Francis W. Maclean, C.J.
1. The application from which this reference has sprung was one under Section 234 of the Code of Civil Procedure to execute the decree against the legal representatives of the deceased judgment-debtor. The present objector is undoubtedly the legal representative of the deceased judgment-debtor, and therefore, prima-facie, unless he can show that the judgment-debtor left no self-acquired property, is liable to be brought upon the record under Section 234. If he be once properly brought on the record under that Section, the question then is whether the liability of the ancestral property, which the objector took by survivorship under the Mitakshara system of Hindu Law, and not, as heir, can be determined in the execution proceedings? The question is one merely of procedure: there is no real substance in it one way or the other; for, the present objector would be able in a proceeding under Section 244 to raise all the objections or defences that he could raise in a separate suit. Is the liability of the ancestral property for the debt covered by the decree a question arising between the parties to the suit or their representatives, and relating to the execution of the decree? The question is one between the decree-holder and the representative of the debtor though the merits of the question relate to the liability of property for the debt, which the heir took, not as heir, but by survivorship. Does the fact that he did not take as heir prevent the question of liability being determined under Section 244? It is still a question between the decree-holder and the representative of the deceased debtor. No doubt under Section 234 the representative is only liable to the extent of the property of the deceased which has come to his hands. Section 234 codifies the English law on this subject protecting the representative from personal liability for the debts of the judgment-debtor. Does that prevent the question as to the liability of the ancestral property for the debt covered by the decree being disposed of under Section 244? Section 234 does not clash with Section 244: it is not sought to fix the representative in this case with any personal liability: it is only sought to fix the liability on the property he took by survivorship which, under Hindu Law is liable for the debts of the father, unless, speaking generally, they have been incurred for immoral purposes. I agree with Mr. Justice Mitra, whose judgment I have read that the expression 'representative,' in India has a much wider significance and meaning than in England. If, as in the present case, the objector may be properly brought on the record as the representative of the deceased judgment-debtor under Section 234, and as the tendency of the decisions both of the Judicial Committee of the Privy Council and of the High Courts of India is to place a liberal and not a restricted construction upon Section 244 I am of opinion that, without doing any violence to the language of that Section, the question may be determined under it. I express this opinion with great diffidence owing to the grave divergence of judicial opinion upon the matter in the High Courts of India. But I think it would be placing a narrow construction upon the language of the Section to say that, when the representative has been properly brought before the Court under Section 234, this question cannot be determined save by the institution of a separate suit. I do not propose to go through the various cases on the subject; they have been very carefully examined and criticised before us. I prefer to base my view on the short ground of the construction of the Sections of the Code. I would answer the second question by saying that the liability of the ancestral property or of a share of it for the debt covered by the decree may be determined in the execution proceedings, if the legal representative has been properly brought on the record under Section 234 and that a separate suit is not necessary.
2. The questions submitted are:
(i) Whether a decree for money passed against a member of a joint Hindu family governed by the Mitakshara system of Hindu Law is after his death, capable of execution against his son and heir as his legal representative though he left no self-acquired property and the son took ancestral property by survivorship?
(ii) Whether the liability of such ancestral property for share of it for the debt covered by the decree may be determined in the execution proceedings, or the determination must take place in a separate suit against the son and survivor? 1
3. In my opinion, under the procedure laid down in the Civil Procedure Code Chapter XIX a decree passed against a member of a joint Hindu family governed by Mitakshara law cannot be executed against his son as his legal representative in respect of the ancestral property taken by the son by survivorship.
4. The son is no doubt the heir and legal representative and as such he may be brought on the record and the decree executed against him under Section 234 of the Civil Procedure Code; but as such representative he is liable only to the extent of the property of the deceased which has come into his hands and has not been duly disposed of. Assume notice was issued against him under Section 248 he could how no cause why the decree should not be executed against him to the extent of the property of the deceased which had come into his hands; but with regard to the ancestral property he could say that it was not property of the deceased which had come into his hands and therefore by the express terms of the latter part of Section 234 he was not liable in respect of it and he could not be held liable without contravening the provision of Section 234,
5. The case of Umed Hathising v. Goman Bhaiji (1895) I.L.R. 20 Bom. 385 laying down the contrary rule is founded on a decision of the Privy Council in which the Judicial Committee lay down that sons cannot set up their rights against their father's alienation for an antecedent debt or against creditor's remedies for their debts, if not tainted with immorality. Treating the decision of the Privy Council as laying down that the obligation to satisfy the father's debts out of the ancestral property as within the scope of the decree against the father, the learned Judges hold that the decree can be executed against the son in respect of that property.
