SWAMINATHAN Vs. VSUBRAMANIA AYYAR

JUDGEMENT

(1.) Respondent 1 obtained a decree for damages only against respondent 2 in a suit brought by him for specific performance against respondent 2 and his son, the appellant. He applied for execution of the decree against the shares of both the father and son in the family property. The appellant objected to execution against his share on the ground that there was no decree against him. The Subordinate Judge, overruled his objection and directed execution to proceed against his share also. Hence this appeal.

(2.) Respondent 2 adopted the appellant on 11 April 1917 and made a gift of his property to him by an adoption deed, Ex. 12, executed on the same date. He had contracted on 8 April 1916 for the sale of his property to respondent 1 who brought a suit for specific performance of the agreement and obtained a decree in this Court for the advance paid and damages only against the father, respondent 2. Though this Court held that the son's share was not affected by the contract of sale, he now seeks to execute the decree against the share of the son as well.

(3.) It is well settled that a money decree obtained against a Hindu father can be executed against the undivided share of his son, vide Brij Narain V/s. Mangal Prasad A.I.R. 1924 P.C. 50 and Sama Rao V/s. Lal Chand A.I.R. 1923 Mad. 36. Though a son is not primarily liable for the debt of the father, yet if it is neither illegal nor immoral, the onus of proving which is on the son, he is liable to pay the debt on the ground of pious obligation and this obligation extends to his share of the family property and not to his separate property, even though the son has been exonerated in the suit brought against the father: vide Zenamandra Papiah V/s. Subba Sastrulu , Indar Pal V/s. Imperial Bank [1915] 37 All. 214,. and Shiam Lal V/s. Ganeshi Lal [1906] 28 All. 288. The contention of Mr. Varadachariar for the appellant is that the father was not undivided on the date the debt was incurred and, therefore, the decree against the father cannot be executed against, the son. His argument is that the principle upon which execution is allowed against the son's share, is that embodied in. Section 60, Civil P.C., which says: The following property is liable to attachment and sale in execution of a decree, namely. all other saleable property, moveable or immovable, belonging to the judgment-debtor, or over which, or the profits of which he has disposing power which he may exercise for his own benefit....