Kasirajan and another vs Ramasamy Nainar

Srinivasan, J.—This appeal arises out of a claim petition filed by the appellants herein under O.21, R.58 of the CPC for raising the

attachment over the property set out in the petition, which was item No. 1 of the properties attached by the respondent in execution of the decree

obtained by him in O.S. No. 663 of 1982 on the file of District Munsif, Panruti. The appellants are the sons of Ramalinga Padayachi. The said

Ramalinga Padayachi his brother Muthu Padayachi and their father Thangavel Padayachi constituted a Hindu joint family owning several

properties. Thangavel Padayachi and his two sons borrowed a sum of Rs. 6000/- from the respondent for family purposes on 5-11-1973 and

executed a promissory note in his favour. The respondent issued a notice on 24-7-1978 to Thangavel Padayachi and his two sons calling upon

them to pay the money due under the promissory note. A reply notice was issued on 2-8-1978. On 17-11-1978 the plaintiffs represented by their

mother as guardian filed O.S. No. 762 of 1978 for partition and separate possession of 2/9th share in the suit properties. Thangavel Padayachi

was the first defendant in the suit, Muthu Padayachi was the second defendant and Ramalinga Padayachi, the father of the plaintiffs, was the third

defendant. The wife and daughters of Thangavel Padayachi were impleaded as defendants 5 to 8 in the suit on 4-9-1979. No material is available

as to the fourth defendant Chinnammal, who is described as the daughter of Vadivel Padayachi.

On 17-8-1979 the respondent filed O.S. No. 504 of 1979 on the file of Sub Court, Cuddalore for recovery of the money due under the

promissory note dated 5-11-1973 executed by Thangavel Padayachi and his two sons. On 11-2-1980 an ex parte decree was passed in the said

suit directing the defendants to pay a sum of Rs. 8857/- with interest. On 8-9-1981, a preliminary decree was passed in the suit for partition filed

by the appellants herein declaring their right to partition and separate possession of 2/9th share in the suit properties. The first item in the suit

properties is the subject matter of dispute in this appeal. On 11-9-1981, the ex parte decree in O.S. No. 504 of 1979 was set aside and the suit

was restored to file. On the same day it was transferred to the file of the District Munsif, Cuddalore, by virtue of the provisions of the Tamil Nadu

Act 34 of 1980 enhancing the pecuniary jurisdiction of District Munsif. On transfer, it was numbered as O.S. No. 2311 of 1981. On 12-10-1982

the suit was transferred to the file of District Munsif, Panruti and numbered as O.S. No. 663 of 1982. On 30-12-1982 a final decree was passed

in the partition suit O.S. No. 762 of 1978 allotting the first item in the suit properties to the appellants herein towards their share in the family

properties. It is to be noted that excepting the father of the appellants herein, the other defendants in the suit remained ex parte and the final decree

was confined to the share of the appellants in the lands. As regards the appellants'' share in the house property and the appellants'' share in the

estate of their grand-father Thangavel Padayachi, who died during the pendency of the suit, the appellants were directed to file a separate

application for effecting a division. Thus, the final decree effected a partial division with regard to the share of the appellants in the interests of their

father Ramalinga Padayachi in the agricultural lands owned by the joint family. On 7-9-1983 the appellants took delivery of possession of the

property allotted to them under the final decree by executing the same.

On 28-1-1984, a decree was passed in favour of the respondent in O.S. No. 663 of 1982 by the District Munsif, Panruti. It should be

mentioned that the respondent had in the suit brought on record the daughters and wife of Thangavel Padayachi as his legal representatives after his

death. The date of death of Thangavel Padayachi is not available. On 28-12-1985 the respondent attached in E.P. No. 393 of 1985 the

immovable properties belonging to the defendants in the suit including the property allotted to the share of the appellants under the final decree in

the partition suit. On 27-11-1987 the appellants filed E.A. No. 783 of 1987 for raising the attachment over the property which was allotted to

their share in the final decree. The executing Court allowed the application and raised the attachment. On appeal, the learned Additional

Subordinate Judge, Cuddalore, has reversed the conclusion of the executing Court and dismissed the claim petition filed by the appellants herein.

The aggrieved appellants have filed this Civil Miscellaneous Second Appeal.

It is argued by learned counsel for the appellants that the respondent is not entitled to Proceed against the property allotted to the appellants

under the decree for partition in execution of the decree obtained by the respondent in a suit to which the appellants were not parties. It is argued

that the father of the appellants had lost his power of alienation over the property of the appellants after the division of the family properties and

without a decree against the appellants themselves, the property in question cannot be proceeded against. Reliance is placed on S.60 of the Code

of Civil Procedure, under which the property belonging to the judgment debtor or over which he has a disposing power, can alone be attached. It

is submitted that the disposing power of the father over the sons share in the joint family property comes to an end on a partition in the family and

allotment of separate share to the sons. Reliance is placed on the judgment of a Full Bench of this court in Ramayya v. Venkanraju 67 L.W. 461 :

AIR 1954 Madras 864 in which it has been held that if a decree is obtained against the father alone, and there is a partition of the family properties

in execution of such a decree, the son''s share cannot be seized by the creditor as by reason of the partition the disposing power of the father

possessed by him over the son''s share under the pious obligation of the son to discharge the father''s debts can no longer be exercised and the

liability thereafter can be enforced only in a suit. It is also pointed out that the Full Bench has observed that after partition, the son''s share can no

longer be treated as property over which the father has a disposing power within the meaning of S.60 of the Code of Civil Procedure.

