Murray Coutts Trotter, Kt., C.J.My general views on the subject of the pious obligation of the son to pay such debts of his father as are vyavaharika are to be found in several reported cases. So 1 content myself on this occasion with a summary statement of those propositions which I conceive to be established law and which lead up to the exact point which we are called upon to decide.

2. So far as I am aware, the obligation is a peculiar feature of Hindu law, and is not to be found in any other organized system of jurisprudence in the world. The obligation is based on a religious doctrine which I should imagine not to be regarded as tenable now-a-days by educated Hindus, even the most orthodox. Under the old Hindu law, the liability was a personal one resting on the son and doubtless did not operate upon him until after the fathers death. A series of Privy Council decisions culminating in Brij Narain v. Matigal Prasad (1923) LR 51 IA 129 ; ILR 46 A 95 : 1923 46 MLJ 23 have both extended and limited the old law. It has been extended in that the sons share of the undivided family property is made liable in execution of a decree given against the father during the latters lifetime; and also in that the son can be impleaded jointly with the father in order that the question whether the debt was or was not vyavaharika may be settled in the suit and not left for discussion in the execution proceedings. It has been limited in that the sons liability has for many years been confined to his share of the joint family property.

3. So far I think we are in the domain of reasonably settled law. But the question was bound to arise and did arise : What is to be the application of these principles to a case where a partition is effected between father and son after the father has contracted the suit debt, and the property consequently is divested of its character of joint family property and becomes the individual property of the father and son respectively, but where no provision is made in the partition for the discharge of the fathers debt It is said in several of the Madras cases that if the partition was a sham, a mere device to defeat those creditors who would otherwise be entitled to satisfy themselves out of the joint family property, the creditors rights are not affected when the appropriate steps have been taken to set the partition aside. We have not been referred to any actual decision on the point, but I think we may assume that the view expressed is right for the simple reason that the effect of a determination that the act purporting to divest the property of its character as joint family property is to be set aside as a sham transaction is to declare that the property has never in truth lost its original character of joint family property. But what is to happen if, as in this case, the partition was honest in the sense defined by Ramesam, J., in Jagannatha Rao v. Viswesam ILR (1924) M 621 : 46 MLJ 590 [LQ/MadHC/1924/85] , viz., that enough property was assigned to the father to satisfy the claims of his personal creditors The point first came to a head in Krishnasami Konan v. Ramaswami Aiyar ILR (1899) 22 M 519 : 9 ML J 197, where it was held that a decree obtained against the father alone could not be executed against the share of the son which had come to him in a subsequent partition. That decision has not been questioned so far as I know and it has stood for nearly 30 years and doubtless many titles to property are now founded upon it, so that even if I thought it wrongly decided I should not venture to disturb it. Next in order of date came the decision in Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555. At first sight it appears to be a direct authority in favour of the respondent, but it clearly is not, because the debt there was not a personal debt of the father, but a debt incurred by him as manager of a Hindu joint family and obviously binding on the joint family property as it stood at the date of the debt, whatever subsequent dispositions of it were made. No question of the pious obligation of the son did or could arise. But the case is undoubtedly significant for a further reason, viz., that the ground of distinction from Krishnasami Konan v. Ramaswami Aiyar ILR (1899) M 519 : 9 MLJ 197 was taken that whereas in Krishnasami Konan v. Ramaswami Aiyar ILR (1899) M 519 : 1899 9 MLJ 197 the father alone was made a party to the suit, in Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555 the son had also been impleaded and judgment had gone against him.

4. Following the history of the Madras cases, we next come to Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, . There is no question that Wallis, J., in that case expressed the opinion quite definitely that a Hindu son is liable for his fathers debt "to the extent of the joint family property which came to his hands at partition." Having regard to the actual decision, which on other grounds discharged the son, that was clearly an obiter dictum ; and I do not think it is worth while to speculate whether the language vised by the same learned Judge in Vinjanampati Peda Venkanna and Another Vs. Vadlamannati Sreenivasa Deekshatulu, is or is not to be regarded as showing that he had altered the view he had taken in Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, though the language used by him at page 141 would seem very strongly to suggest that he had. That brings us to Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, and there is no doubt that that case is a direct authority for the plaintiff, and all that we have to ask ourselves is whether we agree with it or not.

5. After the most anxious consideration, I have come to the conclusion that that case should not be followed. I have had the advantage of reading the judgment prepared by my brother Srinivasan, and he has dealt with the matter so fully, that I can give my own reasons briefly for arriving at the same conclusion. I think first that the doctrine of the pious obligation should not be extended beyond the point to which the cases have carried it. The doctrine is as I have said an illogical relic of antiquity unsuited to any but a primitive and patriarchal society. We have to apply it within the limits made binding upon us by the decisions, but I think we should refuse to go a step further. A father and his son can partition the joint family property and put an end to the fathers power to alienate or charge any part of the property except that which has become his own absolutely by reason of the partition. The cases lay stress on the consideration that the creditors right is nothing but a right to exercise such power over the property as is vested in the father. In effect, Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, imposes a fetter on the right to partition which to my mind is unwarranted either by principle or authority. The creditors right is surely safeguarded amply by the power of the court in a proper case to declare a purported partition whose object is to defeat creditors to be a nullity. Or to put it in another way, the right of the creditor has always been exercisable only against that which at the time he exercises it was joint family property : either because there has been no attempt to partition it, or because the attempt made is void, and unavailing therefore to divest it of its original character.

