1954 (2) TMI 19 - HC - Indian Laws

Summary

Issues Involved:
1. Liability of a son under Hindu law for the pre-partition debts of the father.
2. The effect of partition on the father's power to dispose of the son's share for pre-partition debts.
3. The impact of a decree obtained solely against the father on the son's share post-partition.
4. The legal effect of exoneration of sons in a suit on the executability of a decree against the father's debts.
5. The applicability of Section 47, Civil Procedure Code (C.P.C.), in execution proceedings involving exonerated sons.

Detailed Analysis:

1. Liability of a son under Hindu law for the pre-partition debts of the father:
A son under Hindu law is liable for the pre-partition debts of the father, provided these debts are not immoral or illegal. This liability persists even after partition if no arrangement for debt payment was made at the time of partition. However, a decree obtained solely against the father cannot be executed against the son's share post-partition. The liability must be enforced through an independent suit against the son.

2. The effect of partition on the father's power to dispose of the son's share for pre-partition debts:
Upon partition, the father's power to dispose of the son's share to discharge his debts ceases. This principle is established by various decisions, including the Supreme Court's ruling in 'Pannalal v. Mst. Naraini'. The father's disposing power under Section 60, C.P.C., ends with partition, and the son's share can no longer be treated as property over which the father had a disposing power.

3. The impact of a decree obtained solely against the father on the son's share post-partition:
A decree against the father alone, even for a pre-partition debt, cannot be executed against the son's share post-partition. The creditor must proceed through an independent suit against the son to enforce the pious obligation. This principle was reiterated by the Supreme Court in 'Pannalal v. Mst. Naraini' and supported by various judgments of the Madras High Court, including 'Thirumaiamuthu v. Subramania' and 'Kuppan Chettiar v. Masa Goundan'.

4. The legal effect of exoneration of sons in a suit on the executability of a decree against the father's debts:
The exoneration of sons from a suit does not affect the principle that a decree against the father cannot be executed against the son's share post-partition. The fact that sons were made parties to the suit but later exonerated does not keep alive the father's power to dispose of the son's share. This view is supported by decisions such as 'Shiamlal v. Ganeshilal' and 'Hanumantharao v. Venkatakrishnappa', which held that exoneration does not relieve the sons of their liability under Hindu law unless the court expressly or impliedly held that the sons were not liable for the father's debt.

5. The applicability of Section 47, Civil Procedure Code (C.P.C.), in execution proceedings involving exonerated sons:
Section 47, C.P.C., deals with questions arising between parties to the suit relating to the execution of the decree. However, if a son was exonerated from the suit on the ground that he was neither a necessary nor proper party, he is not considered a party to the suit within the meaning of Section 47. This principle was established by the Full Bench in 'Abdul Sac v. Sundara Mudaliar'. Consequently, the question of the liability of the son's share for the father's debt cannot be decided in execution proceedings but requires a separate suit.

Conclusion:
The judgment concluded that the decree against the father could not be executed against the properties allotted to the son post-partition. The exoneration of the son from the suit did not change this principle. The court set aside the orders of the lower courts and directed the parties to bear their own costs, exercising its revisional jurisdiction under Section 115, C.P.C.