Pannalal & ANR Vs. Mst. Naraini
& Ors [1952] INSC 13 (7 March 1952)
MUKHERJEA, B.K.
FAZAL ALI, SAIYID BOSE, VIVIAN
CITATION: 1952 AIR 170 1952 SCR 544
CITATOR INFO :
RF 1953 SC 487 (8) F 1959 SC 282 (12,13,16) R
1964 SC1425 (12,19,20,21) R 1978 SC1791 (12,17,20)
ACT:
Hindu law--Debts--Pre-partition debts of
father--Sons' liability --Pious liability of son--Nature and extent, and mode
of enforcement--Decree against estate of father in sons' hands as legal
representatives--Whether executable against property allotted to sons on
partition--Civil Procedure Code (Act V of 1908), ss. 47, 52, 53.
HEADNOTE:
B, acting as manager of a joint Hindu family,
consisting of himself and his sons executed a mortgage deed in favour of the plaintiff,
hypothecating certain movables to secure a loan. Subsequently the sons obtained
a partition decree against their father and the joint family properties were
divided by metes and bounds and separate possession was taken by the father and
the sons. Later on, the plaintiff filed a suit against 'B praying for a decree
against the mortgaged property as well as against the joint family. The sons
applied for being impleaded as defend ants stating that the mortgaged
properties were allotted to them by the partition decree and B was not the
manager of a joint Hindu family. In reply the plaintiff gave up the claim for a
mortgage decree stating that she would be statisfied with a money decree
against B and the plaint was amended accordingly B died and his sons were
brought on the record as his legal representatives. The sons pleaded, inter
alia, that the debt was illegal and immoral as it related to speculative
transactions by the father. The parties arrived at a compromise and on the
basis thereof a simple money decree was passed in favour of the plaintiff
against the estate of B in the hands of his legal representatives. The judgment
debtors (sons) disputed their liability on three grounds, viz., (i) that under
the terms of the compromise decree, the decree-holder could proceed only
against the properties of B in the hands of his legal representatives and no
property belonging to the sons could be made liable for the decree;(ii) that,
as the decree was obtained after partition of the joint family properties
between the father and his sons, the properties of the sons obtained in
partition were not liable under Hindu law for the debt of the father, (iii)
that in any event if there was any pious obligation on the part of the sons to
pay the father's debt incurred before partition such obligation could be
enforced against the sons only in a properly constituted suit and not by way of
execution of a decree obtained in a suit which was brought against the father
alone during his lifetime and to which the sons were made parties as legal
representatives after the father's death:
545 Held, (repelling the contentions), (1)
that as the decree fulfilled the conditions of sec. 52 (1) of the Civil
Procedure Code it attracted all the incidents which attach by law to a decree
of that character 'and therefore the decree-holder was entitled to call in aid
the provisions of sec. 53 of the Code and if any property in the hands of the
sons was liable under the Hindu law to pay the father's debt, such property
would be liable in execution of the decree by virtue of the provision of sec.
53 of the Civil Procedure Code; (2) that a son is liable even after partition
for the pre-partition debts of his father, which are not immoral or illegal and
for the payment of which no arrangement was made at the time of the partition;
(3) that a decree passed against the separated sons as legal representatives of
the deceased father in respect of a debt incurred before partition can be
executed against the shares obtained by such sons at the partition and this can
be done in execution proceedings and it is not necessary to bring a separate
suit for the purpose.
[Case was remanded to the execution court to
determine the question whether the debt was immoral or illegal and whether any
arrangement was made at the time of partition for the payment of the debt.]
Bankey Lal v. Durga Prosad (I.L.R. 53 All. 868 F.B.) approved. The view of the
majority in AtuI Krishna v. Lala Nandanji (I.L.R. 14 Pat. 732) disapproved.
(Case law discussed).
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 57 of 1951. Appeal from a judgment dated 18th May, 1948, of the High Court
of East Punjab at Simla (Khosla and Teja Singh JJ.) in Letters Patent Appeal
No. 189 of 1946 arising out of the judgment dated 11 th February, 1946, of the
Senior Subordinate Judge, Ambala. The facts are set out in the judgment.
Gopinath Kunzru (B.C. Misra, with him) for
the appellants.
Rang Behari Lal (N.C. Sen, with him) for the
respondents.
1952. March 7. The judgment of the Court was
delivered by MUKHERJEA J.--This appeal is on behalf of the judgmentdebtor in a
proceeding for execution of a money decree and it is directed against the
judgment of a Letters Patent Bench of the Punjab High Court dated 18th of May,
1949. by which the learned Judges 546 affirmed, in appeal, a decision of a
single Judge of that court dated 29th October, 1946. The original order against
which the appeal was taken to the High Court was made by the Senior Subordinate
Judge, Ambala, in Execution Case No. 18 of 1945 dismissing the objections
preferred by the appellants under section 47 of the Civil Procedure Code.
