1. This is an appeal against orders made by the District Judge of North Arcot on execution petitions presented by creditors of the late Raja of Karvetnager against his son, the present Raja.
2. The decrees were obtained against the late Rajah and the petitioners sought to execute them against the present Rajah as the legal representative of his father.
3. The decrees may be classified under 3, heads:
1. Mortgage decrees.
2. Decrees in execution of which properties have already been attached.
3. Decrees which creditors are now seeking to execute for the first time.
4. As regards classes 1 and 2, the Judge overruled the objections of the present Raja and allowed execution to proceed. As regards class 3 he dismissed the applications for attachment, but returned the applications with leave to represent them with an express statement that the property which the petitioners sought to take in execution was the separate property of the deceased Raja.
5. The present Raja relies on an alleged custom that the estate of Karvetnager is inalienable except for purposes for which the manager of a joint Hindu family can, as such manager, alienate joint family property (See the order of the Judge, paragraph 1). The appeal was argued so far as the alleged custom was concerned by way of demurrer, i.e., the alleged custom was assumed to exist. If, therefore, our decision on the questions of law which have been raised is in favour of the present Raja on the strength of the custom, the case will have to go back for a finding with reference to the alleged custom. We deal with the questions of law on the assumption that the tenure of the estate is governed by the alleged custom of inalienability qualified as stated.
6. It is obvious that whilst special questions of law arise in connection with the mortgage decrees and the decrees in execution of which properties were attached during the lifetime of the late Raja, the questions of law which have to be considered in connection with decrees in which attachment is now sought for the first time have also to be considered in connection with the other two classes of cases. It, therefore, seems convenient to deal with the 3rd class of cases in the first instance.
7. The argument on behalf of the present Raja, putting it broadly was (1) that the estate being inalienable, he took it not by inheritance but by survivorship and this being so, the interest of the late Raja came to an end on his death, and that, consequently, no property of the deceased had come to the hands of the present Raja within the meaning of Section 234 of the Code of Civil Procedure : (2) that the custom overrode the liability of the son under the Hindu law to pay the father's debts and that, in any view, the decrees could not be enforced unless the creditors could establish that the decrees were in respect of debts which were binding on the family, and that this could only be made out by an independent suit and could not be established in execution proceedings.
8. With reference to those questions we adopt the exposition of the law given by Sir Bhushyam Iyenger in this judgment in Periasami Mudaliar v. Seetharama Chettiar 27 M.K 243: 'If the decree was obtained against the father only and the father dies before the decree is executed or fully executed, the decree can, of course, be executed against the son (under Section 234 of the Civil Procedure Code) in his character as legal representative of the deceased judgment-debtor; and in that case only the separate or self-acquired property of the deceased father can be attached and sold as the property of the deceased which has come to the hands of the legal representative, but according to the course of decisions in the Presidency, the joint family property in the hands of the son could not be attached and sold either in whole or in part, the ratio decidendi of these decisions being that in executing the decree against the son on the death of the father, the question whether the debt is an ilegal or immoral one cannot be raised in execution proceedings and that the decree can be executed against the son under Section 234, Civil Procedure Code, only as the legal representative of his deceased father, who, equally, with the father, will be bound by the decree, whatever may have been the character of the debt but who will be liable to satisfy the decree only to the extent of the assets' of the deceased father, i.e., his separate or self-acquired property, which have come to his hands.'
9. It is settled law that for purposes of succession an impartible estate descends as if the estate of the father was joint and not separate. See Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Singh L.R. 17 IndAp 128 when it was held by the Privy Council that for determining who is to be heir to an impartible estate the same rules apply which govern the succession to partible estates though the states can be held by only one member of the family at a time. The question for our consideration is 'was the interest of the late Rajah joint with his son in the sense that on his death, it survived to the son.'
