S. Ganesan, J.
1. This appeal is directed against the order of the learned District Judge of Chingleput in C.M.A. No. 15 of 1965 on his file affirming the order of the learned District Munsif of Kancheepuram in E.A. No. 427 of 1964 filed by respondents herein (defendants 2 to 5 in the suit), raising the attachment of 3/12th share in the properties.
2. On a promissory note executed by the first defendant and his sons (respondents 1 and 2 herein) in his favour, the appellant instituted a suit O.S. No. 104 of 1963 against all the executants. The appellant alleged in his plaint that, on 5th January, 1961, the first defendant paid a sum of Rs. 100 and acknowledged the same by an endorsement on the promissory note and that the endorsement was binding on respondents 1 and 2. The first defendant died in the course of the trial and the third defendant Manickammal, the widow of the first defendant and Arumugha Reddiar (the fourth respondent herein) another son of the first defendant were added as legal representatives in the suit. The only contention raised by all the respondents was that the first defendant did not make any endorsement of payment. The trial Court rejected their contention but upheld their further plea that the endorsement made by the first defendant was only on his own behalf and not as the joint family manager on behalf of respondents 1 and 2. The trial Court dismissed the suit against respondents 1 and 2 as barred by limitation but passed a decree with costs against the assets of the deceased first defendant in the hands of the respondents.
3. In execution of the decree the appellant attached not only the 1/12th share which belonged to the first defendant but also the remaining 3/12th share which belonged to the respondents. Thereupon, the respondents filed E.A. No. 427 of 1964 under Section 47 of the Civil Procedure Code, for raising the attachment in respect of their 3/12th share in the properties. The learned District Munsif allowed the application holding that, though respondents 1, 2 and 4 were the undivided sons of the first defendant, they were not personally bound to discharge the decree debt from out of their share in the joint family properties as the suit in so far as they were concerned was dismissed; and the learned District Judge had confirmed the said order in appeal.
4. The appellant is aggrieved by the said orders and pleads that respondents 1, 2 and 4 being the undivided sons of the first defendant are bound to discharge the debt of their father from out of their 3/12th share in the joint family properties under attachment because of the theory of pious obligation and that, in any event, the third respondent Manickammal, the widow of the first defendant was bound to discharge the debt of her husband from out of the share which she had inherited as his heir.
5. On behalf of the appellant the following decisions were cited : (1) Periaswami Mudaliar v. Seetharama Chettiar : (1904)14MLJ84 ; Venkureddi v. Venkureddi : AIR1927Mad471 Doraiswami v. Nagasami : AIR1929Mad898 Krishnan Naidu v. Sami Naidu : AIR1940Mad544 Kumbakanam Mutual Benefit Fund Ltd. v. Ramaswami : AIR1946Mad396 and Kulithalai Bank v. Naga Manickkam : AIR1955Mad670 . Strong reliance is placed by the learned Counsel for the respondents on the decision of the Privy Council in Raja Ram v. Raja Bakksh Singh Venkataranga Reddi v. Chinna Sithamma : AIR1941Mad440 and Maha Nirvani v. Bindeshri Prasad : AIR1952All337 .
6. I shall now refer to the various cases cited by the parties. In the Full Bench case Periasami Mudaliar v. Seetharama Chettiar : (1904)14MLJ84 a simple money decree was obtained against the father alone on a debt due in respect of purchase of certain goods and shortly thereafter, he died and it was observed by the Full Bench that:
Independently of the debt arising from the original transaction, the decree against the father by its own force, created a debt as against him which his sons according to the Hindu Law were under an obligation to discharge, unless they showed that the debt was illegal or immoral.
7. n Venku Reddi v. Venku Reddi : AIR1927Mad471 , the payee of a promissory note executed by the father before the suit for partition was filed, brought a suit against the father and all the sons while the partition suit was pending and obtained a decree against the father personally and the joint family properties, the sons having been exonerated, as they could not be made liable, on the promissory note which they had nothing to do with; and it was not denied that the debt on the promissory note was a proper debt of the father being neither immoral nor illegal.
