Firm Jagannath Rai-Bhagwan Das vs Basist Narain Singh

Mohamad Noor, J.—This appeal arises out of'' an execution case. The only question involved is whether the appellant who is the decree-holder can take out a warrant for the arrest of judgment-debtor No. 2, Basistha Narain Singh. The decree was passed in a simple money suit based upon a hand-note executed by the judgment-debtor 1, Rai Bahadur ChandraKetu Narain Singh. His son, judgment-debtor 2, was also impleaded in the suit as a member of a joint Mitakshara Hindu family. Decree was passed against both the father and the son. A question arose in the course of the execution of the decree whether the son was liable to be arrested. The learned Subordinate Judge has held that he was not and the decree-holder has preferred an appeal.

In my opinion the view taken by the learned Subordinate Judge is correct. The suit was for realisation of a debt due from a joint Hindu family and incurred by the karta of the family. It has been laid down in several cases in this Court that in such a case the person and the personal properties of the other members of the family are not liable. A karta other than the father of the family is empowered to incur debt and thereby make the family property liable for that debt, provided that the debt was incurred for the legal necessities of the family; but the karta as such has no power to bind the person or personal properties of the junior members of the family. The position is exactly the same if the karta happens to be the father of the family. The only difference is that the sons are liable for the debt incurred by the father even if there was no legal necessity provided that it was not for illegal or immoral purposes, as the sons are under a pious obligation to pay their father''s debt. But nothing more than the assets of the joint family are liable. No doubt the pious obligation of the son under the Sastriac rules is not confined to the assets of the family; but the Courts have refused to extend this obligation beyond the assets of the family on the principle of justice, equity and good conscience. But neither the father nor any other karta is entitled to make the person and the other properties of the junior members of the family liable for the debt incurred by him. The other members of the family can only be personally liable if it be shown that they were parties to the debt itself, namely, that they themselves contracted it. Mr. G.P. Das who appeared on behalf of the appellant contended that in this case the money, which was the subject matter of the suit, was borrowed for carrying out the family business, of which both the father and the son were partners and when the father incurred the debt it must be taken that the son was also a contracting party to the debt. But this was not the case of the plaintiff in the suit. A reading of the plaint makes it perfectly clear that the plaintiff did not implead defendant 2 on the ground that he was himself a party to the taking of that loan. He was impleaded as a member of the joint Hindu Mitakshara family and in no other capacity, and that being the case, in my opinion the decree-holder is not entitled to proceed against the person of defendant 2'' who, as is clear from the plaint, was no party to the taking, of the loan, The appeal fails. I would dismiss it with Costs.

Macpherson, J.

I entirely agree. I have been a party to several decisions to the same effect.