To appreciate the contentions that have been
raised in this appeal, it would be necessary to give a short narrative of the
material events in their chronological order. On September 30, 1925, Baldev
Das, the father of the appellants, who was, at that time the manager of a joint
Hindu family, consisting of himself and his sons, executed a mortgage bond in
favour of Mst. Naraini, the original-respondent No. 1, and another person named
Talok Chand, by which certain movable properties belonging to the joint family
were hypothecated to secure a loan of Rs 16,000. On April 16, 1928, the
appellants along with a minor brother of theirs named Sumer Chand filed a
suit:--being Suit No. 23 of 1928 in the Court of the Subordinate Judge of
Shahjahanpur against their father Baldev Das for partition of the joint family
properties. The suit culminated in a final decree for partition on 20th July,
1928, and the joint family properties were divided by metes and bounds and
separate possession was taken by the father and the sons. On 29th September,
1934, Mst. Naraini filed a suit in the Court of the Senior Subordinate Judge,
Ambala, against Baldev Das for recovery of a sum of Rs. 12;500 only on the
basis of the mortgage bond referred to above. It was stated in the plaint that
the money was borrowed by the defendant as manager of a joint Hindu family and
the plaintiff prayed for a decree against the mortgaged property as well as
against the joint family. On 18th December, 1934, the appellants made an
application before the Subordinate Judge under Order I, Rule 10, and Order
XXXIV, Rule 1, Civil Procedure Code, praying that they might be added as
parties defendants to the suit and the points in issue arising therein might be
decided in their presence. It was asserted in the 547 petition that Baldev Das
was not the manager of a joint family and that the family properties had been
partitioned by a decree of the court, as a result of which the properties
alleged to be the subject-matter of the mortgage were allotted to the share of
the petitioners. In reply to this petition, the plaintiff's counsel stated in
court on 7th February, 1935, that his client would give up the claim for a
mortgage decree against the properties in suit and would be satisfied only with
a money decree against Baldev Das personally. The plaint was amended
accordingly, deleting all reference to the joint family and abandoning the
claim against the mortgaged property. Upon this the appellants withdrew their
application for being made parties to the suit and reserved their right to take
proper legal action if and when necessary. On April 17, 1935, Baldev Das died
and on 2nd September following the appellants as well as their mother, who
figures as respondent No. 5 in this appeal, were brought on the record as legal
representatives of Baldev Das. On October 9, 1935, the appellants filed a
written statement in which a number of pleas were taken in answer to the
plaintiff's claim and it was asserted in paragraph 10 of the written statement
that Baldev Das dealt Badri or speculative transactions, and if any money was
due to the plaintiff at all in connection with such transactions the debt was
illegal and immoral and not binding on the family property. On the same day the
court recorded an order to the effect that as the plaintiff had given up her
claim for a mortgage decree, the legal representatives of the deceased could
not be allowed to raise pleas relating to the validity or otherwise of the
mortgage. On 20th November, 1935, the parties arrived at a compromise and on
the basis of the same, a simple money decree was passed in favour of the
plaintiff for the full amount claimed in the suit together with half costs
amounting to Rs. 425 annas odd against the estates of Baldev Das in the hands
of his legal representatives. After certain attempts at execution of this
decree which did not prove successful, 548 the present application for
execution was flied by the decree holder on March 13, 1945, in the court of the
Senior Subordinate Judge, Ambala, and in accordance with the prayer contained
therein, the court directed the attachment of certain immovable properties
consisting of a number of shops in possession of the appellants and situated at
a place called Abdullaput. On April 23, 1945, the appellants filed objections
under section 47, Civil Procedure Code, -and they opposed the attachment of the
properties substantially on the ground that those properties did not belong to
Baldev Das but were the separate and exclusive properties of the objectors
which they obtained on partition with their father long before the decree was
passed. It was asserted that these properties could not be made liable for the
satisfaction of the decretal dues which had to be realised under the terms of
the decree itself from the estate left by Baldev Das.
After hearing the parties and the evidence
adduced by them the Subordinate Judge came to the conclusion that there was in
fact a partition between Baldev Das and his sons in the year 1928 and as a
result of the same, the properties, which were attached at the instance of the
decree holder, were allotted to the share of the sons. The decree sought to be
executed was obtained after the partition, but it was in respect of a debt
which was contracted by the father prior to it. It was held in these
circumstances that the separate share of the sons which they obtained on
partition was liable under the Hindu law for the pre-partition debt of their
father if it was not immoral and under section 53 of the Civil Procedure Code
the decree holder was entitled to execute the decree against such properties.
As no point was raised by the objectors in their petition alleging that the
debt covered by the decree was tainted with immorality, the objections under
section 47, Civil Procedure Code, were dismissed. The objectors thereupon took
an appeal to the High Court of East Punjab which was heard by Rahman J. sitting
singly. The learned judge dismissed the appeal and affirmed the decision of the
Subordinate 549 Judge. A further appeal taken to a Division Bench under the
Letters Patent was also dismissed and it is the propriety of the judgment of
the Letters Patent Bench that has been challenged before us in this appeal.
