(1) This reference raises a question regarding the binding nature of an execution sale under a mortgage decree over the interest of the sons in the mortgaged property; the debt secured not being personally enforceable against the father and not being of avyavaharika character. The question as framed and placed before us would appear to cover a mortgage decree on the basis of an avyavaharika debt as well. We have, therefore, though it necessary to recast the question which will be as follows :
"Whether a sale of joint family property, held in execution of a decree in a suit instituted against the father alone on a mortgage executed by him the debt covered thereby not being avayavaharika but which, however, was contracted neither for discharging an antecedent debt of the father, nor for any necessity or benefit of the family and, in respect of which personal remedy against father had become barred by limitation, would be binding on the sons' interest in the mortgage property."
We entertain on doubt that the question has to be answered in the affirmative and that the decision of the Full Bench of this court in Abdul Hameed v. Provident Investment Co., Ltd. , would cover this case as well.
(2) Before giving our reasons for the conclusion stated above, it is necessary to state a few facts which give rise to this reference. Shamugham, the second respondent to the appeal and his three sons, namely, the two appellants and the third respondent are members of a joint Hindu family. During the year, 1936 Shanmugham created a mortgage over the suit property to secure a sum of Rs. 350. It is admitted that the loan was not incurred for the discharge of any antecedent debt incurred by Shanmugham or for any benefit or necessity of the family; but at the same time it was not for any illegal or immoral purpose.
In the year 1949 by which time, the personal remedy against the mortgagor had become barred, the mortgage instituted a suit for the sale of the property covered by the security. The sons were not made parties to the suit. The suit ended in a decree in execution of which the predecessor-in-title of the first respondent purchased the property, the sale certificate issued being wide enough to cover the sons' interest in the property as well. Alleging that the court auction sale would not bind their interest in the property and complaining that the purchase was improperly interfering with their possession the appellants, the two minor sons of Shanmugham instituted a suit, out of which this second appeal arises, for a declaration of their title to the property and for recovery of possession of the same.
(3) The learned District Munsif held that the court sale would not be effective to convey the interest of the appellants and decreed the suit. On appeal the learned Subordinate Judge reversed that judgment holding that the property was the separate property of Shammugham and that even otherwise the sale in execution would bind the interests of the sons by reason of the pious obligation of the latter to discharge their father's debts. The appellants contest the propriety of that conclusion in this second appeal.
(4) Subramanyam, J., before whom the second appeal came on for hearing originally was not satisfied with the finding of fact arrived at by the learned Subordinate Judge as to the property being the separate property of the father and acting under the provisions of S. 103, C.P.C., considered the evidence afresh and came to the conclusion that the mortgage property aid form part of the joint family property in which the appellants had an interest. He was further of the view that the mortgage not being for any necessity or benefit it would not bind the sons interest, and as the personal remedy against Shanmugam was not alive on the date of the institution of the suit, the court sale must be held to be not effective to convey the interest of the sons in the property sold.
The conclusion was opposed to the opinion expressed by the Full Bench in , and so the learned Judge formulated the following question for consideration :
"Whether the answer given by the Full Bench in , to question No. 2 would extend to a case where a decree is passed in a suit instituted against the father to which the undivided sons are not eo nomine parties, on a mortgage executed by the father which was not binding on the sons and in which the personal remedy was barred on the date of the institution of the suit would be effective to convey the interest of the father."
(5) The law relating to the liability of a Hindu son to pay the debts of his father, the right of the latter to alienate the joint family property for the purpose of discharging his debts and the rights of the creditor of the father to proceed against the son's interest in the family property has been clearly laid down in a number of cases and it needs no re-statement except by way of introduction for the purpose of the reference.
(6) The liability of the sons pay his father's debts has, as is well known, its origin in certain texts of Hindu law. According to the 'Smrithis' it is a sin to remain in debt; the debtor has a duty to discharge the debt and failure on his part of do so will not merely amount to a breach of the legal obligation incurred but also of a moral one, for which the debtor would have to account in his after-life. It is because of this duty on the part of the son, grandson and great grandson of the debtor arises a duty to save the ancestor from such consequences.