6. I therefore would answer the question propounded in the negative, but as the majority of the court is of the contrary opinion the answer of the Full Bench will be in the affirmative.

Waller, J.

7. The question referred to us is:

Whether a simple creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons after a bona fide partition has taken place between the father and the sons

A further question seems to me to be considered and that is what is meant by a bona fide partition. What is meant is, I suppose, a real division of property between a father and his sons, not entered into with the dominant view of defeating the fathers creditors. But, if the effect of the division is to defeat them--no provision having been made for the discharge of the fathers legitimate debts out of the family assets--I do not see how such a partition can properly be described as bona fide.

8. On the question referred, two divergent views have been expressed by two Benches of this Court. One is to be found in Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, and the other in Peda Venkanna v. Sreenivasa Deekshatulu (2). The former is directly in point and follows another decision of this Court, Ramatchandra Padayachi v. Kondayya Chetti ILR (1901) M 555 which seems to me to be equally directly in point. The latter--if a case is to be considered an authority only for what it actually decides--is not exactly in point, although I concede that both of the Judges who decided it gave utterance to opinions that are very much in point. The question for our consideration is which of these two divergent views should be followed.

9. Vinjanampati Peda Venkanna and Another Vs. Vadlamannati Sreenivasa Deekshatulu, view put shortly is this. The creditors right to bring to sale the sons shares for an antecedent debt is based on the fathers right to sell the sons shares for such a debt. The fathers right ceases on partition and "as the creditor can only work out the fathers right at the date of the suit, he can have no right if that right is lost owing to a bona fide partition." The other view is that the only difference partition makes is that a creditor cannot, after it, on a decree against the father alone, proceed against the sons shares in execution. On principle, I can see no reason why a partition should exempt a sons share from liability for a pre-partition debt for which it was liable before partition. The creditor advances money to the father on the credit of the joint family property. Why should he be deprived of all but a fraction of his security by a transaction to which he was not a party and of which he was not aware And what becomes of the sons pious obligation It was binding as regards the particular debt before partition; does it cease to apply to the debt simply because there has been a partition The obligation was, of course, at one time absolute. In the judgment of Muthuswami Aiyar, J., in Ponnappa Pillai v. Pappu-vayyangar ILR (1881) M 1 occurs this passage:

In II Stranges Hindu Law (second edition), a case is cited, in which a widow was sued for a debt contracted by her husbands father, who was dead, and her husband was also dead, but left a son who was only an infant. The law officer stated that failing the son, the grandson of him. who contracted the debt was liable, consequently the infant would be liable when he came of age. In his remarks on this case Colcbrooke observed that the grandson would not be liable, if he were separated from the family partnership. This view, it seems to me, is not consistent with the Hindu Law as expounded by the Mitakshara as to the character of the sons special obligation. Neither coparcenary relation nor the taking of assets is a pre-requisite.

The obligation was, then, originally absolute and not conditioned by the continuance of the coparcenary relation or by the taking of assets. The rigour of that rule has been relaxed to the extent of making the taking of assets a condition of its enforcement. We are now, it seems to me, being asked to relax it still further by declaring that the obligation is dependent on the continuance of the coparcenary relation. I concede that it does not attach to post-partition debts, but, as I have already observed above, I am unable to see why a partition should have the effect of detaching it from pre-partition debts. In point of fact, a proper partition does not extinguish the liability for such debts. On the contrary, it should provide for their discharge out of the joint property.

The debt of his father...must be discharged by a parcener jointly with his kinsmen when partition is made"--Katyayana.

The partition referred to in this quotation was a partition at the fathers death, but though partition was subsequently allowed inter vivos, the principle has, I conceive, remained unchanged, that the sons must provide for the discharge of the fathers legitimate debts. It has been suggested that the principle is sufficiently complied with if the share allotted to the father is large enough to satisfy those debts. The correct method, I think, is for the debts and the property to be shared equally. If that be so, it seems to me impossible for the sons--in a case where no provision has been made for the discharge of the fathers debts at partition--to contend that they are not liable to be sued by the creditor. Had they done what was proper and provided for the discharge of those debts rate-ably among themselves, he could have sued them and they cannot take advantage of their own default in order to evade their obligation.

10. Having stated what I conceive to be the proper principle applicable, I will deal briefly with the case-law. It establishes definitely one proposition, that a creditor cannot in execution of a decree passed 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. Ramaswami Aiyar ILR (1899) M 519 : 1899 9 MLJ 197. The proposition is based, reasonably enough, on the hypothesis that, the fathers power to dispose of the sons shares having ceased, the creditor could no longer exercise that power. The District Judge--afterwards a Judge of this Court--whose decision was appealed against and confirmed, pointed out that the creditor should have made the son a party to the suit. It was not necessary for the Appellate Judges to express any opinion on that view, but they did not, at any rate, dissent from it. The question we are now concerned with arose directly in Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555 and it was decided against the son, the Bench holding that

the son was liable only to the extent of the family property which had come to him under the partition.