Mr. Kunzru appearing for the appellants put
forward a three-fold contention in support of the appeal. He contended in the
first place that under the terms of the compromise decree the decreeholder
could proceed only against the properties of Baldev Das in the hands of his
legal representatives and no property belonging to the appellants could be made
liable for the satisfaction of the decree. The second contention put forward is
that as the decree in the present case was obtained after partition of the
joint family property between the father and his sons, the separate property of
the sons obtained on partition was not liable under Hindu law for the debt of
the father. It is urged last of all that in any event if there was any pious
obligation on the part of the sons to pay the father's debt incurred before
partition, such obligation could be enforced against the sons, only in a
properly constituted suit and not by way of execution of a decree obtained in a
suit which was brought against the father alone during his lifetime and to
which the sons were made parties only as legal representatives after the
father's death.
As regards the first point, the determination
of the question raised by Mr. Kunzru depends upon the construction to be put
upon the terms of the compromise decree. The operative portion of the decree as
drawn up by the court stands as follows:
"It is ordered that the parties having
compromised, a decree in accordance with the terms of the compromise be and the
same is hereby passed in favour of the plaintiff against the estate of Baldev
Das deceased in possession of his legal representatives. It is also ordered
that the defendants do also pay Rs. 425-7-0, half costs of the suit." 71
550 There was no petition of compromise filed by the parties and made part of
the decree, but there are on the record two statements, one made by Pannalal,
the appellant No. 1, on behalf of himself and his mother, and the other by Lala
Haraprasad, the special agent of the plaintiff, setting out terms of the
compromise. The terms are worded much in the same manner as in the decree
itself and are to the effect that a decree for the amount in suit together with
half costs would be awarded against the property of Baldev Das deceased. It is
argued by Mr. Kunzru that the expression "estate of Baldev Das
deceased" occurring in the decree must mean and refer to the property
belonging to Baldev Das at the date of his death and could not include any
property which the sons obtained on partition with their father during the
father's lifetime and in respect of which the latter possessed no interest at
the time of his death.
Stress is laid by the learned counsel in this
connection on the fact that when the appellants were brought on the record as
legal representatives of their deceased father in the mortgage suit, they
specifically asserted in their written statement that there was a partition
between them and their father long before the date of the suit as a result of
which the hypothecated properties were allotted to them.
Upon that the plaintiff definitely abandoned
her claim to a mortgage decree or to any relief against the joint family and
agreed finally to have a money decree executable against the personal assets of
Baldev Das in the hands of his heirs.
In these circumstances, it is urged that if
it was the intention of the parties that the decreeholder would be entitled to
proceed against the separate property of the sons nothing could have been
easier than to insert a provision to that effect in the compromise decree.
There is undoubtedly apparent force in this contention but there is another
aspect of the question which requires consideration.
The terms of the decree that was passed in
this suit, though based on the consent of the parties, are precisely the same
as are contemplated by section 52 (1) of the Civil procedure Code. It was a
decree for money 551 passed against the legal representatives of a deceased
debtor and it provided expressly that the decretal amount was to be realised
out of the estate of the deceased in the hands of the legal representatives. It
is argued on behalf of the respondent, and we think rightly, that as the decree
fulfils the conditions of section 52 (1) of the Civil Procedure Code, it would
attract all the incidents which attach by law to a decree of that character.
Consequently the decreeholder would be entitled to call in aid the provision of
section 53 of the Code; and if any property in the hands of the sons, other
than what they received by inheritance from their father, is liable under the
Hindu law to pay the father's debts, such property could be reached by the decreeholder
in execution of the decree by virtue of the provision of section 53 of the
Civil Procedure Code. Whether the property which the sons obtained on partition
during the lifetime of the father is liable for a debt covered by a decree
passed after partition and whether section 53 has at all any application to a
case of this character are questions which we have to determine in connection
with the second and the third points raised by appellants. Section 53, Civil
Procedure Code, it is admitted, being only a rule of procedure, cannot create
or take away any substantive right. It is only when the liability of the sons
to pay the debts of their father in certain circumstances exists under the
Hindu law, is the operation of the section attracted and not otherwise. The
only other question that can possibly arise by reason of the decree being a
compromise decree is, whether the parties themselves have, by agreement,
excluded the operation of section 53, Civil Procedure Code. It is certainly
possible for the parties to agree among themselves that the decree should be
executed only against a particular property and no other, but when any
statutory right is sought to be contracted out, it is necessary that express
words of exclusion must be usedl. Exclusion cannot be inferred merely from the
fact that the compromise made no reference to such right. As nothing was said
in the compromise decree in the present case about the 552 right of the
decreeholder to avail herself of other provisions of the Code which might be
available to her in law, we cannot say that the plaintiff has by agreement
expressly given up those rights. The first point, therefore, by itself is of no
assistance to the appellants.