6. But with respect I do not think it follows having regard to the provisions of the Code as to the execution of decrees.
7. Even though the effect of the decree is to impose a liability on the sons to satisfy the debt unless they can show it tainted by immorality it does not follow that the decree can for the purpose of execution be treated as though it were a decree obtained against them.
8. No doubt in a suit against the sons alleging the decree against the father and the duty on the sons to satisfy it out of the ancestral property the plaintiff must succeed unless defendants show that the debt was incurred for illegal or immoral purposes.
9. But that question is one which could never arise for decision in the execution proceedings.
10. If the decree was sought to be executed against the property of the deccased which had come into the hands of his representative then the question of immorality would be irrelevant the representative being bound to the extent of the assets in his hands by the decree against the deceased whom he represents.
11. If on the other hand it were sought to execute the decree against property which had not so come into his hands then Section 234 Would be a bar irrespective of any question of immorality.
12. In the other oases cited the effect of Section 234 in limiting the liability of a representative to property of the deceased which has come into his hands does not appear to have been considered. I do not see how under the present procedure the decree can be executed unless it be laid down that the personal decree against the father creates a liability somewhat in the nature of or analogous to a charge on the ancestral property so as to bind that property even when it has become the property of the son unless there be proof that the liability was improperly incurred I do not think a personal decree against the deceased can be said to have such an effect.
13. I would answer the first question in the negative. In answer to the second I would reply that the liability must be determined by a separate suit: but I express my opinion with the greatest diffidence because it is a view which does not commend itself to the majority of the Court. I come very reluctantly to a conclusion which leads to unnecessary inconvenience.
14. Brett, J.
14. I agree with the learned Chief Justice.
15. In an undivided family governed by the Mitakshara system of Hindu Law, a son on the death of his father takes joint ancestral property as the survivor and not as heir, but he takes the self-acquired property, if any, as heir. A sole surviving son is the only person to whom the universitas juris of the deceased father passes under the Hindu Law. Under that Law, the liability to pay ancestral debts-debts contracted by the father or the grandfather also passes to the son or grandson' because it is his pious duty to pay such debts if not incurred for immoral purposes: Narada, Ch. III, 4-6; Girdharee Lall v. Kantoo Lall (1874) L.R. 1 I.A. 321 ; 22 W.R. 56, Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21 ; L.R. 13 I.A. 1, Bhagbut Pershad Singh v. Girja Koer (1888) I.L.R. 15 Calc. 717 ; L.R. 15 I.A. 99, Minakshi Nayudu v. Immudi Kanaka Ramuya Goundan (1888) I.L.R. 12 Mad. 142 ; L.R.16 I.A. 1, and Suraj Bunsi Koer v. Sheo Persad Singh (1879) I.L.R. 5 Calc. 148 ; L.R. 6 I.A. 88. The liability to pay a debt covered by a decree under execution also passes to the son or grandson, the exoneration from liability being dependent only on the proof of the debt being tainted by immorality.
16. The son is, according to the texts of the sages, the refection of his father: Manu Ch. IX. If the family consists of the father and a son, the son on the death of the father becomes the representative of the father in the sense that he has to perform all the spiritual as well as temporal duties which the father was bound to do-to worship ancestors and the family deities, to manage the family property and to afford food and raiment to all the dependent members. In legal proceedings, in which the father as the representative of the family was interested, he takes the father's place. If the father was the plaintiff and if the cause of action survived, the son, on the father's death, takes his place. Thus to all intents and purposes, the son is the representative of the father.