It is said that the case is only an authority for the position that the son is liable for a family debt contracted before partition. If it decided something so self-evident and commonplace, the case would never have been reported. It seems to me clear that it decided very much more than that. The Krishnasami Konan v. Ramaswami Aiyar case (1899) ILR 22 M 519 : 1899 9 ML J 197 was one of a fathers personal debt and Bhashyam Aiyangar, J., pointed out in the course of the argument that if the son had been made a co-defendant the property which had fallen to his share would have been liable. In the judgment, again, the point of distinction between the two cases was emphasised. "The case relied on by the appellant, Krishnasami Konan v. Ramaswami AiyarILR (1899) M 519 : 1899 9 MLJ 197, is clearly distinguishable. In that case the suit was brought after partition against the father alone, and the point decided was that property taken by a son under a partition effected before the suit could not be seized in execution of a decree obtained against the father alone in such a suit. The case turned on the plaintiffs rights in execution, not, as here, on the question whether the plaintiff is entitled to judgment as against the son." This is all perfectly clear. The distinction between the two cases was not that one was of a personal debt and the other of a family debt, but that one was of executing against the sons share a decree passed against the father alone and the other of a suit against both father and son. There was no question in either of the creditors right or the sons obligation; the only question was as to the proper method of enforcing them after partition. That is how I understand the decision in Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555, and how it was understood by Wallis, J., in the next case, Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, , where he quoted and approved it. The last was, from the creditors point of view, a most unfortunate case. The trial court found that the partition was a deliberate fraud, the share allotted to the father being disproportionately small. The first appellate court came, on somewhat inadequate grounds, to a different conclusion. The High Court had therefore to proceed on the assumption that the partition was bona fide and followed Krishnasami Konan v. Ramaswami Aiyar ILR (1899) M 519 : 1899 9 MLJ 197. The son had not been made a party to the decree which was being executed after partition and his share was held not to be liable. I do not for a moment contend that this case is an authority in favour of the view that I am propounding, but it is important to note, with particular reference to the next case, that Wallis, J., quoted in his judgment, Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555, with approval. The next case, Vinjanampati Peda Venkanna and Another Vs. Vadlamannati Sreenivasa Deekshatulu, is, as I have already observed, not exactly in point, that is if a case is authority for nothing more than it decides. What it decided was this:

That a son is not liable...on a promissory not executed by his father after partition in renewal of a note executed by the father before partition.

I grant that, on the language used by the learned Judges, their decision would probably have been the same if the note had not been renewed by the father after partition, but it is, I think, impossible to assert that that fact was not, to a very large extent, the real basis of their conclusion. Kumaraswami Sastri, J., regarded the renewal as a fresh obligation and Sir John Wallis gave as one of the grounds of his decision "that the father had no authority from the son to renew the note." No doubt his other ground was that the suit which had been brought against the father and the sons had been filed after partition. That ground seems to be inconsistent with the approval expressed by him of Ramachandra Pddayachi v. Kondayya Chetti ILR (1901) M 555 in his judgment in Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, . That decision he did not consider at all much less expressly dissent from-though it was a direct authority contrary to the conclusion he arrived at. Kumaraswami Sastri, J., did consider it, but distinguished it for the reason that it ought to have been decided on a ground which, I think, never occurred to the Judges who decided it. If the renewal by the father of the promissory note without the consent of the sons is to be regarded as a fresh obligation incurred after partition, Vinjanampati Peda Venkanna and Another Vs. Vadlamannati Sreenivasa Deekshatulu, is not an authority for the position that a son cannot be sued after partition on a pre-partition debt contracted by his father. The latest case is Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, which lays down that the creditor can sue the son after partition on a pre-partition debt and recover it from the share allotted to him on partition. With respect I think that that conclusion is correct both on principle and on authority. With the authorities I have now dealt and the principle I have already stated. If a father, before partition, has incurred such debts as his sons are under an obligation to pay, two courses are open at partition. Either sufficient property must be allotted to the father in addition to his proper share to cover the sons proportion of those debts or the debts must with the property be divided equally between the co-parceners. If the first course be adopted, the sons, on being sued by a creditor after partition__the debts being still unpaid--might--I do not say that they could--plead with success that they had discharged their obligation in full. If the debts have been provided for at the partition by making all the coparceners equally liable, the creditors have, of course, a right of suit against all of them after the partition. If, on the other hand, neither of these courses has been adopted, if the property has been equally divided between the co-parceners and no provision whatever has been made for the sons obligation to discharge the fathers debts, I must confess that I can see no principle on which they should be allowed to escape from a liability, for the discharge of which they should have, but have not provided. They cannot plead the benefit of their own default.

11. In the result, I would answer the question referred to us in the affirmative. I may add that I cannot agree that Brij Narain v. Mongol Prasad (1923) LR 51 IA 129 : ILR 46 A 95 : 1923 46 MLJ 23 throws any light on it.

Jackson, J.

