NAGINDAS MADHAVLAL SANDESARA Vs. KODIDAS MANGALDAS

JUDGEMENT

(1.) HIS Lordship after stating the facts and dealing1 with points not material to this report, proceeded : In a recent judgment of their Lordships of the Supreme Court the extent of liability of Hindu sons to pay the debt of their father was elaborately examined See Pannalal v. Mt. Naraini : [1952]1SCR544 . In that case, their Lordships discussed the relevant law in detail and enunciated certain propositions. This judgment was relied upon both by the judgment -debtors and by the plaintiff, and the observations made therein are pressed into service in support of their respective contentions. In order to appreciate the contentions, it may be necessary to set out the material propositions which are enunciated in Pannalal's case and then to examine whether the contentions advanced by the respective parties in support of their respective cases are supported by the observations relied upon.

(2.) THE following undisputed propositions emerge from the judgment in Pannalal's case: (1) A Hindu son is not personally liable to pay the debt of his father even if the debt was not incurred for an immoral purpose : the obligation of the son is limited to the assets received by him in his share of the joint family property or to his interest in such property, and it does not attach to his self -acquisitions. (2) The pious obligation of the son to pay the debt of his father exists whether the father is alive or dead. It is open to a creditor of the father to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such a suit and obtain an adjudication from the Court that the debt was payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. (3) So long as the family remains undivided, the father is entitled to alienate for satisfying his personal debt not tainted with immorality the whole of the joint family estate, and a creditor of the father is also entitled to proceed against the entire estate for recovery of the debt borrowed by the father. (4) The sons are not liable for the debts incurred by the father after partition between them and their father. The share which the father receives on partition and which after his death devolves upon his sons, may in the hands of the sons, be available to the creditors of the father, but the shares allotted on partition to the sons cannot be made liable for the 'post -partition' debts of the father. (5) The sons are liable to pay the pre -partition debt of the father, even after partition if the debt of the father is not immoral or illegal and for the payment of which no arrangement was made at the date of the partition, (6) A decree obtained against the father alone after partition in respect of a pre -partition debt cannot (during the life -time of the father) be executed against the property which is allotted to the son on partition. A separate and independent suit must be instituted against the sons before their share can be reached. The parenthetical clause is added by us. (7) A decree passed against the separated sons as legal representatives of the deceased father in respect of a debt incurred before partition can be executed against the property obtained by the sons at the partition. This liability arises by virtue of Section 53 of the Civil Procedure Code. When execution is sought against the sons, the sons are at liberty to show that the property in their hands is not liable to pay the debts of the father; but the enquiry has to be made in the course of execution proceedings and not in a separate suit. 2. These propositions have not been challenged before us as they evidently could not be challenged having regard to the opinion expressed by their Lordships of the Supreme Court. It was, however, urged on behalf of the judgment -debtors that the decree could not be executed even against the ancestral property in the hands of the sons of Lallubhai Maganchand and Madhavlal Laxmichand, because at the date of the decree the aforesaid defendants could not by reason of the partitions effected before the date be represented by their sons in the suit. It was with some force urged that if the pious obligation to discharge the father's lawful debts could not be enforced during the lifetime of the father by executing the decree obtained against him alone after partition it could not be enforced after the father's death in execution proceedings by merely bringing the sons on the record as heirs and legal representatives of the debtor -father. On behalf of the plaintiff it was urged that even if there had been a partition before the date on which the decree was passed, and at the date of the decree the father did not represent the joint family, the liability of the sons to satisfy the debt was not thereby extinguished, and, by virtue of Section 53 of the Civil Procedure Code, after the death of the father the property allotted to the sons on partition could be reached in execution for recovering the amount due by the father and that the creditor was not required to proceed by a suit.

(3.) IT is evident from this resume of facts that before the suit was filed against Baldev Das there was a partition between him and his sons and the properties which were sought to be attached by the creditor were allotted to the sons of Baldev Das, and the suit in which the decree was obtained was also filed after the date on which the partition was effected. The question which fell to be determined in that case was whether the decree obtained against the sons of Baldev Das as his legal representatives, could by virtue of Section 53 of the Civil Procedure Code be executed against property which had fallen, to the share of the sons of Baldev Das at a partition effected prior to the date of the suit. Their Lordships of the Supreme Court held that the son being deemed by a fiction of law to be the legal representative of the deceased father in respect of the property which was in his hands and which was liable under the Hindu Law to pay the debts of the father, although he had in truth obtained the property not as a legal representative of the father at all, the decree was liable to he executed. In Pannalal's case, there was a partition before the date of the suit and a decree was passed in the suit against the sons of Baldev Das as his legal representatives and that decree was held to be executable against the property obtained by the sons on partition; in this case we have a partition which took place after the institution of the suit, and after the partition a decree was obtained against the father alone and after the death of the father execution is sought to be levied against the property allotted to the sons at the partition. In this case, the decree was passed against the father when he did not represent the joint family. In Pannalal's case the decree was obtained against the sons of Baldev Das but as representing the estate of Baldev Das. In both the cases, therefore, the sons were not directed by the decree to pay the amount due by the father. Evidently during the lifetime of Lallubhai Maganchand and Madhavlal Laxmichand the decree could not be executed against the share in the joint family property which fell on partition to their respective sons. If the property received by the sons at a partition could be reached, during the lifetime of the father, only by a suit on the original debt against the sons or by a suit for a declaration that the sons were liable to pay the decretal debt under the pious obligation of Hindu sons to pay their fathers' debts which were not illegal or immoral or avyavaharik, the question arises whether the death of the father so alters the position that a liability, which could be enforced during the lifetime of the father by a suit only, can, after the death of the father, be enforced in execution by attachment of the property received by the sons at a partition effected during the lifetime of the father. Before we proceed to answer that question, it may be pertinent to analyse some of the cases of the Bombay High Court which were relied upon by the advocates, and in which the question as to the procedure to be followed for enforcement of decrees for debts due by a Hindu father against the property in the hands of the son has arisen.