17. Section 234 of the Code of Civil Procedure empowers a decree-holder whose decree was not fully executed before the death of the judgment-debtor to apply to the Court which passed the decree to execute the same against the legal representative of the deceased. Thereupon the Court has, under Section 248, to issue a notice why the decree should not be executed against the person sought to be brought on the record of the suit in place of the deceased as his 'legal representative.' I do not see why a son on the death of his father should not be placed on the record as his 'legal representative' for the purpose of the execution of the decree, even if no assets of the deceased be discoverable at the time of the application for substitution. At such a stage of the proceedings, the existence of assets of the deceased in the hands of the son is not a material point for consideration.
18. Apart from heirship as regards the self-acquired property of a decaased father and succession to headship of the family, a son in a joint family governed by the Mitakshara system must be held to be his 'legal representative.' The expression 'legal representative' as used in the Code of Procedure is not confined to the heir, executor or administrator of a deceased person. It has been held to include a person who, though not as heir, executor or administrator, holds an estate in other capacities, such as a son adopted by a widow in relation to the widow or a reversioner taking an estate after the death of a widow or daughter in possession as an heiress, if the debt covered by the decree against the widow or daughter was incurred for the necessary purposes of the estate held by her. The expression has very frequently been liberally construed. In Hari Saran Moitra v. Bhubaneswari Debi (1888) I.L.R. 16 Calc. 40 the Judicial Committee of the Privy Council allowed an execution to proceed against an adopted son, notwithstanding that the decree was passed against the widow after the adoption, the principle acted upon being that the widow represented the estate and also the adopted son in the litigation that led to the decree against her. In Ram Kishore Chuckerbutty v. Kallykanto Chuckerbutty (1880) I.L.R. 6 Calc. Morris and Prinsep, JJ., held that a decree against a Hindu widow representing the estate of her deceased husband could be enforced against the reversioner after the death of the widow, as the widow had not in the suit sought to recover any interest personal to herself. In Dinamoni Chaudhurani v. Elahadut Khan (1904) 8 C.W.N. 843 the decree under execution had been passed against a life-tenant in possession of the estate which after her death passed to Dinamoni as heiress of the person who under an agreement with the life-tenant was entitled to take possession of the estate after the life-tenant. The life-tenant had acted in the litigation, which ended in the decree, for the benefit of the estate. Brett and Woodroffe, JJ., held after an elaborate discussion of the authorities that Dinamoni as heiress of her husband was 'legal representative' of the judgment-debtor, the life tenant: see also Dinamoni Chaudhurani v. Elahudad Khan (1903) 7 C.W.N. 678. Tribhuwan Sundar Kuar v. Srinarain Singh (1898) I.L.R. 20 All. 341 and Premmoyi Choudhrani v. Preonath Dhur (1896) I.L.R. 23 Calc. 636. The decisions of the High Court at Bombay in Jagabhai Lalubhai v. Vijbhukandas Jagjivandas (1886) I.L.R. 11 Bom. 37 and Umed Hathisingh v. Goman Bhaiji (1895) I.L.R. 20 Bom. 385 are based on this broad principle of representation.
19. There is another class of cases very similar to the case before us in which the expression legal representative has also uniformly been liberally construed, by all the Courts in India I mean the cases in which the judgment-debtor, the father in a family governed by the Mitakshara system, died after the family property had been attached in execution or directed to be sold under a mortgage decree against him. The sons in these cases have been held to be legal representatives within Section 234 of the Code, though the sons did not take under their father, but independently as survivors. It was held to be immaterial whether the sons took under their father or not, provided the debts had not been tainted with immorality: see Peary Lal Sinha v. Chandi Charan Sinha (1906) 11 C.W.N. 163.
20. Indeed, too narrow a construction of the expression 'legal representative' may lead to undesirable consequences. It appears not only in the part of the Code dealing with execution of decrees, but it is also used in the part of the Code dealing with representation of parties before decree on death, marriage, &e.; The wider construction based on the principle of representation other than in the capacity of heir, executor or administrator has always been adopted. Such a construction is almost inevitable in suits for land or suits on mortgages. If the substitution of a reversioner as 'legal representative' were not allowed, the plaintiff would be bound to bring a fresh suit on the death of the original defendant.