The Smrithis themselves impose a duty on them to save the ancestor from the consequence of the sin resulting from non-payment of a debt. The liability of the son is, therefore, not by reason of any obligation incurred by him or any benefit received by him or even by reason of any right inhering in the creditor who lends the money to the father but because he is obliged to save the soul of his indebted father. Prima facie, therefore the obligation on the part of the son would subsist so long as the father remains indebted, whether such debt is to be recovered as against the father personally or against his property alone or against both.
But the origin and nature of the liability of the son itself suggests a limitation regarding the debts which will have to be paid by him. The liability having as it does its foundation in religion it stands to reason that there should be no obligation on a son to discharge a debt, incurred by the father for purposes opposed to the tenets of religion, debts known as avyavaharika debts, otherwise termed illegal or immoral debts. Where the debt is not an avyavaharika but a vyavaharika one, no limitation exists under the texts as regards the obligation of the son to pay. The obligation is a personal one irrespective of any assets having been received from his father or possession of property. Being one intended to save the debtor from penalties in the other word, the obligation would, therefore subsist notwithstanding any bar of limitation.
(7) But judicial decision s have developed the legal aspect of the liability and put certain limits on its application. Under the existing law the son, which term, includes grandsons and great grandsons, the obligation would undoubtedly be a personal one irrespective of receipt of assets from his father namely, his separate property, but his liability would be confined to the extent of the joint family property in his hands. In case the father left any separate property for him to inherit, there will be the son's liability to the extent of that asset as well. Secondly as the liability of the son arises the moment the debt is incurred by the father, it would be based on the same cause of action. If, therefore, the father's liability stands discharged or extinguished the liability of the son on the same cause of action would also stand similarly discharged or extinguished. It follows that, if the claim against the father is barred by any law like limitation, the son would have no obligation to pay the creditor.
Closely following the liability of the son to pay his father's debts, is the power of the father to discharge his liability by sale of the joint family property. The law as its now stands, has been stated by Mukherjea, j. in pannalal v. Mt. Naraini, , thus :
It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead; thus it is open to the father, during his lifetime to effect a transfer of any joint family property including the interest of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up for sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such a suit and obtain an adjudication from the court that the debt was a proper debt payable by the sons; but even if the sons are not made parties they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes."
(8) The power of a manager and father in a joint family to alienate family property for discharging debts has been laid down in the form of five propositions in the classic passage in the judgment of Lord Dunedin in Barj Narain v. Mangal Prasad, ILR 46 All 95 : (AIR 1924 PC 50) thus :
"1. The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity;
2. If he is the father and the reversioners are the sons he may by incurring the debts so long as it is not for an immoral purpose lay the estate open to be taken in execution proceedings upon a decree for payment of that debt;
3. If he supports to burden the estate by mortgage then unless that mortgage is to discharge an antecedent debt, it would not bind the estate;
4. Antecedent debt means antecedent in fact as well as in time that is to say, that the debt must be truly independent and not part of the transaction impeached;
5. There is no rule that this result is affected by the question whether the father who contracted the debt or burdens the estate is alive or dead,"
We are concerned in this case with the second of the five proposition mentioned above. There was a controversy at one time whether the word "debt" in the second proposition would only apply to a simple money debt or would cover a mortgage debt as well. The view taken by Sulaimian, J., in Gajadhar Pande v. Jadubir Pande, ILR (47 All 122 : (AIR 1925 All 180) that the word "debt" would include both a mortgage as well as a money debt, later accepted by a Full Bench of the same High Court in Hiralal v. Puranchand 1951-1 All 62 : (AIR 1949 All 685) (FB), has been accepted by the learned judges in (FB) and the matter could be said to be settled so far as our court in concerned.
