SHANKAR NARAYAN PANDE Vs. RIKHAVDAS CHANDANMAL

JUDGEMENT

(1.) IT has been strenuously argued by Mr. Joshi in this case that his clients are not liable to satisfy the decree which was passed against them, The question arose in a darkhast filed by the decree-holder to execute a decree passed against three defendants, defendant No. 1 being the father of defendants Nos. 2 and 3. What happened was that before the decree was passed the parties entered into a compromise. That compromise was submitted to the Court as defendants Nos. 2 and 3 were minors, and sanctioned by it, and a decree was passed in accordance with it.

(2.) MR. Joshi says that the debt on which the decree was founded was a debt contracted by the father as manager of a joint Hindu family, and therefore it cannot be executed against the sons personally or against any separate property in their hands. It appears that the sons are now in possession of certain property, which they inherited as reversioners from their mother's mother and MR. Joshi says that the decree cannot be executed against that property, and in support of that argument he relies on Sukhdeo Prasad Narayan Singh V/s. Madhusudan Prasad Narayan Singh (1930) I.L.R. 10 Pat. 305. I have no difficulty in rejecting the contention raised before me. It is undoubtedly true that the pious obligation of a son to pay the debts of his father is limited to the extent of the joint family property in the hands of the son and to his interest therein, and a Hindu son cannot be made personally liable for a decree obtained against the father nor can his separate property be attached in execution of such a decree, Where a decree is obtained against a Hindu father, the sons being not parties to the suit, the decree can be executed against his sons to the extent of the family property in their hands. Where a decree is obtained against a Hindu father and his sons, then the Courts must restrict the decree, as far as the sons are concerned, to their interest in the family property. Unfortunately for MR. Joshi that is not the the position here. The decree as it stands is against all the defendants, and therefore capable of being executed against the property of the defendants whatever the nature of it, or against the defendants personally. An executing Court cannot go behind the decree. If the interest of the sons was not intended to be affected by the decree, it was for the guardian ad Item to have insisted upon limiting the decree to the interest of the sons in the joint family property. As to Sukhdeo Prasad Narayan Singh v. Madhusudan Prasad Narayan Singh (1930) I.L.R. 10 Pat. 305 the case seems to support MR. Joshi's contention, but with respect to the Judges who decided it I am unable to follow it. The learned Judges relied on Chalamayya V/s. Varadayya (1898) I.L.R. 22 Mad. 166 and Ramchandra Padayachi V/s. Kondayya Chetti (1901) I.L.R. 24 Mad. 555. In Chalamayya v. Varadayya the decree on the face of it was limited as regards the coparceners in the case to the family estate in their hands. There an application was made on behalf of the plaintiff for a personal decree against one of the surviving brothers who were the borrowers. But the Court rejected, and rightly, if I may say so with respect, that application. This case, therefore, seems to me to be against the principle which is laid down by the Patna High Court. In Ramchandra V/s. Kondayya the father and two sons were carrying on business in respect of which the liability in suit arose. One of the sons had separated from the father, but the creditors sued the father and both the sons; and it was held that the son who had separated was liable to the extent of the family property. Again I may say with respect that the decision is sound. The liability was incurred when the father and the two sons were joint and carrying on joint family business, and therefore the son who in the meanwhile had separated was held liable for the debts of the family and the decree passed was that the son was liable to the extent of the family property which had come to him under the partition. I think, therefore, that this appeal must fail, and must be dismissed with costs.