8.In Doraiswami v. Nagasami : AIR1929Mad898 , the father executed a promissory note in 1914, before a partition was effected between himself and his sons and the creditor brought a suit upon the promissory note both against the father and the sons. The sons were exonerated in the suit and a personal decree was passed against the father. It was held that the decree can be executed against the shares of the sons in the family property and that the sons can claim exoneration from the liability only on the ground that the debt is immoral or illegal. The Full Bench decision in Venkureddi's case : AIR1927Mad471 , was sought to be distinguished by the learned Counsel in that case on the ground that the decree was granted both against the father and against the joint family estate; but the learned Judges held that there was no real distinction between the facts in the Full Bench case and a case where the decree was only against the father personally and observed that the question in both the cases was whether the decree passed against the father personally after the sons have been exonerated can be executed against the shares of the sons in the family property and whether such property is liable for the father's debt. The learned Judges have also pointed out that the long course of decisions beginning with Nanomi Babusin v. Modhun Modhun I.L.R. 13 Cal. 21 (P.C.), had laid down that the only objection which the sons could raise to the liability of their shares for their father's debts was that such debts were immoral or illegal.
9. In Raja Ram v. Raja Bakhsh Singh , the material facts were shortly these. Badri Singh and Chandika Singh, members of a joint Hindu family, executed a mortgage in favour of one Raja Ram. Badri Singh died and Raja Ram, instituted a suit for enforcing the mortgage and impleaded Chandika Singh, the original executant and the sons and grandsons of the deceased Badri Singh. The Subordinate Judge gave a money decree alone against Ghandika Singh, personally and against the estate of Badri Singh, in the hands of his sons alone and dismissed the suit as against his grandsons. Raja Ram, applied for execution of the decree not only against Ghandika Singh and the two sons of Badri Singh, but also against the grandsons and their interest in the family property, notwithstanding that they had been dismissed from the suit. The Chief Court of Oudh held that the interests of the grandsons in the family property were not attachable and the Privy Council confirmed the said decision. The reasons for the decision were these:
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 was erroneous. The appellant Raja Ram should have appealed therefrom, claiming that, instead of dismissing the suit as against the respondents, the Subordinate Judge should have given a decree against them in like manner as against the other defendants 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, Civil Procedure Code, would have attracted the operation of Section 53 and the grandsons interest 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 these words. The same result might have been attained in more ways than one, had Raja Ram, the appellant recovered judgment against Badri Singh, in his lifetime. But the interests of the respondents (grandsons) 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 respondents (grandsons) having been dismissed from the suit cannot be made liable under the decree.
In Krishnan Naidu v. Sami Naidu 51 L.W. 315, the suit was upon a promissory note executed by a Hindu father and both the father and his undivided sons were impleaded as defendants on the ground that the debt was incurred for family necessity. A decree was ultimately passed against the father and his sons were dismissed from the suit because the plaintiff decided not to ask for a decree against them. In execution the plaintiff sought attachment and sale of the sons' interest in the family property. The Division Bench of this Court held that, independently of the debt arising from the original transaction, the decree passed against the father in respect of that transaction by its own force created a debt as against him which his sons were under Hindu Law under an obligation to discharge unless they could show that the debt was illegal or immoral, that it could not be said in that case that what had happened in the appeal amounted to an adjudication that the sons were not liable in respect of the decree against the father and that, therefore, the decree could be executed against the son's interest as well. The learned Judges distinguished the Privy Council decision in Raja Ram v. Raja Bakhsh Singh , cited above, by observing that the suit in that case was brought against the grandsons after the death of the grandfather against whom no decree had been obtained and that the dismissal of the grandsons from the suit amounted to a decision in their favour, of the question of their liability. The learned Judges had further observed that the Privy Council decision had not impliedly overruled the decision of the Full Bench of this Court in Periasami Mudaliar v. Seetharama Chettiar : (1904)14MLJ84 , and stated that where a decree was passed against the father after the sons had been dismissed from the suit, the passing of the decree gave to the decree-holders a new right which they could enforce against their sons. The Bench decisions of this Court in Periasami v. Vaithilingam Pillai 47 L.W. 60, and in Doraiswami v. Nagasawmi : AIR1929Mad898 , were quoted with approval.
