and liabilities.'
In considering the question whether the liability on the property should only be in the nature of a charge or encumbrance, it will be useful to refer to Mt. Mallan v. Parmatma Das, AIR 1936 Lah 558. There, a Hindu governed by the Mitakshara after incurring a debt during his lifetime, died leaving a son and a widow, and the son also subsequently died leaving a widow and the question that arose was whether the property left by the son and in the hands of the widow was liable to satisfy the debt incurred by the original owner of the property. In dealing with that question, it was observed by the learned Judges thus-
'The word 'encumbered' therefore does not in the ruling mean an 'incumbrance', In the sense of a hypotheca or charge on the property at all. It is merely used in the ordinary sense that the estate of a person who owes a debt is liable to pay it upon the decease of that person and anybody inheriting that estate takes it subject to the debt. There is no distinction at all between a personal obligation to pay a debt, which is the duty of the original debtor and the pious obligation conferred by the Hindu Law against the son of the original debtor. The piety or the obligation does not make it cease to be a personal obligation to pay a debt ...... Upon the death of the husband, if there had been no son, it is clear that the property should have been subject to the debt created by the husband and Mt. Malan's right of maintenance would not have priority over the debt. In the hands of Nand Lal, there was personal obligation on Nand Lal to pay the debt of his father Nathan Mal, and similarly when he died and Mr. Prakash inherited his estate, she took it subject to the obligation to pay the debts due from Nand Lal.'
Subba Rao, C. J. (as he then was) in Chinta Lakshminarasayya v. Laguvarapu Papayya, : AIR1955AP97 , accepted the aforesaid observations as laying down the correct principle and I am in respectful agreement with him. The learned counsel for the respondent places strong reliance upon the decision in Sheo Ram v. Sheo Ratan, : AIR1921All163 . In that case it was held that the mother was not bound to pay the debts which the son was liable to pay by reason of the principle of pious obligation. In doing so, it was observed that unless the property was encumbered in the sense that it was charged for the payment of the debt, the mother would not be liable to pay the debt of the son. In Chinta Lakshminarasayya v. Laghuvarapu Papayya, : AIR1955AP97 , this decision has been referred to and it has been stated that the word 'encumbered' should not be understood in the sense of a charge, but only in the ordinary sense that the estate of a person who owes a debt is liable to pay it upon the decease of that person. Subba Rao, C. J. in the course of the decision referred to already has also pointed out that what was merely a pious obligation has now become crystallized into a legal liability of the son, though confined to joint family properties and in that context also, the liability need not be one, which is charged on the estate, but payable. out of the estate of the person who owed the debt. The learned counsel for the appellants relied upon the decision in Kollapudi Govindamma v. Mandru Bullemma, AIR 1957 Andh Pra 47, which was confirmed in Kollapudi Govindamma v. Mandru Bullemma, : AIR1962AP243 , and submitted that the decision in Chinta Lakshminarasayya v. Laghuvarapu Papayya, : AIR1955AP97 , cannot be applied to the present case. In the decision referred to by the learned counsel for the appellants, the question that arose for consideration was whether the property in the hands of the mother, who had succeeded to her son, can be deemed to be the property in the hands of the son or other descendants within the meaning of Sec. 53 of the Code of Civil Procedure. It was in that context Chandra Reddy, J. as well as the Bench held that S. 53 of the Code of Civil Procedure can have no application to a case, where property had passed into the hands of persons other than the sons, grandsons and great-grandsons of the ancestors. Referring to Chinta Lakshminarasayya v. Laghuvarapu Papayya, : AIR1955AP97 , the Bench stated that the principle of that decision had no application to the facts of that case. As pointed out earlier, the principle which would govern the present case would be what is clearly laid down in Chinta Lakshminarasayya v. Laghuvarapu Papayya, : AIR1955AP97 though that decision was rendered prior to the Hindu Succession Act 1956. Koduru Venku Reddi v. Magunta Venku Reddi, ILR Mad 535: AIR 1927 Mad 471, rules that the purchaser of an undivided share of a coparcener gets an equity to enforce partition and takes the share when partitioned subject to all the liabilities in the hands of the vendor, including the liability on account of the pious obligation of the son to pay the just and binding debts of the father. Further, in Modi Nathubai Motilal v. Chhotubhai Manibai, : AIR1962Guj68 it has been held that the theory of pious obligation does not stand abrogated by reason of the provisions of the Act. Viewed in the aforesaid light, the share of Balaji succeeded to by the second appellant, who had merely stepped into the shoes of her son, who was obliged to discharge the debts of the second respondent under the theory of pious obligation would also be liable and his share was rightly proceeded against. No other point was urged. Consequently, the second appeal fails and is dismissed with costs of the first respondent.
10. Appeal dismissed.