We now come to the other two points raised by
Mr. Kunzru and as they are inter-connected they can conveniently be taken up
together. These points involve consideration of the somewhat vexed question
relating to the liability of a son under the Hindu law other than that of the
Daybhag school to pay the debts of his father, provided they are not tainted
with immorality. In the opinion of the Hindu Smriti writers, debt is not merely
a legal obligation, but non-payment of debt is a sin, the consequences of which
follow the debtor even after his death. A text (1), which is attributed to
Brihaspathi, lays down:
"He who having received a sum lent or
the like does not repay it to the owner, will be born hereafter in the creditor's
house a slave, a servant, a woman or a quadruped." There are other texts
which say that a person m debt goes to hell. Hindu law-givers therefore imposed
a pious duty on the descendants of a man including his son, grandson and great
grandson to pay off the debts of their ancestor and relieve him of the after
death torments consequent on non-payment. In the original texts a difference
has been made in regard to the obligation resting upon sons, grandsons and
great grandsons in this respect. The son is bound to discharge the ancestral
debt as if it was his own, together with interest and irrespective of any
assets that he might have received. The liability of the grandson is much the
same except that he has not to pay any interest; but in regard to the great
grandson the liability arises only if he received assets from his ancestor. It
is now settled by judicial decisions that there is no difference as between
son, grandson and great grandson so far as the obligation to pay the debts of
the ancestor is concerned; but none of them has any personal (1) Vide
Colebrooke's Digest I, 228, 553 liability in the matter irrespective of
receiving any assets (1). The position, therefore, is that the son is not
personally liable for the debt of his father even if the debt was not incurred
for an immoral purpose and the obligation is limited to the assets received by
him in his share of the joint family property or to his interest in such
property and it does not attach to his self-acquisitions. The duty being
religious or moral, it ceases to exist if the debt is tainted with immorality
or vice. According to the text writers, this obligation arises normally on the
death of the father; but even during the father's lifetime the son is obliged
to pay his father's debts in certain exceptional circumstances, e.g., when the
father is afflicted with disease or has become insane or too old or has been
away from his country for a long time or has suffered civil death by becoming
an anchorite (2). It can now be taken to be fairly well settled that the pious
liability of the son to pay the debts of his father exists whether the father
1s alive or dead (3). Thus it is open to the father during his lifetime, to
effect a transfer of any joint family property including the interests of his
sons m the same to pay off an antecedent debt not incurred for family necessity
or benefit, provided it is not tainted with immorality. It is equally open to
the creditor to obtain a decree against the father and in execution of the same
put up to sale not merely the father's but also the son's interest in the joint
estate. The creditor can make the sons parties to such suit and obtain an
adjudication from the court that the debt was a proper debt payable by the
sons. But even if the sons are not made parties, they cannot resist the sale
unless they succeed in establishing that the debts were contracted for immoral
purposes. These propositions can be said to be well recognised and reasonably
beyond the region of controversy(4). All of them, however, (1) Vide Masitullah
v. Damodar Prasad, 53 I.A. 204.
(2) Vide Mayne's Hindu Law, 11th edition, p.
408.
(3) Vide Brij Narain v. Mangla Prasad, 51
I.A. 129.
(4) Vide Girdharee Lall v. Kantoo Lall, 1
I.A. 321; Maddan Thakoor v. Kantoo Lall, 1 I.A, 333; Suraj Bunsi v. Sheo
Prasad, 6 I.A.88; Brij Narain v. Mangla Prosad, 51 I.A. 129.
554 have reference to the period when the
estate remains joint and there is existence of coparcenership between the
father and the son. There is no question that so long as the family remains
undivided the father is entitled to alienate, for satisfying his own personal
debts not tainted with immorality, the whole of the ancestral estate. A
creditor is also entitled to proceed against the entire estate for recovery of
a debt taken by the father. The position is somewhat altered when there is a
disruption of the joint family by a partition between the father and the sons.
The question then arises, whether the sons remain liable for the debt of the
father even after the family is divided; and can the creditor proceed against
the shares that the sons obtain on partition for realization of his dues either
by way of a suit or in execution of a decree obtained against the father alone
? It must be admitted that the law on the subject as developed by judicial
decisions has not been always consistent or uniform and the pronouncements of
some of the Judges betray a lack of agreement in their approach to the various
questions involved in working out the law.
As regards debts contracted by the father
after partition, there is no dispute that the sons are not liable for such
debts. The share which the father receives on partition and which after his
death comes to his sons, may certainly, at the hands of the latter, be
available to the creditors of the father, but the shares allotted on partition
to the sons can never be made liable for the post-partition debts of the father
(1). The question that is material for our present purpose is, whether the sons
can be made liable for an unsecured debt of the father incurred before
partition, in respect to which the creditor filed his suit and obtained decree
after the partition took place. On this point admittedly there is divergence of
judicial opinion, though the majority of decided cases are in favour of the
view that the separated share of a son remains liable even after partition for
the pre-partition debts of the father which (1) Vide Mayne's Hindu Law, 11th
Edition, 430.
