Govinda Menon, J.
1. Krishnaswami Nayudu, J., expressing the opinion that there is a conflict between the decisions in Kunhappa Nambiar v. Shridevi Kettilamma (1895) I.L.R. 18 Mad. 451, and Kunhi Kannan v. Soopi : (1908)18MLJ132 , on the one hand and the Full Bench decision in Venkatanarayana v. Venkata Somaraju : (1937)2MLJ251 , on the other has referred this second appeal to a bench and that is how it comes before us.
2. The appellant was the petitioner in an application under Order 34, Rule 6 of the Civil Procedure Code for a personal decree in O.S. No. 505 of 1936 on the file of the District Munsif, Tellicherry. That application was allowed by the trial Court but in appeal the learned District Judge set aside the personal decree passed by the trial Court and dismissed the application R.M.P. No. 47 of 1942.
3. The facts are shortly these: The appellant was a tenant under the tarwad of the respondent and because the land revenue on the leased property had not been paid by the jenmi he was compelled to pay the same and thereafter O.S. No. 505 of 1936 was brought as a mortgage suit for the recovery of the amount paid by him by sale of the rights of the jenmi. To that suit the karnavan of the tarwad representing the family as such, was the only defendant. A preliminary decree, Exhibit A-1 was passed on 30th July, 1937, for realisation of the amount claimed by the sale of the jenmi's rights in the holding and the final decree was passed on 1st December, 1937 (Exhibit A-2). No member of the tarwad other than the karnavan was made a party to any of these proceedings. Thereafter execution was taken out and the property was sold on 23rd November, 1939, as a result of which only a part of the decree amount was realised. Even to these sale proceedings, only the sole defendant in O.S. No. 505 of 1936 was made a party.
4. Not being able to realise the full amount due under the decree, the appellant filed R.M.P. No. 47 of 1942 out of which the present second appeal arises for passing a personal decree against all the members of the tarwad so that the balance of the decree amount can be realised by attachment and sale of other properties which belonged to the tarwad. This application was filed on 5th January, 1942. Pending O.S. No. 505 of 1936, some of the members of the tarwad had filed a suit for partition on 7th April, 1937, in which a preliminary decree, Exhibit B-1 had been passed on 31st December, 1938. In the preliminary decree there was a provision that the decree in O.S. No. 505 of 1936 represented a valid and binding debt on the tarwad and as such it should be discharged by the tarwad. The final decree in that suit was passed on 6th April, 1940, in and by which the decree debt in O.S. No. 505 of 1936 was allotted to the share of respondents 2 and 3 in the present application.
5. For the passing of the personal decree, objection was taken that as to the execution proceedings in O.S. No. 505 of 1936, persons who were members of the tarwad which became disrupted by the filing of the partition suit on 7th April, 1937, had not been eo nomine made parties and as the quondam karnavan had lost his representative capacity by the time the execution petition had been filed, the sale proceedings were void and therefore, the condition precedent to the application for the passing of the personal decree had not come into effect and hence R.M.P. No. 47 of 1942 should be dismissed. The Court of first instance disagreed with this contention on the ground that the only objection taken before it was about the validity of the decree and that having been found against the petition was maintainable. The trial Court set out the contention thus:
The respondents, therefore, now cannot be heard to say that the decree is invalid and vitiated because all the members of the tarwad were not impleaded in O.S. No. 505 of 1936 consequent on the disruption of the status of the judgment-debtor as the karnavan and manager. This was the vital objection canvassed before me in these proceedings against the validity of the decree in question against the tarwad for the purpose of obtaining a personal decree.
The learned District Munsif did not find his way to uphold this objection because according to him at the time, the suit was instituted the first defendant had full power and authority to represent the tarwad and as such a representative capacity cannot cease to exist by the disruption of the joint status of the tarwad pending the suit and unless and until the other erstwhile members of the tarwad got themselves impleaded and thereby disavowed the karnavan's representative capacity it should be held that the tarwad was properly represented in that suit. Therefore, a personal decree was passed. On appeal by the respondent against this order, the learned District Judge formulated two points for consideration:
(1) Whether the preliminary decree in O.S. No. 505 of 1936 is not valid and binding on the defendant's tarwad;
(2) Whether the final decree and execution proceedings in that suit are not binding on the tarwad and hence such a petition for personal decree without exhausting the security is not maintainable.
