Narayan Ganesh Patankar vs Sagunabai Gangadhar Patankar

Lallubhai Shah, Ag. C.J.

In this case a decree was obtained by Sagunabai, the plaintiff, against one Ganesh for Rs. 1,221-11-1. While the appeal was pending in the District Court Ganesh died, and his son, the present appellant Narayan, was brought on the record as the legal representative of his deceased father. The District Court confirmed the decree of the trial Court and this Court also confirmed that decree in S A. No. 730 of 1917. The plaintiff now seeks to execute that decree by attaching the interest of Narayan and his deceased father in the ancestral house. It is admitted that during the lifetime of Ganesh, Ganesh and Narayan had one-third share in the house, and that is the interest which is attached in execution by the order of the learned District Judge in appeal.

The defendant has appealed from the order of the District Judge, and in support of the appeal it is contended that the son''s interest, i. e., one-sixth share in the house, is not liable to be attached, but it is only the interest which Ganesh had during his lifetime in this house that is liable to be attached This contention is not tenable. It is contrary to the decisions of this Court in Umed Hathising v. Gaman Bhaiji ILR (1895) 20 Bom. 385 and Shivram v. Sakharman ILR (1908) 33 Bom. 39 : 10 Bom. L.R. 939. In the case of Shivram v Sakharam the father died during the pendency of the litigation, and the son was brought on the record, as in the present case, as the legal representative of the father. It is clear that so far as the ancestral property is concerned, whatever was liable to be sold in the lifetime of the father remains liable to be sold after the father''s death. Section 53 of the CPC makes the position clear on the point which before 1908 was the same according to the decisions to which I have referred. It has been held in Hanmant Kashinath v. Ganesh Annaji ILR (1918) 43 Bom. 612 : 21 Bom. L.R. 435 , that during lifetime of the father the whole of the one-third share including the interest of the son in this ancestral house would be liable to be attached. On principle it makes no difference that the father has died and the attachment conies to be levied after his death. The position is made further clear by the recent pronouncement of their lordships of the Privy Council in 28 CWN 253 (Privy Council) where among the propositions categorically stated, it is distinctly laid down that a father can by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceedings upon a decree for payment of that debt, if the other member of the family happens to be his son In that judgment their lordships refer to the following observations of Mr. Justice Chandavarkar in Govind v. Sakharam ILR (1901) 28 Bom. 383; 6 Bom. L.R. 344 with approval:--

The law is now well established that under the Hindu law, the pious obligation of a son to pay his father''s debts exists whether the father is alive or dead.

It is not disputed, and it cannot be disputed, in the present case, that for this debt the son''s interest in the ancestral property would be liable in respect of the debt in question during the lifetime of the father, and the same liability continues after his death.

It has been urged in support of the appeal that the view taken in all these cases is contrary to the provisions of Bom Act VII of 1866, and Section 2 of that Act is relied upon. I do not think, however, that the provisions of that section help the appellant at all. If we treat the ancestral property as belonging to the deceased father, then by attachment of that property the provisions of Section 2 of Bom Act VII of 1866 are not in any way contravened, because that property continues to be liable for the debt of the father That is the reason why this Act has not been held to present any difficulty in the cases prior to the Code of 1908, and Section 53 in the Code of 1908 is in effect a legislative recognition of the rule that was followed in this Presidency before it was enacted. I do not feel any hesitation in holding that the contention of the appellant is without any good foundation I would dismiss the appeal and confirm the order of the lower appellate Court with costs.

Fawcett, J.

I agree.