555 are not illegal or immoral (1). The
reasons given in support of this view by different Judges are not the same and
on the other side there are pronouncements of certain learned Judges, though
few in number, expressing the view that once a partition takes place, the
obligation of the sons to discharge the debts of their father comes to an
end(2).
The minority view proceeds upon the footing
that the pious obligation of the son is only to his father and corresponding to
this obligation of the son the father has a right to alienate the entire joint
property including the son's interest therein for satisfaction of an antecedent
debt not contracted for immoral purposes. What the creditor can do is to avail
himself of this right of the father and work it out either by suit or execution
proceedings; in other words, the remedy of a father's simple contract creditor
during the father's lifetime rests entirely on the right of the father himself
to alienate the entire family property for satisfaction of his personal debts.
The father loses this right as soon as partition takes place and after that,
the creditor cannot occupy a better position or be allowed to assert rights
which the father himself could not possess.
The reasoning in support of the other view
which has been accepted in the majority of the decided cases is thus expressed
by Waller J. in his judgment in the Madras Full Bench case(3):
"On principle, I can see no reason why a
partition should exempt a son's share from liability for a pre-partition debt
for which it was liable before partition. The creditor advances money to the
father on the credit of the joint family property. Why should he be deprived of
all but a fraction of his security by a transaction to which he was not a party
and of which he (1) Vide Subramanya v. Sabapathi, 51 Mad. 361 (F.B.); Annabat
v. Shivappa, 52 Bom. 376; Jawahar Singh v. parduman, 14 Lab. 399; Atul Krishna
v. Lala Nandanji. 14 Pat. 732 (F.B.);
Bankey Lal v. Durga All 868 (F.B.);
Raghunandan v. Matiram, 6 Luck. 497 (F.B.).
(2) Vide Krishnaswami, v. Ramaswami, 22 Mad.
519; V.P. Venkanna v.V.S. Deekshatulu, 41 Mad. 136; Vide also the dissentient
judgment of Ayyangar J. in Subramanya v. Sabapathi, 51 Mad. 361 (F.B.).
(3)Vide Subramanya v. Sabapathi, 51 Mad. 361
at 369 (F.B.).
556 was not aware ? and what becomes of the
son's pious obligation ? It was binding as regards the particular debt before
partition; does it cease to apply to that debt simply because there has been a
partition ?" The first part of the observation of the learned Judge does
not impress us very much. An unsecured creditor, who has lent money to the
father, does not acquire any lien or charge over the family property, and no
question of his security being diminished, at all arises. In spite of his
having borrowed money the father remains entitled to alienate the property and
a mere expectation of the creditor however reasonable it may be, cannot be
guaranteed by law so long as he does not take steps necessary in law to give
him adequate protection. The extent of the pious obligation referred to in the
latter part of the observation of the learned Judge certainly requires careful
consideration. We do not think that it is quite correct to say that the creditor's
claim is based entirely upon the father's power of dealing with the son's
interest in the joint estate. The father's right of alienating the family
property for payment of his just debts may be one of the consequences of the
pious obligation which the Hindu law imposes upon the sons or one of the means
of enforcing it, but it is certainly not the measure of the entire obligation.
As we have said already, according to the strict Hindu theory, the obligation
of the sons to pay the father's debts normally arises when the father is dead,
disabled or unheard of for a long time. No question of alienation of the family
property by the father arises in these events, although it is precisely under
these circumstances that the son is obliged to discharge the debts of his
father. As was said by Sulaiman A.C.J. in the case of Bankey Lal v. Durga
Prasad(1):
"The Hindu law texts based the liability
on the pious obligation itself and not on the father's power to sell the son's
share." It is thus necessary to see what exactly is the extent of the
obligation which is recognised by the Hindu (1) (9931) 53 All. 868 at 876
(F.B.).
557 texts writers in regard to the payment by
the son c the pre-partition debts of his father. Almost all the relevant texts
on this point are to be found collected in the judgments of Sulaiman A.C.J. and
Mukherji J in the Allahabad Full Bench case referred to above A text of Narada
recites(1):
"What is left after the discharge of the
father obligation and after the payment of the father's debts shall be divided
by the brothers so that the father, may not remain a debtor." Katyan also
says(2):
"The sons shall pay off the debts and
the gift,, promised by the father and divide the remaining among themselves."
There is a further passage in Manu(3):
"After due division of the paternal
estate if any debt or estate of the father be found out let the brother equally
divide the same among themselves." According to Yagnavalka(4):
"The sons should divide the wealth and
the debts equallyl." It is true that the partition contemplated in these
passages is one after the death of the father. but whenever the partition might
take place, the view of the Hindu law givers undoubtedly is that the binding
debts on the family property would have to be satisfied or provided for before
the coparceners can divide the property. In Sat Narain v. Das (5), the Judicial
Committee pointed out that when the family estate is divided, it is necessary
to take account of both the assets and the debts for which the undivided estate
is liable. It was argued in that case on behalf of the appellants that the
pious obligation of the sons was an obligation not to object to the alienation
of the joint estate by the (1) Narada., 13, 32.
