R D K VENKATALINGAMA NAYANIM Vs. MARNARUNACHELLAM CHETTIAR

JUDGEMENT

(1.) This is an appeal that arises, in execution of the decree in O.S. No. 19 of 1911, on the file of the Subordinate Court of Chittoor. The appeal is by the son and legal representative of the late judgment-debtor, the Raja of Kalahasti. The respondent is the decree-holder in the suit. The Raja having died, it was contended by his son and legal representative that the group of villages, called Chernbedu group, could not be attached in execution of the decree, as the assets of his father in his hands, as they were part of the impartible estate of Kalahasti, of which he was at the time the proprietor. It is not denied that this group of villages, called Chembodu group, forms part of the Kalahaati Zamindari and is governed by (sic) Madras Impartible Estates Act II of (sic). By Section 4 of that Act, it is (sic) that: (sic) of an impartible estate should (sic) of alienating or binding by his debts (sic) or any part thereof, beyond his own (sic) the alienation shall be made, or (sic) incurred, under circumstances, which (sic) the managing member of joint Hindu (sic) not being the father or grandfather of the (sic) co-parceners, to make an alienation of the joint property, or incur a debt, binding on the shares of the other co-parceners independently of their consent.

(2.) That Section clearly governs the present case. Under that section, before any part of the impartible estate of Kalahasti can be taken in execution of a decree of a personal debt, against the predecessor-in-title of the present proprietor, it must be shown that the debt for which the decree was passed was such as would be binding upon an ordinary joint family estate, when the debt was incurred by the managing member, in other words, that there was legal necessity for creating the debt. The question whether the successor is a son of the predecessor or any other co-parcener makes no difference whatever; for the Section does away with the special obligation as between sons and grandsons and their fathers and grandfathers, based upon the theory of pious obligation in the Hindu Law. It is clear, therefore, that, before the decree-holder in this case could attach the property and bring it to sale, it was incumbent on him to establish that the debt for which this decree was passed was a debt, incurred for the necessity of the impartible estate itself.

(3.) There is at present no such proof on record. In fact, it is said that the decree was obtained for a sum of money, which the father of the present Zamindar has obtained as a trustee of a temple and misapplied himself, the debt thus being practically the result of a breach of trust. Such a debt as that can hardly be treated as a debt binding upon a successor-in-title to the Zamindari; for it would not be a debt which, if incurred, by the managing member of a joint Hindu family, would be binding upon the other co-parceners.