12. The reference before us cannot be decided by any plain and direct rule of Hindu Law. That law lays down that a son is under pious obligation to pay the debts of his father; but the British Courts have not accepted the rule in its entirety. They have limited the obligation to the extent to which the son is possessed of family property. If it is joint family property, there is no difficulty : the law is clear that the son is bound. If it is family property, but divided family property, then the questions arise, has the law in these circumstances recognized the obligation, and is it an obligation which the law should recognize To my mind the two questions are clearly connected; because if it is found that the general trend of the law has been to enforce the pious obligation even after partition, then I should hesitate to hold that merely out of regard for modern conditions the law should now be varied by judicial decision. Countless creditors will have legitimately reckoned the whole family property whether divided or undivided as available for their debts, and they ought not to be suddenly disappointed. A legislative enactment releasing the son in possession of divided property in regard to debts contracted after a certain date would be entirely a different matter. In Vinjanampati Peda Venkanna and Another Vs. Vadlamannati Sreenivasa Deekshatulu, Kumaraswami Sastri, J., has treated partition as analogous to a conveyance. If the father chooses, not in fraud of creditors, to alienate property, that is an ordinary risk which any creditor who has not got an actual charge upon the estate must be prepared to take. It is not open to him to say that he never expected alienation, nor is it any more open to him to say that he never expected partition. But I venture to doubt if the cases of partition and conveyance are quite parallel. The conveyance must be for family necessity; and a creditor may well say, I took the risk, such as it was, of an alienation for family necessity, but I never expected to be confronted with a partition, undertaken voluntarily and under no necessity, which has resulted in my debtor having only a fraction of the assets previously available. So that I think if the previous decisions of our Court have led creditors to expect that the family property will be available to them and not affected by partition, it is a legitimate expectation which we should not defeat on the ground that modern conditions may render the law obsolete.

13. In my opinion, to put them no higher, the rulings in Ramchandra Padayachi v. Kondayya Chetti ILR (1901) M 555 and Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, and Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, do establish a distinct trend of opinion that the son is under pious obligation notwithstanding partition to discharge the not immoral debts of his father incurred before partition. In Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555 the plaintiff sued a father, who had incurred debt when trading on behalf of a trading family, and also his sons 2nd and 3rd defendants without alleging a cause of action which would entitle plaintiff to a personal decree against either son. But the lower court finding that the 2nd defendant was practically a partner passed against him a personal decree. 2nd defendant appealed. He successfully contended that no personal decree was asked for in the plaint, and he also tried to contend that in any case he was not liable for the debts of his father, though incurred before partition. For this plea he depended upon Krishnasami Konan v. Ramaswami Aiyar ILR (1899) 22 M 519 : 1899 9 MLJ 197. But Bhashyam Aiyangar, J., at once repelled that suggestion. If the son in Krishnasami Konan v. Ramaswami Aiyar ILR (1899) M 519 : 1899 9 MLJ 197 had been made a co-defendant, the property, he said, which had fallen to the sons share, would be liable. On this point respondents vakil was not asked to reply and the appellant only succeeded in having the personal decree cancelled. As against the property which came into his hands after partition the decree stood.

14. It has since been suggested that, if the respondent had replied, he could have disposed of the appellants case at once by pointing out that the debt was one incurred by the family manager on the familys behalf. He need not have relied upon any plea of pious obligation. That may be quite correct; but as a matter of fact the respondent did not reply, no such ground was apparently taken, and the appellant was defeated on his own ground that his pious obligation ceased at partition. When it was ruled that the pious obligation did not cease at partition there was no need for the respondent to say anything more.

15. In Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, the father had stood surety in execution proceedings, and had become liable for the amount when the decree under which the execution had proceeded was reversed. His family land was attached, and his son objected, claiming that a subsequent partition had put him in exclusive possession of the property, which therefore was no longer liable for his fathers debt. His claim was rejected and he brought a suit pleading that the property was not liable after partition. The trial court found that the partition was in fraud of creditors, and so the property was liable. The lower appellate court found that there was no fraud, and therefore the property was not liable. The 4th defendant who was practically the attaching creditor appealed to this Court, claiming that even though the partition was not fraudulent, the family property in the sons hands would still be liable.

16. The first ground of Second Appeal was:

The lower court ought to have held (assuming that the partition between the plaintiff and defendant was not effected with the intention of defrauding creditors for evading execution) that the family property is liable in the hands of the son for the liability incurred by the father prior to the date of the partition.

17. This Court accepted that plea, holding that a Hindu son is liable for the surety debt of his father to the extent of the joint property which came to his hands at partition. But the respondent had another defence to the decree of the lower appellate court. Though the son might be liable if directly sued, was he liable, after partition, to execution, under a decree obtained against his father alone before partition When the father had no longer the right to bring the property to sale, had the judgment creditor a higher right On this plea the decree of the lower appellate court was upheld and the appeal was dismissed. But on the main ground taken in appeal the appellant succeeded and the Court held in terms (vide headnote) that the son is liable for the debt of his father to the extent of the joint family property which came to his hands at partition. So whether or no this be described as obiter, it did undoubtedly add distinctly to the previous trend of opinion. This again was followed in Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, to which I myself was a party, and which I merely cite as adding to this trend.