10. Prior to the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari L.R. 15 IndAp 51 the law applied in connection with the succession to an ancestral impartible estate was that applicable to ordinary joint family property. See Sri Rajah Yenumala Gauri Devamma Garu v. Sri Rajah Yenumula Ramandara Garu 6 M.H.C.R. 93. The law, however, was altered by the decision of the Privy Council in the Allahabad case. The effect of the decision may be thus stated. In the case of an impartible estate there is no co-parcenary right as, under the Mitahshara law, which governs the descent of ordinary property, attaches to a son on his birth. The right to partition is so connected with the right by birth that if there is no right to partition there is no right by birth. During the lifetime of the holder of the estate for the time being the son has no present interest in the estate and the son's right to restrain alienation being an incident of his right by birth, as there is no right by birth, there is no right to restrain. It was contended that the logical result of this decision is that the holder is the exclusive owner of the estate and has full disposing power over it, and that parties who would be entitled to share if the estate were partible have no rights beyond such rights to maintenance as they may have under the Hindu law, and that as regards questions of liability for debts ah impartible estate is not governed by the law applicable to ordinary joint family property. In Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards 22 M.K 383 it was held that the right of alienation which was recognised in Sartaj Kuari v. Deoraj Kuari L.R. 15 IndAp 51 might be exercised by will. The principle that the right to take by survivorships depends on the right to partition was re affirmed by the Privy Council in Venkayyamma Garu v. Venkataramanayamma Bahadur Garu 25 M.K 678. These decisions would seem to establish that apart from any custom the holder of an impartible estate for the time being has complete dominion over it subject to the rights of maintenance in other members of the family. If, during the lifetime of the bolder no other member of the family has any present proprietary interest in the estate it follows that there is nothing to survive on the death of the holder and the estate descends as if it were a separate estate, subject to the special rule of law that for the purpose of ascertaining the party on whom the estate devolves the property is to be regarded not as a separate estate but as joint family property.
11. Apart, therefore, from any question of custom it seems to us that it follows from the decisions to which we have referred that the property of the deceased Raja must be regarded as assets in the hands of his legal representative for the purpose of Section 234 of the Code of 1882. The two Madras cases on which the Judge relied Zamindar of Savigiri v. Alwar Ayyangar 3 M.K 42; Arunachala v. Zemindar of Savigiri and Zemindar of Savigiri v. Arunachala 7 M.K 328 were both prior to the decision of the Privy Council in Sartaj Kuari v. Deoraj Kuari L.R. 15 IndAp 51. In judgments of the Privy Council subsequent to the decision in Sartaj Kuari v. Deoraj Kuari L.R. 15 IndAp 51 expressions are no doubt to be found which, taken alone, may be said to indicate that the successor to an impartible estate takes by survivorship. In Jogondro Bhupati Hurrochandra Mahapatra v. Nityanand Man Singh L.R. 17 IndAp 128 the question for determination was whether under the Mitakshara law among Sudras an illegiti-mate son was entitled to succeed to an impartible zamindary on the death of his legitimate brother and the Privy Council observed that the illegitimate brother was entitled to succeed by survivorship. No question then arose as the nature of the estate taken by the holder for the time being or as to whether co-parcenary subsisted between the two brothers, the only question being whether illegitimacy was a bar to succeeding to the estate. The judgment of the Privy Council was delivered by the same learned Judge Sir R. Couch, who delivered the judgment in Sartaj Kuari v. Deoraj Kuari L.R. 15 IndAp 51 and contains no reference to the earlier case. We do not think there is any real conflict between the decisions. In Imudipatam Thirugnana Kandama Naik v. Periya Dorasami 24 M.k 377 the estate in question was described by the Privy Council in general terms as a joint estate though impartible' (See page 385), but the question we have to consider was not before their Lordships. Further it is settled law that, for purposes of tracing the time of descent the interest of the son is regarded as joint and not separate. As Miller, J. points out in his judgment in Rajah of Kalahasti v. Achigadu 30 M. 454: 'In Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Singh L.R. 17 IndAp 128 a case decided after the case of Sartaj Kuari v. Deoraj Kuari mother and guardian of Lal Narindar Bahadur Pal L.R. 15 IndAp 51, but before the Pittapur case Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards and Venkata kumari Mahipati Surya Rao L.R. 26 IndAp 83 their Lordships of the Privy Council held that the succession in that case was 'by virtue of survivorship,' but in an earlier part of the judgment they explain that, 'in considering who is to succeed on the death of the Raja, the rules which govern the succession to a partible estate are to be looked at,' that is to say as we understand it the Raja's successor is to be chosen from among those who 'but for the impartibility of the estate would have been co-parceners with him' Stree Raja Yanumula Venkayamah v. Stree Raiah Yanumula Boochi Venkondora 13 M.I.A. 333. And in the Pittapur case (5) their Lordships point out that the language used in Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Singh L.R. 17 IndAp 128 was intended to apply only to the succession to the estate.'