10. In Venkataranga Reddi v. Chinna Sithamma : AIR1941Mad440 , 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 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. A Division Bench of this Court held that the matter was no longer a matter of Hindu Law but was one which was governed entirely by the Code of Civil Procedure. Periasami v. Vaidhilingam Pillai 47 L.W. 60, Doraiswami v. Nagaswami : AIR1929Mad898 and Krishnan Naidu v. Sami Naidu : AIR1940Mad544 , were distinguished and it was observed that Krishnan v. Sami : AIR1940Mad544 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.
11. In Kumbakonam Mutual Benefit Fund Ltd. v. Ramaswami I.L.R. (1947) Mad. 99 : (1646) 1 M.L.J. 343 : (1946) 59 L.W. 246, a mortgage was executed by a Hindu father on behalf of himself and his three minor sons who constituted a joint family and a final decree was passed against all of them as prayed for. As the price realised from the hypotheca in execution fell short of the decree amount, 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, the third son having died before the application was filed : and as the decree-holder decided to withdraw the application against the first respondent who had then become a major, a personal decree was passed against the father and the other surviving son, limited so far as the latter was concerned to his interests in the family property. The decree-holder then applied to execute the personal decree by the attachment of certain family properties and the properties were sold. Thereupon the first respondent (son) filed an application for setting aside the sale in so far as it affected his 1/3rd share in the properties. The learned Judges observed that, in the Privy Council case Raja Ram v. Raja Baksh Singh , the Privy Council had been 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 and have also pointed out that the observations of the learned Judges in Venkataranga Reddi v. Chinna Sithamma : AIR1941Mad440 that Krishnan Naidu v. Sami Naidu : AIR1940Mad544 , was only intended to apply to cases where the creditor's suit against the sons had been dismissed as withdrawn without any adjudication express or implied on his claim against them were not correct and remarked 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 and that much depended on the circumstances under which the dismissal took place.
12. In P.A. Maha Nirvani v. Bindeshiri Prasad : AIR1952All337 , a suit was instituted against the father and sons on a simple mortgage executed by the father alone and on the sons' plea that the mortgage debt was without legal necessity and that it was tainted with immorality, the trial Court found that there was legal necessity for the debt but that it was not tainted with immorality. The High Court found that the document was not proved to have been duly attested; but inasmuch as the deed contained a personal covenant to pay the amount borrowed with interest and the suit had been brought within six years of the registered mortgage deed, the High Court passed a simple money decree in favour of the plaintiff against the father. In execution of the decree against the father the family properties including the shares of the sons were attached and it was held by the Allahabad High Court that the sons' interest cannot be sold on the ground of pious obligation. Referring to the decision of the Privy Council in Raja Ram's case , the learned Judges have observed that, from the facts of that case, it was clear that the creditor endeavoured to enforce the liability of both the sons as well as grandsons for the payment of the debt due from their father and grandfather respectively, but by dismissing the claim against the grandsons, the Court appears to have refused to enforce the pious liability of the grandsons to pay the debt in question and they have further observed that, whether the decree passed in the suit was correct or erroneous, the executing Court in executing the decree could not enforce a liability, the pious liability under the Hindu law which the Court passing the decree had declined to enforce. While referring to the decision of our Full Bench in Periasami Mudaliar's case : (1904)14MLJ84 , to the effect that a decree passed against a Hindu father, by its own force, created a debt as against him which his sons, according to the Hindu Law, were under an obligation to discharge unless they showed that the debt was illegal or immoral the learned Judges observed that there was no question regarding the procedure which had to be followed in enforcing Such a liability of the sons. Referring to Krishnan Naidu v. Sami Naidu A.I.R. 1940 Mad. 544, and Periasami v. Vaithilinga Pillai : AIR1937Mad718 , the learned Judges have observed that in those cases the suits must be deemed to have been actually withdrawn so far as the sons were concerned, that it was therefore rightly held in those cases that the result of the withdrawal of the suit as against the sons did not exonerate them, that consequently it could not bring into operation the rule of res judicata and that, in such circumstances, what happened in the suits did not in any sense amount to an adjudication that the sons were not liable in respect of the decree debt; and the learned Judges held that the facts of the case dealt with by them were clearly distinguishable from the facts in the Madras decisions.