18. The only reasoned opinion to the contrary is that of Kumaraswami Sastri, J., in Vinjanampati Peda Venkanna and Another Vs. Vadlamannati Sreenivasa Deekshatulu, . His Lordship first lays down the generally accepted proposition that the strict rule of Hindu Law enjoins the pious obligation irrespective of possession of any assets; but it is now well settled that such obligation is circumscribed by the possession of assets. The difficulty is to discover what exactly is to be implied by assets. In the words of this judgment they are assets or joint family property as though family property could only be reckoned as assets so long as it was held jointly, but not after partition. Yet is it not equally logical to reckon family property as assets after partition No, it is argued, because if the father owing to partition has lost his power of dealing with the sons interest the creditor can be in no better position. But this argument would seem to assume that the creditors claim is entirely based upon the fathers power of dealing with his sons interests and not also based upon the pious obligation of the son. I fully see the force of the assumption if the creditor is trying to execute a decree obtained against the father alone against assets held by the son after partition, which the father has no present power to bring to sale. Then the creditor can be in no better position than the father. But I should hesitate to assume that the creditors rights are equally circumscribed, when he has made the son a party to the suit, and, by virtue of the sons pious obligation, has obtained a decree against assets in the sons hands. His claim then is based upon the sons pious obligation, and, in my opinion, is not affected by the circumstance that the father has no longer the power to sell. This is the distinction brought out in the headnote to Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, .

19. The argument then proceeds to the analogy between a partition and a conveyance which I mentioned at the outset, and it concludes with a reference to Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555, and Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, . The latter case is cited as authority for the proposition that the creditor has no right to proceed against the sons properties; but it is also authority for the proposition that a Hindu son is liable for the debt of his father to the extent of the joint family property which came to his hands at partition.

20. As regards Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555 it is noted that the liability was under a contract entered into for the benefit of the joint family, which is perfectly correct, but, as observed above, that was not the ground taken.

21. Thus to my mind there is no convincing rule of law nor line of argument which would justify a departure from the clear trend of previous rulings in this Presidency. 1 would reply to the reference in the manner proposed by Waller, J.

Srinivasa Aiyangar, J.

22. The question referred for the opinion of the Full Bench in this case is not only of considerable importance but is likely to arise frequently in the future. The question having been specially referred to a special Full Bench of five Judges in view of the conflict of opinion among the Judges of this Court, calls for a consideration on the principles of Hindu Law and the decisions of their Lordships of the Judicial Committee and cannot in my opinion be satisfactorily answered by a mere reference to the decided cases in this Court, many of which are at conflict with one another.

23. The question referred is in the following terms:

Whether a simple creditor of a father in a Hindu joint family is entitled to recover the debt from the shares of the sons after a bona fide partition has taken place between the father and the sons

24. From the question so stated it follows that the joint family, before partition, was constituted only by the father and his sons, that the creditor did not under the contract with the father get any family property as security for his debt, that the debt was incurred by the father when the father was still the manager of the family and the family itself was undivided, that subsequently a valid partition was effected by and between the father and his sons, that such partition was bona fide by which we may understand that it was not a mere sham, was not unfair and was not also intended to defraud, defeat or delay the fathers creditors. It is not possible to spell out any more from the question itself. One thing more however we may also assume, and that is, that the creditor wants for some reason to proceed to recover the debt due to him, not only from the father who is still alive and from the share allotted to him on partition, but also from the son, that is to say, from the property allotted to the son on partition.

25. From this fact alone the inference would not be reasonable that the property set apart for the father on partition was not sufficient to meet all the fathers debts which were not immoral or illegal. On the other hand one may almost be inclined to take the view, that, if knowing the extent of the fathers debts, the father was on partition left with property not sufficient to pay off all his proper or vyavaharika debts, the intention of the parties to the partition must have been to defeat or delay the creditors of the father. But as the basis on which the question has been propounded is that the partition has been effected in good faith and is fair, there are no materials before us on which one can say whether the anxiety of the plaintiff to proceed against the sons share is really because the fathers share is at present insufficient to pay off and discharge the suit debt or has been prompted by some ulterior purpose. If there are numerous cases of partitions brought about with the sole object of defeating the fathers creditors, cases also are not wanting in this country of fathers who, falling out with their sons, set up their creditors to proceed against and molest the sons. The observation, however, in this connection would not be improper that in cases in which the partition is found to be fair and in good faith the courts may have and exercise the power, at any rate, on the rule of justice, equity and good conscience, to require the creditor to proceed in the first instance against the fathers share and to have recourse to the sons share only after the fathers share should be exhausted.

26. As the question, however, has no reference to any such considerations, it has only to be answered on the true legal principles applicable to the case. I shall first deal with what I consider to be such legal principles and then proceed to discuss how far those principles have found acceptance or not in the decided cases.

27. The plaintiff in such cases is suing the son along with the father in order to recover a simple money debt due by the father. The debt of the father lies in contract. There is no question of the obligation of the son being under the contract itself, as it may be in a case in which the contract is made or alleged to be made by the father in his representative capacity as manager and on behalf of the family. In a suit on a contract by the father, the son is, properly speaking, not a proper party at all. After the innumerable decisions of all the Courts and of their Lordships of the Judicial Committee that a decree against the father may, as such merely, be executed against the sons interest in the family property also and that in such proceedings all that the sons can do is to show that the debt in respect of which the decree was passed was an illegal or immoral debt, it follows logically as referred to and explained in several judgments that the joining of the sons also as defendants originally is merely to afford to the sons an opportunity to allege and prove, if possible, that the debts are improper. It may be too late at the present day to seek to object meticulously to such form of action, but it must fall to be observed that the liability of the son to be made a party defendant in such an action has never been stated to be any legal obligation of the son himself to the creditor.