12. In The Udayarpalayam Case 28 M.k 508. Lord Macnaughten in delivering the judgment of the Privy Council uses the expression: 'When impartible property passes by survivorship,' but here as in Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Singh L.R. 17 IndAp 128 their Lordships were not dealing with the question whether co-parcenary subsisted between the party from whom, and the party to whom, the estate passed. Moreover, Lord Macnaughten adopts the expression from the decision in Naraganti Achamma Garu v. Venkatachalapati Nayanivaru; Venkatachalapati Nayanivaru v. Gopal Nayanivaru and Chellamma Garu v. Gopal; Nayanivaru 4 M.k 250 a case decided before the decision in Sartaj Kauri v. Deoraj Kuari L.R. 15 IndAp 51. In Abdul Aziz Khan v. Appayasami Naicker 27 M.k 131 the Privy Council clearly recognises the principle that an impartible estate does not pass by survivorship. In the Indian High Courts there is a direct conflict of authority upon the question under consideration. In Calcutta it was held in Kali Krishna Sarkar v. Raghunath Deb 31 C.k 224 following an earlier decision and dissenting from another earlier decision of that Court, that the interest which a deceased member of a Mitakshara family had in an impartible Raj as proprietor, was not assets in the hands of his successor and proceeding under Section 234 of the Code of Civil Procedure could not be taken against the latter as representative of the deceased.
13. With reference to this case it is to be observed that it was conceded that the respondent had succeeded to the estate by virtue of the law of survivorship. (See page 227.) In the case before us it is contended that the present Raja had not succeeded because rights of survivorship have accrued to him, although it is not disputed that the line of descent is to be traced as if the property had been ordinary ancestral family property. Further, the passages from the judgment of the Privy Council on which the Calcutta Court relied were all passages dealing with the question of the rule of succession with reference to the party entitled to succeed, not with the question of the nature of the estate which devolved upon the party entitled to succeed.
14. In this High Court there is direct conflict between the view taken in Nachippa Chettiar v. Chinnayasami Naicher 29 M.g 453 and that taken in Rajah of Kalahasti v. Achigadu 30 M.k 454. In the former case it was held by Sankaran Nair, J. that an undivided member who succeeds to ancestral impartible property to the exclusion of nearer heirs of the last holder, does so only by right of survivorship. Katama Nauchiar v. The Rajah of Shivagangah 9 M.I.A. 539 and not simply as a member of the family of which he and the last holder were undivided members. In the Rajah of Kalahasti v. Achigadu 30 M.k 454 it was held that the successor to an impartible estate is not a co-owner with his predecessor in the moneys due to the latter before his death. He denies his title to such debts only at the death of his predecessor, as part of such predecessor's effects and cannot recover them without obtaining a certificate under Act VII of 1889, that the rule of succession in impartible estates was based on a theoretical co-parcenary and not on any actual unity of interest between the predecessor and his successor, and that this theoretical community of interest could be applied only for the purpose of determining the succession and for no other purpose whatsoever.
15. It is not necessary for us to discuss these decisions at length. We content ourselves with saying that we agree with the conclusions arrived at by the learned Judges in Rajah of Kalahasti v. Achigadu 30 M. 454 and with the reasoning upon which the conclusion is based.
16. The view taken in Rajah of Kalahasti v. Achigadu 30 M.k 454 is in accordance with that taken in Ramasami Naik v. Ramasami Chetti 30 M.k 255 where it was contended that in the case of an impartible zamindary there was a dorment co-ownership in all the male members of the family in conjunction with the holder of the estate for the time being, but the Court in accordance with the decision in Sartaj Kuari v. Deoraj Kuari L.R. 15 IndAp 51 declined to accede to the contention. In Veera Surappa Nayani v. Errappa Naidu 29 M.k 484 the same view was taken.
17. Sartaj Kuari v. Deoraj Kuari 10 A.p 272 decided that if the son had no right to partition he had no proprietary right at birth. If he had no proprietary right at birth it seems to me to follow that the whole estate is in the holder for the time being. If the whole estate is in the holder for the time being there is nothing to survive on his death, and we find nothing in the judgments of the Privy Council since Sartaj Kuari v. Deoraj Kuari L.R. 15 IndAp 51 as we read them, which is in real conflict with this proposition.