Before considering the legal position, it is necessary to advert to a few more facts which are available on the record. I have already referred to

the chronology of events. It is seen that the suit for partition was filed by the minor sons of one member of the joint family with their mother as their

next friend after a notice was issued by the creditor demanding the amount due by the joint family on a debt borrowed by all the members of the

coparcenary jointly, in evidence of which all of them executed a promissory note in, favour of the creditor. It is now admitted in the evidence of the

mother of the appellants, who is examined as P.W.1 in these proceedings that Ramalinga Padayachi has another wife, through whom he has

children, who were not impleaded as parties to the partition suit. P.W.1 has been careful in the cross-examination while admitting the existence of

another wife of her husband and her children, not to state whether they are sons or daughters. But the respondent examining himself as R.W.1 has

categorically deposed that Ramalinga Padayachi has two wives, the first being the mother of the appellants and the second bearing the name

Vellakannu. The respondent has also stated that Vellakannu Animal has three sons and a daughter, while the appellants'' mother has two sons and

a daughter. The respondent has further deposed that the sons of Ramalingam through his second wife Vellakannu Ammal were not impleaded as

parties to the partition suit O.S. No. 762 of 1968. There is no cross examination of the respondent on these matters. It should be mentioned that in

the order of the trial court the list appended thereto states wrongly that no witness is examined for the respondent. Reading the admission of P.W.1

along with the categorical evidence of R.W.1, it is clear that the father of the appellants has three other sons, who were not impleaded as parties to

the partition suit. The appellants claimed 2/9th share in the family properties as if they were the only sons of Ramalinga Padayachi. In the presence

of three other sons, the appellants could not be entitled to 2/9th share. There is no ''whisper'' of an explanation in the evidence of P.W.1 when she

was cross-examined in these proceedings as to why the other sons were not impleaded in the partition suit. Nothing appears from the records as to

whether the suit for partition was contested by any of the parties thereto. The date on which the suit was filed, the absence of contest by any of the

parties, the non-impleading of the other sons of Ramalinga and the absence of any provision for payment of debts owed by the joint family, create

a strong suspicion against the bona fide nature of the decree for partition. The appellants have not chosen to place before the Court the judgment in

the partition suit rendered before the passing of the preliminary decree. Hence, this Court is not in a position to know whether the court considered

the question as to whether the suit for partition was for the benefit of the plaintiffs who are still minors and in their best interests. No doubt, a

decree in a partition suit filed by minors leads to a presumption that the suit is in the best interest of the minors. But the facts and circumstances in

this case indicate that the suit for partition has been engineered by the father of the appellants in order to defeat and delay the creditors of the joint

family.

There is no doubt that the debt due to the respondent was a joint family debt binding on all the members of the joint family. The respondent

impleaded in his suit not only the manager of the joint family viz., Thangavel Padayachi, but also his two sons, who were the joint executants of the

promissory note, one of them being the father of the appellants. At the time when the respondent filed his suit, the properties of the joint family

remained undivided. There was only a suit for partition by the minor sons of one or the coparceners. If at all, the institution of the said suit could

only effect a division in status between the plaintiffs and the other members of the family. But, as held by a Full Bench of this Court in Rangasayi v.

Nagarathnamma ILR 57 Madras 95 : 38 L.W. 676 (F.B.), the severance in status was conditional on the Court finding that it was for the benefit of

the minors. In the words of Venkataramana Rao, J. the severance remains in a state of suspended animation till the court ratified the act. (Vide

Rama Rao v. Venkatasubbiah) AIR 1937 Madras 274 = 46 L.W. 309. Such division in status does not bring to an end the capacity of the

manager of the joint family or the father of the minors to represent them in lawful transactions for the benefit or necessity of the family. In Sri Ranga

Thathachariar, late a minor by next friend Komalathammal, but now declared major and next friend discharged Vs. Srinivasa Thathachariar alias

Srinivasa Raghavachariar, , a Division Bench of this Court has held that subsequent to the date of the suit for partition, the parties become only

tenants in common or co-sharers and the Kartha is strictly bound to account for all receipts and expenses and claim credit for such expenses as

had been incurred for the benefit or the necessity of the estate. Even tenants in common may live jointly and one of them may manage the

properties on behalf of the rest as the manager. In Adaikalam Chetti v. Subban Chetty and others 27 M.L.J. 621, a Division Bench of this Court

ruled that the right of the manager to sue on contracts entered into with him cannot cease by the mere fact that there are disputes in the family or

that the other members affect to revoke his authority to act on their behalf. Thus, a mere division in status does not take away the right of the

manager of the Hindu family to represent the other members of the family in a suit. Hence, in the suit O.S. No. 663 of 1982, District Munsif''s

Court, Panruti, filed by the respondent for recovery of the debt due to him, the appellants were duly represented not only by their father Ramalinga

Padayachi but also their grand-father Thangavel Padayachi, who was the manager of the joint family. It was not necessary for the respondent to

implead the appellants herein as eo nomine parties to the suit as at the time of the institution of the suit there was only an inchoate division in status.

