SUBBA RAO Vs. PSWAMIA PILLAI

JUDGEMENT

(1.) I am unable to follow the District Judge when he proceeds upon the assumption that the 1st defendant, in executing his small cause decree, attached only the father s interest in the property. If this were so, the plaintiffs had ho cause of action to put in a claim petition for the release of their three-fourths share, and when that failed, to institute the present suit to establish their title against the execution creditor. The District Judge failed to see that his assumption destroyed the very foundation of the plaintiffs claim and that their suit must consequently fail. There is no doubt, however, that both parties considered that the entire estate had been attached. In his written statement the 1st defendant asserted the liability of the sons to pay the debts of their father, if not tainted with illegality and immorality. No doubt he at first maintained that the property was the father s self-acquisition, but the fact that he also pleaded the sons liability to pay their father s debts showed that he did not abandon his claim against the entire property, if it turned Out to be ancestral. At the trial the 1st defendant failed in his attempt to prove that the property was the self-acquisition of the 2nd defendant; the plaintiffs also on their part failed to prove that the debt was incurred for an immoral purpose, as they had only general evidence of their father s immoral con-duct.

(2.) But this failure of the plaintiffs co establish their contention that the debt was an immoral one must be regarded as fatal to their whole suit. As observed by the Privy Council in Sripat Singh Dugar v. Prodyot Kumar Tagore 39 Ind, Cas. 252 : 44 C. 524 at pp. 532, 533 : 32 M.L.J. 133 : 15 A.L.J. 147 : (1917) M.W.N. 193 : 21 C.W.N. 442 : 25 C.L.J. 220 : 21 M.L.T. 222 : 19 Bom. L.R.290 : 44 I.A. 1 (P.C.), "in every other event it is open to the execution creditor to sell the whole of the estate in satisfaction of the judgment obtained against the father alone."

(3.) The 1st defendant obtained the decree in Small Cause No. 325 of 1912 upon two promissory notes executed in his favour by 2nd defendant for what became due from him for the rent of certain lands that he took on lease from the 1st defendant. This fact is asserted in 1st defendant s written statement in this suit; it appears also in 2nd defendant s written statement in the Small Cause suit (Exhibit 1) and has not been controverted by the plaintiffs, Thus there was in existence in this case an antecedent debt, to discharge which the ancestral property of the family could be validly allenated by the father.