Kishnan and Others vs Travancore Bank Ltd. and Others

This C.M. Appeal has been filed by the Petitioners in C.M.P. 3145 (pauper petition) of the Nagercoil District Court against an order vacating an interim, injunction and dismissing their application for an injunction to restrain the execution of three decrees passed against their father. The application was made on the grounds that the decrees were being executed against their joint family properties and that their shares in the joint family properties were not liable for the decree-debts as the debts were contracted by the father for immoral purposes.

At the time of the hearing of the C.M. Appeal in this Court the contention that the debts were contracted for immoral purposes was not pressed. But a new objection was taken, namely, that as a partition between the father and the sons has taken place the joint family properties allotted to the shares of the sons cannot be sold in execution and their liability for the debts in question can be enforced, if at all, only by a fresh suit brought against the sons.

In support of this contention reliance was also placed by die Appellants'' Counsel on the decisions of the Supreme Court and of a Full Bench of the Madras High Court in - Pannalal and Another Vs. Mst. Naraini and Others, and - Katragadda China Ramayya Vs. Chiruvella Venkanraju and Another, .

This contention is an entirely new one, not raised in the lower Court or even in the grounds taken in the memorandum of appeal filed here. Of the three decrees mentioned in the application for injunction, one has been obtained by a Bank (Respondent 1 here) and two by Respondents 2 and 3. Respondents 2 and 3 have not yet applied for execution of their decrees against any property allotted to the shares of the sons in the partition. Their right to proceed against the share of the father cannot be disputed at all.

On this short ground alone the Civil Miscellaneous Appeal has to be dismissed so far as they are concerned. If and when they seek to execute their decrees against the properties allotted to the sons'' shares it will be open to the sons to raise their objections in execution, and we do not propose to say anything regarding the merits of such an objection which it is open to the sons to raise in execution against Respondents 2 and 3.

The reliance placed by the Appellant''s Counsel on the two decisions mentioned in para- graph 1 above is entirely out of place so far as Respondent 1 is concerned. The Bank obtained its decree and also attached the joint family property against which it is now proceeding long before the partition now relied upon by the Appellants.

What was decided in - Pannalal v. Mt. Naraini (A), was that a decree obtained against the father alone ''after partition'' cannot be executed against the property allotted to a son in partition and that a separate and independent suit must be instituted against the son in such a case to reach his share.

In China Ramayya v. Venkanraju (B), also the decree hold to be not executable against the son''s share was one passed after the partition. In both these cases the liability of the son''s share for the pre-partition debts of the father has been expressly recognised. They only laid down that if the decree was passed against the father, without the sons being parties thereto, the liability could be enforced only by way of a fresh suit and not in execution.

Here, the decree itself was obtained before the partition, and the attachment also was before the partition - at a time when the estate was joint and the father could represent it and alienate the whole for his debts - debts other than those contracted for immoral purposes.

An attaching creditor obtains by the attachment a right to have the attached property kept in ''custodia legis'' for the satisfaction of his debt, and any subsequent dealing with that property by the judgment-debtor and persons on whom the attachment was binding at the time it was effected cannot be allowed to defeat that right.

In cases like this, it appears to us whether the attachment was before or alter the partition is the material point to be considered. The following passage from - Krishnaswami Konan v. Ramasami Ayyar 22 Mad 519 (C), quoted with approval in Katragadda China Ramayya Vs. Chiruvella Venkanraju and Another, lends considerable support to this view.

"The principle upon which the son cannot object to ancestral property being ''seized'' in execution for an unsecured personal debt of the father is that the father, under the Hindu Law, is entitled to sell on account of such debt the whole of the ancestral estate. This necessarily implies that at 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 the 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. (The word seized has been underlined (herein '''') by us).

As the decree and attachment in the Bank''s case were long before the partition, the C.M. Appeal as against the Respondent 1 also fails and has to be dismissed.

In the result, the C.M. appeal is dismissed with costs to Respondents 1 to 3. One set of costs alone is allowed to Respondents 2 and 3 as they were represented by the same Counsel.