1. The following question, upon which the appeal depends, was referred for the decision of this Full Bench. Whether the property of the defendants is liable to be taken in execution under S. 53, Civil P.C., as being the property in the hands of a son who is liable-under the Hindu law for payment of the debt of his deceased ancestor

2. The facts out of which the appeal arises are these. The father of the respondents was the tenant of a house owned by the appellant the rent of which fell into arrears from April 1930 to January 1931. The house was occupied by the respondents as minor sons and by their father. In November 1930 a partition suit was instituted by one of the minor sons through his maternal grand-father which was compromised on 23rd March 1931, and a decree was made on the basis of the compromise on 11th April 1931. In the meantime, that is, on 28th January 1931, a suit was commenced by the appellant against the father for a sum of Rs. 1,095 being ten months' rent. This suit was compromised on 12th August 1931. Two sums were paid as Instalments of the compromise amounting to Rs. 350 one in August 1931 and the other in March 1932. It was in the year 1932 that the father died. In May 1932, the sons were substituted on the record of the execution case and their properties attached. As the debt accrued due prior to the partition, the question arises, whether in the events which have happened the properties which the sons (the respondents) obtained in the partition are liable to be taken in execution for the satisfaction of the father's debt after partition.

3. The learned Judge in the Court below in dismissing the decree-holder's appeal from the decision of the Munsif has considered the question of the properties claimed by the respective parties in the partition suit and has come to the conclusion that no provision was made for payment of the father's debt. He has also arrived at the conclusion that the Manbhum property which was allotted to the father in the partition would be sufficient to pay the Judgment-debt and which property is admittedly liable to be taken into execution as having come into the hands of the sons as the legal representatives of the deceased.

4. It has been contended in this case, and the contention is supported to some extent by authority, that as the partition made no arrangement for the payment of the debts of the father, the partition was not bona fide and therefore could be ignored by the decree-holder in which event the property would be the joint family property coming to the sons by survivorship, and as such, it would be admittedly liable to be taken in execution. A passage from the Mitakshara has been relied upon, to the effect that in a partition the property to be partitioned is that which remains after payment of the debts. I am unable to hold that passage, which deals merely with the division of the property, justifies a finding that where no such provision has been made, the mere fact would entitle the Court to hold that the partition could be ignored as not being bona fide, but the point may be put in another way as will appear later. The learned Judge in the Court below in this case has not come to any definite finding with regard to this matter and the point has not been seriously pressed. I would therefore consider the question which is one of some difficulty, namely, that on the basis of there having been a partition the property now sought to be taken in execution was the property which fell to the share of the sons (the respondents in that partition) and that the debt for which execution is sought accrued due prior to the partition. The words of S. 53, Civil P.C., I have already stated The question is, whether this was property in the hands of the sons which under the Hindu law was liable for the payment of the debt of the deceased. S. 53 is read in conjunction with sections 50 and 52 of the Code. S. 50 provides:

Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
and S. 53 defines that the property which is liable to pay the debt under the Hindu law of the deceased, must be deemed to be the property which has come into the hands of the son, or other descendant as his legal representative. The matter has been discussed at considerable length in a large number of cases some of which. I propose to refer to later. Some of these cases take the view that liability which is based upon the pious obligation of a Hindu son to pay his father's debt which is not tainted with illegality or immorality ceases on partition. Others take the view that although the liability does not cease it can only be enforced by joining him in the action and obtaining a decree against him. There are other cases which deny the liability to the property of the sons in any sense whether in execution or in action. It is quite obvious that the application of S. 53, Civil P.C., depends upon whether at the death-in point of time of the death of the father-that particular property was liable to be taken in execution after partition or whether immediately before his death the deceased's property was liable to be taken in execution. There are certain propositions of law of which there could be no doubt:

(1) The undivided share of a son of a joint Hindu family is liable to be taken in execution of a decree obtained against the karta or manager where the debt was for legal necessity ; (2) that the liability in the case of a son who is the member of a joint Hindu family extends to the personal debts of the father so long as they are not tainted with illegality or immorality ; and it follows from the decision of the Privy Council in Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), that this liability of the son's share is not dependent upon whether the father is dead ; (3) that the father is entitled to alienate the undivided share of the son for antecedent debts so long as they are not tainted with illegality or immorality ; (4) that the father is not entitled to alienate the son's share after partition.
5. The fourth proposition is generally accepted on fundamental principles. The second half of the proposition No. 2 is not generally accepted in its widest application. Those who do not accept it say that the father's right to alienate the son's share is one thing, but that the pious obligation of the son to discharge his father's debt is quite another matter in other words, they do not co-exist. The father's right to alienate exists obviously during his life-time; but the obligation of the son does not then exist, but only comes into force when the father dies and can no longer alienate the property. With the exception of the Lucknow Chief Court, this matter in its present form has never been decided either in India or by their Lordship of the Privy Council.

6. In dealing with the matter on principle it is argued on behalf of the respondents, the sons, that the test to be applied is whether, had the father been alive, he could alienate the sons' share and whether the creditor's and the father's rights were co-extensive; and, if it be said in any particular circumstances that the father had no right to alienate the son's share, then necessarily it would follow that the creditor had no right to seize the son's share in execution.

7. The appellants however contend that is not the test to be applied. The liability of the son is not to the creditor: the father's right to alienate may have gone, but the son's liability under the pious obligation may continue. The pious obligation of the son is the basis of both the father's right to alienate and the creditor's right to seize the property. It does not solve the matter perhaps by saying that the question to be decided is, what is the nature of the obligation of the son and to what does it extend Many of the authorities, if not most, have dealt with the question of the liability of the son's share in cases in which the father was living, and some, in which the point has been decided against the liability of the son, have solved the question by holding that; the pious obligation of the son did not arise in the life-time of the father as I have already stated. But in my judgment it is clearly insufficient to hold that the pious obligation of the son arises in the life-time of the father if it is to be held that after his death the son's share is liable even after partition.

8. In one of the earlier cases dealing with this matter, Krishnasami Konan v. Ramasami Ayyar (1899) 22 Mad 519 = 9 M L J 127, the learned Judge dealing with the matter seems to think that the test to be applied was whether the father at the moment of the execution could have sold the property in discharge of his personal debt. That is the test which, as I have already stated, seems to be generally applied.