28. It has sometimes been stated that the liability of the son to be so made a party is on the basis of a pious obligation of the son under the Hindu Law to pay the fathers debt. I shall later on have to refer to the true nature and history of this obligation. But for the present purpose the inquiry may be limited to investigating it for seeing whether that can be regarded as the true legal ground of the right of a creditor. It has never been to my knowledge suggested that the pious obligation as it may be of the son was towards any person other than the father himself. Otherwise, if it should be deemed to be towards the creditor, it is difficult to see what room there is for any piety.

29. The right of the creditor therefore is only against the lather. If it were against the son also, the general rule should be that the son should also be made a party to the suit itself in every case and a decree obtained, and that no decree obtained merely against the father is capable, as such, of being executed against the interest of the sons also in the family property. It seems to me therefore that there can be little doubt that the pious obligation of the son is only towards the father. The right of the father corresponding to this obligation on the part of the son is his admitted right to alienate the entire family property including the sons share for bona fide antecedent, debts of his own. Being a power of sale, although only under certain circumstances, it is really in the nature of property and that is how it comes about that in mere execution of the decree against the father this power of sale is enforced and made available for the satisfaction of the decree.

30. Again it is in the view that this power to sell possessed by the father is in the nature of property, that the legislature under certain systems of insolvency vests such power in the Official Assignee for the benefit of the creditors. The remedies of a fathers simple creditor during the fathers lifetime may all of them be defined and explained with reference to this power of the father. And I may also further add that they cannot be satisfactorily formulated on any other basis. It has been recognized by the Courts and approved by the Privy Council that during the fathers lifetime his creditor may get a decree against the father and execute such decree against the sons share also, if the son should be unable to prove the debts to have been tainted with illegality and immorality or else may, after making the son also party to such a suit and obtaining an adjudication from the Court that the debt is a proper debt of the father, get a decree executable against the entire family property. During the fathers lifetime he has undoubtedly the power to sell the whole of the ancestral estate in satisfaction of an antecedent debt and it is only in cases he does not do so and discharge the debt, that the creditor is given the right to proceed in one of the two courses above indicated.

31. I am therefore unable to agree that apart from the fathers right of sale there is during the fathers lifetime such a thing as the pious obligation of the son to pay the fathers debts, and that such obligation is capable of being regarded as one in favour of a creditor and enforced as such.

32. The true principle of Hindu Law is that a father while living should pay up all his debts but if he should die indebted and his debts should not be discharged, he is a sinner and he has to suffer penalties in a state of existence after death. The son himself, the Putra etymologically is he, who saves from hell, and according to all true and correct notions of Hindu Law the pious obligation arises only after the death of the father and not before.

33. When Lord Shaw delivering the judgment of the Board in the case of Sahu Ram Chandra v. Bhup Singh (1917) LR 44 IA 126. ILR 39 A 437 : 1917 33 MLJ 14 makes the following statement, that learned Lord was merely re-stating accurately and succinctly the ancient Hindu Law on the point:

While the father, however, remains in life, the attempt to affect the sons and grandsons shares in the property in respect merely of their pious obligation to pay off their fathers debts, and not in respect of the debt having been truly incurred for the interest of the estate itself, which they with their father jointly own, that attempt must fail; and the simplest of all reasons may be assigned for this, namely, that before the fathers death he may pay off the debt, or after his death there may be ample personal estate belonging to the father himself out of which the debt may be discharged.

34. The review of this judgment by their Lordships in the case of Brij Narain v. Mangal Prasad (1923) LR 51 IA 129 : ILR 46 A 95 : 1923 46 MLJ 23 seems unfortunately to have led to the view that the whole of the passage above cited should be deemed to have been overruled. There is no doubt that in the latter case their Lordships gave effect to what they clearly considered to be the result of a series of decisions extending over a long time in all the courts in this country and recognized and allowed as an exception to the general rule that even during the fathers lifetime the son can be proceeded against for the debt of the father to the extent of the joint family property in his hands. But merely because a creditor was so allowed to proceed against the son either in a suit or in execution, it does not necessarily follow that the true basis, or at any rate the true legal basis of even such exception as it may be regarded to be, is the pious obligation of the son. If the Hindu Law had merely contented itself with postulating the pious obligation of the son and not proceeded to create or recognize other rights as the consequence thereof, I for my part should have had great difficulty in accepting as logical and except on the principle of mere stare decisis the exceptions in the nature of the right of the fathers creditor to proceed against the son even during the fathers lifetime. But the Hindu Law itself, because of this pious obligation, recognized in the father the right to alienate the entire ancestral estate for his antecedent debts not being illegal or immoral, and cast the disability on the son of not questioning such alienations by the father except on the ground of the debts for the satisfaction of which such alienations were made, having been either illegal or immoral. The right therefore of the father to make such alienations is a right which he enjoys during his own lifetime, though no doubt the right grew out of and is based on the pious obligation of the son after his fathers death to pay off his fathers debts. But once such a right is recognized, there is no reason why the right of the fathers creditor to proceed against the son during the fathers 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 during his own lifetime. To my mind, Sahu Ram Chandra v. Bhup-Singh (1917) LR 44 IA 126 : ILR 39 A 437 : 1917 33 MLJ 14 has not been overruled in its entirety by the case of Brij Narain v. Mongol Prasad (1923) LR 51 IA 129 : ILR 46 A 95 : 1923 46 MLJ 23 and it must be regarded as having been merely modified to the extent of engrafting the exceptions recognized by their Lordships of the Judicial Committee on the ground of stare decisis. The matter, it seems to me, has been put very clearly and cogently by the following sentence in the judgment of Lord Shaw in Sahu Ram Chandra v. Bhup Singh (1917) LR 44 IA 126 : ILR 39 A 437 : 1917 33 MLJ 14:

If accordingly he has incurred a debt, and the debt was not for immoral purposes, 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, in which they, with the father, its manager, were joint owners, so as to enable the debt to be discharged.

