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TMI Blog1952 (3) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ₹ 16,000. On April 16, 1928, the appellants along with a minor brother of their 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 ₹ 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 befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The present application for execution was filed 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 Abdullaour. 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. 3. 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 attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 425-7-0, half cost of the suit. 6. There was no petition of compromise filed by the parties and mad 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 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 belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty 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 used. Exclusion cannot be inferred merely from the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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-acquisition. 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 (Vide Mayne's Hindu Law, 11th edition, p. 408). 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 is alive, or dead (Vide Brij Narain v. Mangla Prasad, 51 I.A. 129. Thus it is open to the father, during his lifetime, to effect a transfer of any joint family property including the interest of his in the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the shares allotted on partition to the sons can never be made liable for the post-partition debts of the father (Vide Mayne's Hindu Law, 11th Edition, 430. The question that is material for our present purpose is, whether the sons can be made liable for an unsecured debts 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 judicial opinion, through the majority of decided cases are in favour of the view that the separated shares of a son remains liable even after partition for the preparation debts of the father which are not illegal or immoral (Vide Subramanya v. Sabapathi, 51 Mad. 361 (F.B.); Annabat v. Saivappa, 52 Bom. 376; Jawahar Singh v. Parduman, 14 Lah. 399; Atul Krishna v. Lala Nandanji, 14 Pat. 732; Bankey Lal v. Durga Prasad, 53 All 868 (F.B.); Raghunandan v. Matiram, 6 Luck. 497 (F.B.). The reasons given in support of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uaranteed 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 (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 (Vishnu, Chap. 6, verse 36). In our opinion, this is the proper view to take regarding the liability of the sons under Hindu law for the preparation 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 principle of equity and justice. 18. 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 case. 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 objection of which is to delay and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 father or after his death? It has been held in a large number of cases (Vide Kameswaramma v. Venkatasubba 38 Mad. 1120; Subramanya v. Subapathi, 51 Mad. 361; Thirumal; Muthu v. Subramania, A.I.R. 1937 Mad. 458; Surajmal v. Mottram, 1939 Bom. 658, Atul Krishna v. Lala Nandanji, 14 Pat. 732; Govindram v. Nathulal, I.L.R. 1938 Nag. 10- 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 quire sound. After a partition takes place, the father can no longer represent the family and a decree obtained against him alone, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liable for pre- partition debts, provided they are not tainted with immorality and no arrangement for payment of such debts was made at the time of 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 life time of the father in execution of a decree against him cannot possibly be done after his death simply because the father 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 father. 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 them in execution proceedings as well. A decree a father alone during his lifetime cannot possibly be execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decree-holder 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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