9. Mr. Mahabir Prasad strongly supported the dissenting judgment of the Full Bench of the Madras High Court reported in Subramania Ayyar v. Sabapathi Ayyar, 1928 Mad 657 = 110 I C 141 = 51 Mad 361 (F B), holding that Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), had not dissented from the view that the pious obligation of the son did not arise until the death of the father, and contended that all that their Lordships of the Privy Council said in that case was, that the son's share was open to be taken in execution during the lifetime of the father which it is said is a very different thing. In the first instance I can see no way out of holding that the decision of their Lordships of the Privy Council must be taken to have held that the pious obligation of the son arose during the lifetime of the father. If there were no such pious obligation in the son, then how comes into existence the right of the father to alienate that share Lord Shaw in Sahu Ram Chandra v. Bhup Singh, 1917 P C 61 = 39 I C 280 - 44 I A 126 = 39 All 437 (PC) stated that:

the pious obligation resting upon the sons and grandsons to discharge this debt is in practice worked out by giving effect to any mortgage or sale of the family property
10. This statement of Lord Shaw has been used by Mr. Mahabir Prasad in support of his contention; and it is argued that when their Lordships of the Privy Council in Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), held, that the rule is not affected by the question whether the father is alive or dead, they were dealing with the father's right to alienate the property and not the pious obligation of the son, upon which it rested. For myself I cannot see the distinction, nor am I able to hold that Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), decided that although the right to alienate the property existed the pious obligation of the son did not. It is impossible to hold that one exists without the other. From one point of view- the point of view of the case that we have to decide-it may be immaterial whether the pious obligation of the son arose during the life-time of the father or not. It is clear that in the events which have happened the pious obligation in this case existed and the question that comes to he determined is, whether pious obligation of the son goes with the right of the father to alienate I do not think it is fundamentally true that the father's power to alienate is co-extensive with the pious obligation of the son, the former depending upon the latter. However if the pious obligation of the son arose during the life-time of the father the question immediately arises, what has happened to put an end to it Can it possibly be said that the loss by the father of the right to alienate disposes of the pious obligation of the son If that were true, it would seem to follow that the pious obligation of the son arises by reason of the father's power to alienate and not vice versa because we know that the father's power rests upon the pious obligation of the son and not otherwise. It seems to me to be quite immaterial that the Courts have turned what was a moral obligation into a legal obligation conditional upon the son's receiving property of the joint family. It is not the death of the father that causes the pious obligation of the son to rise. Can it possibly be said that the son can rid himself of the obligation by entering into a partition with his father

11. It has been argued that the son was under no obligation to the creditor; his obligation was to the father, and therefore there was no cause of action which accrued to the creditor against the son. Those cases in which the son has been joined as a party to the action in the life-time of the father, have been explained by stating that it was for the purpose of allowing the son to question in the action the validity of the debt, either as to its existence or as to its character. It is true that the creditor could take the son's share in the joint family property in execution without making the son a party to satisfy a decree for personal debt: Mt. Nanomi v Madan Mohan, (1886) 13 Cal 21 = 13 I A 1 (PC). But in continuation of this argument it is said that the father was nothing more than an intermediary between the creditor and the son and that only through him could the obligation to the son be enforced. But even after the death of the father, in cases where no decree had been obtained against the father, it seems to be recognized by some authorities in Madras that an action could be brought against the son to enforce the son's liability. An instance of this is the case of Periasami v. Seetharama, (1904) 27 Mad 243 = 14 M L J 84. That was a case in which, although there had been a decree against the father who had died subsequently another action was brought against his brothers and sons to enforce the plaintiff's claim. The action against the brothers was dismissed, but a decree was obtained against the sons; and, as the judgment appears to deal with the matter on the basis of pious obligation of the son, it seems to be clear that it was not a joint family debt. Exactly what the cause of action was does not appear, but as I have said the liability was based on pious obligation of the sons of the original judgment-debtor. The matter under discussion in that Full Bench decision was the question of limitation and the point which I have raised was neither mentioned nor argued; it appears to have been assumed. It has been argued by Mr. Das that the pious obligation, of the son to pay the father's debts and the obligation of the sons as members of a joint family to pay the joint family debts are on the same footing and in neither case is it a personal liability of the sons, the reason for the obligation only being different.

12. To come back to the actual point under discussion the matter may be stated in this way; during the lifetime of the father the obligation of the son exists, worked out as Lord Shaw has stated, by the father having the power to alienate the property in discharge of that debt. After the father's death the obligation continues and indeed from the view expressed by the dissenting Judges of the Full Bench of the Madras High Court the pious obligation of the son arises for the first time: that so long as the debt exists it is obvious that the obligation continues-an obligation stated by their Lordships of the Privy Council depending not on the nature of the property but on the nature of the debt. The actual point in issue may be expressed in the form of a question. What puts an end to the obligation of the son The answer to that is, as I have said, discharge of the debt. And the further question is to be asked what other circumstances will discharge that obligation The answer to the question put in that form seems to be inevitable that nothing but the payment of the debt will discharge the obligation. As I have already said, the matter is disposed of by some of the decisions holding that unless provision is made for the debt in a partition (which in a sense is a discharge) the partition of the joint family property is not bona fide. I have the difficulty, which I indicated in the earlier part of my judgment, in accepting this for the reason that the learned judges who have decided the matter on that footing have held that the partition does not affect the liability of the son. But to say that a partition is not bona fide unless provision is made for the debt, seems to me to carry with it the proposition that the partition may put the property otherwise liable beyond the reach of the creditor. I would prefer the view that it is not a question of whether the partition is bona fide or mala fide, but it is a question of the obligation of the son to the extent of the property in his hands-an obligation which cannot be got rid of unless there is an actual discharge of the pious obligation by payment of the debts. In agreement with the Judges of the Madras and the Bombay High Courts I cannot see how a father's debt, which in one sense is a charge (not strictly so) on the joint family property can be got rid of by the comparatively easy transaction of partition. There seems to be no way out of this position. Very little assistance is got from the quotation of the text ; reference has been made to Colebrook's Mitakshara, Chap. 1, S. 3, placitum 1, dealing with division of property and of debts to the effect that the sons are to divide the property and debts of their father. The words are "Let sons divide equally both the effects and the debts after the (demise of their two parents)."

13. This merely emphasises the point I made a moment ago with regard to the obligation of the son to pay the debts of the father.

14. Dealing with the authorities, in the Full Bench decision of the Madras High Court in Subramania Ayyar v. Sabapathi Ayyar, 1928 Mad 657 = 110 I C 141 = 51 Mad 361 (F B), the Chief Justice in delivering the dissenting judgment against the view that the son's share was liable did not state his reasons apart from saying that the pious obligation of the son should not extend beyond the point to which the case is carried and that the father's power to partition the property, and thus to put an end to the father's ability to alienate or charge any part of the property, seems to carry with it the proposition that when once the property has been partitioned the creditors cannot seize it. Srinivasa Ayyangar, J., appears to have based his decision on his interpretation of Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), that their Lordships of the Privy Council did not say that the pious obligation TO pay the father's debt arose in the life-time of the father. But that is a view that I cannot hold, and, with great respect to the learned Judge, his decision, so far as it was based, upon that view of Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), seems to be unsound. The principal judgment of the Court in that case considers it necessary to join the son as a party to the suit and proceeds to decide in favour of the son's liability on the ground that it would be difficult to see on what principle the creditor would lose the right to seize the son's share simply because subsequent to the incurment of the debt the father and the son effected a partition among themselves. The same reason is given by the other learned Judges holding that the property of the son was liable. The Bombay decision in Annabhat Shankarbhat v. Shivappa Dundappa, 1928 Bom 232 = 110 I C 269 = 52 Bom 376 , related to a trade debt in connexion with an ancestral business, but the case does not appear to proceed on the basis of the joint family liability, but on the pious duty of the son to pay the father's debt. Patkar, J., quotes Chapter 1, verse 2 of Narada.

