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TMI Blog1954 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the decisions. But in a case in which there is a decree against the father personally in a suit in which the sons were originally impleaded but were exonerated later and there is a partition of the family properties, it has been held in -- 'Doraiswami v. Naga-swami', AIR 1929 Mad 898 (A), that in execution of such a decree, the son's share could be seized and sold. This decision was followed by a single Judge of this court in -- Thangachami Chetti v. Kanakasabapathi', AIR 1944 Mad 393 (B). Recently the Supreme Court considered these questions in -- 'Pannalal v. Mst. Naraini', (C). If the basis of the execution against the sons' share was the existence of the power of the father to dispose of the sons' share to discharge his debts not tainted with illegality or immorality and if that power came to an end with the partition of the properties, it is difficult to see any distinction in principle whether the sons were impleaded as parties to the suit and were exonerated or were not made parties to the suit at all. The distinction, therefore, drawn in the two cases referred to above which have taken a contrary view, based upon the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate Judge of Tenali held that as the suit was based only upon the promissory note no decree could be passed even against the second defendant and on that finding he exonerated the second defendant also with costs. In the result, a decree was given only for the promissory note amount against the first defendant. Pending the suit, the decree holder attached six items of property which were admittedly joint family properties. But on 2-10-1946, the first defendant executed Ex. A. 3 relinquishing his interest in the joint family estate in favour of his father and minor son. When the decree holder filed E. P. No. 270 of 1948 for bringing the said items to sale, the second and third defendants filed E. A. No. 29 of 1949 for raising the attachment on the ground that as they were exonerated from liability under the decree and as the first defendant against whom the decree had been passed had relinquished his share in the family properties in their favour prior to the Institution of the suit, the decree holder was not entitled to bring the properties to sale. The, learned District Munsif raised the attachment on the third defendant's half share in the attached properties; but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt for the sons were made parties to the suit but later on were exonerated. 4. The question of the executability of the decree against the father against the properties allotted to the sons' share in the partition is one that relates to the execution of the decree between the parties to the suit, and therefore, by reason of Section 47, 'C. P. C., the said question can only be decided in execution. (7) The first question turns upon the true construction of the release deed, Exhibit A.3 dated 2-10-1946. That release deed was executed by the first defendant in favour of the second defendant and third defendant. After narrating that the parties upto that date constituted members of a joint Hindu family, the document proceeded to state that the executant was spending a life of debauchery and extravagance, that he was anxious to prevent further waste and ultimate loss of the property to the family and that he was therefore relinquishing the entire interest in the Joint family for the benefit of the other members of the family. He only stipulated that the other parties to the document should maintain him properly by giving him food and clothing. The operative portion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest in the joint family property. If he did not separate himself from the other members of the family, the purpose of the document itself would be defeated, for he relinquished his interest so that he might not incur further debts and involve the family in greater difficulties. It is said that there was another member of the joint family and the fact that he did not execute the document in his favour also indicates that his intention was not to separate himself from the family. But that circumstance was not placed before the courts below and I do not think I am Justified in allowing him to state a fact which is neither admitted by the other side nor supported by the records before me. I therefore hold that under the release deed, the first defendant became separated from the family. 8. The second question raised by the learned Counsel does not yield scope for serious argument in view of the consistent opinion expressed by a series of decisions in this court and also by the Supreme Court. It is settled law 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time the property is seized, it remains the undivided estate of the father and the son. If the estate were divided the father could not sell what does not fall to him in the division. Ergo, property taken by tha son, in partition, cannot be seized on account of such unsecured personal debt of the father, even though the debt had been Incurred before the partition. This principle was restated again in -- 'Kame-swaramma v. Venkatasubba Rao', AIR 1914 Mad 328 (G). A Divisional Bench of this court, consisting of Vardachariar and Burn JJ. in -- 'Kuppan Chettiar v. Masa Goundan', AIR 1937 Mad 424 (H) expressed much to the same effect, when they said at page 425: In order that properties may be liable to attach- ment in execution, it must be shown that they either belong to the judgment-debtor or that the judgment-debtor has a disposing power over the properties or their profits which power he may exercise for his own benefit. The learned Judges relied upon the observations or their Lordships of the judicial Committee in --'Sat Narain v. Sri Kishan Das', AIR 1936 PC 277 (I) to the effect that the father's power of sale for' his debts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court, I do not think any purpose would be served by pursuing this matter further., I hold that after partition the decree obtained; against- the first defendant on the promissory note could not be executed against the properties allott-ed to the second defendant in the partition effected in the family. 