1. The respondent was the nearest agnate of one Muthukrishna. The deceased man left two sisters who, soon after his death, purported to lease the property of their brother to certain persons who were the third and fourth defendants in a suit brought by the respondent. Defendants 3 and 4 were not members of the same family; but were impleaded as persons who had trespassed on the property under colour of a lease which the lessors had no power to grant. A decree was obtained against the third and fourth defendants. The present appellant is the son of the third defendant, who. died in 1936 after the decree had been passed. Prior to the passing of the decree, however, the third defendant divided from his son, the appellant. The respondent now seeks to execute his decree against the appellant, although he was not a party to the original decree. The respondent contends that the appellant's father was sued in a representative capacity as the manager and father of the family. He also pleads that in any event, Section 53, Civil Procedure Code would apply and so the property that came into the hands of the appellant upon partition is liable for his father's debt. The first Court found as a fact that the father of the appellant was sued in a representative capacity and held that the case was directly covered by the Full Bench decision of this Court in Venkatanarayana v. Somaraju : (1937)2MLJ251 . The Subordinate Judge in appeal did not go into the question whether the father was sued in a representative capacity; but he seemed to be of opinion--relying on some remarks in the judgments of Venkatasubba Rao and Venkataramana Rao, JJ., in the above Full Bench case--that that must be presumed. lie also referred to the decision of Cornish, J., who while agreeing with Venkatasubba Rao and Venkataramana Rao, JJ. that the suit was filed against the father in a representative capacity, yet thought that even if that were not so, Section 53 would make the son's share liable.
2. In the case considered by the Full Bench in Venkatanarayana v. Somaraju : (1937)2MLJ251 , the father had purchased the suit property on behalf of the family. The learned Judges found, after considering the history of this land, that the father had behaved in a representative capacity for many years and that it was extremely unlikely that he was not sued in the same representative capacity. In the present case, however, defendants 3 and 4 took a lease of the land from two ladies who they must have known had no right to the property. They were therefore trespassers. It is difficult to see how a joint family can commit a tort. Only persons can commit a trespass and they alone are liable for the tort committed by them. If the sons were joint trespassers, they would be liable as joint tortfeasors and could be made liable only by impleading them. Moreover, the persons who obtained leases from the sisters of the former owner of the land were not of the same family which itself indicates that the land was not taken possession of in the name of the family. Reference has been made to a dictum of Venkataramana Rao, J., in his judgment in the Full Bench case in Venkatanarayana v. Somaraju : (1937)2MLJ251 , which is said to be incorrect in view of the later Full Bench case in Nagireddi v. Somappa : AIR1943Mad1 , but it is not necessary to say this; for what Venkataramana Rao, J., said was,
Where the suit relates to a joint family property and the person sued is either the father or the eldest member, the accredited head of the family, it must be presumed that he was sued as representing his family....
This suit, unlike in Venkatanarayana v. Somaraju : (1937)2MLJ251 is not with regard to the joint family property of the third defendant. It relates to property belonging to the respondent, the members of the joint family merely having trespassed on it. So that even if we accept the dictum of Venkataramana Rao, J. it would not operate in this case. I therefore conclude that Venkatanarayana v. Somaram : (1937)2MLJ251 , has no application to this case.
3. Apart from Section 53, Civil Procedure Code, I think there can be little doubt that if a decree is obtained against a father personally, it cannot be executed against somebody who is a stranger to the suit. If he is to be made liable, a separate suit must be filed. That proposition is not seriously disputed by Mr. Gopalakrishna Ayyar, for the respondent. It was laid down as early as Krishnaswami Konan v. Ramaswami Iyer (1899) 9 M.L.J. 127 : I.L.R. Mad. 519 and has been recently affirmed by King, J. in Rangaswami Goundan v. Kandaswami Goundan : AIR1942Mad335 .
4. There remains for consideration the effect of Section 53, Civil Procedure Code. It runs,
For the purposes of Section 50 and Section 52, property in the hands of a son or other descendant which is liable under 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.
There can be no doubt in this case that the property in the hands of the son which fell to his share on partition is liable under Hindu law for the payment of his father's debt in respect of which a decree has been passed. It would therefore follow from the legal fiction expressed in this section that the property is to be deemed to be the property of the deceased which has come into his hands as legal representative and so can be proceeded against in execution under Section 50 or under Section 52. In Firm Govindram Dwarkadas v. Nathulal the opposite view was taken. The learned Judges say that,
The sons' share cannot be regarded as ' assets ' of the father for two reasons, (1) they constitute the sons' property and not the father's and (2) they do not share the nature of the property to which the sons succeed after their father's death. Section 53, Civil Procedure Code which is. the only provision which can have any bearing on the issue, speaks of ' a deceased ancestor' and ' property of the deceased ' which has come to the hands of the sons and it cannot be stretched to apply to the property which the sons obtain on partition with their father.
It is true of course, that the property in the son's hands after partition was not the property of the deceased. Nor has it come into his hands as a legal representative; but as Cornish, J. pointed out in the Full Bench decision, Venkatanarayana v. Somaraju : (1937)2MLJ251 , Section 53 does not require that the property should be that of the deceased or should have come into the hands of the legal representative, but only says that property in the hands of the son liable for the father's debt should be deemed under this fiction to be property of the deceased which has come into the son's hands as his legal representative. He quotes Mr. Justice Cave in the Queen v.. Norfolk County Council (1891) 60 L.J.Q.B. 379
When you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless, for the purposes of the Act, it is to be deemed to be that thing.
Cornish, J., refers to and criticises a Full Bench decision of the Patna High Court in Atul Krishna Ray v. Lal Nandanji I.L.R. (1935) Pat. 732 in which two of the learned Judges were of opinion that Section 53 did not apply to cases where the son was divided, whereas the third Judge, Wort, J. held the opinion approved of by Cornish, J. I prefer for the above reasons to follow the decision of Cornish, J. and to give Section 53, Civil Procedure Code its literal interpretation. As Cornish, J. remarked, it does not work any injustice; for it merely lays down a procedure and enables the son's property to be proceeded against in execution instead of forcing the decree-holder to proceed to a separate suit.
5. The appeal is dismissed with costs.