(9) A mortgage is a transfer of property by was of security to repay a debt; there are, therefore, two aspects in a transaction by way of mortgage, namely, a transfer of property and the existence of a debt. Where there is a personal liability on the mortgagor to repay the debt, the debt would nevertheless exist but it can be recovered only from out of the property. So long as there is the debt the doctrine of pious obligation would import an obligation on the part of the son to pay and a right of the father to convey family property for its discharge.
(10) In Abdul Hameed's case. the question before the Full Bench was whether a sale of joint family property in execution of a decree obtained against a father alone on the basis of a mortgage of the joint family property created by him for a purpose which was neither for paying off an antecedent debt nor for any necessity or benefit of the family, would be binding on the son's share. The question was answered in the affirmative. The father in that case (a Muslim who by custom was governed by the Hindu Law) created a mortgage to secure a debt incurred by him over several items of his ancestral properties. The mortgage decree resulted in a sale but the decree was not entirely satisfied by the sale, the personal remedy against the father was subsisting on the date of the suit and it appears that a personal decree was also actually passed against him later.
But the case was not concerned with the liability under the personal decree was what was impugned Ws the court sale in execution of the mortgage decree as such. The learned Judges held that notwithstanding the fact that the mortgage debt was not one incurred either for payment of an antecedent debt or for the benefit or necessity of the family the court sale would be effective enough to convey to the purchaser the interest of the son as well. The reasons given and the view taken by the learned judges in Abdul Hameed's case, (FB),
would appear to cover all cases of liability of the father whether such liability was personal or confined to the mortgaged property alone.
(11) But it is contended for the appellants and that contention is supported by the view expressed by Subrahmanyam, J., in his order of reference, that the decision in Abdul Hameed's case, (FB), should be confined to a case where the personal remedy against the father is subsisting and not extended to one where there is no personal remedy. But as pointed out earlier the execution sale in that case was not in enforcement of any personal decree. The contention, therefore, can be stated thus : a court sale in execution of the mortgage decree could convey the interest of the mortgagor's sons only where the personal remedy against the latter actually subsists though it is not necessary that it should have been availed of.
(12) The contention however ignores the basic reason of the liability of the son, namely, a pious obligation; that obligation would be there so long as the obligation of the father exists. The existence of an obligation cannot be negatived if one of the remedies available for its enforcement is lost or not available; nor is it necessary for the obligation to subsist that the liability of the father should be enforceable in a particular form against him by arrest or other personal process. For example, suppose a Hindu father (in a joint family) is adjudicated an insolvent and he obtains a protection order under S. 31 of the Provincial Insolvency Act; that does not prevent the creditor from filing suits against the sons on the basis of the latter's pious obligation. A creditor of the father in execution of a decree against the father alone or against the father and son in respect of a personal debt of the father may notwithstanding the insolvency of the father attach and sell the son's insolvency of the father attach and sell the son's interest. Vide Arunachalam v. Sabaratnam, ILR(1939) Mad 585 : (AIR 1939 Mad 572). The position will, however, be different if the father had obtained an order of absolute discharge in his insolvency releasing him from the debt in question; the son in that case would be freed of his liability because the obligation of the father no longer existed.
(13) Therefore, the son's liability would depend on the subsistence of the debt and not the availability of a particular form of remedy against the father.
(14) A debt is money that is due or owing to another, whether the liability to pay is personal or one of property. A debt would nonetheless be a debt even if there is only a property liability in respect of the same. In Periannan v. Sellappa, ILR (1939) Mad 218 : (AIR 1939 Mad 186), Varadachariar, J., while construing the definition of the term "debt" under the Madras Act IV of 1939 in relation to the position of a purchaser of the equity of redemption vis-a-vis the mortgage money, holds, that the words "any liability" and "due" would include a liability which is payable out of a property alone in the hands of the debtor implying that the words liability is wide enough to include a mere property liability.