9. Now, adverting to point No. 3, I do not see any Justification either on principle or on facts for differentiating the two classes of cases, namely, where the son was made a party to the suit but subsequently exonerated and where he was not made a party at all. If the principle underlying the disability of a decree-holder to execute the decree obtained against the father against the properties allotted to the son in partition was that the father's power to sell the son's interest in the property came 9 an end on partition, how does the fact that the son was added as a party to the suit and later on was exonerated keep alive that power ? After the son was exonerated from the suit, the further progress of the suit would be on the basis that it was filed only against the father. If the decree was made against the father alone after such exoneration, it would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Periaswami v. Vaidiallngam Pillai', AIR 1937 Mad 718 (P), Vardachariar and Pandrang Row JJ. considered a case in which the suit was filed against the father and his sons but before judgment was passed the suit was withdrawn as against the sons, and held that the withdrawal of the suit as against the sons did not exonerate them. Leach C. J. and Lakshmana Rao J. In -- 'Kumba-konam Mutual Benefit Fund Ltd. v. Ramaswami', AIR 1946 Mad 396 (Q) followed the principle laid down in the aforesaid two decisions and held that the withdrawal of an application for a personal decree against the minor son would not preclude the operation of the principle of the pious obligation rule of Hindu law. At page 397 the learned Judges observed: We agree, however, that, if the dismissal of the sons from the suit can be read as amounting to a decision by the court that their interests in the family property are not liable for the debt, the pious obligation rule cannot be applied against them in execution of the decree obtained against the father. Much depends on the circumstances under which the dismissal takes place. It will be seen from the aforesaid decisions that independently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 'bona fide' partition between the father and sons, The third point on the foot of the exoneration was also not accepted in view of the decision in -- 'Venkureddi v. Venkureddi', AIR 1927 Mad 471 (FB) (S), where it was held that when the father and the sons had been impleaded in a suit to recover the debt from the father and the sons had been exonerated, nevertheless the sons' share was liable for the father's debts. After disposing of the three contentions, the learned Judges following the well-established principle, namely, that the only objection that the sons can raise to the liability of their shares for their father's debts is that such debts are Immoral or illegal held that the sons In that case could not question the sale for they failed to establish that the debt was incurred for immoral or illegal purposes. It will be seen from the aforesaid analysis of the facts, arguments and the conclusion arrived at by the learned Judges that they did note expressly lay down any proposition of law to the effect that if the sons were exonerated, the subsequent partition between the members would not be a bar for the executability of the decree obtained a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (B)'. There a creditor filed a suit on a promissory note against the father and his sons. The sons were exonerated but a decree was made against the father. Between the date of the decree and the date of attachment there was a partition among the members of the family. The question was whether the sons' shares were not attachable by reason of the intervention of the partition. The learned Judge understood the decision in -- 'AIR 1929 Mad 898 (A)', as laying down that the exoneration of the sons in the suit would enable the decree-holder to execute his decree against the sons after partition and sitting alone thought that he was bound by it. As I have already stated, the Divisional Bench did not lay down any such proposition, and even if they were deemed to have done so by reason of the stray observation made, in my view it was not sound. I therefore hold that the exoneration of the I sons in the suit would not make any difference in the application of the principle, namely, that a decree against the father could not be executed after partition against the properties allotted to the sons' shares. 10. The next point raised is that the question of the liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be determined by the Court executing the decree and not by a separate suit. Explanation: For the purposes of this sec tion, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit. Can it be said that the second defendant who was exonerated from the suit on the ground that he was neither a necessary nor proper party was a party to the suit within the meaning of the explanation? _____ Under similar circumstances a Full Bench oS this court held in -- 'Abdul Sac v. Sundara Mudaliar', AIR 1930 Mad 817 (FB) (U) that such a defendant was not a party within the meaning of 8. 47. There, in a suit to enforce a mortgage one of the defendants who was in possession pleaded that he did not derive his title from the mortgagor but independently of him, and the court held that he was not a necessary party and dismissed the suit as against him. The plaintiff who got a decree on the mortgage evicted the defendant in execution, and on application by the evicted defendant, the executing court put him in possession. The plaintiff preferred an appeal to the District Court. The question was whether the defendant against w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Learned counsel for the respondent contended that the appeal should be dismissed on the ground that it was not maintainable. If the learned counsel intended to advance a serious argument on this question, he should have done so at the commencement of the hearing of the appeal. It has been a well-established convention, and that rests both on principle and convenience, that a preliminary point of this nature should be raised at the beginning. Otherwise, the court's time would have been, unnecessarily wasted. I cannot speaking for myself, tolerate this situation of lengthy arguments on merits for hours or days and at the fag end the learned counsel for the respondent raising a preliminary point as regards the maintainability of the appeal itself. In the present case, this question of the maintainability of the appeal was not even raised in the court below. If raised, the appellant would have withdrawn his appeal and filed a revision to the High Court directly against the order of the District Munsif. In the circumstances, this is a fit and proper case for us to set aside the order of the learned. District Munsif of Tenali in exercise of our revi-sional jurisdiction. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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