35. The true view therefore would seem to be that the pious obligation of the son no doubt arises only after the fathers death but because of that obligation a power of sale has been created in the father and because of this power of sale it is possible to proceed even during the fathers lifetime against the sons share. If we should bear in mind these principles, the answer to the question propounded would seem to be clear and conclusive. As the creditors rights and remedies have reference to and are based on the fathers power of alienation, it would follow that the creditor would have such right only if and so long as the father has such right. This extraordinary power of the father is one possessed by him only as the manager of the family. That is to say, the managers of joint Hindu families, under the law of Mitakshara, have certain powers, but in the case of father-managers their powers are larger and include the power of alienation above referred to.

36. On a partition of the family property there is a disruption of the family and the managership of the father ceases and with the managership being lost, the power is also lost of the father to effect an alienation of the family property not only for purposes of family necessity but also for his own antecedent debts. In the present case a bona fide partition effected by and between the father and the son being the basis of the question, it follows that on such partition being effected the father lost or ceased to possess his power to sell the sons share. If therefore after partition between the father and the sons, the father lost that power of sale, it must follow that the creditor cannot seek to enforce any rights based on or referable to the existence of such power.

37. The answer therefore to the question propounded must be in the negative and it must be held that a simple creditor of the father in a Hindu joint family is not entitled to recover the debt from the shares of the sons after a bona fide partition has taken place between the father and the sons.

38. This conclusion which I have arrived at on what I regard as the general principles applicable to the case is the very conclusion, it seems to me, their Lordships of the Judicial Committee have stated in the case of Brij Narain v. Mangal Prasad (1923) LR 51 IA 129 : ILR 46 A 95 : 1923 46 MLJ 23. Summing up the propositions which their Lordships indicate they would wish to lay down as the result of the authorities, their Lordships state the following five propositions:

(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 reversionaries are the 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 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 burdens the estate, is alive or dead.

39. Proposition No. 2 begins with the expression "If he is the father and the reversionaries are the sons." Reversionaries are obviously reversionaries to the managership of the family. The pronoun he refers to the subject in the previous clause, the managing co-parcener of a joint undivided estate. In other words, the nature, the scope and the limits of the exception engrafted by their Lordships of the Judicial Committee on the law as stated in Sahu Ram Chandra v. Bhup Singh (1917) LR 44 IA 120 : ILR 39 A 437 : 1917 33 MLJ 14 is defined to be as follows:

If the managing co-parcener of a joint undivided estate is the father and the other members of the family are his sons the father 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.

40. It is clear that their Lordships did not refer to the case of the son himself being sued by the creditor as a party in the suit in which the decree is obtained because as already explained such making of the son a party is only for the purpose of concluding him with regard to raising the question of illegality or immorality of the debt. It is further significant that their Lordships, being obviously anxious to lay down the proposition in proper juristic form, should have taken care to refer to the proceeding in execution not as the right of the creditor but as the act by which the father lays the estate open. In other words, it is in full accordance with the principle I have tried to indicate that in all such suits and proceedings the creditor of the father is seeking to exercise no right of his own against the son but is only seeking to work out a right of his own debtor, the father. The language used by their Lordships leaves no doubt whatever that during the lifetime of the father the only manner in which the sons share can be attained is as indicated by them. That, according to the language used by them, can only be when the father still is or continues to be the managing coparcener of the joint undivided estate. Their Lordships were there engaged in postulating and formulating all the exceptions to the general rule and principle of coparcenary. Therefore it follows that so long as the father is alive the creditor can proceed against the sons share only if the father is and fills the character of a father-manager at the time when the decree is sought to be executed against him.

41. I am therefore clearly of the opinion that as their Lordships have not included or recognized any other exception to the general rule and having regard also to the language so carefully employed by them, to answer the question propounded to us in any other manner would not be in consonance with their Lordships decision. Having therefore arrived at what I consider to be the true principles of the case and shown that such conclusion is in entire consonance with the highest and the latest authority of the Full Board of their Lordships of the Judicial Committee, I shall now proceed briefly to discuss the cases bearing on the point in this Court indicating my own view with regard to the same.

42. For the purposes of the present question it is unnecessary to examine all the earlier oases in which the question did not actually arise and in which therefore language has been used which we cannot regard as having been used with any special reference to the question.

43. I shall therefore begin only with the case of Krishnasami Konan v. Ramaswami Aiyar ILR (1899) M 519 : 1899 9 MLJ 197. The decision in that case was by Subramania Aiyar and Davies, JJ. No doubt the form in which the question arose was of the liability of the sons share obtained on a partition with the father, for being proceeded against in execution of a decree obtained by the fathers creditor against the father subsequent to the partition and without making the son a party to the suit even though the debt itself was a debt incurred by the father before partition. The learned Judges state thus in their judgment:

The principle upon which the son cannot object to ancestral property being seized in execution for an unsecured personal debt of the father, is that the father, under the Hindu Law, is entitled to sell on account of such debt the whole of the ancestral estate. This necessarily implies that at the time the property is seized it remains the undivided estate of the father and the son. If the estate were divided, the father could not sell what does not fall to him in the division. Ergo, property taken by the son in partition cannot be seized on account of such unsecured personal debt of the father, even though the debt had been incurred before the partition.