(15) In the text of Yagnavalkya and in the commentary of Mitakshara, the words used for denoting a debt of the father which the son would be liable to pay is (rina). The word rina is a word of wide connotation signifying a variety of obligations. Krishnaswami Aiyangar, J., in delivering the judgment of the Bench in Nachimutu v. Balasubramania, ILR 1939 Mad 422, had occasion to consider the meaning of the term rina in relation to the obligation of a Hindu son; the learned Judge referred to the variety of meanings attached to it which shows that it cannot be restricted to a mere personal obligation to pay a definite sum of money. The actual question that arose in that case, and which was answered in the affirmative, was whether a liability an unascertained one of a partner to the heirs of a decreased partner, could be said to be a debt so as to constitute an antecedent debt to support a mortgage created by the former.
(16) An obligation to pay a debt incurred by the father under a mortgage but in respect of which the personal remedy had become barred would undoubtedly be a***** (rina) under the texts of Hindu law which imposes an obligation on the son to pay. It is true that in certain respects the law as to the extent of the obligation of a Hindu son to pay his father's debts as understood and laid down by judicial decisions has made a departure from the law as laid down by the texts. The restrictions to the doctrine of pious obligation recognised by the court are but a logical extension of the principle underlying the liability, namely (1) being religious avyavaharika debt would not come within it; (2) being co-extensive with the father's liability, a discharge or extinction of the latter's liability would terminate the son's liability and (3) the liability is limited to assets received or to the extent of the joint family property. But none of the cases have gone so far as to hold that where the debt as such is alive, but one of the several remedies against the father is lost, the obligation of the son could be held to be extinguished.
(17) In (FB) the learned Judges examined fully the principle underlying the doctrine of pious obligation after making a detailed reference to the cases on the subject and came to the conclusion that even though a mortgage created by a Hindu father and the decree that superseded it would not qua mortgage or mortgage decree bind the son's interest in the mortgaged property, that would constitute a lawful debt of the father which in turn would support the execution sale under the same decree as an antecedent debt. Two main reasons are given in the judgment in support of that conclusion.
(1) The word "debt" in the second proposition laid down in ILR 46 All 95 : (AIR 1924 PC 50) includes a mortgage debt as well; a mortgage, however is an alienation of property and in a case where a mortgage is not for necessity or benefit or for payment of an antecedent debt, a decree thereon qua mortgage decree will not bind the son's interest. But where a property is put up for sale in execution of such decree another principle applies, namely, that which is stated in Suraj Bansee Koer v. Sheo Prasad Singh, ILR 5 Cal 148 (PC), where the Privy Council observed "where ancestral property has passed out of the family either under a conveyance executed by the father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt or under 'a sale in execution of a decree for his father's debts' (italics (here in single quotation marks-Ed.) ours) his son's by reason of their duty to pay their father's debt cannot recover that property to unless they show that the debts were contracted for immoral purposes for which they would not have been liable and that the purchasers had notice that they were so contracted. Therefore, although a mortgage decree cannot, as such bind the son, once a sale has ensued under the decree, the son cannot recover his property back from the purchaser in an execution sale unless he shows that the debt which formed the basis of the decree was avyavaharika, the assumption being that the court purported to sell the entire property including the son's share.
(2) The mortgage decree (debt not being avyavaharika), though it may not bind the son as such would by itself constitute a debt of record and an execution sale which follows the decree can be supported on the theory that the sale was for the discharge of an antecedent debt, namely, the decree, the court's power of sale being co-extensive with the father's
(18) None of the two aforesaid reasons depend for its validity on the subsistence of any personal remedy against the father. Indeed the observations of the Privy Council in Suram Bansee Koer's case ILR 5 Cal 148 (PC), which enunciated the right of the son once the property has passed out of the family, would appear to show that there can be no distinction between a case where property is sold where there is no personal liability of the father and one where there is such liability.
