PIRYA SHANKER Vs. MRADHE SHIAM

JUDGEMENT

(1.) This is a second appeal from a decision of the Additional Civil Judge of Bareilly who reversed a decree given by the Munsif of Havali, Bareilly, to the plaintiffs. The appeal is consequently by the plaintiffs, two minors, Pirya Shanker and Rambhander, sons of Nand Lal but under the guardianship of Mt. Bilaso Kunwar. Nand Lal, I should mention, is still alive.

(2.) The relevant facts are as follows. On 1 June 1925, Nand Lal took a loan of Rs. 600 on a pronote from Baldeo Prasad. At that time there was yet a third son of Nand Lal alive, by name Hari Shanker, who died sometime between 1926 and 1928. The father and the sons formed a joint Hindu family in 1925 but there was a partition between the father on one side and the three sons on the other. In Suit No. 290 of 1928 Baldeo Prasad obtained a decree against Nand Lal alone and in execution proceedings No. 414 of 1930 he attached the rights of Hari Shanker on the ground that as the result of the death of Hari Shanker after a partition those rights had passed to Nand Lal. The minor plaintiffs were not made parties. On 20th March 1931, the plaintiffs, who had no objection in the execution Court, brought the suit which has given rise to this appeal objecting that Hari Shanker's share in partition had not passed to Nand Lal but to themselves by survivorship as the three sons of Nand Lal had remained joint. As there had been a sale of the rights of Hari Shanker on 30 March 1931, defendants 3 to 5, namely Radhe Shiam, Jagdish Narain and Girja Shanker the auction-purchasers were impleaded. Between the date when the suit was filed and the date when the auction- purchasers had been impleaded, there had been an attempt to stop the sale by. an injunction which was in fact issued but apparently it was served too. late to prevent the sale. It was alleged in the plaint that Hari Shanker was joint with the plaintiffs, consequently Nand Lal had not succeeded to what according to the decree-holder had been the share of Hari Shanker. Hari Shanker and the two plaintiffs having remained joint after the partition, the property in which the three brothers were coparceners became the property in which the plaintiffs alone continued as coparceners. The relief claimed was a declaration that one-third of Mohal Zard mauza Surajpur Parwariya, owned and possessed by the plaintiffs which under decree No. 290 of 1928 passed by the Court of the City Munsif and put in execution as case No. 414 of 1930 in the Court of the Munsif Havali, Bareilly - Baldeo Prasad decree-holder versus Nand Lal judgment-debtor - had been advertised for sale as belonging to Nand Lal was not liable to be attached and sold. Baldeo Prasad, the decree-holder, and the three auction-purchasers put in separate written statements but they were to the same effect. They maintained that the three brothers were separate, so the share of Hari Shanker passed to his father and the proceedings in execution were in every way correct, but in any case the debt in connexion with which the sale had taken place was contracted before the partition relied upon by the plaintiffs who were liable to pay the same. In other words, the contention of these defendants was that there was a pious obligation on the part of the sons to pay that debt of their father, Nand Lal and the decree- holder could, while executing the decree against Nand Lal sell the property of the sons which was in this case originally the interest of the deceased son Hari Shanker. Both the Courts held that the father and the sons were separated but the sons inter se remained joint so that Hari Shanker never had any share which passed to his father. The first Court held that the decree-holder could not in those execution proceedings sell the property in suit as the sons had separated from their father before execution proceedings. The learned Munsif relied on Firm Govind Ram Dwarka Das, Bombay V/s. Nathu Lal ( 37) 24 A.I.R. 1937 Nag. 45. He was careful to note that pure question whether the debt was binding on the plaintiffs or not did not affect the merits of this case. The lower appellate Court came to the conclusion that the decree-holder could in execution of that decree against Nand Lal sell the interest of Hari Shanker and, therefore, it dismissed the present suit. He relied principally on a Full Bench case of this Court, Bankey Lal v. Durga Prasad and on the dissenting judgment of Wort J. in Atul Krishna Roy v. Lala Nadanji ( 35) 22 A.I.R. 1935 Pat. 275.

(3.) It has not been contended before us that when a father, while joint with his sons, contracts a debt which is not immoral and there has been partition before that debt is paid up, the creditor has no remedy against the sons. What has been urged before us is that if a decree has been obtained against the father alone after the partition, and execution is taken out of that decree, the decree-holder cannot realise his money by selling the share of any separated son in what at the time of the debt had been joint family property of the father and the sons. All that we have to decide, therefore, is what is the correct procedure, namely whether the creditor should have obtained a decree against the separated sons and then proceeded against their shares in what has been joint property or whether he could proceed against their property in the execution proceedings based on the decree against the father alone. There is considerable authority for the view that, while executing the decree passed against the separated father, the decree-holder cannot proceed against the shares of the separated sons. This view has been generally based on the principle that the father so long as he was joint with his, sons could sell the joint family property to pay his debts, provided of course they were not immoral, but that he could not after partition sell the shares of the separated sons, so the creditor of the father or the Official Eeceiver, if the father become insolvent, so to speak stepped into the shoes of the father, and could sell through the aid of the Court, that is to say in execution proceedings in the case of a creditor and in insolvency proceedings in the case of the Official Eeeeiver only when the father could sell. In Sat Narin V/s. Sri Kirshen Das their Lordships of the Privy Council stated that the father's power of sale for his debts exists only so long as the joint family property is undivided, and the capacity of the Official Assignee must be similarly limited; consequently, in their Lordships opinion, this was rightly held in Office Assingnee V/s. Ram Chandra Aiyar ( 28) 15 A.I.R. 1926 Mad. 735 and the decision in Sit Ram V/s. Beni Prasad to the contrary effect was incorrect. Therefore their Lordships held that the sale of certain joint family properties by the Official Receiver before the sons and the father had separated could not be questioned by the sons but, as regards certain property not sold by the Receiver as to which the sons had sought partition they upheld the decision of the Punjab High Court that partition should be made after paying off the remainder of the father's antecedent debts in so far as the sons failed to show that they were immoral and illegal.