Therefore where the father is dead, sons should pay the debt each according to his share when they are divided, or, if undivided, it should be paid by the one who holds the lead (in the family).
15. Reference has been made to certain authorities including Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), and the earlier decision of the Madras High Court reported in Ramchandra v.Kondaya Chetty, (1901) 24 Mad 555, where the matter was not discussed in any detail, Baker, J., deciding the matter Very largely on the ground that the device of partition could not be held to entitle the son to escape liability: Kulada Prasad Pandey v. Haripada Chattarji, (1913) 40 Cal 407 = 17 I C 257, dealt with the same matter, but the disruption of the family there depended upon the fact that some of the sons had been converted to Christianity. The second defendant there in the action had been converted to Christianity in 1896 and ceased to be a member of the joint family and the Court held that he was not bound by the conveyance of 19th March 1900, but that he was liable to pay the debts of his father accruing prior to the date of conversion. The matter therefore again was not discussed in detail. The Lucknow Court in Raghunandan Prasad v. Moti Ram, 1929 Oudh 406 : 119 I C 449 = 6 Luck 497 (PC), has also decided in favour of the liability of the son's share after partition, the substance of the judgment of the Chief Justice being that from the principle as laid down in Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), that the family property is liable, in execution, to satisfy a decree on a debt incurred by the father as manager of the joint family, it is clear that where the other members are the sons the property will remain liable even if it is subsequently partitioned and the acts of the members of the family cannot divest the members of that liability.

16. I do not propose to refer in detail to the earlier decisions of the Madras High Court particularly as they have been dealt with by the Full Bench decision of the same Court to which I have referred. The principal decisions are Krishnasami Konan v. Ramasami Ayyar (1899) 22 Mad 519 = 9 M L J 127, and Ramchandra v. Kondaya Chetty, (1901) 24 Mad 555, the learned Judge of the Full Bench differentiating the two cases by holding that one was an action for a personal debt and the other for a family debt. There was a further distinction that in one case the execution was against the son's share on a decree passed against the father alone while in the other the suit was against both father and son. This leads me to the point, which is the alternative case, of the respondent, that in these particular proceedings the sons' share cannot be taken as the sons were not parties to the suit; and, unless a decree is passed against them it contended that their share is not liable. This view seems to have been assumed by the Full Bench decision of the Madras High Court reported in Subramania Ayyar v. Sabapathi Ayyar, 1928 Mad 657 = 110 I C 141 = 51 Mad 361 (F B). The question did not strictly arise in that case because the sons had been made parties, and the only question for consideration was whether in those circumstances the sons' share could be taken in execution.

17. The reason for this argument is difficult to appreciate. Under S. 53, Civil P.C., what is liable to be taken is the property which is liable under the Hindu law for the payment of the debts of the deceased, and, if it is once-decided that partition makes no difference and that the sons' share is liable, the question seems to be answered and the matter of procedure hardly comes into question. One of the reasons for the enactment of section 53 appears to be to avoid the necessity of a separate suit, although one of the main reasons for that section was to meet the case set up by sons that they had taken by survivorship and the Code only applied to those cases in which property had come into the hands of a person by succession. This point seems to be dealt with, although not perhaps expressly, in Mt. Nanomi v Madan Mohan, (1886)13 Cal 21 = 13 I A 1 (PC). In the words of Lord Hobhouse:

all that the sons can claim is that.....they ought not to be barred from trying the fact of the nature of debt in a suit of their own. Assuming they have such a right, it will avail them nothing unless they can prove that the debt was not such as to justify the sale.
18. In that case the sale was by an ancestor and it was not a case of a personal debt of the father, but the principle underlying the case seems to be the same. Indeed under S. 53, Civil P.C., the very question, and the only question, which could arise in a suit against the son, does arise and can be determined. To repeat in other words, if the sons' share is prima facie liable, the most that the sons can claim is the opportunity of a trial of the question as to whether the debt was tainted with immorality or illegality, and because of that right I see no justification for holding, on principle, that it is necessary to join the sons in an action before their share becomes liable. To reiterate what I have already said, it seems to me quite clear that when once it is held that a partition cannot relieve the sons' share from being seized in execution, it naturally follows that a decree against the sons is unnecessary.

19. But it is said that the property which is deemed to be property which has come into the hands of the son or other descendant as his legal representative within the meaning of section 53 is such property as the father could have sold in discharge of his debts. It is argued that it is clear that after partition the father could not have alienated the property in discharge of a pre-partition debt or any debt, it cannot be deemed to be property which was liable for the payment of the debt of the deceased ancestor within the meaning of S. 53. In my opinion this is nothing more than the old argument on the main point in this case expressed in other words and it is what I have with great respect considered to be the fallacy which underlies the dissentient judgments of the learned Judges in the Full Bench case in the Madras High Court. The right of the creditor to take the property of the son does not depend upon the power of the father to alienate that property and, as I have endeavoured to point out in reference to the judgment of the Madras High Court in Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), if the right to alienate existed in the father the pious obligation on the part of the son must be held to exist at the same time.

20. Again as Lord Shaw said in Sahu Ram Chandra v. Bhup Singh, 1917 P C 61 = 39 I C 280 - 44 I A 126 = 39 All 437 (PC), the power of the father to alienate property was the method by which the pious obligation of the son was worked out. The obligation is the substance the alienation is merely procedure. It may well be that the pious obligation exists without the concomitant power of the father to alienate. In this connexion I must refer to what I have described as the fourth proposition in the earlier part of my judgment, that is, the father is not entitled to alienate the son's share after partition. It is argued that this determines the matter, but in my judgment it does not. Quite apart from any questions of Hindu law, it is trite law to state that a person is not entitled to sell or alienate property which is not his own, and that is a reason why a father cannot alienate a property which has ceased to be his by partition. It has nothing to do with Hindu law, but it is an ordinary fundamental rule applicable to any branch of law. But although by partition the father has ceased to be able to alienate property, the pious obligation continues as I have ventured to state on the main point. That being so, on the plain construction of S. 53, as I have already stated, it seems to me that the property is property which could be held to be liable for the payment of the debt of the deceased ancestor and therefore it is deemed to be property which came into the hands of the son or other descendant within the meaning of sections 50 and 52, Civil P.C. That answers the alternative point.

21. The main question under discussion is not however free from difficulty particularly having regard to the conflict of authorities and in the absence of any express decision of their Lordships of the Privy Council. In this connexion I should state that in the course of the argument emphasis was laid upon the observations of Lord Dunedin in Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC), as regards the liability of the undivided estate, the expression "undivided" being mentioned repeatedly. It is therefore said that their Lordships were not only limiting their decision to the case of an undivided estate, but they were by inference holding that nothing, but the undivided estate was liable under the propositions of law there laid down. It must be held that their Lordships were limiting their decision to the case of an undivided estate, but I cannot agree that they even by inference decided the point in issue in this case.

22. In my judgment the sons' share was liable under S. 53, Civil P.C., and no separate action against the sons was necessary. As on the second question my learned brothers do not agree with me, the result is that the appeal is dismissed with costs.

Mohamad Noor, J.