The decree passed in the said suit could, therefore, be treated as one passed against the appellants and executed as such against them.

I requested counsel for the appellants to produce the judgment in the partition suit and gave him more than three weeks therefore, Learned

counsel reported that his clients did not have any record except copies of preliminary decree, final decree and delivery receipt. He filed a tight set

of papers on 30-7-1991 containing those copies. From those papers and the original plaint and the judgment in the present suit, I could gather the

facts set out in paragraphs 2 to 4 supra.

Learned counsel for the appellants has relied on the judgment of the Supreme Court in Pannalal and Another Vs. Mst. Naraini and Others, in

support of his contention that the respondent cannot in execution of his decree against Thangavel Padayachi and his two sons proceed against the

property allotted to the share of the appellants in the partition suit. It is argued that the only course by which the respondent could proceed against

the property or the appellants is to have filed a suit enforcing pious obligation of the appellants to discharge the debts of their father. In the case

referred to above, the Supreme Court held that sons were liable to pay the pre-partition debts of the father even after partition unless there was an

arrangement for payment of those debts at the time when the partition took place. As regards the procedure to enforce the liability, the Supreme

Court approved of the view taken by the different High Courts including this Court that a decree against the father alone obtained after partition in

respect of a pre-partition debt, cannot be executed against the property that is allotted to the sons on partition and that a separate and independent

suit must be instituted against the sons before their shares can be reached. The Court observed thus:

After a partition lakes place, the father can no longer represent the family and a decree obtained against him alone, cannot be binding on the

separated sons. In the second place, the power exercised by the father of selling the interests of the sons for satisfaction of his personal debts

comes to an end with partition. As the separated share of the sons cannot be said to belong to the father nor has the any disposing power over it or

its profits which he can exercise for his benefit, the provision of S.60, Civil P.C. would operate as a bar to the attachment and sale of any such

property in execution of a decree against the father.

The position has been correctly stated by the Nagpur High Court in Jainarayan v. Sonaji, AIR 1938 Nag 24 at P.29 in the following passages:

To say a son is under a pious obligation to pay certain debts is one thing; to say his property can be taken in execution is another. In our view,

property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold. What that is, is found by

looking at S. 60 When one looks at S.60 one finds that the property in question should either belong to the judgment debtor or he should have a

disposing power over it. After partition, the share that goes to the son does not belong to the father and the father has no disposing power over it.

Therefore such property does not fall within S.60.. It by no heans follows that a son cannot be made liable. He could be made liable for his

father''s debts if he had become a surely; he can be made liable under the pious obligation rule. In neither of the cases put, could his liability take

the form of having his property seized in execution and sold without any prior proceedings brought against him, leaving him to raise the question

whether his liability as surety or under the pious obligation rule precluded him from claiming in execution.

It is not disputed that the provision of S.53 of the C.P. Code cannot be extended to a case when the father is still alive.

Learned counsel has referred to a number of earlier Madras rulings taking the same view. I do not think it necessary to refer to them here as I

have extracted the relevant passage from the judgment of the Supreme Court which has summarised the law on the subject.

In Ramayya v. Venkatraju AIR 1954 Madras 864 : 67 L.W. 441 the question was referred to a Full Bench. On the facts of that case, the first

defendant executed a promissory note dated 5.6.1946 in favour of plaintiff. On 2.10.1946 he executed a deed of release relinquishing all his

interests in the joint family property in favour of his father and minor son. Thereafter on 6-11-1946, the creditor filed the suit for recovery of the

amount due on the promissory note. The father and minor son of the executant were impleaded as parties to the suit, the former on the ground that

he was a universal donce from the debtor and the latter on the ground that he was liable to discharge his father''s debts from out of his share in the

family properties. The District Munsif exonerated the father of the debtor but passed a decree against the debtor personally and against the

interests of the son of the debtor in the joint family property. On appeal, the Subordinate Judge exonerated the son of the debtor also on the

ground that the suit was based on a promissory note and no decree could be passed against the son. When the properties were brought to sale in

execution of the decree, the father and son of the debtor applied for raising the attachment on the ground that they were exonerated from liability

under the decree and the decree-holder was not entitled to proceed against their property. The executing Court raised the attachment with

reference to the debtor''s father''s share, but dismissed it in so far as the debtor''s son''s share was concerned. On appeal, the Subordinate Judge

had that the decree-holder was entitled to proceed against the properties in the hands of the son of the debtor, relying on the judgments of this

Court in Doraiswami v. Nagaswami AIR 1929 Madras 893 Thangachami Chetti v. Kanakasabapathi AIR 1944 Madras 393 . When the matter

was brought before this Court on appeal, Satyanarayana Rao, J opined that the two judgments of this Court referred to above required

reconsideration and referred the matter to a Division Bench. The Division Bench comprising the Chief Justice and Venkatarama Aiyar, J. made a

reference to a Full Bench. The Full Bench held that the decree was not executable against the properties of the debtor''s son and debtor''s father,

relying on the judgment of the Supreme Court in Pannalal and Another Vs. Mst. Naraini and Others, . It was held that after partition the decree

obtained against the executant of the promissory note could not be executed against the properties allotted to his son in the partition effected in the

family. It is seen on the facts of the case that the partition was by means of a deed of release executed prior to the filing of the suit on the

promissory note. On the date of suit, the debtor had no interest whatever in any of the family properties, In Pannalal and Another Vs. Mst. Naraini

and Others, also, the joint family properties were divided by metes and bounds pursuant to a final decree in a suit for partition long before the filing

of the suit by the creditor for recovery of the debt. Neither the ruling of the Supreme Court in Pannalal and Another Vs. Mst. Naraini and Others,

nor the ruling of the Full Bench in Ramayya''s case AIR 1954 Madras 864 would apply to the facts of the present case.