21. Both, therefore, on the principle that the son is an heir as regards self-acquired property and that he is the person to whom the unitersitas juris of the deceased passes according to Hindu Law, he being the representative of the family and the custcdian of the family property in succession to the deceased accrding to the Mitakshara system which retains the relics of the patriarchal system, I am of opinion that the son may, on the death of the father, be placed on the record of a suit as his legal representative after decree, irrespective of the nature of the property sought to be attached by the decree-holder.
22. The obligation of the son to pay his father's debts if not tainted with immorality and the competency of the creditor to proceed against ancestral property in the hands of the son for realisation of the debts of the father are undoubted. The only question then is, should the creditor be compelled to bring a fresh suit against the son, notwithstanding that he has already obtained a decree against the father in a suit successfully brought in his life-time and notwithstanding that the son might be placed on the record of the suit as the legal representative of the father?
23. Clause (c) of the Section 244 of the Code of Civil Procedure covers every question relating to execution, discharge and satisfaction of a decree, if the question is raised between the parties to the suit and their legal representatives. The widest construction has been placed on this clause, and in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Calc. 683 the Privy Council have approved of the way in which the clause has been construed by the Courts in India. It empowers the Court executing a decree to enquire whether the property attached by the decree-holder and claimed by the legal representative of the deceased judgment-debtor is his own property and not assets of the deceased in his hands. In Chowdry Wahed Ali v. Mussamut Jumaee (1872) 11 B.L.R. 149 ; 18 W.R. 185 the Privy Council held that an enquiry into such a question was within the competency of the Court executing the decree under Section 11 of Act XXIII of 1861 which corresponds with Section 244 of the present Code and they further held that such an enquiry would not come under the claim Sections of the Code. In Punchanuh Bundopadhya v. Rabia Bibi (1890) I.L.R. 17 Calc. 711 a Full Bench of this Court took the same view in a case Under Section 244 of the present Code.
24. If ancestral property in the hands of a son after the father's death be attached in execution of a decree passed against the father, the son being placed on the record as the legal representative of the deceased, why may not the question of the liability of the attached property to be sold in execution be tried by the Court executing the decree in a proceeding under Clause (c) of Section 214 of the Code, in the same way as if such representative had claimed the property as his own and not assets of the deceased in his hands? The only question which the Court executing the decree has to try at the instance of the son as his legal representative relates to the character of the debt whether the father had contracted it for immoral purposes. I see no bar to this question being tried by the executing Court in a proceeding under Section 244 Civil Procedure Code.
25. The wording of the second clause of the Section 234 has been supposed to throw a difficulty to an adjudication of the question of the character of the debt. With all deference to the learned Judges who have held this opinion, I do not think that the second clause of the Section controls the clear provision in Clause (c) of Section 244. The second clause of Section 234 merely limits the personal liability of a person brought on the record of the suit as legal representative of a deceased judgment-debtor. All that it says is that if a person be substituted as legal representative of a deceased person, his personal liability would not be co-extensive with that of the deceased: he is liable only to the extent of the assets of the deceased which have come into his hands and have not been duly disposed of. The clause was inserted only for the protection of the legal representative and not for detracting from the right of the decree-holder to proceed against property which is otherwise liable under the substantive law of the country to be sold under execution. Section 252 of the Code similarly provides for cases where the legal representative is substituted before decree. These clauses intended to prevent the possibility of any harm being done to the person or property of the legal representative himself, cannot by implication be so construed as to throw difficulties and cause unnecessary delay in the realisation of just dues under decrees properly obtained. The second clause of Section 234 ought not, if possible, to be construed as compelling a fresh suit in all cases.
26. The true test to be applied in cases like the present appears, on the authorities, to be this. The liability to attachment and sale in execution of a decree depends on the nature of the debt for which and the capacity of the person against whom it has been passed and not the mode of devolution of the property from the original judgment-debtor or the nature of the estate of the original judgment-debtor and the relation in which his successor stood to him. This has been held to be the true test as regards a reversioner or an adopted son or a co-widow taking property after another widow, and I do not see why the same principle should not apply to a son taking by survivorship under the Hindu Law. The High Court at Bombay has taken this view in Jagabai v. Vijbhukandas (1886) I.L.R. 11 Bom. 37 and Umed Hathising v. Goman Bhaiji (1895) I.L.R. 20 Bom. 385 following the principle of representation as enunciated by the Privy Council in Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21. The High Court at Allahabad has taken the same view in Seth Chand Mal v. Durga Dei (1889) I.L.R. 12 All. 313 and Kali Charan v. Jewat Dube (1905) I.L.R. 28 All. 51 though these may appear to be cases in which lien had already been created by act of parties or by attachment.