23. This miscellaneous appeal arises out of an execution proceeding. The decree in execution was passed on compromise on 28th August 1931, against one Lala Bhagwat Saran, father of the respondents, who is now dead, and is for rent of a house situated in Patna for the period from April 1930 to January 1931. The suit for rent was instituted on 28th January 1931. Some amount has been paid, and the execution is sought for the balance. It appears that the two minor sons of Lala Bhagwat Saran through their next friend instituted a partition suit against their father on, 19th November 1930, and a compromise partition decree was passed on 23rd March 1931, i.e., a few weeks after the institution of the rent suit, but several months before the decree in that suit was passed. By this partition certain coal mines situated in Dhanbad, were assigned to the father and certain properties situated in Shahabad to the sons. The father is, as I have said, dead and the decree-holder seeks to attach and sell in execution of the rent decree the separated properties of the sons who have been substituted as judgment-debtors in place of their deceased father. The sons object to the attachment and sale of these properties on the ground that after the partition they are no longer liable to be taken in satisfaction of their father's preparation debt. The objection has prevailed before the Courts below, though the learned District Judge did not absolutely refuse execution against the separated properties of the sons. He directed the decree-holder to proceed first against the properties which were allotted to the father and have now on his death devolved upon his sons. The decree-holder has preferred this second miscellaneous appeal.

24. It was urged on behalf of the appellant that as the respondents were minors the separation between the father and the sons did not take place on 19th November 1930, when the partition suit was instituted, but on 23rd March 1931 when the partition decree was passed. On the other hand, it was contended by the respondents that when in a suit for partition of a joint family property instituted by minors a decree for partition is ultimately passed the partition takes place with retrospective effect from the date of institution of the suit. I do not wish to discuss this point in detail, as whenever the separation may have taken place, the decree is certainly after the separation. No doubt, the suit for arrears of house rent was instituted before the partition decree, but as it was a simple money suit no question of lis pendens arises. The case has been urged on the footing that there was a legal pre partition personal debt against the father of the objectors, that the decree for this debt was passed after the partition and that there was a bona fide partition in the sense that it was nor made with a view to defeat the creditors. No doubt, in the lower Courts a question was raised that the debt was for family necessity and also that the partition was not a bona fide one. These questions of fact were not decided in favour of the appellant, and have not been pressed before us. The propositions of law, which we are called upon to decide are: (1) whether the seperated properties of the family in possession of the sons can be attached and sold in satisfaction of a debt incurred by the father before partition, and (2) if so, whether it can be done in execution of a decree obtained against the father only.

25. A Division Bench of this Court in Ram Ghulam Singh v. Nand Kishore Pershad, 1925 Pat 688 = 88 I C 813 = 4 Pat 469, has held that sons are not liable after partition to pay out of the joint family property which has come to them on partition the anti partition debt of their father. This case followed an earlier decision of the Madras High Court in P. Venkanna v. V. Sreenivasa Deekshatulu, 1919 Mad 1175 = 43 I C 225 = 41 Mad 136. As the principle enunciated in the Madras case was expressly dissented from by the majority of the learned Judges in a later Full Bench decision of the same Court in Subramania Ayyar v. Sabapathi Ayyar, 1928 Mad 657 = 110 I C 141 = 51 Mad 361 (F B), this case has been placed before a Special Bench.

26. The liability of the joint family property for the persona debt of the father when the family consists of father and sons only has been the subject matter of many judicial decisions. The Courts were faced with two somewhat inconsistent doctrines peculiar to Hindu Law, viz. (1) the joint proprietorship of the father and the sons in the ancestral family property and (2) the pious obligation of the sons to pay their father's debt. It is not necessary to examine in detail the various pronouncements of the Privy Council in this connection. The position has been summed up by Lord Dunedin in the judgment of the Full Board of the Judicial Committee in the case of Brij Narain v. Mangla Prasad, 1924 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (PC). They are these:

1 The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity ; but (2) if he is the father, and the reversioners are his sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt ; (3) if he purports to burden the estate by a mortgage, then unless that mortgage is to discharge an antecedent debt it would not bind the estate ; (4) antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached ; (5) there is no rule that this result is affected by the question whether the father, who contracted the debt or burdened the estate, is alive or dead.
27. It is therefore clear and is not disputed that as long as a family consisting of father and sons is joint the joint family property can be attached and sold in execution of a decree against the father only if the debt is not immoral or illegal, it is also not disputed and is a well settled law that if the father dies indented in a state of jointness with his sons the entire joint family property in the hands of the sons is liable to satisfy that debt if it is not immoral or illegal. It has further been conceded that after separation the sons are not liable to satisfy out of the separated property assigned to them their father's post partition debt. This seems to me to be clear otherwise the very object of separation may be defeated. The partition in fathers' life-time is provided to safeguard the sons against the extravagance of the father. It is again a settled law that the pious obligation of a son to pay his father's debt is restricted to the assets of the joint family in which the sons have a share. The son is not personally liable, though according to the Hindu law the pious obligation is unrestricted and is independent of the son having any property. The Courts however on the ground of justice, equity and good conscience enforce this obligation only to the extent of the joint family property in which the sons have shares.

28. These being the well-settled principles of the Hindu law as laid down by our Courts, we have to consider what is the position of a debt which was incurred by the father when the family was joint and which the creditor seeks to realise after the family has separated. Two situations may arise: (1) that a decree for debt was passed before partition against the father only and the execution of it is sought after partition and (2) that the debt was incurred by the father before partition, but the decree of it has been obtained after partition against the father alone. I shall take up the question of liability of the sons to pay the pre partition debt first and shall deal with the mode of realization later. It has been contended before us by Mr. Das that a partition between the father and the sons makes no difference whatsoever in the position of the creditor who was en titled before the partition to realise the father's debt by bringing the entire family property to sale. This right of the creditor cannot be defeated by a partition. When the father incurs a debt he lays the entire family property open to be taken in satisfaction of that debt. This liability being based upon the pious obligation of the son continues after the partition. There is no principle on which it can be said that this pious obligation to pay a debt already incurred comes to an end after the family has separated.

29. On the other hand, it has been contended on behalf of the respondents that the right of a father's creditor to realise his dues from the entire estate is based not upon the pious obligation of the son to pay his father's debt but directly upon the fact that the father is entitled to sell the whole estate to pay off his antecedent debt, though this power itself is based upon, the pious obligation of the son. The creditor does nothing more than to force the father in the execution proceeding to sell that property to satisfy his debt, in other words, the Court by selling the family property for the satisfaction of a decree against the father only does what the father was empowered to do. It is therefore contended that when a partition takes place between the father and the sons the father's power to sell the sons' shares comes to an end and therefore the creditor is no longer entitled to realise his debt from the property in the hands of the sons. The point has been discussed in several cases in the Madras High Court and the reasons given in support of the two views need examination. The latest decision on this topic is of Subramania Ayyar v. Sabapathi Ayyar, 1928 Mad 657 = 110 I C 141 = 51 Mad 361 (F B). Three learned Judges of that Court were in favour of the view propounded by the appellant. Coutts-Trotter, C.J. was of opinion that the doctrine of pious obligation of a son to pay off his father's debt was:

