G V KRISHNAMURTHI AYYAR Vs. RKAILASAM AYYAR

JUDGEMENT

(1.) The petitioner was the endorsee of a promissory note executed by one Rajagopala Ayyar, the father of the respondents, in favour of one Gnanambal. He obtained a decree in S.C. No. 515 of 1939 against the respondents, the undivided sons of the said Rajagopala Ayyar. Originally the decree directed them to pay the decree amount "out of the separate assets of their father." The petitioner applied to this Court to revise the decree (C.R.P. No. 1474 of 1940) and Burn, J., modified the decree by substituting for the words " out of their father the late Rajagapala Ayyar's separate assets "the words" as the legal representatives of their late father Rajagopala Ayyar." In execution of this decree, the petitioner proceeded to attach the pint family properties in the hinds of the respondents. The respondents objected to the attachment on the ground that the petitioner was a decree-holder in a suit on an endorsed promissory note and the suit being only on the promissory note he could not have any decree that can bind the joint family properties. The only point for consideration therefore was whether the joint family properties could be proceeded against in execution of the decree. The learned District Mansiff of Mayavaram overruled the objection of the judgment-debtors and allowed execution to proceed against the joint family properties. There was an appeal by the judgment-debtors to the Subordinate Judge of Mayavaram who reversed the decision of the learned District Munsiff and dismissed the execution petition on the ground that the joint family properties were not liable to be proceeded against. He was of the opinion that Section 53 of the Civil P. C. did not apply to the decree in question. He followed the decision of Horwill, J., reported in Natarajan Chettiar V/s. Perumal Ammal and though he referred to the decision of Chandrasekhara Aiyar, J., in Pothuraju V/s. Appala Naidu (1944) 2 M.L.J. 82, he. thought that this decision would not be of any help to the petitioner.

(2.) The question for decision in my opinion really lies within a very short compass. We are not now concerned with the question as to the proper decree which should have been passed in the circumstances of the case. There was a final decree and it was not open to the executing Court to go behind it. The suit was brought on a promissory note against the legal representatives of the maker and a decree was passed against them as the legal representatives of their father. No doubt ordinarily a decree passed against the legal representatives of the original debtor can only be executed against the property of the deceased debtor in the hands of the legal representatives. According to the well-accepted notions of Hindu law when a father dies, it cannot be said with reference to the joint family property that he leaves behind him any property which goes into the hands of his sons. The result would be that a decree against a father would be incapable of being executed again t the joint family property after the father's death. But by virtue of the special provision contained in Section 53 of the Civil P. C. the property in the hands of a son or other descendant which is liable under Hindu law for the payment of a debt of a deceased ancestor in respect of which a decree has been passed is deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

(3.) The question in short in this case is whether the joint family property in the hands of the respondents is liable under Hindu law for the payment of a debt of their deceased ancestor, viz., their father. It is not the respondents case that the debt is immoral or illegal. It follows therefore that the joint family properties in the hands of the respondents would be liable to be proceeded against in respect of a decree passed for the payment of the debt of their father.