CHOTEY LALL Vs. GANPAT RAI

JUDGEMENT

(1.) These are two connected appeals arising out of execution proceedings. The facts which have given rise to this litigation between the parties are as follows: Chotey Lall, appellant in appeal No. 498 had a brother named Basheshwar Das. Bameshwar Das, appellant in appeal No. 499 is the adopted son of Basheshwar Das. These three persons constituted a joint Hindu family, which possessed ancestral property. The decree-holder obtained a mortgage decree against Basheshwar Das on the basis of a mortgage deed, and in execution of which the mortgage property was sold. The sale proceeds, however, proved insufficient to discharge the mortgage debt; and so, the decree-holder applied for, and obtained a personal decree to the extent of the assets of Bhasheswar Das in the hands of his son Rameshwar Das. In execution of this decree one-half share in certain joint family properties have been attached. Both Rameshwar Das and Chotey Lall objected to the at-tachment on the ground that the properties attached were ancestral joint family properties of which they were the owners, and that they were not the assets of Bhaheshwar Das. The decree-holder in reply asserted that the attached properties were self-acquired properties of Basheshwar Das deceased. There was another point in dispute as to whether or not the attached properties were waqf; but it is not necessary to enter into the question at present, it has been found by the Court below that Basheshwar Das, his son Rameshwar Das, and Chotey Lall constituted a joint family, and that the properties now sought to be sold, were joint and ancestral. It held that the decree-holder was entitled to proceed against these properties inspite of the family of the judgment-debtor and of his brother being joint, and of the properties No. 1 and 6 being ancestral. The present appeal has been preferred against that decision of the learned Subordinate Judge.

(2.) The question for consideration is whether the son in a joint family, consisting of father, son and uncle, is under a pious obligation to pay the debt incurred by the deceased father, and whether the share of the son in the joint family estate can be attached and sold in order to pay the debt incurred by the father. There are conflicting decisions of this Court on this point.

(3.) In Lalta Prasad V/s. Gajadhar Shukul , a Bench of two learned Judges of this Court held that: The sons (which expression includes son's sons and son's son's so as) of a Hindu, who is the managing member of a joint Hindu family consisting of himself, his sons and his nephew and grand-nephews, are under a pious obligation to pay the debts contracted by the father (which are not for family purposes) to the extent of their interest in the joint family property provided the debts were not incurred for an illegal or immoral purpose. Every Hindu son is under a pious obligation to discharge his father's debts of this class, irrespective of the fact whether the father is or is not the manager of the joint family, or whether the joint family is or is not composed of persons other than the father and the sons. The right of the father's creditor, who has obtained a decree for the debt of the father, to sell the son's interest in the joint family property in execution of his decree is based not on the father's right to alienate the sons interest for his debts but on the pious obligation of the sons, and the creditor can pursue his remedy even though the father, having regard to the constitution of the family, cannot alienate the family property.