CHANMALLAPPA SHIVLINGAPPA DANKARE Vs. VANNAJI SAKALCHAND

JUDGEMENT

(1.) THE question for decision in this second appeal is this. When there has been a decree against a Hindu father for a debt binding on his sons as not being illegal or, immoral and a partition takes place between him and his sons after the decree, can the decree be executed, by attachment and sale of the properties which have come to the sons under the partition, or must the judgment-creditor bring a separate suit ?

(2.) THE facts of the case' are as follows. THE respondent obtained a money decree against two brothers on January 24, 1933 After the decree there were disputes between the first brother judgment-debtor No.1 and his sons who are the present appellants. THE disputes were referred to arbitration, and on January 4, 1935, the arbitrator effected a, partition, the terms of which were embodied" in a decree. On August 31, 1935, the respondent filed a darkhast against judgment-debtor No.1. On March 14, 1936, he made the sons, i.e. the present appellants, parties to the darkhast. THEy were minors and they contended through their guardian that in view of the partition the property attached was not liable to be sold. It should be mentioned that family properties including the shares of the sons had been attached in the darkhast. THE trial Court overruled the objection and allowed the darkhast to' proceed on the ground that it was not a bona fide partition and the family was still joint. THE District Judge in appeal confirmed the order. He expressed no opinion as to whether there was a bona fide partition but held that the sons were liable in any case for pre-partition debts. We thought it desirable to get a finding from the Court of first appeal as to whether there was in fact a partition on January 1, 1935, and a finding has now been returned in the affirmative.

(3.) THE same view has been taken by Mr. Justice Lokur sitting alone in Surajmal Deoram v. Motiram Kalu. (1939) 41 Bom. L.R. 1177 He discussed the authorities at considerable length and laid down a number of propositions, of which those material for our purpose are these (p. 1177): A decree against the father alone, passed when he was joint with the son, is binding on the son even after partition, though it is open to him to impeach it, either in execution proceedings or in a separate suit, on the ground that the debt for which the decree was passed was incurred for immoral or illegal purposes. If such decree is to be executed after the son has separated from his father, the son must be made a party to the execution proceedings, if his separated share is to be proceeded against. Otherwise its sale will not be binding on the son. Mr. Justice Lokur considered the provisions of Section 60 of the Code, but they were not considered by the Court in any of the other cases to which I have referred.