Case: Pannalal and Anr Vs. Mst. Naraini and Ors

the father could be enforced in execution against the son or a separate suit would have to be instituted for that purpose.It was held by the Madras and the Allahabad High Courts that the liability could not be enforced in execution proceedings, whereas the Calcutta and the Bombay High Courts held otherwise. Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts. One reason for introducing this section may have been or undoubtedly was to enable the decree-holder to proceed in execution against the property that vested in the son by survivorship after the death of the father against whom the decree was obtained; but the section has been worded in such a comprehensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either the decree has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under S. 50, Civil P. C. In both these sets of circumstances, the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all.13. As we have said already, S. 53, Civil P. C., being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his fathers debts. It, however, lays down the procedure to be followed in cases coming under this section and if the son is bound under Hindu law to pay the fathers debts from any ancestral property in his hands - and the section is not limited to property obtained by survivorship alone - the remedy of the decree-holder against such property lies in the execution proceedings and not by way of a separate suit. The son would certainly be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by the executing Court under S. 47, Civil P. C. This seems to us to be the true scope and the meaning of S. 53, Civil P. C.In our opinion, the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of ATUL KRISHNA v. LALA NANDANJI, 14 Pat 732 decided by the Patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that S. 47, Civil P. C., could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under Ss. 50 and 52, Civil P. C. on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under S. 47, Civil P. C.14. It remains only to consider what order should be passed in this case having regard to the principles of law discussed above. The High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on partition with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit. It is not disputed before us that the debt which is covered by the decree in the present case is a pre-partition debt. The sons, therefore would be liable to pay the decretal amount provided the debt was not immoral or illegal and no arrangement was made for payment, of this debt at the time when the partition took place. Neither of these questions has been investigated by the Courts below. As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under S. 47, Civil P. C. the validity of the partition again was challenged in a way by the decree-holder in his reply to the objections of the appellants but the Courts below did not advert to the real point that requires consideration in such cases. The partition was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement or payment of the just debts of the father.15. In our opinion, the case should be reheard by the trial Judge and both the points referred to above should be properly investigated. The appellants did raise a point regarding their non-liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father. The Court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompetent to put forward any defence which the father himself could not have taken. Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings. We think that they should now be given an opportunity to do so.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is now settled by judicial decisions that there is no difference as between son, grandson and great grandson so far as the obligation to pay the debts of the ancestor is concerned; but none of them has any personal liability in the matter irrespective of receiving any assets, vide Masitullah v. Damodar Prasad,53 Ind Ap. 204 P. C. The position, therefore, is that the son is not personally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self-acquisitions. The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice. According to the text writers, this obligation arises normally on the death of the father; but even during the fathers life-time the son is obliged to pay his fathers debts in certain exceptional circumstances, e. g. when the father is afflicted with disease or has become insane or too old or has been away from his country for a long time or has suffered civil death by becoming an anchorite, vide Maynes Hindu Law, Edn.11 p. 408.It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead, vide Brij Narain v. Mangla Prasad,51 Ind. App 129 P. C. Thus it is open to the father, during his lifetime, to effect a transfer of any joint family property including the interests of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the fathers but also the sons interest in the joint estate. The creditor can make the sons parties to such suit and obtain an adjudication from the Court that the debt was a proper debt payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. These propositions can be said to be well recognised and reasonably beyond the region of controversy, vide Girdharee Lall v. Kantoo Lall,1 Ind. App 321:Madan Thakoor v. Kantoo Lall,1 Ind. App. 333 F. N. ;Suraj Bunsi v. Sheo Prasad,6 Ind. App. 88 P. C.; Brij Narain v. Mangla Prasad,51 Ind. App 129 (P.is true that the partition contemplated in these passages is one after the death of the father, but whenever the partition might take place, the view of the Hindu law-givers undoubtedly is that the binding debts on the family property would have to be satisfied or provided for before the coparceners can divide the property. InSat Narain v. Sri Kishen Das.63 Ind App 384 (P. C.), the Judicial Committee pointed out that when the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable. It was argued in that case on behalf of the appellants that the pious obligation of the sons was an obligation not to object to the alienation of the joint estate by the father for his antecedent debts unless they were immoral or illegal, but these debts were not a liability on the joint estate for which provision was required to be made before partition. This contention did not find favour with the Judicial Committee and in their opinion, as they expressed in the judgment, the right thing to do was to make provision for discharge of such liability when there was partition of the joint estate. If there is no such provision, "the debts are to be paid severally by all the sons according to their shares of inheritance, " as enjoined by Vishnu (Vishnu, Chap. 6, verse 36).In our opinion, this is the proper view to take regarding the liability of the sons under Hindu Law for the pre-partition debts of the father. The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place. This is substantially the view taken by the Allahabad High Court in the Full Bench case referred to above and it seems to us to be perfectly in accord with the principles of equity andexpressions "bona fide" and "mala fide" partition seem to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful does not un often lead to error and confusion. If by mala fide partition is meant a partition the object of which is to delay and defeat the creditors who have claims upon the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appropriate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors; if it makes no arrangement or provision for the payment of the just debts payable out of the joint family property, the liability of the sons for payment of the pre-partition debts of the father will stilldesire only to point out that an arrangement for payment of debts does not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors. Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case. We can conceive of cases where the property allotted to the father in his own legitimate share was considered more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in respect thereof. That may also be considered to be a proper arrangement for payment of the creditors in the circumstances of a particular case.After all the primary liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose. If the arrangement made at the time of partition is reasonable and proper, an unsecured creditor cannot have any reason to complain. The fact that he is no party to such arrangement is, in our opinion, immaterial. Of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he has no charge or lien is diminished for purposes of realization of his dues.Thus, in our opinion, a son is liable, even after partition for the prepartition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of theposition has been correctly stated by the Nagpur High Court in JAINARAYAN v. SONAJI, AIR 1938 Nag 24 at p. 29 - in the followingsay 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 atis undoubtedly true that no liability can be enforced against the sons unless they are given an opportunity to show that they are not liable for debts under Hindu law; but this opportunity can certainly be given to them in execution proceedings as well. A decree against a father alone during his lifetime cannot possibly be executed against his sons as his legal representatives. As we have said already, the decree against the father after the partition could not be taken to be a decree against, the sons and no attachment and sale of the sons separated shares would be permissible under S. 60, Civil P. C. The position, however, would be materially different if the sons are made parties to the suits as legal representatives of their father and a decree is passed against them limited to the assets of the deceased defendant in their hands. A proceeding for execution of such a decree would attract the operation of S. 47, Civil P. C., under which all questions relating to execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed or their representatives would have to be decided in execution proceedings and not by a separateour opinion, the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of ATUL KRISHNA v. LALA NANDANJI, 14 Pat 732 decided by the Patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that S. 47, Civil P. C., could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under Ss. 50 and 52, Civil P. C. on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under S. 47, Civil P.High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on partition with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit. It is not disputed before us that the debt which is covered by the decree in the present case is a pre-partition debt. The sons, therefore would be liable to pay the decretal amount provided the debt was not immoral or illegal and no arrangement was made for payment, of this debt at the time when the partition took place. Neither of these questions has been investigated by the Courts below. As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under S. 47, Civil P. C. the validity of the partition again was challenged in a way by the decree-holder in his reply to the objections of the appellants but the Courts below did not advert to the real point that requires consideration in such cases. The partition was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement or payment of the just debts of theour opinion, the case should be reheard by the trial Judge and both the points referred to above should be properly investigated. The appellants did raise a point regarding their non-liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father. The Court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompetent to put forward any defence which the father himself could not have taken. Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings. We think that they should now be given an opportunity to do so.