27. In Ariabudra v. Darasami (1888) I.L.R. 11 Mad. 413 the High Court at Madras has taken a narrow view of the scope of Section 244 of the Code and so also has the High Court at Allahabad in Lachmi Narain v. Kunji Lal (1894) I.L.R. 16 All. 449. These eases, however, were decided before the decision of the Judicial Committee in Prosunno Kumar Sanyal v. Kali Das Sanyal (1892) I.L.R. 19 Calc. 683.
28. The report the case of Jugalal Chaudhuri v. Audh Behari Prosad Singh (1900) 6 C.W.N., 223 does not show that the attention of the Court was drawn to oases like Sari Saran Moitra v. Bhubaneswari Debi (1888) I.L.R. 16 Calc. 40 decided by the Judical Committee. But in Chander Pershad v. Sham Koer (1905) I.L.R. 33 Calc. 676 and the unreported case referred to therein, the view taken was the same as I am disposed to take. My answer to the first question in the reference is that the son is the legal representative of a deceased father and may be substituted on the record as such, and my answer to the second question is that the decree-holder may realise his decree by execution without recourse to a fresh suit against the son.
29. The facts which gave rise to the present reference so far as it is necessary to state them are as follows:
30. Gagan Chand, Rasik Chand and Sebak Chand Chowdhry were three brothers governed by the Mitakshara school of law, and owning joint ancestral property. Against two of the brothers, Gagan and Rasik, a personal decree was passed. Both of them are now dead. Their legal representatives in respect of self acquired property are, in the case of Gagan, his widow Jatani and in the case of Rasik, his son Dip Chand. These two persons have been brought on the record and are undoubtedly liable to satisfy the decree to the extent of any self-acquired property of the deceased that may have come into their hands. But it is sought to execute the decree against the joint ancestral property and for this purpose Sebak, the survivor of the three brothers, has also been brought on the record. On the death of Gagan and Rasik, the joint ancestral property owned by three brothers, came to be owned by two persons only, Dip Chand and Sebak, the share of each of whom on partition would be one-half. Sebak is in no sense the legal representative of the brothers, and as regards his share of the joint ancestral property the decree, as the learned referring Judges have remarked, is incapable of execution.
31. The point, as 1 understand it on which our decision is invoked, is whether the decree can be executed against Dip Chand to the extent of the half share which would be his on partition, and whether the liability in respect of this matter can be determined in the execution proceedings. The decision of this question turns on the construction to be placed on Sections 234 and 244 of the Code of Civil Procedure.
32. Section 234 which gives authority to a Court to execute a decree against the representatives of a deceased judgment-debtor, expressly lays down that such representative shall be liable only to the extent of the property of the deceased which has come to his hands, and has not been duly disposed of. Section 244 on the other hand lays down that--'The following questions shall be determined by order of the Court executing the decree and not by separate suit, namely: (c) any other questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof.'
33. Now, the joint ancestral property that is at present held by Dip Chand and Sebak is not the property of the deceased Gagan and Rasik that has come into their hands; for they take not as heirs but by survivorship. The proprietorship of Gagan and Rasik respectively was extinguished at the moment of death and the property formed no part of their estate. The effect of Section 234 therefore is to prevent Dip Chand from being liable for the decretal debt so far as this property is concerned. But then comes Section 244 which lays down that all questions arising between parties or their representatives relating to the execution of the decree shall be tried by order of the Court executing the decree and not otherwise. Dip Chand is a representative of one of the judgment-debtors Rasik, and the question has arisen whether the decree against Rasik can be executed against the joint ancestral property formerly held by Rasik to the extent of the share that would have been allotted to Rasik on partition. Now it is a rule of construction that where there is a conflict between general and special legislation, it should be presumed that the Legislature did not intend by the general enactment to interfere with special legislation. That rule is noticed in Unnoda Persaud Mookerjee v. Kristo Coomar Moitro (1872) 19 W.R. 5 decided by the Privy Council. In their judgment their Lordships observe:--'The reason for this rule of construction is well expressed by Lord Hatherly, when Vice-Chancellor, in Filsgerald v. Champneys (1861) 30 L.J. Ch. 777, 782. The reason is that the Legislature having had its attention directed to a special subject, and observed all the circumstances of the case, and provided for them, does not intend by a general enactment afterwards to derogate from its own act, where it makes no special intention to do so.' This rule, applicable where the conflict is between different Acts, is a fortiori applicable where the conflict is between different Sections of the same Act. The case of the representative of a judgment-debtor is specially dealt with in Section 234, and if there is a conflict between that Section and Section 244 which deals generally with all questions arising between the parties, the former Section under the above rule of construction must prevail.