(2)Hindu Law in its Sources by Dr. Ganga Nath
Jha, Vol. I. p quotation No. 211.
(3)Chap. 9. v. 218.
(4) J.C.Ghosh's Hindu Law, Vol. H, page 342.
(5) (1936) 63 I.A. 384 72 558 father for his
antecedent debt unless they were immoral or illegal, but these debts were not a
liability on the joint estate for which provision was required to be made
before partition. This contention did not find favour with the Judicial
Committee and in their opinion, as they expressed in the judgment, the right
thing to do was to make provision for discharge of such liability when there
was partition of the joint estate. If there is no such provision, "the debts
are to be paid severally by all the sons according to their shares of
inheritance," as enjoined by Vishnu(1). In our opinion, this is the proper
view to take regarding the liability of the sons under Hindu law for the
pre-partition debts of the father. The sons are liable to pay these debts even
after partition unless there was an arrangement for payment of these debts at
the time when the partition took place. This is substantially the view taken by
the Allahabad High Court in the Full Bench case referred to above and it seems
to us to be perfectly in accord with the principles of equity and justice.
The question now comes as to what is meant by
an arrangement for payment of debts. The expressions "bona fide" and
"mala fide" partition seem to have been frequently used in this
connection in various decided cases. The use of such expressions far from being
useful does not unoften lead to error and confusion. If by mala fide partition
is meant a partition the object of which is to delay and defeat the creditors
who have claims upon the joint family property, obviously this would be a
fraudulent transaction not binding in law and it would be open to the creditors
to avoid it by appropriate means. So also a mere colourable partition not meant
to operate between the parties can be ignored and the creditor can enforce his
remedies as if the parties still continued to be joint. But a partition need
not be mala fide in the sense that the dominant intention of the parties was to
defeat the claims of the creditors; if it makes no arrangement or provision for
the payment of the just debts payable (1) Vishnu, Chap. 6, verse 36.
559 out of the joint family property, the
liability of the sons for payment of the pre-partition debts of the father will
still remain. We desire only to point out that an arrangement for payment of
debts does not necessarily imply that a separate fund should be set apart for
payment of these debts before the net assets are divided, or that some
additional property must be given to the father over and above his legitimate
share sufficient to meet the demands of his creditors. Whether there is a
proper arrangement for payment of the debts or not, would have to be decided on
the facts and circumstances of each individual case. We can conceive of cases
where the property allotted to the father in his own legitimate share was
considered more than enough for his own necessities and he undertook to pay off
all his personal debts and release the sons from their obligation in respect
thereof. That may also be considered to be a properarrangement for payment of
the creditor in the circumstances of a particular case. After all the primary
liability to pay his debts is upon the father himself and the sons should not
be made liable if the property in the hands of the father is more than adequate
for the purpose. If the arrangement made at the time of partition is reasonable
and proper, an unsecured creditor cannot have any reason to complain. The fact
that he is no party to such arrangement is, in our opinion, immaterial. Of
course, if the transaction is fraudulent or is not meant to be operative, it
could be ignored or set aside; but otherwise it is the duty of unsecured
creditor to be on his guard lest any family property over which he has no
charge or lien is diminished for purposes of realization of his dues.
Thus, in our opinion, a son is liable, even
after partition for the pre-partition debts of his father which are not immoral
or illegal and for the payment of which no arrangement was made at the date of
the partition. The question now is, how is this liability to be enforced by the
creditor, either during the lifetime of the lather or after his death ? It has
been held 560 in a large number of cases(1)--all of which recognise the
liability of the son to pay the pre-partition debts of the father-that a decree
against the father alone obtained after partition in respect of such debt
cannot be executed against the property that is allotted to the son on
partition. They concur in holding that a separate and independent suit must be
instituted against the sons before their shares can be reached. The principles
underlying these decisions seems to us to be quite sound. After a partition
takes place, the father can no longer represent the family and a decree
obtained against him alone, cannot be binding on the separated sons. In the
second place, the power exercisable by the father of selling the interests of
the sons for satisfaction of his personal debts comes to an end with partition.
