KRISHNA PILLAI Vs. PHILIP

JUDGEMENT

(1.) The decree in execution of which this second appeal arises was for the realisation of money from defendants 1 and 2, and by the sale of the hypothecated properties scheduled, which is stated to belong to the latter. The decree was assigned to the appellant who is the son of the first defendant. The original decree holder and the appellant then applied for the recognition of the assignment and for execution of the decree by the sale of the hypotheca. Pending these proceedings the first defendant died. The transferees of items 3 and 7 of the hypotheca, who are respondents 1 and 2 here, objected to execution of the decree by the appellant contending, that the decree had been discharged by payment by the first defendant, that the assignment of the decree to the appellant was benami for the first defendant and that in any event, the liability under the decree which devolved on the appellant on the death of the first defendant had become merged in his right under the decree and so the decree is not executable. The lower court held, differing from the execution court, that the decree had not been discharged and that the assignment was not taken benami for the first defendant; all the same, it held, that the appellant having inherited from the first defendant, properties worth more than the decree amount, the right and the liability under the decree had become united in him and the decree is in executable.

(2.) The second proviso to O.21 R.16 has no application, for, apart from anything else, the assignment of the decree was not to defendants 1 and 2 against whom the decree was passed, the assignment being, as stated, to the appellant, a son of the first defendant, who is in no sense a person against whom a decree has been passed within the meaning of the proviso. The decisions bearing on the proviso to O.21 R.16 are not applicable and do not call for consideration. Nevertheless, it is a general principle of jurisprudence, that when the right and the liability under a decree or the right of a creditor and the liability of his debtor become united in the same person, the liability or the debt is extinguished pro tanto. This principle has gained recognition and been applied in cases not strictly governed by the proviso to O.21 R.16 and we see no reason why the principle should not apply to the case before us, where upon the death of the first defendant his liability under the decree became vested in all his legal representatives including the appellant. It may be said, that there is a coalescence of the right and the liability under the decree in the appellant, to the extent that the liability of his father had vested in him. It seems to us, that no exception can be taken to this conclusion.

(3.) But the controversy before us turned upon what was the extent of the liability which devolved upon the appellant. That the first defendant had left other legal representatives seems fairly clear from Ext. D-2, a partition deed which related to his properties. In fact the appellant had impleaded some or all of them in execution proceedings, and though they were left out of the appeal in the lower court, he has impleaded them in this second appeal. While according to the appellant's learned counsel, the liability of the appellant under the decree is what is proportionate to his share in the assets of his father, according to learned counsel for respondents 1 and 2, the liability of the appellant is coextensive with the value of the assets which had actually come to his hands and not his share of the inheritance. This argument of the respondents was sought to be supported on the terms of S.50(2) of the Civil Procedure Code, that the decree is executable against a legal representative "to the extent of the property of the deceased which has come to his hands and has not been duly disposed of". We are of the opinion that the argument is unsound. On the death intestate of a person, his assets and liabilities devolve on his heirs in accordance with his share in the inheritance as prescribed by the law governing him; his share is really in the assets minus the liabilities or in the net assets. It cannot be, as the argument implies, that because one of the liabilities of the deceased is less than the value of the assets which have come to the hands of one of his legal representatives, such representative is to answer for the entire liability; to state the proposition in these terms would be to exonerate the other heirs from liability. When the appellant inherited his share of the assets of his father he took over his liabilities only in proportion to his share in the assets.