On the first point following the Full Bench decision in Venkatanarayana Rao v. Venkata Somaraju : (1937)2MLJ251 , he held that the decree in O.S. No. 505 of 1936 was binding on every member of the tarwad even though the quondam karnavan alone was on record at the time of passing the preliminary and the final decrees. On the second point following the decisions in Kunhappa Nambiar v. Shridevi Kettilamma (1895) I.L.R. 18 Mad. 451 and Kunhi Kannan v. Soopi : (1908)18MLJ132 , the learned District Judge came to the conclusion that as in the execution proceedings persons to whom the tarwad properties had been allotted in the partition and who represented the various interests were not on record the sale in pursuance of the decree would not be binding on persons who were not eo nomine parties. Therefore the appeal was allowed and the personal decree passed by the trial Court was set aside and hence this second appeal.
6. The effect of the disruption of joint status in a Hindu family with regard to a suit to which only the kartha of the family had been made a party but not the other members, had been considered very recently by their lordships of the Supreme Court in Pannalal v. Mst. Naraini (1952) 2 M.L.J. 83 : (1952) S.C.J. 211 : 1952 S.C.R. 554. There are observations of Mukherjea, J., at page 91 to the effect that when a decree is obtained against the manager of the family who happened to be the kartha and later on there is a partition, how the liability has to be enforced by the creditor either during the lifetime of the father or after his death. The learned Judge then goes on to observe:
It has been held in a large number of cases all of which recognise the liability of the son to pay the pre-partition debts of the father-that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition. They concur in holding that a separate and independent suit must be instituted against the sons before their shares can be reached. The principles underlying these decisions seem to us to be quite sound. After a partition takes place, the father can no longer represent the family and a decree obtained against him alone cannot be binding on the separated sons. In the second place the power exercisable by the father of selling the interests of the sons for satisfaction of his personal debts comes to an end with partition. As the separated shares of the sons cannot be said to belong to the father nor has he any disposing power over it or its profits which he can exercise for his benefit the provision of Section 60 of the Civil Procedure Code would operate as a bar to the attachment and sale of any such property in execution of a decree against the father. The position has been correctly stated by the Nagpur High Court Jainarayan Mulchand and Anr. v. Sonaji and Ors., I.L.R. (1938) Nag. 136, in the following passages:
To say a son is under a pious obligation to pay certain debts is one thing: to say his property can be taken in execution is another. In our view property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold. What that is, is found by looking at Section 60. When one looks at Section 60 one finds that the property in question should either belong to the judgment-debtor or he should have a disposing power over it. After partition the share that goes to the son does not belong to the father and the father has no disposing power over it. Therefore such property does not fall within Section 60.... It by no means follows that a son cannot be made liable. He could be made liable for his father's debts if he had become a surety. He can be made liable under the pious obligation rule. In neither of the cases put could his liability take the form of having his property seized in execution and sold without any prior proceedings brought against him leaving him to raise the question whether his liability as surety or under the pious obligation rule precluded him from claiming in execution.
It is, therefore, clear from these authoritative observations that when a partition has actually taken place, in order to bind the son with the liability of a pre-partition debt, a decree must be obtained against the son and it would not be sufficient if a decree is obtained against the father alone. That is, when once the joint character and the coparcenery are both dissolved then the representative character of the kartha ceases to exist and despite the pious obligation of the son to pay the debts of his father which are neither illegal nor immoral, the remedy can be enforced only in a suit to which the son is made a party. That means that it is impossible to have representation by the father after the family has got disrupted.
7. In Venkatanarayana v. Somaraju : (1937)2MLJ251 , two Judges who were members of the Full Bench were of opinion that if at the time the suit is filed against the manager of a joint family representing it as such, he had power to represent the family then the subsequent disruption of the joint family pending suit would not take away from the manager the right to represent the group and a decree passed against such a manager alone will be binding on all the members. At page 894 Venkatasubba Rao, J., observes as follows:
The question remains, does the fact that subsequent to the suit there was a partition make any difference? The reason for holding that the members not joined should be held liable is, that they arc substantially parties to the suit through the manager, in other words, they are sufficiently represented though not eo nomine parties on the record. It follows from this that the decree can be executed not only against the parties whose names appear but also against those who must be deemed to be constructive parties. In this view it is immaterial whether the family continues to remain joint or became divided.
At page 904 Venkataramana Rao, J., observed as follows:
The suit having been properly constituted, any severance of status among the several members of the family would not divest the representative character of the manager therein till the other members choose to disaffirm it; he was entitled to carry on the litigation for and on behalf of the respondent and can be held accountable in respect thereof.
This decision came in for discussion before another Full Bench in Nagi Reddi v. Somappa (1942) 1 M.LJ. 691 : I.L.R. (1943) Mad. 248, but the learned Judges there, did not dissent from the view quoted above, that if at the time of the suit or at the very inception when the suit was laid the manager had a representative character he would not cease to be the representative pending the suit even though there has been a severance of status between him and the other members of the family.
