1. The appellant brought a suit on an agreement against the father of the respondent. During the course of the trial, the father died and the respondent was brought on record as his legal representative. Thereupon an additional issue was framed 'whether defendant 2 or his share of the family properties is not liable for the suit debt'. It is difficult to see why this issue was framed at all, because defendant 2 was brought on record merely as the representative of the father and so the question whether his own property was liable for the debt or not was not in issue. However, this issue was framed; but the appellant made an endorsement on the written statement to the effect that ho did not press this issue against the defendant and so the suit proceeded on the same footing as before defendant 2's father's death, i.e. the question became whether this agreement was true. The result of the suit was that a decree was given against the assets of the deceased defendant in the son's hands. The appellant in execution of this decree obtained against defendant 2 as the legal representative of his father, sought to attach property which was not the property of the father but which admittedly had fallen to the son's share in the partition between the father and the son prior to the suit. The question in this appeal is whether in execution the liability of defendant 2 to pay this debt can be gone into. The executing Court held that it could and the first Appellate Court that it could not.
2. If a suit is brought against the father as the manager of his family, then the decree, although it purports to be against the father only, is in reality one against the family and in execution the share of the son can be proceeded against, because the decree is virtually one against the son as well as against the father. Even where it is not clear that the father is on record in the suit as the manager of the family, yet nevertheless the sons can be made liable in execution, because their father has the power of selling his son's property for debts which are not illegal and immoral and the creditor has the right of selling not merely the father's property, but that property which the father has power to dispose of. If however the son is divided from his father, the father has no power of disposal over the son's property and the creditor who cannot have greater powers than the father is unable to bring the property of the son to sale in execution of the decree against the father. In a case like the present, where the partition took place even before the suit was filed, the case of the son is much stronger than if the partition had been after suit; for the father's property is distinct from that of the son, and the property of the son can be no more made liable for the debt of his father without a finding from a Court in a regular suit that it is so liable than can the property of a complete stranger be made liable for another person's debt, unless a Court after due enquiry in a regular suit has declared it to be so.
3. In a long course of decisions from Krishnaswami Konan v. Ramaswami Iyer (1899) 22 Mad 519 onwards, it has been held that where the father is divided from the sons and therefore has no power of disposal over their property, the creditor cannot proceed against the property of the sons in execution. In Subramania Iyer v. Sabapathy Iyer AIR 1928 Mad 657 the liability of the sons for a pre-partition debt was decided, and although the question of liability in execution did not arise, some of the observations made are relevant to this question. Jackson, J. at p. 380 for example says:
I fully see the force of the assumption if the creditor is trying to execute a decree obtained against the father alone against assets held by the son after partition, which the father has no present power to bring to sale, then the creditor can be in no better position than the father. But I should hesitate to assume that the creditor's rights are equally circumscribed when he has made the son a party to the suit, and by virtue of the son's pious obligation has obtained a decree against assets in the son's hands. His claim then is based upon the son's pious obligation, and in my opinion is not affected by the circumstance that the father has no longer the power to sell.
4. This statement of law has been repeated in many other cases, i.e. Bapiraju v. Sreeramulu : AIR1934Mad662 and by Varadachariar and Burn, JJ. in Kuppan Chettiar v. Masa Goundan AIR 1937 Mad 424. Varadachariar, J. has expressed the law on this point very clearly in the following passage:
In order that properties may be liable to attachment in execution, it must be shown that they belonged to the debtor or that the judgment-debtor has disposing power over the properties or their profits which power he may exercise for his own benefit.
5. The proposition has now been settled beyond doubt by the observations of their Lordships of the Judicial Committee in Sat Narain v. Sri Kishen Das , that the father's power of sale for his debts exists only so long as the joint family remains undivided. A reference to the decision of this Court in In Re Baluswami Iyer : AIR1928Mad735 shows that a division in status will suffice to put an end to this power. It would therefore follow that after division in status, the father's creditor cannot, any more than the Official Assignee, claim that the property is saleable by the father and therefore attachable by himself. Burn, J. in his judgment in the same case points out that even if the partition is entered into to defeat creditors, nevertheless if by a genuine partition division of status takes place, the power of the father to sell the shares of the sons is brought to an end.
6. In the present case the son was not a party to the suit originally but was added as legal representative of his father after his father's death. This, on the face of it, would appear not to make the son in his individual capacity any more a party to the suit than if his father had continued alive. The son continued in the suit merely as a representative of his father's estate. He was not made a party as a holder of land that was also liable for the suit debt. The learned advocate for the . appellant relies on Doraiswami Nadan v. Nagaswami Naieken : AIR1929Mad898 , which was a case somewhat like this, excepte that in that case the sons were made parties to the suit and afterwards exonerated. However, it could at least be argued in that case that the sons continued parties to the suit even though exonerated, and that an enquiry could therefore be held in execution Under Section 47, Civil P.C. Coutts. Trotter, J. however did not base his opinion that the sons could be made liabla in execution on this narrow ground. He seeme to have been of opinion, although he does not expressly dissent from the opinion of Ananthakrishna Ayyar, J. in Subramania Iyer v. Sabapathy Iyer AIR 1928 Mad 657 to the contrary, that the son is always liable for his father's debts even though divided from him, unless he can establish that the debts are illegal or immoral.
7. Reliance is placed by the appellant on the words of Section 53, Civil P.C.:
For the purposes of Section 50 and Section 52, property in the hands of a son or other descendant which is liable under the Hindu law for the payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
8. This section must have been introduced to prevent undivided sons after their father's death from contending that the property in their hands was not their father's because it had passed to them by survivorship.
9. Since dictating the above, I have had the advantage of perusing the judgments of the learned Judges in Venkatanarayana Rao v. Venkata Somaraju Reported in AIR 1937 Mad 610. The question there was the liability of a son in execution for a decree passed against his father while they were still undivided. It was found that the suit was brought against the father as the representative of hits branch of the family. It followed that the son must be considered as having been a party to the decree and liable in execution of the decree. Venkatasubba Rao and Venkataramana Rao, JJ. doubted the correctness of the decisions of Varadachariar, J. in the cases quoted earlier, but distinguished them as being based on the pious obligation theory, which it was unnecessary to apply in the case before them. Cornish, J. went further and held that even as a son (as opposed to a junior coparcener) the son would be liable. Obviously, this Full Bench case will not help the appellant; for it is clear here that the suit could not have been brought in a representative character.
10. The lower Court therefore rightly held that execution could not proceed against the property of the son which fell to his share in partition. The appeal is therefore dismissed with costs. Leave granted.