anillogical relic of antiquity unsuited to any but a primitive and patriarchal society and should not be extended beyond the limit to which it has reached,
and therefore he declined to make the separated sons liable for the pre partition. I may say with the utmost respect to the learned Chief Justice that the joint ownership of the father and the sons is also peculiar to the same system and the sons are entitled to no more protection than what the very law which has recognized their rights has given them. Srinivasa Ayyangar, J. expressed the view which is urged by the respondents. He held that sons were not liable after partition to pay their father's debt. His reasons were these. The obligation of the son is not towards the creditor but towards his father. The right of the father on the basis of this obligation is to alienate the entire family property including the sons' share to pay off his antecedent debt. This power of sale was in the nature of a property and when a creditor executes his decree against a father this power of sale is enforced for the satisfaction of the decree. It is similar to the power of an official assignee to sell the debtor's property for the benefit of the creditors. The learned Judge however observed that the right of the father to make alienations to pay up his antecedent debt is itself based on the pious obligation of the son to pay off his father's debt; but once such a right is recognized there is no reason why the right of the father's creditor to proceed against the son during the father's lifetime should be referred to or based on the ultimate pious obligation of the son and not on the right of the father to alienate the properties. The learned Judge was of opinion that the right of the creditor to realise his dues from the family property after the father's death is based upon pious obligation; his right to realise it during the father's lifetime is the enforcement of the power of the father to alienate the entire family property to pay his antecedent debts, though, this power has grown out of the pious obligation and as this right comes to an end after partition the right of the creditor also comes to an end. But Brij Narayan's case already referred to makes it abundantly clear that their Lordships of the judicial Committee did not accept the dictum of Lord Shawm Sahu Ram Chandra v. Bhup Singh, 1917 P C 61 = 39 I C 280 - 44 I A 126 = 39 All 437 (PC), that the pious obligation of the son accrued after the father was dead.

30. Let us examine what a Mitakshara partition is. Before partition the father and the son are the joint owners of the estate. After partition they become either owners in common or hold the estate in severalty. A Mitakshara partition need not necessarily be by metes and bounds. Therefore if the creditor was entitled to realise his dues from a certain property now that right comes to an end after the partition when the property is still held by the same set of persons, only the mode of enjoyment is changed. In my opinion, in a family consisting of father and sons only, there is in practice no difference between a debt incurred by the father in his individual capacity and a debt incurred by him as karta of the family for the benefit of the family. Both of these debts can be realised from the entire family property. If a debt is incurred by the father individually he is bound to pay the debt as a person who has incurred the debt, but under the Hindu law the sons are also liable to pay that debt though their liability is limited to the extent of the family property. The persons who were liable to pay the debt at the time of partition, continue to be so liable even if the mode of enjoyment of the property has been changed in consequence of the partition. I agree with the views held by the majority of the Judges who decided the case of Subramania Ayyar v. Sabapathi Ayyar, 1928 Mad 657 = 110 I C 141 = 51 Mad 361 (F B). It is clear from the Mitakshara that arrangement for payment should be made before partition. In Chap. 1, section 3 placitum 1 Mitakshara quotes Yajnavalka's text that sons divide equally both assets and debts after the demise of their father. No doubt, the partition referred to is the partition after the father's death. But on principle there is no distinction whatsoever between a partition in the lifetime of the father and one after his death. Chap. 1, S. 1, placitum 4 runs thus:

Partition (vibhag) is the adjustment of diverse rights regarding the whole by adjusting them on particular portions of the aggregate.
31. It seems to me therefore clear that the partition being an adjustment of the diverse rights regarding the whole it involves distribution of portions of the aggregate. It follows that when the sons take a share of the assets of the family they take it subject to their liability to pay those debts which on the date of the partition they were liable to pay out of assets of the family. It is true that no property is charged for payment of the debt of the father and therefore it is argued that if the creditor is allowed to follow the property in the hands of the son after separation, he will practically get a charge on the property which he has not. In my opinion, this argument is fallacious. The creditor is certainly not entitled to follow any property; but if he has a debt which the sons were under legal obligation to discharge at the time of the separation the creditor can call upon them to pay up that debt after the partition. If the creditor has not already obtained a decree, he must as I shall show later bring a suit against the sons also, claiming the money from them as well. The decree against the father will be unlimited on the basis of his obligation to pay the debt as a contracting party and the decree against the sons will be limited to the assets of the family in their hands on account of their pious obligation to pay up that debt. If the creditor had already obtained a decree before partition, that decree, as I shall later on show, can be executed against the separated property of the sons. In the case of Bankey Lal v. Durga Prasad, 1931 All 512 = 135 I C 139 = 53 All 868 (FB), it was held that the sons' share can he proceeded with for the realisation of the father's pre-partition debt. The decision of the majority was given by Sulaiman, Ag. C.J. The basis of the decision is that a partition without making provision for the payment of debts is not bona fide. The learned Acting Chief Justice was of opinion that:

If the family sits down to divide up the gross assets without making any arrangement for the payment of the outstanding debts, it is obviously ignoring the claims of the creditors. Such a partition cannot but be a mala fide one.
32. I am not prepared to go so far, and I agree with my Lord whose judgment I have, had the opportunity of reading that simply because at the time of the family partition no arrangement has been made for payment of the debt, the partition is necessarily mala fide. For a partition to be dishonest it must be shown that it was made with a view to defeat the claim of the creditors. Some time it will be very difficult to make arrangements at once for payment of the debt. The debt may not have become payable, or ready money may not be available to pay that debt. It cannot be said under the circumstances that the father and sons are not entitled to come to an honest arrangement either by themselves or through the intervention of the Court to divide the assets, leaving it later on for the father and the sons to contribute towards payment of the debt. In the Madras case Srinivasa Ayyangar, J., has given as one of the reasons for holding that the sons are not liable to pay the pre-partition debt, that hardship may arise if the sons make provision for payment of the father's debt by allotting an additional share to him to pay up that debt and he squanders it away before the creditors can get it. Cases however cannot be decided on the grounds of hardships which a particular decision may involve. We have to decide them on purely legal principles. I may point out that the hardship pointed out can always be avoided by the sons not only allotting to their father sufficient property for payment of the debt but by making such an arrangement that the debt must be paid.

33. The next case which I wish to refer to is a decision of the Lucknow Chief Court in Raghunandan Prasad v. Moti Ram, 1929 Oudh 406 : 119 I C 449 = 6 Luck 497 (PC). There the case was exactly similar to the one with which we have to deal. The decree was passed against the father only after partition. The creditor attempted to proceed against the separated share of the sons. The sons preferred a claim which was allowed. The decree-holder instituted a suit for a declaration that the property in question was liable to attachment in execution of his decree. A question was referred to the Full Bench whether the decree-holder could proceed against the separated property of the sons in execution of the decree obtained by him after partition. The Full Bench answered the question in the affirmative. Hasan, J., after reviewing the authorities observed:

On principle therefore I can see no escape from the position that the partition cannot have the effect of absolving the son of his liability where under the partition he received a portion of the family property.
34. A similar view has been taken in Calcutta, Bombay and Lahore: sec Kulada Prasad Pandey v. Haripada Chattarji, (1913) 40 Cal 407 = 17 I C 257, Annabhat Shankarbhat v. Shivappa Dundappa, 1928 Bom 232 = 110 I C 269 = 52 Bom 376 and Jawahar Singh v. Parduman Singh, 1933 Lah 116 = 141 I C 424 = 14 Lah 399. It is needless for me to dilate on this point much longer. I agree with my Lord in holding that the sons are liable to pay their father's pre-partition debt if not tainted with immorality-a debt which they were liable to pay out of the family assets at the time of the partition.