As the separated share of the sons cannot be said to belong to the father nor
has he any disposing power over it or its profits which he can exercise for his
benefit, the provision of section 60 of the Civil Procedure Code would operate
as a bar to the attachment and sale of any such property in execution of a
decree against the father. The position has been correctly stated by the Nagpur
High Court(2) in the following passages:
"To say a son is under a pious
obligation to pay certain debts is one thing; to say his property can be taken
in execution is another. In our view, property can only be attached and sold in
execution if it falls within the kind of property that can be attached and
sold. What that is, is found by looking at section 60. When one looks at section
60 one finds that the property in question should either belong to the
judgment-debtor or he should have a disposing power over it. After partition,
the share that goes to the son does not belong to the father and the father has
no disposing power over it. Therefore such property does not fall within
section............... It by no means follows that a son cannot (1) Vide
Kameswaramma v. Venkatasubba, 38 Mad. 1 20;
Subramanya v. Sabapathi, 51 Mad. 361;
Thirumala Muthu v. Subramania, A.I.R. 1937 Mad. 458; Surajmal v. Motiram 1939
Bom. 658; Atul Krishna v. Lala Nandanji, 14 Pat. 732; Govindram v. Nathulal,
I.L.R,. 1938 Nag. 10.
(2) Jainarayan v, Sonaji, A.I.R. 1938 Nag. 24
at 29 561 be made liable. He could be made liable for his father's debts if he had
become a surety; he can be made liable under the pious obligation rule. In
neither of the cases put, could his liability take the form of having his
property seized in execution and sold without any prior proceedings brought
against him, leaving him to raise the question whether his liability as surety
or under the pious obligation rule precluded him from claiming in
execution." It is not disputed that the provision of section 53 of the
Civil Procedure Code cannot be extended to a case when the lather is still
alive.
We now come to the last and the most
controversial point in the case, namely, whether a decree passed against the
separated sons as legal representatives of a deceased debtor in respect of a
debt incurred before partition can be executed against the shares obtained by
such sons at the partition ? As has been said already, the shares of the
separated sons in the family property may be made liable for prepartition
debts, provided they are not tainted with immorality and no arrangement for
payment of such debts was made at the time the partition. The question,
however, is whether this can be done in execution proceedings or a separate
suit has to be brought for this purpose. Mr. Kunzru argues that what could not
be done during the lifetime of the lather in execution of a decree against him
cannot possibly be done alter his death simply because the lather died during
the pendency of the suit and the sons were made parties defendants not in their
own right but as representatives of their deceased lather. It is pointed out
that the appellants in the present case were not allowed to raise any plea
which could not have been raised by their father and they never had any
opportunity to show that they were under Hindu law not liable for these debts.
It is undoubtedly true that no liability can be enforced against the sons
unless they are given an opportunity to show that they are not liable for debts
under Hindu law; but this opportunity can certainly be given to 562 them in
execution proceedings as well. A decree against a father alone during his
lifetime cannot possibly be executed against his sons as his legal
representatives. As we have said already, the decree against the father after
the partition could not be taken to be a decree against the sons and no
attachment and sale of the sons' separated shares would be permissible under
section 60, Civil Procedure Code. The position, however, would be materially
different if the sons are made parties to the suit as legal representatives of
their father and a decree is passed against them limited to the assets of the
deceased defendant in their hands. A proceeding for execution of such a decree
would attract the operation of section 47 of the Civil Procedure Code under
which all questions relating to execution, discharge and satisfaction of the
decree between the parties to the suit in which the decree was passed or their
representatives would have to be decided in execution proceedings and not by a
separate suit. Section 52 (1), Civil Procedure Code, provides that when a
decree is against the legal representatives of a dead person and is one for
recovery of money out of the properties of the deceased, it may be executed by
attachment, and sale of any such property. Then comes section 53 which lays
down that "for purposes of section 50 and section 52 property in the hands
of a son or other descendants which is liable under Hindu law for payment of
the debt of a deceased ancestor in respect of which a decree has been passed,
shall be deemed to be property of the deceased which has come to the hands of
the son or other descendant as his legal representative." It is to be
noted that before the Civil Procedure Code of 1908 came into force, there was a
conflict of opinion as to whether the liability of a Hindu son to pay his
father's debts could or could not be enforced in execution proceedings. Under
the Hindu law an undivided son or other descendant who succeeds to the joint
property on the death of his father or other ancestor does so by right of survivorship
and not as heir. In the old Code the term "legal representative" was
not defined and 563 the question arose as to whether the son could be regarded
as the legal representative of his father in regard to properties which he got
by survivorship on the father's death and whether a decree against the father
could be enforced in execution against the son or a separate suit would have to
be instituted for that purpose. It was held by the Madras and the Allahabad
High Courts that the liability could not be enforced in execution proceedings,
whereas the Calcutta and the Bombay High Courts held otherwise.
Section 53 in a sense gives legislative
sanction to the view taken by the Calcutta and the Bombay High Courts. One
reason for introducing this section may have been or undoubtedly ,was to enable
the decreeholder to proceed in execution against the property that vested in
the son by survivorship after the death of the father against whom the decree
was obtained; but the section has been worded in such a comprehensive manner
that it is wide enough to include all cases where a son is in possession of
ancestral property which is liable under the Hindu law to pay the debts of his
father;
and either the decree has been made against
the son as legal representative of the father or the original decree being
against the father, it is put into execution against the son as his legal
representative under section 50 of the Civil Procedure Code. In both these sets
of circumstances the son is deemed by a fiction of law to be the legal
representative of the deceased debtor in respect of the property which is in
his hands and which is liable under the Hindu law to pay the debts of the
father, although as a matter of fact he obtained the property not as a legal
representative of the father at all.
