KATRAGADDA CHINA RAMAYYA Vs. CHIRUVELLA VENKANRAJU

JUDGEMENT

(1.) I think the question raised in this case should be decided by a Bench. If it becomes necessary it may have to go even before a Full Bench. A son under the Hindu law is undoubtedly liable for the pre-partition debts of the father which are not immoral or illegal. If a decree, however, is obtained against the father alone, and there is a partition of the family properties, in execution of such a decree, the son's share cannot be seized by the creditor as by reason of the partition the disposing power of the father possessed by him over the son's share under the pious obligation of the son to discharge the father's debts can no longer be exercised. With the partition, the power comes to an end. The liability thereafter can be enforced only in a suit. After partition, the son's share can no longer be treated as property over which the father had a disposing power within the meaning of Section 60, Civil P. C. So much seems to have been settled by the decisions. But in a case in which there is a decree against the father personally in a suit in which the sons were originally impleaded but were exonerated later and there is a partition of the family properties, it has been held in -- 'Doraiswami v. Naga- swami', AIR 1929 Mad 898 (A), that in execution of such a decree, the son's share could be seized and sold. This decision was followed by a single Judge of this court in --Thangachami Chetti v. Kanakasabapathi', AIR 1944 Mad 393 (B). Recently the Supreme Court considered these questions in -- 'Pannalal v. Mst. Naraini', If the basis of the execution against the sons' share was the existence of the power of the father to dispose of the sons' share to discharge his debts not tainted with illegality or immorality and if that power came to an end with the partition of the properties, it is difficult to see any distinction in principle whether the sons were impleaded as parties to the suit and were exonerated or were not made parties to the suit at all. The distinction, therefore, drawn in the two cases referred to above which have taken a contrary view, based upon the circumstances that the sons were impleaded as parties, though later ex-onerated, seems to be not warranted by the authorities.

(2.) In my opinion, therefore, the decisions in -- 'AIR 1929 Mad 898 (A)' and --'AIR 1944 Mad 393 (B)', require consideration by a Bench. The matter will, therefore, be referred to a Bench. (Pursuant to the aforesaid Order, this appeal coming on before the Chief Justice and Venkata-rama Aiyar J., the Court made the following order of reference to a Full Bench:) (23-11-1953).

(3.) We agree with Satyanarayana Rao J. that the decisions in -- 'AIR 1929 Mad 898 (A)' and -- 'AIR 1944 Mad 393 (B)', require consideration. As the former of the two decisions is the decision of a Division Bench, we refer this appeal to a Full Bench. Judgment of the Full Bench Subba Rao, J.