13. In Kulithalai Bank v. Naga Manickam : AIR1955Mad670 , it was held that a creditor may sue both the father and the son on a debt due from the father alone and it is open to the son in such a suit to show that the debt incurred by the father was for an immoral or illegal purpose; but if he omits to do so, a creditor may obtain a decree against the father and son also. In such an event, the son will be precluded in execution proceedings from contending that the debt contracted was for an illegal or immoral purpose. The decisions on the subject appear, on the face of it, to be fairly divergent, but, in my view, can be easily reconciled with each other. The following principles are fairly well established by these decisions:
(1) Where the sons are under a pious obligation to pay the father's debt, the creditor may sue the father alone and obtain a decree against him and may execute it by attachment and sale of the entire interest of the father as well as the sons in the joint family properties and the sale will bind the sons also though they were not made parties to the suit, unless the debt contracted by the father was for immoral or illegal purposes.
(2) Under similar conditions a creditor may sue both the father and the son on a debt due from the father alone and it is open to the son in such a suit to show that the debt incurred by the father was for an immoral Or illegal purpose; if he omits to do so, a creditor may obtain a decree against the father and son also. In such an event, the son will be precluded in execution proceedings from contending that the debt contracted was for an illegal or immoral purpose.
(3) Where a suit is instituted against a father and sons and a personal decree is passed against the father alone and the sons are exonerated, the decree can be executed against the interests of the sons in the joint family properties unless the sons show that the debt was illegal or immoral. As observed in the Full Bench decision Periasami Mudaliar v. Seetharama Chettiar I.L.R. 27 Mad. 243 , the decree against the father, by its own force, created a debt as against him, which his sons, according to the Hindu Law, were under an obligation to discharge unless they showed that the debt was illegal or immoral. This principle has been affirmed and reiterated by the two Bench decisions of this Court in Doraisami v. Nagasami : AIR1929Mad898 , and Krishnan Naidu v. Sami Naidu 51 L.W. 315 . This principle, however, is subject to an important qualification that the decision exonerating the sons should not amount to an adjudication that the sons were not liable under the Hindu Law in respect of the debt decreed against their father. If the sons, however, were exonerated from the suit on a finding that the debt was immoral or illegal, the decree obtained against the father alone will obviously not bind the shares of the sons; in that case, it cannot be legitimately contended that the decree will create a fresh debt against the father which will bind the sons under the theory of pious obligation. This qualification is clearly indicated in the judgment of our Full Bench in Periasami Mudaliar's case I.L.R. Mad. 243 , and is recognised by a Division Bench of this Court in Krishnan Naidu v. Sami Naidu 51 L.W. 315 .
(4) Where the father dies before the institution of the suit and the sons are sued on his personal debts, a creditor may rest content with obtaining a decree passed against the estate of the deceased in the hands of the sons as the legal representatives of the deceased. The decree would in that event be a decree under Section 52 of the Civil Procedure Code and the provisions of Section 53 will be consequently attracted; and the decree can be executed against the sons' shares in the joint family properties, not withstanding the fact that the sons' interest were not property of the deceased in the strict meaning of these words. Section 53 creates a fiction by which property not being the property of a legal representative is deemed to be his property in such capacity; and the object is to make it clear that the same remedy which might have been available by a separate suit is equally applicable in the execution department and that, although strictly speaking it cannot be said that the joint family property in the hands of a son of deceased Hindu is property which has come into his hands as the legal representative of the deceased, it must be deemed to have so come into his hands. It would no doubt be open to the sons to escape the operation of Section 53 Civil Procedure Code, by pleading and proving in the suit itself that the debt of the deceased father was avyavaharika and if the Court upholds their plea, it is obvious that it will not be open to the creditor who has obtained a decree only against the estate of the deceased in the hands of the sons to attach at the execution stage the share of the sons in the joint family properties by invoking the provisions of Section 53. I am, however, clear that there can be no statutory bar preventing the sons from raising the plea of avyavaharika at the execution stage, if they have not raised such a plea during the trial of the suit. Section 53 merely introduces a rule of procedure and is not intended to modify the Hindu law relating to the liability, etc. of the descendants for the ancestor's debts. It is open to the descendant to show in execution proceedings of a decree passed under Section 52, Civil Procedure Code, that, in fact, no pious obligation exists in view'-of illegality or immorality of the debt. Pennalal v. Mt. Maraini : 1SCR544 .