However, it is argued vehemently that the power of the creditor to proceed against the son''s property depends on the power of the father to

sell his son''s share in the joint family property and once the father loses such power of sale on a partition in the family, the creditor cannot proceed

against the son''s property in execution of a decree obtained against the father alone. No doubt, all the rulings of this Court culminating in that of the

Full Bench in Ramayya''s case are based on the principle that the basis of execution of a decree obtained against the father as against his son''s

property was the existence of the power of the father to dispose of the son''s share to discharge his debts not tainted with illegality or immorality,

and such power came to an end with the partition of the property. But, that theory was uprooted by the Supreme Court in S.M. Jakati and

Another Vs. S.M. Borkar and Others, . The law was discussed at length and it was held categorically that the liability of the sons was unaffected

by partition and by virtue of the pious obligation of the son, the creditors right to execute his decree against and share of the son would continue to

exist and it did not depend on the father''s power to alienate his son''s share. It will be advantageous to extract the discussion of the law on the

subject in full:

The effect of severance of status brought about by the filing of the suit on 25th January 1943, has been made the basis of the argument that only the

share of the father could be seized in execution of the payment order made against him. This would necessitate an examination into the rights and

liabilities of Hindu sons in a ''Mitakshara'' coparcenary family where the father is the ''karta''. In Hindu law there are two mutually destructive

principles, one the principle of independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the

coparcenary property, and the other the pious duty of the sons to discharge their father''s debts not tainted with immorality or illegality, which lays

open the whole estate to be seized for the payment of such debts. According to the Hindu law givers this pious duty to pay off the ancestors debts

and to relieve him of the death torments consequent on non-payment was irrespective of their inheriting any property. Inn the courts rejected this

liability arising irrespective of inheriting any property and gave to this religious duty a legal character. AIR 1926 105 (Privy Council) . For the

payment of his debts it is open to the father to alienate the whole coparcenary estate including the share of the sons and it is equally open to his

creditors to proceed against it; but this is subject to the sons having a right to challenge the alienation or protest against a creditor proceeding

against their shares on proof of illegal or immoral purpose of the debt, these propositions are well settled and are not within the realm of

controversy. Pannalal and Another Vs. Mst. Naraini and Others, Girdharee Lal v. Kantoo Lal, IInd App. 321 at p. 333 (PC); Suraj Bunsi v. Sheo

Persad Singh, 6 Ind App 88 at p. 101 (PC); Brij Narain v. Mangla Prasad 51, Ind, App. 129 at p. 136; AIR 1924 PC 50 at p.54. In the last

mentioned case the Privy Council said;

Nothing clearer could be said then what was said by Lord Hobhouse delivering the judgment of Board in Nanomi Babuasin v. Modhun Mahun 13

Ind App at pp.17, 18 (PC), already quoted: destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions

have for sometime establish the principle that the sons cannot set up their rights against their father''s alienation for an antecedent debt, or against

his creditor''s remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate, their Lordships

think that there is no conflict of authority.

There is no discrepancy of judicial opinion as to the poius duty of Hindu sons. In Pannalal and Another Vs. Mst. Naraini and Others, , this court

approved the following dictum of Suleman A.C.J, in Bankeylal v. Durga Prasad 1931 All 512 at p. 519;

The Hindu Law texts based the liability on the pious obligation itself and not on the father''s power to sell the sons'' share.

So great was the importance attached to the payment of debts that Hindu law givers gave non-payment of a debt the status of sinfulness and such

non-payment was wholly repugnant to Hindu concept of son''s rights and liabilities. In ILR. 53 All 868 Bankey Lal and Others Vs. Durga Prasad

and Others . Lal Gopal Mukherji, J. said at page 896 (of ILR All): (at p.527 of AIR)

A perusal of text books of a Smriti dealing with debts will show that under the Hindu Law the non-payment of a just debt was regarded as a very

heinous sin.

The liability of the Hindu son based on his pious obligation again received the approval of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar

Prasad Narain Singh and Others, , where the following observation made in Pannalal and Another Vs. Mst. Naraini and Others, at p.490 of AIR)

The father''s power of alienating the family property or payment of his just debts may be one of the consequences of the pious obligation which the

Hindu Law imposed upon the sons: or it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligation.

was reiterated. And Again at page 183 (of SCR): (at p.490 of AIR). Mukherjee, J. (as he then was) paid:

It is special liability created on purely religious grounds and can be enforced only against the sons of the father and no other coparcener. The

liability, therefore, has its basis entirely on the relationship between therefore, has its basis entirely on the relationship between the father and the

son.