35. On behalf of the respondents Mr. Mahabir Prasad has relied upon the ratio decidendi of the decision of the Privy Council in Masit Ullah v. Damodar Prasad, 1926 P C 105 = 98 I C 1031 = 53 I A 204 = 4 8 All 518 (PC). I have read the decision of their Lordships very carefully and I do not find anything which in any way helps the respondents. The question before their Lordships was the liability of the great grandson for the debt of the great grandfather. Mr. Mahabir Prasad contended that their Lordships held that the great grandson was liable on the ground that he formed a member of the joint family and had a right in the ancestral property which extended to four generations. He contended that their Lordships observed that the Counts, have held that the son and the grandson are not liable to pay any debt unless they receive assets, and in the present case the respondents have received no assets. We are however concerned with the debt which was incurred by the father at a time when the family was joint and which the sons were bound to pay out of the joint family assets.

36. The next question for consideration is whether this liability of the sons can be enforced in execution of a decree obtained against the father alone. Two situations may arise: one is that the decree was passed before the partition and the second is that it was passed after the partition.

37. The problem is not so much of Hindu law as of procedure. There can be no doubt that a decree can be executed and realised only from the properties of the judgment-debtor and nobody else. Therefore at first sight it would, appear that a decree against the father cannot be executed against the sons. No doubt, when a family is joint and a decree is obtained against the father alone it can be executed against the joint family property including the undivided share of the sons; but this stands upon a different footing. The father being joint with his sons represents the entire family as he has got a complete disposing power over the family property for the satisfaction of his antecedent debt. The sons must be deemed to have been represented by the father in the suit. The position entirely changes when the family is disrupted. No doubt, as I have held, the sons are still Liable to pay the debt which could have been taken out of the joint family property at the time of partition; the father no longer represents the sons, nor does he represent the property. Therefore a decree obtained against the father alone after partition cannot be executed against the separated share of the sons on the simple ground of procedure that they are not the judgment-debtors under the decree. In this case the decree under execution was passed against the father alone after the partition and is sought to be executed after his death against the separated properties of the sons. The appellant has relied upon Ss. 50. 52 and 53, Civil P.C. In my opinion the sections are not applicable. S. 50 prescribes the mode of execution of a decree when the judgment-debtor is dead. S. 52 refers to a decree passed against the representative of a deceased person. S. 53 provides that the property in the hands of the son or other descendants liable under the Hindu law for payment of the debt of a deceased ancestor in respect of which a decree has been passed shall be deemed to be the property of the deceased, etc. These three sections only mean that the death of a debtor will make no difference and properties which could have been seized in his lifetime can be seized even after his death. These sections do not mean that a property which could not have been proceeded against in the lifetime of a deceased debtor can be taken when he is dead, simply because those who hold the property from before his death have now become judgment-debtors as his representatives. As I have held that a decree against the father alone obtained after separation is not executable against the separated property of the sons, Ss. 50 and 53 have no application. The criterion will be this. Could these properties which are now sought to be attached and sold have been proceeded against before the judgment-debtor, namely, the father of the respondents died; if not, then they cannot be attached and sold simply because the respondents have been brought on the record and have inherited some other property of their father. It is purely accidental that the decree is sought to be executed after the death of the father of the respondents. We must place ourselves at a time when the father was living and decide whether a decree passed against him alone after he separated from his sons could have been executed against the separated shares of the sons. If it could not have been executed when the father was living, it cannot be executed when he is dead. How could this decree have been executed against the sons, when they were not parties to it, nor could they have been deemed to be party to it

38. I am supported in the view which I have taken by a decision of the Allahabad High Court in Krishna Swamp v. Brijraj Singh, 1929 All 726 = 121 I C 257 = 51 All 932. It was held in that case by Niamatullah, J., that a decree obtained against the father when he was joint with his sons was binding on the sons as they would be deemed to have been represented by the father in the suit. Whether the sons were represented by the father or not depended upon the subject-matter of the suit and if it was a debt which not being tainted with immorality was binding on the sons, the sons must be deemed to have been parties to the suit through the father. But a decree obtained against the father after disruption of the family could not be executed against the sorts, for after disruption the sons were no longer represented by the father in any suit by the creditor. In such a case if the creditor desired to proceed against the undivided property in the hands of the sons he must obtain a decree against the sons themselves.

39. The first part of the above proposition was also adopted by the Lucknow Chief Court in the case of Jogeshwar v. Maniram, 1927 Oudh 180 - 101 I C 907 = 2 Luck 561. In the case of Kameswaramma v. V. V. Subba Rao, 1914 Mad 328 = 24 I C 474 - 38 Mad 1120 the Madras High Court held that the decree obtained against the father even before partition could not be executed against the separated property of the sons after partition and that a suit against the sons was necessary. For the reasons I have given above I am unable to accept this view, but as the question does not arise in the present case I do not wish to examine this case critically. No authority has been placed before us to show that the decree obtained by the creditor against the father only after the partition is executable against the separated property of the sons. No doubt, in the case of Raghunandan Prasad v. Moti Ram, 1929 Oudh 406 : 119 I C 449 = 6 Luck 497 (PC) the creditor obtained the decree after separation, but the question was not considered and decided by the Full Bench, though it appears from the report of the case in Raghunandan Prasad v. Moti Ram, 1929 Oudh 406 : 119 I C 449 = 6 Luck 497 (PC) that when the opinion of the Full Bench came before the referring Judge (Pullan, J.), he assumed that the Full Bench intended to decide this question in the affirmative. With all respect to the learned Judge I am unable to make any such assumption in the absence of any discussion or decision of the Full Bench on the point.

40. The result of my finding is that the case of Ram Ghulam Singh v. Nand Kishore Pershad, 1925 Pat 688 = 88 I C 813 = 4 Pat 469 so far as it decided that the sons were not liable during the lifetime of the father for the latter's simple money debt incurred before partition was not correctly decided. In this particular case however the decree having been obtained against the father only after partition, cannot be executed against the separated properties of the sons. I would, therefore dismiss this appeal with costs.

C.M. Agarwala, J.

41. The facts of the case material to the question which arises for decision in the present appeal are as follows; On 28th January 1931, the appellant sued the father of the respondents to recover Rs. 1,095 as rent of a house which had been in the occupation of the defendant from April 1930 to January 1931. During this period the defendant's minor sons were also living in the house with him. On 12th August 1931, the suit was decreed on compromise for Rs. 1,120, of which the defendant paid Rs. 250 at once and Rs. 100 in March 1932. In May 1932, the defendant died and his minor sons were brought on the record in his place. The appellant then put the decree into execution and attached certain property in the Shahabad district. Thereupon the sons objected that the attached property was not liable to be sold under the decree. The grounds of their objection were that prior to the institution of the rent suit, a suit for partition of the joint family properties had been instituted by them, through their maternal grandfather as next friend, and that under the decree which was passed on compromise in that suit, on 23rd March 1931, the Shahabad properties of the family had been allotted to them, and other properties, consisting of interests in collieries in the Manbhum district, had been allotted to their father. This objection was upheld by the first Court whose decision was confirmed by the District Judge on appeal. In second appeal the appellant-decree-holder relied on the pious obligation of Hindu sons to pay the debts of their father not incurred for illegal or immoral purposes, and on S. 53, Civil P.C.

