Subba Rao and Others vs P. Swamia Pillai and Others

Spencer, J.—I am unable to follow the District Judge when he proceeds upon the assumption that the 1st defendant, in executing his small

cause decree, attached only the father''s interest in the property. If this were so, the plaintiffs had ho cause of action to put in a claim petition for the

release of their three-fourths share, and when that failed, to institute the present suit to establish their title against the execution creditor. The District

Judge failed to see that his assumption destroyed the very foundation of the plaintiffs'' claim and that their suit must consequently fail. There is no

doubt, however, that both parties considered that the entire estate had been attached. In his written statement the 1st defendant asserted the

liability of the sons to pay the debts of their father, if not tainted with illegality and immorality. No doubt he at first maintained that the property was

the father''s self-acquisition, but the fact that he also pleaded the sons'' liability to pay their father''s debts showed that he did not abandon his claim

against the entire property, if it turned Out to be ancestral. At the trial the 1st defendant failed in his attempt to prove that the property was the self-

acquisition of the 2nd defendant; the plaintiffs also on their part failed to prove that the debt was incurred for an immoral purpose, as they had only

general evidence of their father''s immoral con-duct.

But this failure of the plaintiffs co establish their contention that the debt was an immoral one must be regarded as fatal to their whole suit. As

observed by the Privy Council in Sripat Singh Dugar v. Prodyot Kumar Tagore 39 Ind, Cas. 252 : 32 M.L.J. 133 : (1917) M.W.N. 193 : 21

C.W.N. 442 : 19 Bom. L.R.290 : 44 I.A. 1 ""in every other event it is open to the execution creditor to sell the whole of the estate in satisfaction of

the judgment obtained against the father alone.

The 1st defendant obtained the decree in Small Cause No. 325 of 1912 upon two promissory notes executed in his favour by 2nd defendant for

what became due from him for the rent of certain lands that he took on lease from the 1st defendant. This fact is asserted in 1st defendant''s written

statement in this suit; it appears also in 2nd defendant''s written statement in the Small Cause suit (Exhibit 1) and has not been controverted by the

plaintiffs, Thus there was in existence in this case an antecedent debt, to discharge which the ancestral property of the family could be validly

allenated by the father.

We allow the second appeal and restore the decree of the District Mansif dismissing the suit. Respondents Nos. 1 to 3 will bear their own and

appellants'' costs in this and in the lower Appellate Court.

Krishnan, J.

The plaintiffs appallants are the sons of the 2nd defendant against whom the 1st defendant had obtained a decree on two promissory notes

executed by him. In execution of that decree the 1st defendant had attached the plaint property describing it as 2nd defendant''s own property. The

sons filed a claim petition to have their share released, but it was dismissed. Thereupon they filed the present suit for a declaration that the 1st

defendant was not entitled to execute the decree against their share in the property and for an injunction.

The question whether the property was self-acquired or ancestral has been settled, it being found that it is the ancestral property of the family.

On this finding the District Judge decreed the plaintiffs'' suit holding ""that the 1st defendant showed no intention to proceed against it as ancestral

property in which he held the sons'' share also liable for their father''s debt."" His judgment cannot be supported. It is only when it is doubtful what

was attached and sold in Court-auction as, for example, when the property attached and sold was described as ""the right, title and interest of the

judgment-debtor"" that the intention of the attaching decree-holder becomes important. Here the whole property has been attached including the

shares of the plaintiffs, and that is the footing on which they themselves filed the claim petition and have now brought this suit. If plaintiffs'' shares

had not been attached, there would be no cause of action for the claim petition or for this suit, both of which refer only to their shares. Before the

plaintiffs'' shares can be released from attachment, what has to be decided is whether those shares are not liable to be sold for the decree-debt.

The description of the property attached as the debtor''s own is immaterial in this connection. It is settled law that an execution creditor is entitled

to sell the whole of the estate of the joint Hindu family, consisting of a father and his sons and governed by the Mitakshara Law, in execution of a

decree obtained against the father alone, unless it is shown that the debt for which the decree was obtained was incurred for illegal or immoral

purposes. It is sufficient to refer to the latest statement of this law by the Privy Council in the case of Sripat Singh Dugar v. Prodyot Kumar Tagore

39 Ind, Cas. 252 : 32 M.L.J. 133 : 25 C.L.J. 220 : 19 Bom. L.R.290. Their Lordships say, ""The property in question was joint property

governed by the Mitakshara Law. By that law a judgment against the father of the family cannot be executed against the whole of the Mitakshara

property if the debt in respect of which the judgment has been obtained was a debt incurred for illegal or immoral purposes. In every other event it

is open to the execution creditor to sell the whole of the estate in satisfaction of the judgment obtained against the father alone."" The recent ruling of

the Privy Council in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 6 L.W. 213 : 15 A.L.J. 437 : 33 M.L.J. 14 : 41 I.A. 126 to which our

attention has been drawn, that the pious obligation of the son to pay his father''s debt arises only after the death of the father, does not affect this

question, as the father has power to sell joint property of his son and himself for an antecedent debt of his to pay off that debt, when the debt was

not incurred for an illegal or immoral purpose and the Court can in execution of a"" decree for that debt exercise the same power and direct the sale

of such joint property. No doubt if the father had borrowed the original promissory note debts merely for the purpose of enabling him to sell the

whole property including his sons'' shares and allowed the decree to be passed in furtherance of that purpose, the case may be one where there is

only a colourable and not a ""real dissociation in fact"" between the debts and the final sale. In such a case the power to sell will not arise, under the

Privy Council ruling above quoted. But such a position does not arise on the facts here, as it is not alleged that the 2nd defendant had any such

purpose.

It follows, therefore, that as in the present case the plaintiffs did not give any evidence to show that the debts in question were incurred by the

2nd defendant for any illegal or immoral purpose, their suit must fail. They complain before us that they had evidence to show that their father led

an immoral life and that the Munsif shut out such evidence; but such evidence is quite insufficient, in the absence of evidence that the particular debt

was incurred for an immoral purpose, to exclude the father''s right to sell the joint property. See Sri Narain v. Raghubans Rai 17 C.W.N. 124 : 25

M.L.J. 27 The exclusion of evidence by the Munsif has, therefore, led to no prejudice to the plaintiffs and is, therefore, no ground for second

appeal. It was also urged that they had evidence to prove that they lived separately from their father and had nothing to do with the promissory

notes. That evidence was equally immaterial, as they did not allege any division from the father.

I agree, therefore, that the decree of the District Judge must be reversed and that of the Munsif be restored with costs, here and in the Court

below, of the appellants.