Therefore unless the son succeeds in proving that the decree was based on a debt which was for an immoral or illegal purpose the creditor''s right

of seizing in execution of his decree the whole coparcenary property including the son''s share remain unaffected because except where the debt is

for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in satisfaction of the judgment obtained against the

father alone. Sripat Singh v. Prodyot Kumar Tagure, 44 Ind App 1: AIR 1916 PC 220 . The necessary corollary which flows from the pious

obligation imposed on Hindu sons is that it is not ended by the partition of the family estate unless a provision has been made for the payment of the

just debts of the father. This again is supported by the authority of this Court in Pannalal and Another Vs. Mst. Naraini and Others, where

Mukherjee, J. said at page 559 (of SCR): at p. 176 of AIR).

Thus, in our opinion, 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 made at the date of the partition.

(13). The liability of the sons is thus unaffected by partition because the pious duty of the sons to pay the debt of the father unless it is for an

immoral or illegal purpose, continues till the debt is paid off and the pious obligation incumbent on the sons to see that their father''s debts are paid,

prevents the sons from asserting that the family estate so far as their interest is concerned is not liable to purge that debt. Therefore even though the

father''s power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition the right of the

judgment creditor to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons.

There does not seem to be any divergence of judicial opinion in regard to the Hindu son''s liability to pay the debts of his father after partition and

by the mere device of entering into partition with their father, the sons cannot get rid of this pious obligation. It has received the approval of this

Court in Pannalal and Another Vs. Mst. Naraini and Others, and Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others,

Mukherjee, J., observed in the later case at p. 184 (of SCR): (at p.490 of AIR):

It is settled law that even after partition the sons could be made liable for the pre-partition debts of the father if there was no proper arrangement

for the payment of such debts at the time when the partition was effected, although the father could have no longer any right of alienation in regard

to the separated shares of the sons.

(14) The question then arises how the liability of the sons is to be enforced. Another principles of Hindu Law is that in a coparcenary family the

decree obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit; Chakhan Lal

and Others Vs. Kanhaiya Lal and Others, . As was pointed out in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, ,

the sons are not necessary parties to a money suit against the father who is the karta but they may be joined as defendants. The result of the

partition in a joint family is nothing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and

therefore attachment of the whole coparcenary estate would not be effected by the change in the mode of enjoyment, because the liability of the

share which the sons got on partition remains unaffected as also the attachment itself which is not ended by partition, (S.64 C.P.C. is a useful guide

in such circumstances).

(15) Dealing with the question as to how the interest of the sons in joint family property can be attached and sold. Mukherjee, J. as he than was

observed at p. 185 (of SCR) (at p.490 of AIR) in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, ;

Be that as it may, the money decree passed against the father certainly created a debt payable by him. If the debt was not gained with immorality, it

was open to the creditor to realise the dues by attachment and sale of the sons''s coparcenary interest in the joint property on the principles

discussed above. As has been laid down by the Judicial Committee in a series of cases, of which the case of 13 Ind App 1 (PC) may be taken as

a type, the creditor has an option in such cases. He can, if he likes, proceed against the father''s interest alone but he can, if he so chooses, put up

to sale the sons'' interest also and it is question of fact to be determined with reference to the circumstances of each individual case whether the

smaller or larger interest was actually sold in execution.

(16) But it was contended that a partition after the decree but before the auction sale limited the efficacy of the sale to the share of the father even

though the sale in fact was of the whole estate, including the interest of the sons, because after the partition the father no longer possessed the right

of alienation of the whole coparcenary estate to discharge his debts. But this contention ignores the doctrine of pious obligation of the sons. The

right of the pre-partition creditor to seize the property of the erstwhile joint family in execution of his decree is not dependent upon the father''s

power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious

obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition. The consequence is that as

between the sons'' right to take a vested interest jointly with their father in their ancestral estate and the remedy of the father''s creditor to seize the

whole of the estate for payment of his debt not contracted for immoral or illegal purpose, the latter will prevail and the sons are precluded from

setting up their right and this will apply even to the divided property which, under the doctrine of pious obligation continues to be liable for the

debts of the father. Therefore, where the joint ancestral property including the share of the sons has passed out of the family in execution of the

decree on the father''s debt the remedy of the sons would be to prove in appropriate proceedings taken by them the illegal or immoral purpose of

the debt and in the absence of any such proof the sale will be screened from the sons'' attack, because even after the partition their share remains

liable. IInd App 321 (PC) (supra) 6 Ind App 88 (PC) (Supra) 13 Ind App 1 (PC): Chandra Deo Singh v. Mata Prasad ILR 31 All. 176 at p.196;

which was approved by the Privy Council in Sahu Ram Chander v. Bhup Singh AIR 1917 P.C. 61 (supra) : Pannalal and Another Vs. Mst.

Naraini and Others, (supra) and Sidhesswar Mukherji''s case.

(Underlining (Italics) mine).

Learned counsel for the appellants seeks to distinguish the judgment of the Supreme Court contending that in the case before the Supreme

Court there was an attachment of the property before the partition was effected. There is no merit in the argument in view of the principle that the

pious obligation of the son will prevail over the power of the father to alienate his sons'' share. The partition being subsequent to the attachment is

wholly irrelevant if the enforceability of the decree depends on the pious obligation and not on the father''s power or alienation of his son''s share. If

there is no provision in the partition for discharge of the father''s debts which are not tainted by illegality or immorality, the liability of the son to pay

off the debts from out of the properties received by him for his share continues to exist and the same can be enforced by the creditor by executing

his decree.

In Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, , it was observed that all that results from partition is that all the

right of the father to make an alienation comes to an end; but the pious obligation of the son to discharge the debts of the father which are not

tainted with immorality or illegality continues to exist. On the facts of the case it was held that the partition was a sham transaction not intended to

be operative and the creditor could proceed in execution against the property allotted to the son. That ruling shows that the Court could consider

whether there is a real partition between the debtor and his son. On the facts of this case, I have already referred to the circumstances which create

considerable suspicion as to the genuineness of the partition under the final decree in the partition suit.

In Vriddhachalam Pillai Vs. Chaldean Syrian Bank Ltd., and Another, there was a mortgage of the joint family property in favour of the bank.

The bank impleaded the mortgagor as well as the minor son and the female members of the family as parties to the suit for recovery of amounts

due under the mortgage. While the trial court decreed that suit against the father, it dismissed it as against the son and his half share in the family

property. On appeal by the bank, the High Court allowed the same and passed a mortgage decree against the son''s share as well. It was the said

decree which was questioned before the Supreme Court. Before the bank filed the suit for recovery of amounts due under the mortgage, a suit for

partition of properties in Madras State was filed on behalf of minor son of the mortgagor. In fact, permission was sought to file the suit in forma

pauperis. Again a notice was issued on behalf of the minor son to his father demanding partition. One of the questions raised in the appeal before

the Supreme Court was with regard to the effect of the partition on the rights of the bank to realise the monies due to it from the share allotted to

the son in the Cochin State properties. After extracting a passage from the judgment in Pannalal and Another Vs. Mst. Naraini and Others, the

Supreme Court observed as follows:

In the first place, we are here concerned primarily with the rights of the Bank as a secured creditor to proceed against the security, ignoring the

partition. To such a situation the law as explained in the judgment in Pannalal and Another Vs. Mst. Naraini and Others, would not have immediate

relevance, for Mukherjee, J. was dealing with the right of an unsecured creditor of the father to proceed against the shares of the sons after a

partition. In other words, the nature and bona fides of the partition and the right of the creditor to proceed against the share allotted to the son in

such partition would arise for consideration only if the Bank were unable to establish that the mortgage was as such not binding on the son. This

was the situation of the Bank when the learned that Judge found that the mortgage was not binding on the appellant''s share in the family property.

If, however, the mortgage were binding on the son either because it was created to raise money for purpose binding on the family as necessary or

beneficial therefore or was executed in order to discharge an antecedent debt of the father, the bona fides of the partition and the allotment of

property to the sona which are the subject of mortgage. In the present appeal, in view of the conclusion we have reached, for reasons which we

shall discuss later in the judgment, that the mortgage under Ex.''E'' was for securing the repayment of an antecedent debt, the bona fides of the

partition would not have a crucial significance. Since however the question of the reality or the binding nature of the partition would arise in the

event of the mortgage property being found insufficient to discharge the decree and the creditor or the decree-holder thereafter seeks to proceed

against properties allotted to the share of the appellant which were not included in the mortgage, we have thought it necessary and proper to

examine it.

(21) Proceeding then to deal with the matter, we must first observe that the onus of proving that the partition arrangement is fair and bona fide in

the sense explained by this Court in Pannalal and Another Vs. Mst. Naraini and Others, was upon the appellant and that approach of the learned

trial Judge to the question is vitiated by casting the burden of proving the arrangement was mala fide on the creditor Bank. And for this reason. At

the moment the liability was incurred by the father the creditor had a right to proceed against the entirety of the joint family estate including the

share of the son since, the debt not being avyavaharika, the son was under a pious obligation to discharge it out of family property. Subsequent

thereto a partition taken place by which the share of the son in the property is separated and vested in him free from the rights and powers of the

father. It is the plea of the son that by reason of an arrangement which he has entered into or which has been entered into on his behalf, he has

discharged himself from liability to the creditor an arrangement to which the creditor is not a party but which under the law is binding on the

creditor provided the arrangement fulfills certain conditions. From this it would seem to follow logically that the onus would be upon the son to

establish that the nature of the arrangement under the partition was such as made proper and adequate provision for the discharge of the debt, for

that is the basis upon which his own discharge from liability depends. The learned trial Judge framed on issue regarding the partition being fair and

bona fide and binding on the Bank but the entire discussion on the facts relating to it proceeded on the footing that the onus was upon the Bank to

establish that the partition was mala fide.

In Anthonyswamy Vs. M.R. Chinnaswamy Koundan by Lrs. and Others, , it was ruled that the Vennia Tamil Christians of Chittur Taluk,

Kerala State were governed by Mitakshara School of Hindu law in regard to inheritance and succession, the son of a member of such community

got by birth an interest in the ancestral property owned by the father and the doctrine of pious obligation applied and the son was bound to

discharge his father''s debts not tainted with illegality or immorality. The principle of pious obligation was stated thus:

It is evident therefore that the doctrine of pious obligation is not merely a religious doctrine but has passed into the realm of law. The doctrine is a

necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property and both these conceptions are

correlated. The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu Law but is a salutary

counterbalance to the principle that the son from the moment of his birth requires along with his father an interest in joint family property. It is,

therefore, not possible to accept the argument addressed on behalf of the appellant that though the community is governed as a matter of custom

by the Mitakshara School of Hindu Law the doctrine of pious obligation was not applicable.