8. Mr. Gopalan Nambiar for the appellant contends that the observations of the learned Judges quoted above should be extended to the case of execution proceedings also. It is argued that if a decree obtained against such a quondam manager can validly be executed against the properties of the family then it stands to reason that in the execution proceedings the erstwhile manager can represent the other members to whom properties had been allotted under partition or who have become tenants in common. We do not think that this extension can be justified. All that the learned Judges point out in Venkatanarayana v. Venkata Somaraju : (1937)2MLJ251 , is to this effect that despite the fact that the manager has lost his representative character pendente lite a decree passed against him would bind the entire properties of the joint family. But it is one thing to say that the decree would be binding and another thing to say that the decree can be enforced in execution proceedings behind the back of the other members of the family. We do not think that the learned Judges have gone to that extent. Mr. Gopalan Nambiar then placed reliance on an unreported decision by Raghava Rao, J., in S.A. No. 319 of 1948. The learned Judge in that case discussed the application of the decision in Venkatanarayana v. Venkata Somaraju : (1937)2MLJ251 , to a tarwad and was of the opinion that the line of reasoning in the Full Bench case has not in any way been affected by the subsequent Full Bench decision in Magi Reddi V. Somappa : AIR1943Mad1 . From the facts of that case it is clear that after the decree was obtained against the quondam manager the decree-holder assigned it in favour of the respondents therein who applied to the Court which passed the decree to recognise the transfer. Notice of that application was given to all the members of the tarwad. Not one of them raised any objection to such a transfer. It was only thereafter that the properties were attached and sold with the quondam karnavan alone being made a party and such a sale was held valid. We do not think that the observations of the learned Judge, wide as they are, in certain aspects can be made applicable to the present case. The learned Judge was of opinion that because the other members of the tarwad did not raise any objection to the transfer of the decree in favour of the assignee from the decree-holder they must be deemed to have consented to the representative character of the quondam karnavan to bind the tarwad. It seems to us that the observations of Raghava Rao, J., in S.A. No. 319 of 1948 cannot be attracted for the proposition that in order to bind the divided members of a tarwad in execution proceedings it would be sufficient if only the erstwhile karnavan is made a party but not the other members of the tarwad. The decisions in Kunhappa Nambiar v. Shridevi Kettilamma I.L.R. (1895) Mad. 451 and Kunhi Kannan v. Soopi : (1908)18MLJ132 , amply bear out the proposition that after a tarwad has got divided, a decree obtained against the karnavan before such division cannot be executed as against the properties which had been tarwad properties but allotted to the other members after the decree, and therefore, any attachment and sale of the properties in execution of that decree without the person to whom those properties had been allotted being made a party in the execution proceedings would not be valid and binding. To the same effect is the decision in Kunhi Kannan v. Soopi : (1908)18MLJ132 . The learned Judges, Benson and Wallis, JJ., held that the members of a tarwad cannot escape liability for debts or decrees binding on the tarwad by dividing themselves into tavazhies; but where the karnavan of the original tarwad has ceased to represent them they cannot be bound by proceedings in execution of a decree against him unless they are separately represented in the execution proceedings. The decision in Kunhappa Nambiar v. Shridevi Kettilamma : (1949)2MLJ751 , was followed. We see no reason why the principles enunciated therein should not be applied to the facts of the present case. We may also observe that there are observations in Ramanatha Chettiar v. Ramanathan Chettiar : (1949)2MLJ751 , to the effect that in execution proceedings after the disruption of the family all the members sought to be made liable for the decree debt should be made parties. Our attention was next invited by the learned Counsel for the appellant to the decision in Sankara Pattar v. Ramanatha Ayyar (1934) 2 M.L.J. 135, to which one of us (Govinda Menon, J.) was a party. The facts of that case show that after the joint family got disrupted a decree was obtained by the erstwhile manager representing the family without any objection by the other coparceners and in the family partition this decree was allotted to one of the coparceners and when he tried to execute it without its being transferred either by operation of law or by a written instrument objection was taken that the transferee was not entitled to execute the decree. The Court came to the conclusion that there was no valid transfer of the decree and so the provisions of Order 21, Rule 16, Civil Procedure Code, cannot be invoked in favour of such a transferee. We do not think that there are any observations which could be called in aid in support of the contention that is now put forward on behalf of the appellant. We, therefore, feel that even if the final decree was binding on all the members of the erstwhile tarwad still in the execution proceedings since only the quondam karnavan alone was made a party such execution proceedings cannot bind the other members. In the result the decision of the learned District Judge is correct and this second appeal is dismissed but in the circumstances without costs.