(19) In Periasami Mudaliar v. Seetharama Chettiar, ILR 27 Mad 243 (FB), Bashyam Iyengar, J., recognised that a decree obtained against a father would constitute a debt of record. This was follows in Krishnan Naidu v. Somi Naidu ILR (1940) Mad 815 : (AIR 1940 Mad 544). In that case a decree was passed against the father after exonerating the sons who were originally impleaded as parties. It was held that the decree would give a new right under which the decree holder would be enabled to proceed against the sons' interest in the family property in execution of that decree. Whether the decree debt will constitute only a fresh cause of action on the basis of which a suit alone can be laid against the son or whether it can support a sale in execution of that decree itself an no longer be a matter of controversy so far as our court at any rate is concerned as both the second of the two decisions aforesaid and the Full Bench decision in (FB) have accepted the latter view. The executing court can, therefore, sell the son's interest under a mortgage decree against the father where there is no personal liability if the father himself could do so.
(20) The question then arises whether a father has power to convey the son's interest in the property with a view to discharge a debt of his in respect of which there is no personal liability on his part but where the creditor could proceed against his property for recovery of the debts.
(21) Arumugam Chetty v. Muthu Koundan ILR 42 Mad 711 : (AIR 1919 Mad 75) (FB) accepted the principle that a mortgage debt would constitute an antecedent debt to support a subsequent alienation by the father to discharge the same. Although the personal liability appears to have subsisted in that case, the decision did not rest on that ground. It was observed that in order to support an alienation by the father all that was necessary to show was that there was an antecedent debt (not avyavaharika) and not that such debt should be otherwise than on a security of property.
(22) The question directly arose for consideration in Gauri Shankar Singh v. Sheo Nandan Misr, ILR 46 All 384 : (AIR 1924 All 543), where a father in a Hindu family originally executed a simple mortgage over certain family property. After the personal remedy had become barred and while the property liability was subsisting, the father executed a usufructuary mortgage in favour of the same creditor to discharge the earlier mortgage. It was held that although the personal liability had become barred, the earlier mortgage nevertheless constituted an antecedent debt which could support the subsequent mortgage by the father so as to bind the interest of the sons as well. Sulaiman J., observed,
"Although a debt which has become absolutely barred by time and the liability to pay which has not been undertaken in previous writing, it cannot be deemed to be good antecedent debt so as to validate a conveyance by the father in lieu of it, yet where the mortgage debt, as such has not been time barred but only the personal remedy against the father is barred it can be still a good antecedent debt so as to justify an alienation in lieu of it."
This decision was cited with approval and the principle stated therein accepted in Satyanarayana v. Satyanarayanmurthi 50 Mad LJ 144 : (AIR 1926 Mad 428) where a subsequent mortgage executed in discharge of a prior mortgage in respect of which the personal remedy of the executant had become barred was held to bind the son's interest as well.
(23) If so much can be taken as settled, that is to say, that the father would be competent to sell joint family property to discharge a mortgage liability incurred by him albeit no personal liability existed in respect of such liability, the next step is easy, for a court executing a decree against the father will have at least his power in regard to alienations. A court can, therefore, put up for sale an d convey the son's interest in execution of a decree against the father.
(24) The precise point before us directly arose for consideration in Muthuswami Chettiar v. Subramanya Iyer, 1912 Mad WN 453, where Benson and Miller JJ., held that a court sale in execution of a mortgage decree, where in respect of the mortgage decree, where in respect of the mortgage, the personal liability of the father had become barred by limitation, was competent to convey the son's interest. The principle stated was that in such a case the debt continued to exist though its recovery in a particular way had become barred. In our opinion this decision is in accord with the principle and authority.
(25) Substantially two reasons have been given by Subrahmanyam, J., whose attention however, does not appear to have been invited to the above decision. in support of a contrary view. The first, if accepted as good, would render the decision in Abdul Hameed's case (FB) itself is incorrect. Learned councel for the
appelants who adopted it as his main argument in this appeal formulated his argument in this way :the court's jurisdiction to sell the son's share is based not on the father's power of sale but on the son's but on the son's pious obligation to pay.