In Venkatesh Dhonddev Deshpande Vs. Sou. Kusum Dattatraya Kulkarni and Others, , the matter was once again considered at length. The

facts of the case were as follows: One Dattatraya Govind Kulkarni, husband of plaintiff No. 1 and father of plaintiffs 2 to 6 borrowed a Tagai loan

of Rs. 12,000/- for constructing wells in two of his lands and he offered as security those lands and some other lands. As the loan was not repaid,

a revenue recovery proceeding was initiated and the land offered as security was sold. But the Government could not realise the full amount

outstanding. A proclamation of sale was issued and the suit land was auctioned. It was purchased by the defendant and he was put in possession

thereof. The plaintiffs contending that prior to the date of auction there was a partition between the father and sons on 6th July, 1956 by a deed

and the suit land was allotted to the share of the plaintiffs with the result that the father had no saleable interest thereon and it could not have been

sold at the revenue auction for recovering the personal debt of the father. There was a prayer for declaration that the sale was not binding on them

and for restoration of possession. The trial Court held that the suit land was joint family property, but as there was a genuine partition prior to the

revenue sale, it was not binding on the plaintiffs and the sale was, therefore, void. A decree was passed in favour of the plaintiff as prayed for by

them. On appeal, the High Court held that the plaintiffs were not borrowers within the meaning of the Land Improvement Loans Act, 1883 and

their property which was not offered as security for the loan could not be proceeded against by the Government. Consequently, the High Court

affirmed the decree passed by the trial Court. The High Court negatived the contention of the defendant that the plaintiffs were bound by the

doctrine of pious obligation to pay the debt due by their father as it was not tainted with immorality or illegality on the ground that the doctrine of

pious obligation could not be extended to debts contracted under the Land Improvement Loans Act, 1883, since the Act applied to all citizens of

India irrespective of their religion. The aggrieved defendant filed the appeal before the Supreme Court. The main contention was whether the loan

borrowed by the father was in his personal capacity for his personal use or as ''karta'' of the joint family for the benefit of the joint family or joint

family estate. The Supreme Court observed that if the loan was borrowed by the father as the ''karta'' of the joint family, it would be a joint family

debt and all the joint family properties would be liable for the debt. The following statement of law would apply to the facts of the present case and

it places the matter beyond any doubt:

Even if there is a subsequent partition before the debt is repaid, the creditor can proceed against the joint family property in the hands of any of the

coparceners because the joint family property is liable for the joint family debts. The Karta or the manager of a joint Hindu family has implied

authority to borrow money for family purposes and such debts are binding on other coparceners and the liability of the coparceners in such a case

does not cease by subsequent partition (see para 240, Mulla''s Hindu Law, 14th Edn. p.298). Where father is the karta of a joint Hindu family and

the debts are contracted by the father in his capacity as manager and head of the family for family purposes, the sons as members of the joint family

are bound to pay the debts to the extent of their interest in the coparcenary property. Further, where the sons are joint with their father and the

debts have been contracted by the father for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for

illegal or immoral purposes. This liability arises from an obligation of religion and piety which is placed upon the sons under the Mitakshare law to

discharge the father''s debts, where the debts are not tainted with immorality. This liability of the sons to pay the father''s debts exists whether the

father be alive or dead (para 290, Multa''s Hindu Law, 14th Edn. p. 354). A further requirement is that for an effective partition of a Mitakshara

joint Hindu family a provision for the joint family debts should be made. In order to determine what property is available for partition, provision

must first be made for joint family debts which are payable out of the joint family property, personal debts of the father not trainted with immorality,

maintenance of dependent female members and of disqualified heirs, and for the marriage expenses of unmarried daughter. This must be so

because partition is of joint family property and if joint family debts are repaid before the partition only the residue would be available for partition.

Therefore, if partition is effected before paying the debts, provision to pay he debts should be made so as to determine the residue available for

partition.

On the facts it was held in that case that the loan was borrowed by the father as the ''karta'' of the joint family and it was for legal necessity. It

was held to be a joint family debt for which all the joint family property would be liable. Then the Court considered the question whether the

subsequent partition made any difference in respect of the liability of the joint family property in the joint family debts. After referring to the decision

of the Judicial Committee in Sat Narain v. Sri Kishen Das 63 Indian Appeals 384 and the judgment in Pannalal and Another Vs. Mst. Naraini and

Others, the court observed;

If thus the partition makes no provision for repayment of just debts payable out of the joint family property, the joint family property in the hands of

coparceners acquired on partition as well as the pious obligation of the sons to pay the debts of the father will still remain.

Then the Court referred to a statement of law in Vriddhachalam Pillai Vs. Chaldean Syrian Bank Ltd., and Another, . Thereafter, the Court

proceeded to consider the liability of the sons on the footing that it was a personal debt of the father and not a joint family debt. Holding that the

sons were liable to pay even the personal debts of the father if they were not incurred for an illegal or immoral purpose, the Court observed;

This liability to pay the debt has been described as (sic) obligation of the son to pay the father''s debt not tainted with illegality or immorality. It was

once believed that the liability of the son to pay the debts contracted by the father, though for his own benefit, arises from an obligation of religion

and piety which is placed upon the sons under the Mitakshara law to discharge the father''s debts, where the debts are not tainted with immorality,

yet in course of time this liability has passed into the real of law.

