BINDA PRASAD Vs. RAJ BALLABH SAHAI

JUDGEMENT

(1.) This is an appeal by two judgment-debtors arising out of an execution matter. It appears that Tapeshari Dayal, the father of these objector's had borrowed some money from the plaintiff decree-holder on a promissory note in 1914. On the basis of that promissory note a decree was obtained against him on the 28 of February 1916. Before any property of his was attached Tapeshari Dayal died. On his death he left his father Behari Lal and four sons, the two appellants, and two minor brothers of theirs. In 1919 an application for execution of the decree was made against the sons alone. The two major sons filed objections on the 5 of August 1919 denying their liability to pay the amount due under the decree. Behari Lal also filed separate objections. By an order dated the 2nd of September 1919 the objections of the two sons were disallowed. By a subsequent order dated the 11 of December 1919 the objection of Behari Lal was allowed with respect to the house which had been attached but was disallowed with respect to certain mortgagee rights. Subsequently Behari Lal also died. The decree-holder has now applied for recovery of the balance of the decretal amount by execution against the sons of Tapeshari Dayal by attaching a new item of property. The sons again filed objections urging that the property was not liable to pay the amount. The Court of first instance allowed their objections, but on appeal their objections have been disallowed and execution ordered to proceed; hence this second appeal,

(2.) It cannot be doubted that under the rulings which were in force under the old Civil P. C. a decree-holder who had obtained a money decree against a member of a joint Hindu family had no remedy in the execution department against the sons of the deceased. Under certain circumstances it was laid down that his remedy was by a separate suit. But I am not aware of any case in which a separate suit was maintained when the deceased left not only sons and grandsons but also father, uncle, brother or nephews. However that may be, the decree- holder had no remedy in the execution department under the old Code. Provisions of Section 53 have now been added which under certain circumstances make the sons of the deceased liable to pay the debt. It is obvious that unless the respondent can come within the four corners of Section 53 which is a new enactment he has no remedy on the execution side. Section 50, sub-Cl. 2 provides that the legal representative of a deceased person is liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of. Section 52 says that the decree is to be executed by attachment and sale of the property of the deceased person. Now ordinarily a member of a joint Hindu family holds joint property in his own right which he acquired at his birth and does not inherit it from the deceased co-parcener in the strict sense of the word. But Section 53 provides that for the purposes of Secs.50 and 52 property in the hands of a son of other descendant which is liable under Hindu law for the payment of debt of a deceased ancestor in respect of which a decree has been passed shall be deemed to be the property of the deceased which has come to the hands of the son or other descendant as his legal representative. It is clear to my mind that in order to see whether a certain person is the legal representative of the deceased with regard to the property sought to be attached the crucial date is the date of the death of the deceased and not the date of attachment of that property. If on the date when the deceased died it cannot be said that a certain property came into the hands of son or other descendant as his legal representatives, Section 52 will not be applicable. In the present case on the date when Tapeshari Dayal died Behari Lal was alive. Behari Lal was not a son or other descendant. He was in fact the father of the deceased. Under the Hindu law there was no pious obligation on Behari Lal to pay his son's debt. The joint family of which Behari Lal was a member was also, therefore, not liable to discharge the debt. The property belonging to the family was, therefore, on the death of Tapeshari Dayal not one which was liable under the Hindu law for the payment of the debt of the deceased. It cannot, therefore, be disputed that between the years 1916 and 1919, when Behari Lal was alive, the decree-holder could not possibly proceed against the joint family property on the ground that it was liable to pay the debt of the deceased.

(3.) The learned vakil for the respondent has argued before us that at the time when the attachment was being made there were no other members of the family but the sons and possibly grandsons of the deceased Tapeshari Dayal. It is said that, therefore, the property now in the hands of a son or other descendant is liable under the Hindu law for payment of the debt of the deceased father. If the crucial date to be considered is the date of the death of the deceased then this argument obviously has no force. If the property was not liable before, it cannot now become liable merely because the grandfather has died since. I am, therefore, of opinion that the decree holder is not entitled to proceed against this property and treat it as part of the assets of the deceased which has come into the hands of the sons and grandsons.