Where a creditor brings asuit against the father impleading the son's as well, but the suit is dismissed against the son's it is setteled law that it will not open to him to proceed against the son's share in the family properly in execution of the decree against the father alone. The rule should not be different where the sons were not made parties to the suit as in the present case. To hold otherwise would in the words of Subrahmanyam J., would be
"But a person who represents another person in a suit cannot by such representation bring about as regards the other persons adverse consequences more far-reaching than could be brought about if such other person were himself a party. Therefore to hold that in a case in which the son's interest in the mortgaged property cannot be sold if he were eo nomine added as a party to a suit on the mortgage his interest could be validly sold if he were not eo nomine impleaded as a party would be to state a thing that would be opposed to the fundamentals of procedural law".
(26) There are three fallacies in the arguments : (1) It is true that the legal basis for the court's power to sell the son's share is the latter's obligation under the Hindu law. But the existence of that very obligation entitled the father to exercise a power of alienation for the discharge of his vyavaharika debt. The court in selling the son's share only exercises the father's power. (2) where a father is sued for a recovery of a personal debt or on a mortgage executed by him neither for necessity or benefit of the family, he could be and is sued only in his individual capacity and not in any representative capacity. The decree against him will be against him in his individual capacity; the son's share in the joint family property is made liable because it is a debt of the father and not on any theory of representation.
For if it were to be held that in contracting the liability and in the suit the father represented the sons, there would be no need to invoke the doctrine of pious obligation at all; (3) the cases which hold that where the sons are impleaded along with the father but the claim against them (the former) is dismissed, the son's share in the family property would not be liable, are not based on any theory as to the necessity of making them parties, but on the principle of res judicata.
(27) There can be no controversy on the first of the three points stated above. The second too an be taken as well settled. In Mukherjea J., while setting out the settled
principles of law recognised that it was open to the creditor of the father to obtain a decree against the father alone and in execution of the same put up for sale not merely the father's but the son's interest in the joint family estate.
(28) But it is contended that the liability of the son is on the basis of a constructive representation of his case by his father in the proceeding and where there is no such representation there would be no obligation. Mr. Venkataswami appearing for the appellants placed considerable reliance on the decision in Shiam Behair Lal v. Bhure Lal, 17 All L. J. 578. In that case a suit was filed on the basis of a mortgage by the father in respect of which a personal remedy had become barred. The father confessed judgment on behalf of himself and his son. The son applied later and succeeded in getting the suit against him dismissed on the ground that the mortgage was not binding on him and that the father had no authority to confess judgment on his behalf.
The mortgage property was then sold. The decree-holder then applied for a personal decree against both the father and the son. The son was again successful in resisting the claim against him and the personal decree was passed only against the father. The father died. The decree-holder sought to attach in execution of the personal decree the joint family property obtained by the son by right of survivorship. It was held that as on the date of the institution of the suit the personal remedy was barred the decree could not be executed against the son. The learned Judges stated in that case that as the personal decree in respect of the suit mortgage had by the time the suit was filed, become barred, the personal decree against the father relative to that claim was equally barred and the son who was nonparty to it would not be found. There is a light inaccuracy in this.
Factually the son was made a party to the proceedings for the passing of the personal decree and the claim against him was dismissed; it was not a case where the son was not a party at all. The actual decision in the case can, however, be justified on the ground that the question as to the son's liability which arose under Ss. 50 and 53 C.P.C., had been already decided in suit itself. We cannot, however accept as correct that where a personal decree is passed against the father in a suit to which the sons are not made parties the decree could not be executed against the son's share in the family property if the claim had been barred and the decree was erroneously passed.