It was then contended that the remedy of the creditor was only to file a suit against the sons if the property in the hands of the sons was to be

made liable for the discharge of the debt. Reliance was placed on the ruling in Pannalal and Another Vs. Mst. Naraini and Others, . The Court

referred to the dictum in S.M. Jakati and Another Vs. S.M. Borkar and Others, and noticed that the High Court had followed the ruling in

Ganpatro Viswanathappa v. Banimrao Sahibrao AIR 1950 Bombay 278 holding that the decision in that case was not overruled by the Supreme

Court in Jakti''s case. Finding fault with the reasoning of the High Court, the Supreme Court observed,

The binding ratio would be one laid down in Jakti''s case and it cannot be ignored by merely observing that a different approach in Ganpatrao case

holds the field for the High Court as it was not overruled in Jakti''s case. It is thus crystal clear that the pious obligation of the sons continues to be

effective even after partition and if the creditor in execution of a decree obtained prior to partition seizes the property in execution without making

sons parties to the suit and the property is sold at an auction and the purchaser is put in possession and the property thus passes out of the family in

execution of the decree on the father''s debt, the remedy of the sons would be to challenge the character of the debt in an appropriate proceeding

brought by them. The sale cannot be voided on the only ground that the sale of the property took place after partition and the property sold was

one which was allotted to the sons on partition once the property is liable to be sold for recovery of debt of the father incurred prior to partition

and which is not tainted with illegality or immorality. Partition in such a situation merely provides a different mode of enjoyment of property without

affecting its liability for discharge of pre-partition debts.

The contention that the Collector was authorised in the revenue sale to sell only the right, title or interest of the defaulter in immovable property

which did not include the son''s interest, was rejected in the following words:

The first contention is that the Collector is authorised to cause the right, title or interest of the defaulter in any immovable property which is sought

to be sold in a revenue auction and in this case as the sale was after the partition the defaulter Dattatraya had no interest in the property brought to

auction and, therefore, no title passed to the auction purchaser. This submission overlooks again the pious duty of the sons to pay the father''s debt

as also the right of the creditor to recover debts from the joint family property in the hands of the coparceners. In Jakati''s case this was the exact

contention and after comparing the parallel provision in the Code of Civil Procedure, viz., ""the right, title or interest of the judgment debtor"", this

Court held that it is a question of fact in each case as to what was sold in execution of the decree. This Court affirmed the ratio in Rai Babu

Mahabir Prasad v. Rai Markunda Nath Sahai 1889 17 Ind. App. 11 at p. 16 P.C that it is a question of fact in each case as to what was sold,

viz., whether the right, title or interest of the debtor or defaulter was sold or the whole of the property was put up for sate and was sold and

purchased. It was concluded that where the right, title and interest of the judgment debtor are set up for sale, as to what passed to the auction

purchaser is a question of fact in each case dependent upon what was the estate put up for a sale, what the Court intended to sell and what the

purchaser intended to buy and did buy and what he paid for. There is not the slightest doubt that the whole of the property was sold in the instant

case and that was intended to be sold and the purchaser purchased the whole of the property and the certificate was issued in respect of sale of

the property and, therefore, it is futile to say that only the right, title and interest and Dattatraya was sold and that as he had to interest in the

property sold on the date of auction sale, nothing passed to the purchaser.

The view taken by the High Court that the doctrine of pious obligation could not be extended to a loan borrowed under the Land Improvement

Loans Act, 1883, as the Act was applicable to all citizens of India irrespective of their religion, was reversed by the Supreme Court holding that a

Karta of a joint Hindu family can be a borrower under the Act in his representative capacity. Thus, the Supreme Court negatived all the

contentions of the plaintiffs in that suit and allowed the appeals and dismissed the suit. The above ruling of the Supreme Court will apply on all fours

to the present case. In this case the debt is not a personal or individual debt of the father of the appellants. It was a debt due by the entire family;

Any partition of the family properties without making a provision for payment of the debt due by the family would not prevent the creditor from

proceeding against the family property. Apart from that, the appellants are bound by the doctrine of pious obligation.

There is no substance in the contention that the appellants had no opportunity to challenge the binding nature of the debt. The application out of

which this appeal arises is one under Order 21, R.58 of the Code of Civil Procedure. Under the provisions of the Code as amended in 1976, the

Court shall proceed to adjudicate all questions including questions relating to right, title or interest on the property attached, arising between the

parties to a proceeding or their representatives under the rule. It was open to the appellants to prove that the debt was not binding on them or that

it was tainted with illegality or immorality. There is no evidence to that effect in this case. The evidence on record shows that the debt was incurred

by the manager of the family along with his two sons jointly for family necessity. There can be no doubt whatever that the debt is binding on the

appellants and on the properties which are allotted to their share in the partition suit. In the result, the conclusion of the lower appellate Court is

well founded and the appeal deserves dismissal. The Civil Miscellaneous Second Appeal is dismissed. But in the circumstances, there will be no

order as to costs.