G MOHIDEEN SAHIB Vs. KOTTA LAKSHMAYYA

JUDGEMENT

(1.) The appellant brought a suit on an agreement against the father of the respondent. During the course of the trial, the father died and the respondent was brought on record as his legal representative. Thereupon an additional issue was framed "whether defendant 2 or his share of the family properties is not liable for the suit debt". It is difficult to see why this issue was framed at all, because defendant 2 was brought on record merely as the representative of the father and so the question whether his own property was liable for the debt or not was not in issue. However, this issue was framed; but the appellant made an endorsement on the written statement to the effect that ho did not press this issue against the defendant and so the suit proceeded on the same footing as before defendant 2's father's death, i.e. the question became whether this agreement was true. The result of the suit was that a decree was given against the assets of the deceased defendant in the son's hands. The appellant in execution of this decree obtained against defendant 2 as the legal representative of his father, sought to attach property which was not the property of the father but which admittedly had fallen to the son's share in the partition between the father and the son prior to the suit. The question in this appeal is whether in execution the liability of defendant 2 to pay this debt can be gone into. The executing Court held that it could and the first Appellate Court that it could not.

(2.) If a suit is brought against the father as the manager of his family, then the decree, although it purports to be against the father only, is in reality one against the family and in execution the share of the son can be proceeded against, because the decree is virtually one against the son as well as against the father. Even where it is not clear that the father is on record in the suit as the manager of the family, yet nevertheless the sons can be made liable in execution, because their father has the power of selling his son's property for debts which are not illegal and immoral and the creditor has the right of selling not merely the father's property, but that property which the father has power to dispose of. If however the son is divided from his father, the father has no power of disposal over the son's property and the creditor who cannot have greater powers than the father is unable to bring the property of the son to sale in execution of the decree against the father. In a case like the present, where the partition took place even before the suit was filed, the case of the son is much stronger than if the partition had been after suit; for the father's property is distinct from that of the son, and the property of the son can be no more made liable for the debt of his father without a finding from a Court in a regular suit that it is so liable than can the property of a complete stranger be made liable for another person's debt, unless a Court after due enquiry in a regular suit has declared it to be so.

(3.) In a long course of decisions from Krishnaswami Konan V/s. Ramaswami Iyer (1899) 22 Mad 519 onwards, it has been held that where the father is divided from the sons and therefore has no power of disposal over their property, the creditor cannot proceed against the property of the sons in execution. In Subramania Iyer V/s. Sabapathy Iyer AIR 1928 Mad 657 the liability of the sons for a pre-partition debt was decided, and although the question of liability in execution did not arise, some of the observations made are relevant to this question. Jackson, J. at p. 380 for example says: I fully see the force of the assumption if the creditor is trying to execute a decree obtained against the father alone against assets held by the son after partition, which the father has no present power to bring to sale, then the creditor can be in no better position than the father. But I should hesitate to assume that the creditor's rights are equally circumscribed when he has made the son a party to the suit, and by virtue of the son's pious obligation has obtained a decree against assets in the son's hands. His claim then is based upon the son's pious obligation, and in my opinion is not affected by the circumstance that the father has no longer the power to sell.