34. There is, moreover, another rule of construction under which the different parts of an Act must be read as a Whole, and if possible effect must be given to each part, and the different parts, reconciled together. Under this rale effect must be given to the plain and precise provisions of Section 234. It is useless for an executing Court to decide whether property held jointly by a judgment-debtor under the Mitakshara law is liable for his debts after his decease, if the effect of Section 234 is to limit the liability of his representative to the extent of the property of the deceased that has come to the hands of the representative. The phrase 'any questions arising' must in my opinion mean 'any questions that may legitimately arise.' In this way not only is full effect given to Section 234, but the two Sections are read as a whole and the apparent contradiction is removed. As an instance showing that this must be the true meaning of the phrase, I may refer to Section 258 which forbids an executing Court to recognise payments or adjustments made out of Court. I do not think it could he contended in face of the express prohibition contained in Section 258 that a question regarding an uncertified payment may be entertained under Section 244. In the same way I think that Section 234 excludes from the cognisance of an executing Court any question relating to the liability of the representative of a deceased judgment-debtor to any extent other than that covered by the property of the deceased judgment-debtor which has come into his hands. Further, if it were 'res integra' I should be inclined to hold that the word representative in Section 244 must be construed strictly and that the question referred to as arising between parties or their representatives are questions affecting persons qua representatives and in no other character. In regard to the joint ancestral property Dip Chand is not a representative of Rasik, and I think it doubtful therefore whether any question respecting that property is, within the meaning of that Section, a question between the decree-holder and the representative of a judgment-debtor. But the other reasons which I have advanced appear to me sufficient, for the interpretation which commends itself to me, and I need not dwell on this point any further
35. I am confirmed in this view of the Section by the consideration of an anomaly that would otherwise arise. Dip Chand and Sebak are now the joint-owners of property that was formerly owned by Gagan, Rasik and Sebak. They are entitled each to an undivided half share of the property. During the life time of the three brothers, Sebak was entitled to only an undivided third share. If partition took place now, Sebak would be allotted a share half as large again as that to which he would have been entitled if the partition had taken place when all three brothers were alive. The decreeholder has therefore against Sebak a cause of action similar to that which he has against Dip Chand; but if Section 244 is not read in the way I have suggested a question regarding the ancestral property could not be triede in execution as against Sebak, but can be tried in executions as against Dip Chand merely on the accidental ground that. Dip Chand is a representative of Rasik as regards' self-acquired property. This anomaly is avoided by my interpretation.
36. I can see no reason in principle why the question regarding the joint ancestral property should not be tried in execution a against both Dip Chand and Sebak. Such a procedure would save time and expense to the parties, and it is to me a matter of sincere regret that I find myself unable to concur in the answer which the majority of this bench propose to give to the question referred to us. But in my view of the restriction imposed by Section 234 I am of opinion that under the law, as at present framed, the question cannot be tried in execution procedings as against Dip Chand any more than as against Sebak. To the questions referred to us I would, therefore, reply that the liability of the representative of a deceased judgment-debtor regarding joint ancestral property taken by surivivorship cannot be determined in execution of the decree passed against the deceased judgment-debtor.
37. Maclean, C.J.
37. The result is that the appeal will go back to the Division Bench which referred it with this intimation of our opinion.
38. The respondent must pay the costs of the Full Bench reference.