14. Where, however, in the suit filed by the creditor against the legal representatives of the deceased, some of the sons are exonerated and a decree is passed only against the sons as legal representatives of the deceased father and if the sons are exonerated from the suit after contest or with the consent of the creditor, the creditor will completely lose his remedy against the shares of the sons so exonerated in the joint family properties; and it will not be open to the creditor at the subsequent execution proceedings to plead that the sons would be liable to discharge a debt under the decree passed under Section 52 of the Civil Procedure Code, from out of their shares in the joint family properties. Raja Ram v. Raja Bakhsh Singh .
(5) The same principle would apply in cases where, after a suit had been instituted against the father and sons on a personal debt of the father the suit is prosecuted against the sons and his other legal representatives brought on record subsequent to his death.
15. The law on the subject is thus fairly clear; and the question for consideration in this appeal is whether the shares of the four respondents herein in the suit properties are liable to be attached and sold in execution of the decree. I have already set out the entire proceedings in the suit and it is seen that the suit had been decreed against all the respondents herein and that the decree debt is directed to be realised from the assets of the deceased father in the hands of respondents 1 to 4. Respondents 1 and 2 were no doubt exonerated from the suit as the suit against them was barred by limitation; but this did not amount to an adjudication that the debt was illegal or immoral and would not bind them. No such, plea was raised during the trial and a decree had been passed against them as legal representatives under Section 52 of the Civil Procedure Code, providing for the recovery of the debt from the estate of the deceased father in their hands. It is a clear case where Section 53 is immediately attracted and the consequence is that the shares of respondents 1, 2 and 4 in the joint family properties will, in law, be treated as the property of the deceased in their hands and that they will have to satisfy the decree debt also from out of their shares in the joint family properties, unless they showed in the execution proceedings that the debts are either illegal or immoral. Admittedly no such plea was taken.
16. The Privy Council decision in Raja Ram v. Raja Bakhsh Singh cited above cannot be of any help to the respondents. In that case, the grandsons were exonerated by the decree and it is pertinent to remember that, in that case, the sons against whom the decree was passed as legal representatives, though limited to the estate of the deceased in their hands, did not contend that their interests in the joint family properties were not liable for the decree debt held binding on their father. In fact, the principles' underlying the Privy Council decision actually support the appellant decree holder's contention.
17. I am also of opinion that the Allahabad decision in P.A. Mafia Nirvani v. Bindeshri Prasad : AIR1952All337 , cannot also be of any assistance to the respondents. That was a case where the sons were completely exonerated from the suit and it appears to me that the Allahabad High Court was therefore justified in refusing execution against the interests of the exonerated so as in the family properties liable for the simple money decree obtained against their father. The High Court may be wrong in dismissing the suit against the sons, because the trial Court had found that the debt was not tainted with immorality; but then there was no appeal against the decree and the Allahabad High Court therefore appears to have been right in holding that the sons, having been exonerated from the suit in spite of the finding of the trial Court that the debt was not tainted with immorality, cannot be resaddled with their obligation under the theory of pious obligation.
18. The admitted facts in the present case are : (1) that a decree had been passed against the estate of the deceased father in the hands of the respondents sons, and (2) that the respondents, who were entitled to set up in execution proceedings the plea that the debt was immoral or illegal, if such a plea was factually available to them, did not raise such a plea. On these admitted facts it appears to me clear that there can be no escape from the operation of Section 53 of the Civil Procedure Code.
19. It also appears to me that the appellant's case against the third respondent who is the widow of the deceased first defendant rests on a strong ground. Admittedly, an heir can lake the estate of the deceased only subject to the debts incurred by the latter and in this particular instance the decree is for the realisation of the money out of the estate of the deceased first defendant in the hands of the third respondent also.
20. For the foregoing reasons I am satisfied that the 3/12th share in the property which belongs to respondents 1 to 4 herein is available to the appellant-decree-holder for execution of the decree which he had obtained in the suit.
21. In the result, the orders passed by the District Munsif of Kancheepuram in E.A. No. 427 of 1964 and the order passed by the learned District Judge of Chingleput in C.M.A. No. 15 of 1965 confirming the order of the learned District Munsif aforesaid, are hereby set aside. The execution will proceed against the 3/12th share of respondents 1 to 4 in the property described in the schedule to the execution petition. In view of the complexity of the legal question involved, it is but proper that the parties should bear their own, costs here and in the Courts below. Leave granted.