44. In the judgment of Ramesam, J., in the case of Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, , which is the judgment that has given rise to the present reference, the learned Judge after referring to the fact that that was the first case which considered the effect of a partition states thus:

The whole decision and the exception in the case of a mala fide partition relate to the seizure in execution of a decree to which the son was not a party.

Apparently the learned Judge seems to have thought this a sufficient criticism and explanation of the case. It seems to me that neither the criticism nor the explanation can be regarded as correct or well founded. No doubt the District Judge from whose decision the case came up on appeal to the High Court seems in one place to have observed that though the son may be liable to pay the debt, his liability must be enforced in a suit against himself. But! one has only to look at the other sentence in the judgment of the learned Judge extracted in the report of the case to see that that was not the only ground that he himself was thinking of. In any case the learned Judges in the High Court based their judgment not on any such distinction but upon the principle that the sons disability to object to ancestral property being seized in execution for an unsecured personal debt of the father, is the circumstance that the father is entitled to sell the whole of the undivided estate and that therefore after partition the creditor had no such right. This judgment is therefore clear authority for the position that the right of the creditor during the fathers lifetime is based on and has reference to the right of the father to sell. It is also an authority for the further position that after partition the father loses such right of sale. The learned Judges did not base their decision on the mere circumstance that the son was not made a party to the suit in which the decree is passed. They state that the matter might conceivably have been otherwise if the partition had been made with a view to delay or defraud the creditor. It is impossible to suppose that the learned Judges thought that if the partition had been made with a view to delay or defraud the creditors the decree-holder against the father could proceed to execute the decree against the sons interest also even though the son was not a party to the decree. The learned Judges were speaking only of the liability of the sons share being proceeded against in execution of a decree, because in proper legal view even when the son is made a party to the suit during the fathers lifetime and a decree is obtained, it is done not by way of enforcing any right against the son but merely to have settled in the suit itself the questions as to illegality and immorality which may be raised after decree. I am therefore clearly of the opinion that this decision of the learned Judges twenty-eight years ago in Madras was clear authority in favour of the contention that the fathers debts are not binding on the sons share after partition and that there is no substance whatever in the manner in which it has been attempted to explain away this case.

45. The next case in Madras in order of date is the case of Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555. The judgment in this case has been regarded in some quarters and by Ramesam, J., in the case above cited as an authority for the proposition that the son after partition is liable for the pre-partition debt of the father. The learned Judges in this case clearly held that the debt, the subject-matter of the suit, was one which arose out of a contract entered into by a father as the managing member of an undivided family. In that view the debt was of course the debt of the family itself including the son, and in respect of such a family debt the partition could not possibly affect the liability of a son to pay the family debts from and out of the property of the family. The mere fact that the case of Krishnasami Konan v. Ramaswami Aiyar ILR (1899) M 519 : 1899 9 MLJ 197 was sought to be distinguished on one ground cannot be regarded as excluding the other grounds of distinction. As the judgment in that case could be regarded only as an authority for what it actually decided, it must follow that as an authority it is available only in respect of the family debts which of course are entirely different to the mere personal debts of the father.

46. Then we come to the case of Devaguptapu Kameswaramma Vs. Veddadi Venkatasubba Rao and Others, Ramesam, J., has referred to this case as containing a reasoning conclusive against the contention that the son is not liable after partition. This case was one in which the question that arose no doubt was, whether a decree for a personal debt obtained against the father before partition can be executed against the property in the sons share allotted to him on partition. The point however to be remembered as regards that case is that the son who wished to have his share exempted from liability was the plaintiff who had succeeded in both the lower Courts and the second appeal by the other party was dismissed by the learned Judges. The abstract in the head-note therefore in the case to the effect that a Hindu son is liable for the debts of a father to the extent of the joint family property which came to his hands on partition, was not necessary for the decision of the case and was apparently based on the decision in the case of Ramachandra Padayachi v. Kondayya Chetti ILR (1901) M 555 without any close examination of the facts of that case. It is however significant that Wallis, J., (as he then was) states in his judgment at page 1124 that the cases referred on the other side were all cases in which the property remained joint and so subject to alienation by the father in satisfaction of his debt. This observation by the learned Judge would seem clearly to indicate that in his view the right of the creditor was really based on the fathers right of alienation.

47. In the case of Rathna Naidu v. Aiyanachariar (1890) 18 MLJ 599, Munro and Abdur Rahim, JJ., held that after partition a Hindu father had no right of alienating property that fell to the share of the son on the partition, even though the debts of the father for which the father purported to alienate such property were personal debts of the father not shown to be either illegal or immoral and even though antecedent to the partition. The principle of the decision of this case is apparently approved of in its entirety even by Ramesam, J., in his judgment in the case of Taduri Ramachandra Jagannatharao and Others Vs. Vadrevu Viswesam, . The learned Judge seems to think it obvious that the father has no such power but only that the case does not help the point under discussion.