Babu Bujhawan Prasad Singh vs Babu Ram Narayan and Others

Jwala Prasad, J.—The appeal, in my Opinion, should be allowed.

The appellant is the son of the executant of the hundi on the basis of which the decree in question was passed. At the time when the suit was instituted, the father of the appellant was dead and consequently he was sued in the representative capacity. He is evidently liable only to the extent of the assets of the co-parcenary property held by him. No doubt the decree is a personal decree against him, yet the decree must be construed in the light of Section 52 of the Civil Procedure Code, which says that "where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property." This view is in accordance with the decision in the case of Nathuni Sahu v. Baijnath Prasad 39 Ind. Cas. 352 : 2 P.L.J. 212 : 1 P.L.W. 300. The contention of the respondent that the money in question may have been borrowed for the benefit of the son and consequently the son is personally liable, does not seem to be in accordance with the accepted authorities on the point. In the last case referred to above, Mullick, J., observed; "All the authorities are unanimous that the co-parcenary property alone is liable for the payment of the debts of the father," and he overruled the contention urged on behalf of the appellant that the claim and the decree should not be restricted to co-parcenary property alone and the decree-holder should be entitled to proceed against the separate property of his son.

The appeal is accordingly decreed with costs.

Ross, J.

I agree.