1. This is an appeal that arises, in execution of the decree in O.S. No. 19 of 1911, on the file of the Subordinate Court of Chittoor. The appeal is by the son and legal representative of the late judgment-debtor, the Raja of Kalahasti. The respondent is the decree-holder in the suit. The Raja having died, it was contended by his son and legal representative that the group of villages, called Chernbedu group, could not be attached in execution of the decree, as the assets of his father in his hands, as they were part of the impartible estate of Kalahasti, of which he was at the time the proprietor. It is not denied that this group of villages, called Chembodu group, forms part of the Kalahaati Zamindari and is governed by (sic) Madras Impartible Estates Act II of (sic). By Section 4 of that Act, it is (sic) that:
(sic) of an impartible estate should (sic) of alienating or binding by his debts (sic) or any part thereof, beyond his own (sic) the alienation shall be made, or (sic) incurred, under circumstances, which (sic) the managing member of joint Hindu (sic) not being the father or grandfather of the (sic) co-parceners, to make an alienation of the joint property, or incur a debt, binding on the shares of the other co-parceners independently of their consent.2. That Section clearly governs the present case. Under that section, before any part of the impartible estate of Kalahasti can be taken in execution of a decree of a personal debt, against the predecessor-in-title of the present proprietor, it must be shown that the debt for which the decree was passed was such as would be binding upon an ordinary joint family estate, when the debt was incurred by the managing member, in other words, that there was legal necessity for creating the debt. The question whether the successor is a son of the predecessor or any other co-parcener makes no difference whatever; for the Section does away with the special obligation as between sons and grandsons and their fathers and grandfathers, based upon the theory of pious obligation in the Hindu Law. It is clear, therefore, that, before the decree-holder in this case could attach the property and bring it to sale, it was incumbent on him to establish that the debt for which this decree was passed was a debt, incurred for the necessity of the impartible estate itself.
3. There is at present no such proof on record. In fact, it is said that the decree was obtained for a sum of money, which the father of the present Zamindar has obtained as a trustee of a temple and misapplied himself, the debt thus being practically the result of a breach of trust. Such a debt as that can hardly be treated as a debt binding upon a successor-in-title to the Zamindari; for it would not be a debt which, if incurred, by the managing member of a joint Hindu family, would be binding upon the other co-parceners.
4. It was very strenuously pressed on us that a fresh opportunity should ho given to the decree-holder, responded, to prove in the lower Court that this debt had the character of being one that would bind the co-parceners, if it had been incurred by the managing member; but knowing the nature of the debt, so far as it appears from the record, there is hardly any room for doubt as to its character. Furthermore, if the decree holder had intended to put forward any case under Section 4 of the Impartible Estates Act, he should have done so in the first instance in the lower Court. He should have stated that though the property attached was Zamindari property, the debt for which the decree was obtained was binding on the Zamindari estate, because it was incurred for proper and legal necessity. He never put forward a case like that and we do not think that he]should be given any fresh opportunity in]the matter.
5. The Subordinate Judge has given a decision, in favour of the decree-holder, on grounds which we are unable to follow. Ha says that the income from the trust funds was blended with the income from the Zamindari and for some reason or other, the debt resulting from the management of the trust property should be held binding on the Zamindari estate. It is very difficult to follow this argument; whatever blending there might have been, between the income of the impartible estate and that of the trust funds the decree-holder will only be able to proceed against such blended income and cannot possibly get any right to proceed against the impartible estate itself.
6. The Subordinate Judge has also relied on certain cases, where it was held that an impartiable Zamindari, in the hands of the legal representative of the deceased former Zamindar, should be treated as his assets, for the purpose of realising the debts of that Zamindar. He has quoted Rajah of Kalahasti v. Achigadu (1907) 30 Mad. 454, and Depuru Kalappa v. Umade Rajaha (1911) 1 M.W.N. 75, as authorities in favour of his view; but he has not noticed that these authorities are no longer of any value, after the passing of the Impartible Estates Act, which is now conclusive on the question of the liability of an impartible estate, as regards debts incurred by the previous holder of the estate.
7. In these circumstances, we must 3et aside the order of the Subordinate Judge and declare that the A schedule properties are not liable to be attached and that the attachment levied on A schedule properties should be set aside. The appellant will have his costs of this appeal and, as regards costs in the lower Court, each party will bear his own costs, as directed by the Subordinate Judge.