42. On the facts stated a further question has also emerged, namely, whether the disruption of the joint family dates from the institution of the partition suit on 19th November 1930, or the date on which the suit was decreed on 23rd March 1931. For the appellant it was contended that, although the institution of a partition suit by an adult member of a joint family is sufficient in law to convert a joint estate into an estate held in severalty, in the case of a minor this result does not follow until the decree is passed. Reliance for this contention was placed on Chelimi Chetty v. Subbamma, 1918 Mad 379 = 42 I C 860 = 41 Mad 442 which was followed in Lalta Prasad v Sri Mahadeoji, 1920 All 116 = 58 I C 667 = 42 All 461 (F B) and Ganapatki v. Subramanyam Chetty, 1929 Mad 738 = 122 I C 167 = 52 Mad 845 and by the Bombay High Court in Chhotabhai Motibhai v. Dadabhai Narandas, 1935 Bom 54 = 152 I C 715. In the first and the last of these cases the minor plaintiff died before the termination of the suit. In the second case the defendant died pendente lite and the suit abated. In the third case, which was instituted by the father and his sons, the father died pendente lite and the mother of the minor plaintiff applied to be appointed his guardian and stated that a partition would not be for the minor's benefit. In none of these cases therefore was it necessary to decide the question now raised, namely, when a partition suit is decreed at the instance of a minor, from when does the partition date This question was considered in Krishnaswami Thevan v. Pulukaruppa Thevan, 1925 Mad 717 = 88 I C 424 = 48 Mad 465 , where it was held that in such a case the decree for partition has the effect of creating a division of status from the date of the plaint. In Sri Ranga Thathachariar v. Srinivasa Thathachariar, 1927 Mad 801 = 104 I C 472 = 50 Mad 866 , it was held that the same result follows even when the partition decree is passed on compromise. The only case of this Court which has been referred to on this point is Krishna Lal Jha v. Nandeshwar Jha, 1918 Pat 91 = 44 I C 146 = 4 Pat L J 38. In that case, the plaintiff, who was a minor when the suit was instituted, attained majority, before its completion, and it was held that his share in the family property was not diminished by reason of the birth of another member of the family after the date of the preliminary decree, the view of the Court, Dawson Miller, C.J., and Mullick, J., being that the partition dated from the institution of the suit. Agreeing with the reasons given for the decision in Krishnaswami Thevan v. Pulukaruppa Thevan, 1925 Mad 717 = 88 I C 424 = 48 Mad 465 , I would hold that when a partition suit, instituted by a minor, is decreed, the partition is effective from the date when the suit was instituted.

43. In this view of the matter it follows that in the present case the partition must be held to have been effected before the suit for rent was instituted and the question for determination is whether, in these circumstances, the properties allotted to the minor sons are liable to be attached and sold in execution of the rent decree which was obtained against their father alone. The sons, of course, are not the legal representatives of their deceased father within the definition given in S. 2 (ii), Civil P.C., nor are the properties which were allotted to them at the partition, and which it is now sought to attach, any part of the estate of the deceased. It is contended however that the Shahabad properties are liable to be attached and sold by reason of the provisions of S. 53. Omitting words not material at present that section is as follows:

For the purposes of S. 50......property in the hands of a son.......which is liable under Hindu Law for payment of a debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be the property of the deceased which has come to the hands of the son......as his legal representative.
44. In my view this section does not, and was not intended, to enable the holder of a money decree against a Hindu father, to enforce his decree by sale of property which was not liable to be sold, during the lifetime of the father, in execution of a decree obtained against him alone. If the sons had been joint with their father when the decree was passed all the family properties and not merely the share of the father would have been liable to be sold, because the sons, by reason of their pious obligation to pay their father's debts, could not have objected as the debt in respect of which the decree was passed was neither illegal nor immoral. If the father had died in a state of jointness with his sons, and before the decree was satisfied S. 53 would have operated to make available to the decree-holder all the property against which he could have proceeded in the lifetime of the judgment-debtor, namely, the entire family properties.

45. This brings me to what to my mind is the real question which arises in this appeal, viz. In view of the partition, could the properties of the sons have been taken in execution, during the lifetime of their father, they not having been parties to the suit in which the decree was passed the answer is in the affirmative, then, the whole of the family property, including the Shahabad property is, in, the words of S. 53:

property in the hands of sons......which is liable under the Hindu Law for payment of the debt of the father.
46. The authorities to be cited later clearly establish that partition does not affect the liability of the sons, that is to say, that Hindu sons are liable, even after partition and in the lifetime of the father, for a personal debt contracted by their father before partition and not satisfied by him. To this extent the case of Ram Ghulam Singh v. Nand Kishore Pershad, 1925 Pat 688 = 88 I C 813 = 4 Pat 469, was in my opinion wrongly decided. For practical purposes the position may be stated thus: In general all the members of an undivided family are bound by the acts of the karta who, in law, represents them. Members of the family who are sons of the karta are entitled to repudiate debts incurred by the latter for immoral purposes, and on no other ground. Members of the family who are not sons of the karta are entitled to exemption from liability for debts contracted by the latter on wider grounds, viz., if there was no legal necessity to contract the debts or the family derived no benefit from the debts. It follows from this view that as soon as a debt is contracted by the karta of the family the interests of all the members of the family in the joint property become liable to satisfy the debt and that sons of the karta are able to escape that liability only by showing that the debt was contracted for an immoral purpose. But that is quite a different thing from saying that, after partition, the properties allotted to the members may be seized by the karta's creditor without establishing the debt in the presence of the members sought to be made liable. It is a general principle of law that the only person liable on a judgment is the person against whom the judgment is passed and persons who represent or intermeddle with his estate after his death. If they do represent or intermeddle with his estate after his death they are his legal representatives S. 2 (ii) and are liable to the extent that his property comes into their hands: Ss. 50 and 52.

47. In the case of a joint Hindu family the father's interest ceases on his death and he therefore leaves no estate to be represented by his sons. The extraordinary provisions of S. 53 are designed merely to deal with this state of affairs and has no application to a separated Hindu family. Assuming therefore the liability of Hindu sons for their father's pre-partition debt, there appears to be no reason why they should be in any worse position than anyone else with regard to the enforcement of this liability. In so far as they inherit property which he leaves they are his legal representatives and are liable to the extent of that property, but if it is sought, to make them liable for anything more than that their liability must be established in a suit to which they are parties. Neither in law nor in justice am I able to see any reason why they should be liable on a decree to which they were not parties. Cases are conceivable in which the sons having forced a partition against their father's wishes, he allows a suit on an alleged debt to go by default, and, having disposed of the properties allotted to him at the partition, leaves the creditor to enforce the decree against the sons. In execution proceedings taken after the death of the father, against the sons as his legal representatives by virtue of S. 53, they would not be permitted to go behind the decree and question the factum of the debt and therefore would have to satisfy the decree to the extent of the former joint estate in their hands unless they could prove that the debt had been contracted for an illegal or immoral purpose. In the absence of very clear provisions indicating the contrary intention of the legislature I should be very reluctant to hold that the laws of procedure are capable of being so misused. It may however be argued that as, when a creditor sues a father alone on a personal debt when he is joint with his sons, and obtains a decree against him, the decree is executable against the sons although they were not parties to the decree, they are in no worse position if the decree is obtained after partition. At first sight the argument appears unanswerable but a more careful scrutiny of it reveals its inherent weakness. So long as the family is joint the father represents his own and his sons' interests. It may be presumed that he will not adopt a course prejudicial to those interests and which may result in the sale of the family properties, including his own share After partition he no longer represents his sons' interests and there can be no presumption that he will not act in such a manner as not to prejudice them, particularly if he has disposed of his own properties, or, as is alleged in this case, the value of his properties has fallen to such an extent as to be unsaleable.