As we said have already, section 53 of the
Civil Procedure Code being a rule of procedure does not and cannot alter any
principle of substantive law and it does not enlarge or curtail in any manner
the obligation which exists under Hindu law regarding the liability of the son
to pay his father's debts. It however lays down the procedure to be followed in
cases coming under this SectiOn and if the son is bound under Hindu law to 564
pay the father's debts from any ancestral property in his hands --and the
section is not limited to property obtained by survivorship a1one--the remedy
of the decreeholder against such property lies in the execution proceedings and
not by way of a separate suit the son would certainty be at liberty to show
that the property in his hands is for certain reasons not liable to pay the
debts of his father and all these questions would have to be decided by the
executing court under section 47, Civil Procedure Code. This seems to us to be
the true scope and the meaning of section 53, Civil Procedure Code. In our
opinion the correct view on this point was taken by Wort J. in his dissenting
judgment in the Full Bench case of Atul Krishna v. Lala Nandanji (1) decided by
the Patna High Court. The majority decision in that case upon which stress is
laid by Mr. Kunzru overlooks the point that section 47, Civil Procedure Code,
could have no application when the decree against the father is sought to be
executed against the sons during his lifetime and consequently the liability of
the latter must have to be established in an independent proceeding. In cases
coming under sections 50 and 52 of the Civil Procedure Code on the other hand
the decree would be capable of being executed against the sons as legal representatives
of their father and it would only be a matter of procedure whether or not these
questions should be allowed to be raised by the sons in execution proceedings
under section 47, Civil Procedure Code.
It remains only to consider what order should
be passed in this case having regard to the principles of law discussed above.
The High Court, in our opinion, was quite right in holding that the question of
liability of the property obtained by the appellants in their share on partition
with their father, for the decretal dues is to be determined in the execution
proceeding itself and not by a separate suit. It is not disputed before us that
the debt which is covered by the decree in the present case is a pre-partition
debt. The sons, (1) (1935) 14 Pat. 732.
565 therefore, would be liable to pay the
decretal amount, provided the debt was not immoral or illegal and no arrangement
was made for payment of this debt at the time when the partition took place.
Neither of these questions has been investigated by the courts below. As
regards the immorality of the debts, it is observed by the High Court that the
point was not specifically taken in the objections of the appellants under
section 47, Civil Procedure Code. The validity of the partition again was challenged
in a way by the decree holder in his reply to the objections of the appellants,
but the courts below did not advert to the real point that requires
consideration in such cases. The partition was not held to be invalid as being
a fraud on the debtor but the question was not adverted to or considered
whether it made any proper arrangement for payment of the just debts of the
father. In our opinion, the case should be reheard by the trial judge and both
the points referred to above should be properly investigated. The appellants
did raise a point regarding their non-liability for the decretal debt, in the
suit itself when they were brought on the record as legal representatives after
the death of their father. The court, however, did not allow them to raise or
substantiate this plea inasmuch as they were held incompetent to put forward
any defence which the father himself could not have taken. Having regard to the
conflicting judicial decisions on the subject, the appellants cannot properly
be blamed for not raising this point again in the execution proceedings. We
think that they should now be given an opportunity to do so. The result is that
we set aside the judgments of the courts below and direct that the case should
be heard de novo by the Subordinate Judge and that the appellants should be
given an opportunity to put in a fresh petition of objection under section 47
of the Civil Procedure Code raising such points as they are competent to raise.
The decree holder would have the right to reply to the same. The court shall,
after hearing such evidence as the parties might choose to adduce, decide 73
566 first of all whether the property attached is the ancestral property of the
appellants and is liable to pay the just debts of their father. It will consider
in this connection whether the debts are illegal or immoral and as such not
payable by the sons. If this question is answered in favour of the appellants,
obviously the execution petition will have to be dismissed. If on the other
hand it is found that the sons are liable for this debt, the other question for
consideration would be whether there was any proper arrangement made at the
time of the partition for payment of the debts of the father. The court below
will decide these questions in the light of the principles which we have
indicated above and will dispose of the case in accordance with law.
In the event of the appellants being held
liable for payment of the decretal debt, it would be open to the executing
court to make an order that the decreeholder should in the first instance
proceed against the separate property of the father which was allotted to him
on partition and which after his death devolved upon the sons; and only if such
property is not sufficient for satisfaction of the decree, then the decree
could be executed for the balance against the ancestral property in the hands
of the appellants.
There will be no order for costs up to this
stage. Further costs will follow the result.
Agent for the appellants: Tarachand Brijmohan
Lal.
Agent for the respondents: Mohan Behari Lal.
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