18. We have considered the case so far apart from the alleged custom. The question remains, assuming the custom to be proved, is the zamindary in the hands of the son assets which can not proceeded against in execution in satisfaction of the judgment-debt against the father. It Rooms to us the answer to this question depends on whether the custom relied on is a custom under which co-parcenary subsisted between the father and the son. If it did, the property in the hands of the son cannot be taken in. execution, if it did not, it can. Now the custom alleged is not that the property of the late Raja is not liable for his debts and is not a custom under which there is co-ownership or dormant co-ownership in the members of the family with the holder of the estate for the time being. It is a custom under which the dominion of the holder for the time being as regards alienation is a restricted dominion limited to the cases in which the manager of a joint Hindu family can, as manager, alienate joint family property. The Hindu conception of ownership as consisting in exclusive use does not necessarily include a right of alienation. See West and Buhler, page 318. Unless the custom involves co-parcenary, and in our view it does not, the custom as it seems to us makes no difference with regard to the question we have to decide. In Ramasami Naick v. Ramasami Chetty 30 M.k 255 when the special custom was proved, the Judges observed: '' Here the special custom has been proved, but the fact that the zamindar is restrained by special custom from alienating beyond his own lifetime does not in our opinion prove that the other members of the family are dorment co-owners with him of the zamindary and this is not the effect of the decision in Sivasubmmania Naicker v. Krishnammal 18 M.k 287
19. Further, in our opinion, it is not open to the son either (1) to set up the alleged custom in execution proceedings. If he wishes to establish a custom or to challenge a transaction as having been in contravention of the custom, he must do so by way of separate suit in the same way as if he were seeking to establish that the debt on which the decree had been obtained was illegal or immoral. With regard to the other two classes of cases, the reason on which the conclusion we have come to with regard to the 1st class of cases is based is generally speaking applicable. Special questions law, however, arise in connection with the 1st classes of cases. With regard to the mortgage decrees the Judge held that the judgment-creditors were entitled to proceed by way of execution. As regards these decrees the question is not to be determined with reference to the extent or character of the Raja's liability under Section 234 of the Code of Civil Procedure. The decrees themselves direct the sale of the property and in our opinion it is not open to the present Raja to impeach the validity of the decrees in execution proceedings. We have already expressed the opinion that the custom set up does not involve the existence of a coparcenary. In this view what the decree directs to be sold is the interest of the late Raja as full owner. Even if the custom does involve the existence of a co-parcenary what the decree directs to be sold is the interest which the late Raja, as managing member, had power to deal with. The question whether a given transaction was beyond his power would be a matter to be determined by a separate suit.
20. The distinction between a mortgage decree and a money decree has been frequently pointed out. In Hardi Narain Sahu v. Ruder Perhash Misser L.R. 11 IndAp 26 the decree was a money decree and the Privy Council in giving judgment in that case observe that that case was distinguishable from the cases where the father, being a member of a joint family governed by the Mitakshara law, had mortgaged the family property to secure a debt and a decree had been obtained upon the mortgage and for realization of the debt by means of the sale of the mortgaged property.
21. There is abundance of authority to support the proposition that a decree in a mortgage suit directing sale cannot be impeached in execution proceedings. We may refer to the decision of this Court in Kumaretta Servaigaran v. Sabapathy Chettiar 30 M.k 26 and Tal-lapragada Sundarappa v. Boorugapalli Sree Ramulu 30 M.k 402 and the decision of the Calcutta High Court in Daulat Ram v. Mehr Chand 15 C.p 70. In Sanwal Das v. Bismillah Begam 19 A.p 480 the law is thus laid down: 'There is an essential difference between the execution of a decree for money by the sale of the property and the execution of a decree for sale of property specified in the decree. In the first case any third person can intervene in the execution of a decree and show that the decree could not be executed against particular property, if that property was not the property of the judgment-debtor, but was the property of the person opposing. Similarly in the case of a decree for money, where the judgment-debtor dies, his representative is entitled to oppose the execution of the decree against any particular property by showing that property was not the property of the judgment-debtor but was the property of the person opposing. Similarly in the case of a decree for money, where the judgment-debtor dies, his representative is entitled to oppose the execution of the decree against any particular property by showing that the property was not the property of the judgment-debtor and was the property of the representative, as for example, that it was his self-acquired property. That course can be taken by a stranger or a representative in execution of a decree for money for this reason, that a decree for money is not based upon any adjudication that the particular property or in fact any property, which may subsequently be brought to sale in execution of the decree, was the property of the judgment-debtor or property which would be liable for his debts. Consequently, when such objection is taken before the Court executing a decree for money, that Court has power to inquire into and decide on any such objection taken to the execution of the decree against any particular property. Where, however, the decree is a decree for sale under the Transfer of Property Act, the Court executing the decree must sell the property decreed to be sold and leave anyone objecting to the execution of the decree against that particular property to such remedy as he may have by a suit or by resistance to the possession of the purchaser.' The judgment in Inladhar v. Chaturbhuj 21 A.P 277 is a decision to the same effect. The case Kuriyalli v. Mayan 7 M.K 255 no doubt supports the contention that the rights of the judgment-creditors who have obtained mortgage decrees can be determined in execution proceedings, but as Mr. Sundra Iyer pointed out in that case the Court would seem to have overlooked the fact that the decree itself contained a direction for sale and that notwithstanding the decree for sale the properties had been attached as if the proceedings had been in execution of a money-decree. Apparently all the cases in which Kuriyalli v. Mayan 7 M.K 255 is cited with approval are cases in which the decree sought to be executed was a simple money decree or, at any rate, was not a mortgage-decree and the question we have to dertermine did not arise. See Mungeshur Kuar v. Jamoona Prashad 16 C.K 603 and Prosunno Kumar Sanyal v. Kali Das Sanyal 19 C.P 688.
