KALTAN SINGH Vs. DHARAM SINGH

JUDGEMENT

(1.) This is a defendant's appeal, arising out of a suit for a declaration that the order of the 14 of February 1920, disallowing the plaintiffs object on to the attachment of the property in suit, was wrong and that the property, being the ancestral property of the family, was not liable to be attached and sold in execution of a decree, in suit No, 178 of 1918, passed against the plaintiffs father. The Court of first instance dismissed the suit, but on appeal the learned District Judge has allowed the appeal and reversed the decree of the Court of first instance.

(2.) It appears that on the 18 of February 1914 Chhidu Singh, defendant No. 2, who is the father of the plaintiffs, executed a mortgage-deed, in respect of the ancestral property, in favour of Kalyan Singh, the present defendant-appellant. On the 11 August 1917 a suit was instituted on behalf of the tons for a declaration that the said mortgage-deed was not binding on them, inasmuch as the debt had not been contracted for any legal necessity. The suit was ultimately decreed. After thin, Kalyan Singh brought a suit on the basis of this deed but only asked for a simple money decree against the father, That suit was decreed and when the decree was put in execution the rights and interests of Chhidu Singh in the joint family property" were attached. An objection was filed, on behalf of the sons, that the attachment was invalid. This objection having been disallowed, the present suit was instituted.

(3.) The learned District Judge seems to be of opinion that inasmuch as it was found in the previous suit, that the debt had not been contracted for any valid family necessity and inasmuch as the father is still alive, it is not open to the simple money decree-holder to attach the family property, and he relies on the case of Sahu Ram Chandra V/s. Bhup Singh 89 Ind. Cas. 280 : 15 A. L. J. 437 : 39 A. 437 : 21 C. W. N. 698 : 1 P. L. W. 557 : 19 Bom. L. Rule 498: 26 C. L. J. 1 : 33 M. L. J. 14 (1917) M. W. N. 439 : 22 M. L. T. 22 : 6 L. W. 213 : 44 I. A. 126 (P. C). Bat in our opinion now there is no question as to the Hindu father's authority to transfer any family property. There is a simple money decree against him, which is not shown to have been on the basis of a debt which was tainted with immorality. That being so, that decree can clearly be executed against the father, and the father's interests in the family property can be attached and sold. The ease of Sahu Bam Chandra V/s. Bhup Singh 89 Ind. Cas. 280 : 15 A. L. J. 437 : 39 A. 437 : 21 C. W. N. 698 : 1 P. L. W. 557 : 19 Bom. L. Rule 498: 26 C. L. J. 1 : 33 M. L. J. 14 (1917) M. W. N. 439 : 22 M. L. T. 22 : 6 L. W. 213 : 44 I. A. 126 (P. C) does not lay down any contrary rule. On the other hand, an earlier case of their Lordships of the Privy Council, Sripat Singh Dugar V/s. Prodyot Kumar Tagore 39 Ind. Cas. 252 : 15 A. L. J. 147 : 32 M. L. J. 133: (1917) M. W. N. 198 : 21 C. W. N. 442 : 25 C. L. J. 220 : 21 M. L. T. 222 : 19 Bom. L. Rule 290 : 44 C. 524 : 44 I. A. 1 (P C.), clearly laid down that where a simple money decree bad been obtained against a father, that decree could be executed against the ancestral family property under the Mitakshara Law unless it were shown that the debt was a debt incurred for illegal or immoral purposes." In our opinion the view taken by the learned District Judge was clearly wrong and is in no way supported by the authority quoted by him.