(29) In respect of liability incurred by a Hindu father a creditor can file a suit on the basis of the contract; to such a suit on the basis of the contract; to such a suit he can also implead the sons in order to get an adjudication that the liability is such that the sons would be bound to pay on the principle of pious obligation. To implead the sons or not, is entirely at the option of the creditor. If he does not implead, it does not mean that the decree obtained against the father alone is not executable against the son's share in the family property. That depends upon the quality or nature of the debt; and not on the fact of the sons being made a party or not. If they are not parties they can raise the question as to the binding nature of the debt whenever their rights are sought to be infringed. If they are made parties, they should raise the question of their liability in the suit itself.
If they do not do so, or if they raise the plea and it is rejected it would mean that they are liable and the question cannot be raised again. Per contra if they are impleaded as parties to the suit against their father and the suit against them is dismissed it would mean that the court had decided in their favour and against the creditor on the question of their liability. The principle is therefore one of more res judicata and not on the effectiveness of the representation of the sons by their father in the suit.
In ILR (1940) Mad 185 : (AIR 1940 Mad 544) a decree was obtained against a Hindu father after his sons who were impleaded in the suit had been exonerated and dismissed therefrom. Whether such a decree could be executed against the interest of the sons in the joint family property came up for consideration in the case. That was answered in the affirmative. In so doing reference was made to two earlier decisions of this court where it was held that a decree passed against the father personally after his sons had been exonerated could be executed against the son's interest in the family property as the result of the withdrawal of the suit or exoneration of the sons was not to bring about any rule of res judicata. That was a case where the sons were impleaded and exonerated; the position would be the same even where the sons were not impleaded at all.
Where however, the suit has been dismissed against the sons and the decree is made against the father alone, the same principle would show that the son's share in the property could not be made liable as the court must be deemed to have decided that there was no pious obligation on his part to pay the suit debt vide Panchaiti Akhara Mahanirvani v. Bindeshri Prasad ILR (1952) 1 All 109 : (AIR 1952 All 337). It will be apparent from the above that the true principle of the right of a creditor to proceed against the son's share in the family property is not on any representation of his independent interest in that suit but whether the debt is not an avyavaharika debt. An omission to implead the son in the suit against the father cannot mean that the pious obligation is at an end; its only consequence is that there will be no adjudication as to the binding nature of the suit debt at that stage.
The son can, therefore, contest his liability with reference to the nature of the debt in other proceedings. But where the debt is not an avyavaharika one, his liability would exist although the decree is against the father alone.
(30) The omission to implead the sons in the instant case in the suit cannot therefore amount to an implied adjudication that the debt was avyavahrika debt it was neither one for necessity or benefit of the family, the father could not have represented them in the suit. Nevertheless the decree against the father will constitute a debt payable by him in respect of which the liability of the sons would also exist.
(31) The second reasons urged in support of the view that where there is no personal liability of the father there could be no pious obligation on the part of the son to discharge his father's obligation is based on the decision of the Privy Council in the Keserchand v. Uttamchand, ILR (1945) Lah 411 : (AIR 1945 PC 91). In that case a Hindu father executed a security bond to the court for the payment of a debt due from a third party by charging certain properties belonging to him for the due performance of the obligation of the third party. The Privy Council held that there would be no personal obligation on the part of the sons to pay their father's debts as there was no debt due by the father himself. That was a case where the liability in respect of the charge created by the father was not referable t any debt due by the father; the charge created was to answer the debt of a third party. That principle cannot obviously apply where there is a debt of the father to support the charge or mortgage, as in the case of a mortgage executed by a father as security for his personal debt without there being a personal liability therefore.
(32) It would follow that a court sale obtained in execution of a mortgage decree passed against a Hindu father (the debt being vyavaharika) the personal decree against whom had become barred by limitation, would, if it is not inconsistent with the terms of the sale certificate, include the sons interest in the property as well. We accept the decision in 1912 Mad WN 453 as laying down the correct law and hold that the opinion expressed by the Full Bench in (FB) on the second point would comprehend a case
where a mortgage decree was passed after the personal decree against the father had become barred.
(33) The result is that the appeal fails; it is dismissed with costs of respondent-1.
(34) Appeal dismissed.