22. In Narayan Dashrath v. Ramrao Bhujangrao 3 Bom. L.R. 482 which was relied on behalf of the present Raja, the question we have to determine does not appear to have been raised and the same observation would seem to apply to Sivarama Sastrial v. Somasundra Mudali 28 M.K 119. Chander Pershad v. Sham Koer 33 C.K 676 no doubt supports the contention put forward on behalf of the present Raja, but we think the balance of authority is against the view taken in that case. As pointed out by the Judge in C.M. A. No. 156 of 1905 this Court doubted the soundness of the decision in Kuriyalli v. Mayan 7 M.K 255 on the point in question. Both on principle and on authority we think, with all respect, that the decision in Kuriyalli v. Mayan 7 M.K 255 was wrong. With reference to the question of the right to impeach the decrees of this description in execution proceedings, we think that in principle no distinction can be drawn between a case where the decree has been obtained against the mortgagor and where it has been obtained against his legal representative or heir.
23. As regards this class of cases we agree with the decision of the Judge.
24. As regards the third class of cases, i.e., where there had been an attachment during the lifetime of the late Raja, the question is only one of practical importance, in so far as the present cases are concerned, in the view that the conclusion at which we have arrived with reference to the first class of cases is wrong. If the estate of the ]ate Raja, be the assets in the hands of the present Raja for the payment of judgment-debts obtained against the former, the present Raja has of course no occasion to rely on the prior attachments.
25. The argument on behalf of the present Raja was that attachment is only a forbidding of alienation and creates no interest in the property attached which would prevail against a party taking by survivorship or by inheritance. On behalf of the judgment-creditors the argument was that the attachment had the same legal effect as a mortgage would have had and created a lien over the attached property in favour of the attaching creditor, and that if the present 'Raja desired to cost the binding character of the debts in respect of which judgments were obtained and orders of attachment were made, he must do so by separate suit.
26. In B. Krishna Rau v. Lakshmana Bhanbohgue 4 M.K 302 and Lakshmana Aiyar v. Srinivasa Aiyar 8 M.L.J. 64 this Court held that the effect of the attachment was to create a charge.
27. In view of the decision of the Privy Council in Moti Lal v. Karrabuldin L.R. 24 IndAp 170 that an attachment merely prevented alienation and did not give title see too Kristnasawmy Mudaliar v. Official Assignee of Madras 26 M.K 673; Frederick Peacock v. Madan Gopal 29 C.P 428, Byramji Jamsetji v. Chunilal Lal Chand 27 B.K 266. I think the two Madras decisions to which we have referred cannot be relied on. We do not think that the attachment gives the attaching creditor any higher right than to have the property kept in custodia legis pending the determination of his rights. This would seem to have been the view taken in Sankaralinga Reddi v. Kandasami Tevan 30 M.K 413.
28. It seems to us that the judgment-creditors who have obtained orders of attachment are in no stronger position than the judgment-creditors who have not obtained orders of attachment, but for the reasons which we have stated in dealing with the case of judgment-creditors of the latter class we think the Sub-Judge was right in deciding in favour of the judgment-creditors who fall within class 2.
29. The cases in which the Raja is appellant will be dismissed with costs and the cases in which he is respondent will be allowed with costs. The cases in which the respondents do not appear will be dismissed without costs. The view expressed by the District Judge on the question of limitation in para 14 of his judgment that the applications are in continuation of the old proceedings is not contested before us on behalf of the Raja.
30. Our order as to costs in C. M. A. No. 53 of 1907 is that appeal No. 194 is allowed with costs and the other appeals are dismissed with costs.