48. The point is capable, I think, of being tested in another way. If a father while in a state of jointness with his sons, mortgages joint family properties as security for an antecedent persona debt, the sons, being bound by their pious obligation to pay their father's debt, are debarred from challenging the mortgage. But I apprehend that a Hindu father has no authority, after partition, to mortgage the property allotted to his sons, even as security for a pre-partition debt. I am unable 10 see any difference, in principle, between the right of the sons to be exonerated from a mortgage of their property executed by their father alone after partition, and their right to be exonerated from a decree obtained against their father alone after partition.

49. The decision which occasioned the present reference to a Full Bench does not support the proposition contended for by the appellant decree-holder. That is the Full Bench decision of the Madras High Court in Subramania Ayyar v. Sabapathi Ayyar, 1928 Mad 657 = 110 I C 141 = 51 Mad 361 (F B). All that case is an authority for is that a decree obtained against a Hindu father and his sons, after partition, in respect of a personal debt contracted by the father before partition, may be executed against the sons, even during the lifetime of their father, to the extent of the joint family property allotted to them at the partition. This was the view taken by three of the five learned Judges constituting the Full Bench. The remaining two came to the opposite conclusion. But even in the judgments of their Lordships who were in a majority it is clear that they were confining their decision to a case in which the sons were parties to the decree. Waller, J., one of the majority Judges said that the case-law

establishes definitely the proposition, that a creditor cannot, in execution of a decree against a father alone on a pre-partition debt, proceed against the shares allotted to the sons at partition. That and nothing more was laid down in Krishnasami Konan v. Ramasami Ayyar (1899) 22 Mad 519 = 9 M L J 127. The proposition is based, reasonably enough, on the hypothesis that the father's power to dispose of the son's share having ceased, the creditor could no longer exercise that power.
50. Similarly, Jackson, J., another of the majority judges, while considering the argument that partition puts an end to the liability of the sons for their father's pre-partition debt said:

But this argument would seem to assume that the creditor's claim is entirely based upon the father's power of dealing with his son's interests and not also based upon the pious obligation of the son. I fully see the force of the assumption it the creditor is trying to execute a decree obtained against the father alone against assets held by the son after partition.
51. Finally, the third of the majority Judges, Ananthakrishna Ayyar, J., summarised the trend of judicial decisions as follows:

A Hindu son is bound to pay the debts of his lather, not incurred for illegal or immoral purposes, to the extent of the ancestral properties received by him ; the creditor should make the son also a party with the father to the suit and thus obtain a decree, binding on the son, to the extent of the property in his hand, in execution of the decree ; if the sons be not made parties to the suit and a decree be obtained against the father alone, then, in case the father should happen to die before the decree is satisfied, the family property in the hands of the son could not he seized in execution of the decree against the father ; and, even after partition, the family property that fell to the share of the son would be liable to a pre-partition creditor of the father, but the creditor should make the father and the son bath parties to the suit and the creditor could not, by obtaining a decree against the father, in a suit in which the sons were not parties, proceed to execute the decree against the properties allotted to the sons under the partition.
52. With this summary of the law I respectfully agree entirely. The appellant also relied on Annabhat Shankarbhat v. Shivappa Dundappa, 1928 Bom 232 = 110 I C 269 = 52 Bom 376 . Bankey Lal v. Durga Prasad, 1931 All 512 = 135 I C 139 = 53 All 868 (FB), Kulada Prasad Pandey v. Haripada Chattarji, (1913) 40 Cal 407 = 17 I C 257, Jawahar Singh v. Parduman Singh, 1933 Lah 116 = 141 I C 424 = 14 Lah 399 and Raghunandan Prasad v. Moti Ram, 1929 Oudh 406 : 119 I C 449 = 6 Luck 497 (PC). The Bombay, Allahabad and Calcutta cases were not cases in which it was sought to proceed against the sons in execution of decrees obtained against the father only. In the Lahore case it was held that there had been no disruption of the joint family, so that decision is of no assistance in the present appeal. The Lucknow case however was one in which the sons, had not been made parties to the suit. The appeal first came before Pullan, who directed it to be laid before a Bench of three Judges. The Full Bench, while holding that the sons were liable, after partition, for a pre-partition debt of their father, did not deal with the point which now arises, namely whether the creditor is entitled to proceed against the sons in execution of a decree obtained only against the father. When the case went back to Pullan, J., however he assumed that the Full Bench had intended to decide this question, in the affirmative. In the absence of any discussion of the question in the judgments of the learned Judges constituting the Full Bench I do not feel constrained to make the assumption made by Pullan, J. As I have already observed, to hold that the sons are liable for their father's pre-partition debt is one thing, and to hold that the creditor may enforce against the sons a decree obtained against the father alone, after partition, is quite another thing. As Lord Hobhouse said in Mt. Nanomi v Madan Mohan, (1886)13 Cal 21 = 13 I A 1 (PC):

Sufficient care has not always been taken to distinguish between the question how far the entirety of the joint estate is liable to answer the father's debt, and the question how far the sons can be precluded, by proceedings taken by or against the father alone, from disputing that liability.
53. Finally, the appellant relied on observations in certain decisions of the Judicial Committee of the Privy Council, and principally upon. Mt. Nanomi v Madan Mohan, (1886)13 Cal 21 = 13 I A 1 (PC), where Lord Hobhouse said, immediately after the passage just quoted,

Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father's alienation for an antecedent debt, or against his remedies for their debts, if not tainted with immorality.
54. I must confess that I fail to see how this passage in the judgment of Lord Hobhouse assists the appellant, Mr. Mahabir Prasad, for the respondents, does not contend that they are entitled to set up their rights against the appellant's remedies for the debt but merely insists that the appellant's proper remedy, if he wishes to make them liable in the present case, is a suit to which they are parties. Furthermore, in the case before the Privy Council, the sons were joint with their father at the date of the decree. This fact was also common to all the other decisions of the Privy Council which Mr. Das for the appellants, relied upon Deendyal v. Jugdeep Narain Singh, (1877) 3 Cal 198 = 4 I A 247 (PC), Muddun Mohun v. Kantoolal, (1873) 1 I A 321 (PC), Bhagbat Pershad Singh v. Girja Koer, (1888) 15 Cal 717 = 15 I A 99 (PC) and Mahabir Pershad v. Moheshar Nath Sahai, (1890) 17 Cal 584 = 17 I A 11 (PC). In none of these cases did their Lordships of the Privy Council consider whether a creditor who obtains a decree against a Hindu father alone, after partition, is entitled to execute the decree against the sons.

55. For the reasons indicated above I am of opinion that he cannot do so, and would therefore dismiss the appeal.