Yanamandra Papiah and Others vs Lanka Subbasastrulu

This is an appeal from the Appellate order of the Temporary Subordinate Judge of Nellore passed on appeal from an order of the District

Munsif of Kanigiri on a petition filed by the 3rd defendant in execution proceedings in O.S. No. 96 of 1909 on the file of his Court. The third

defendant is the son of the first defendant in the suit. The suit was against the father, the present petitioner and others for a declaration of the

plaintiff''s right to certain items of Immovable property, for recovery of possession of the same from them and for mesne profits. By the decree

passed on the 22nd December 1910 all the defendants were ordered to put the plaintiffs in possession of certain items of the suit property and the

first defendant was also directed to pay Rs. 370 for mesne profits andcosts on the mesne profits. In execution of the decree against the first

defendant for mesne profits and costs the entire house belonging to the first and third defendants was attached and the third defendant claimed in

the petition under appeal that his undivided half share was not liable to attachment on the ground that the decree for mesne profits and costs was

limited against the first defendant, his father. The District Munsif held that his share was liable to be taken in execution for his father''s debts, they

not being tainted by any illegality or immorality. The Temporary Subordinate Judge on appeal was of opinion that, although the primary liability of

the third defendant to pay such debts undoubtedly existed, yet, as he had been a party to the suit and no decree had been passed against him, the

decree was final as regards his liability and was a bar to the plaintiffs'' claim. It is contended before us that this view is correct and reliance is

placed on Section 11 explanation V of the CPC in that relief was claimed against the petitioner and not being granted should be deemed to be

refused. We are of opinion that this plea is bad. The liability which was sought to be enforced in the suit was a suggested primary liability of the

third defendant to the plaintiffs and this liability was negatived. The liability under which the plaintiffs are entitled to take the share of the third

defendant in execution is the liability of a son to pay his father''s debts to the extent of his share in the family property based on religious and moral

considerations which are fundamental in Hindu Law and well recognised by the Courts. It is from his duty to his father that the right of the creditor

springs and not from any decree against the son personally. This is made clear by the Privy Council in the leading case of Suraj Bunsi Koer v. Sheo

Persad Singh ILR (1879) C. 148 following an earlier decision of the board in Muddun Thakoor v. Kantoo Lall (1874) L.R. 1 I.A 321 their

Lordships make clear the position. One quotation is sufficient; ""Where joint ancestral property has passed out of a joint family, under a sale in

execution of a decree for the father''s debt, his sons, by reason of their duty to pay their father''s debts, cannot recover that property, unless they

show that the debts were contracted for immoral purposes."" There is no suggestion here that the fact of the primary liability of the sons having been

negatived in a suit makes any difference; and on principle it is clear that this cannot be so. The error that the Subordinate Judge has fallen into is in

thinking that the liability of a son arises out of some direct liability to a creditor. Such liability may exist and a suit may be brought to enforce it. But

the fact that in a suit against the son such primary liability is negatived does not affect his liability arising out of his duty towards his father. This view

has been taken by the High Court of Allahabad in Shiam Lal v. Ganesh Lal ILR (1906) A 288.. In that case the suit had been brought against a

father and son on a promissory note and was dismissed against the son as he was no party to it. In a subsequent suit, by the son for a declaration''

that the decree obtained against the father could not be executed'' against his interest in the family property in view of the fact that the suit had been

dismissed against him the defence was held bad. The Court held that the original suit left the son exactly in the position in which he would have

been if he had never been impleaded at all. We are in entire concurrence with this view.

The result will be that the order of the lower appellate Court is set aside and the order of the District Munsif dismissing the claim petitions

restored. The counter-petitioners will have their costs in this Court and the lower appellate Court.