Sulaiman, J.:— The judgement of after setting forth the facts as above, thus proceeded:—
It cannot be doubted that under the rulings which were in force under the old Code of Civil Procedure a decree-holder who had obtained a money decree against a member of a joint Hindu family had no remedy in the execution department against the sons of the deceased. Under certain circumstances it was laid down that his remedy was by a separate suit. But I am not aware of any case in which a separate suit was maintained when the deceased left not only sons and grandsons but also father uncle, brother or nephews. However that may be, the decree-holder had no remedy in the execution department under the old Code. The provisions of section 53 have now been added which, under certain circumstances, make the sons of the deceased liable to pay the debt. It is obvious that unless the respondent can come within the four corners of section 53 which is a new enactment, he has no remedy on the execution side. Section 50, sub-clause (2), provides that the legal representative of a deceased person is liable only to the execute of the property of the deceased which has come to his hands and has not been duly disposed of. Section 52 says that the decree is to be executed by attachment and sale of the property of the deceased person. Now, ordinarily a member of a joint Hindu family holds joint property in his own right which he acquired at his birth and does not inherit it from the deceased coparcener in the strict sense of the word. But section 53 provides that for the purposes of sections 50 and 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of debts of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative. It is clear to my mind that in order to see whether a certain person is the legal representative of the deceased with regard to the property sought to be attached, the crucial date is the date of the death of the deceased and not the date of attachment of that property. If on the date when the deceased died it cannot be said that a certain property came into the hands of the son or other descendant as his legal, representatives, section 52 will not be applicable. In the present case on the date when Tapeshri Dayal died Bihari Lal was alive. Bihari Lal not not a son or other descendant. He was in fact the father of the deceased. Under the Hindu law there was no pious obligation on Bihari Lal to pay his son's debt. The joint family of which Bihari Lal was a member was also therefore not liable to discharge the debt. The property belonging to the family was, therefore, on the death of Tapeshri Dayal not one which was liable under the Hindu law for the payment of the debt of the deceased. It cannot, therefore, be disputed that between the years 1916 and 1919, when Bihari Lal was alive, the decree holder could not possibly proceed against the joint family property on the ground that it was liable to pay the debt of the deceased.
The learned vakil for the respondent has argued before us that at the time when the attachment was being made, there were no other members of the family but the sons, and possibly grandsons, of the deceased Tapeshri Dayal. It is said that therefore the property now in the hands of a son or other descendant is liable under the Hindu law for payment of the debt of the deceased father. If the crucial date to be considered is the date of the death of the deceased, then this argument obviously has no force. If the property was not liable before, it cannot now become liable merely because the grandfather has died since. I am, therefore, of opinion that the decree-holder is not entitled to proceed against this property and treat it as part of the assets of the deceased which has come into the hands of the sons and grandsons.
Mukerji, J.:— Having regard to the able arguments that have been addressed on both sides in this case I have thought it necessary to say a few words, although I am generally in agreement with what has fallen from my learned brother.
Two points have been discussed. One is whether the appellants as Hindu sons are liable to pay out of the joint family property the debt of their father, and, secondly, whether a previous order passed in the execution department, dated the 2nd of September, 1919, operates as res judicata.
[After stating the facts, the judgement continued:]
The first question to be considered is whether this property is liable to be attached in execution of Tapeshri Dayal's decree.
Section 53 of the Code of Civil Procedure is, by consent, the only provision to which we must refer to find the answer. Section 53 lays down who would be regarded as the legal representatives and what property would be regarded as the assets of a deceased judgement-debtor, in certain circumstances. But to read and understand section 53 it would be necessary to read sections 50 and 52 to which the section refers. Section 50 says that when a judgement-debtor dies the decree may be executed against his legal representative. Then it further says that the legal representative is liable only to the extent of the property of the deceased which has come into his hands and has not been duly disposed of. In the case of a joint Hindu family, on the death of a joint member who happens to be a debtor, there are no assets that can be followed; because the deceased's share lapses into the family by the principle of survivorship. There is, however, a proposition of Hindu law, viz., the family property in the hands of a father is liable to pay his debts, notwithstanding there may be joint sons of the father. On this principle this High Court allowed only suits to be brought against sons of a deceased judgement-debtor, who happened to be a member of a joint Hindu family, if the property had not been attached in the life-time of the debtor. Some High Courts allowed the sons to be brought on the record and the family property to be pursued in their hands. To remove this anomaly section 53 was enacted. It is laid down therein that where there is a liability under the Hindu law on the sons to pay their father's debt, that liability may be enforced in execution as well. That is the meaning of section 53, as I understand it. Taking this test, we have to see whether the joint family property could be realized on the death of Tapeshri Dayal for the payment of his debts. There can be no doubt that Tapeshri Dayal could not sell the property at the time he died in order to pay off his own debts. He was not the head of the family and the property was not in his hands. The property was in his father's hands. The liability; of the sons to pay their father's debt not tainted with immorality is the same whether the liability is enforced through the court or it is taken advantage of by the father in paying off his antecedent debts by private treaty. In my opinion the test is that the property which the father could sell in his life-time is the only property that could be pursued by his creditor on his death in the hands of his sons. This must be so for obvious reasons. No case has been cited to us in which it has been established that irrespective of the nature of the property sons are liable to pay. The sons, if they have any personal property, not inherited through the father, are not liable to pay a father's debt. It is, therefore, only such property as was under the control of the father in his life-time in order to pay his antecedent debts that can be followed in execution. If this be so, it is clear that the property that existed in the family on the death of Tapeshri Dayal was not so liable. It is conceded that for three years, that is to say, during the life-time of Bihari Lal, the property could not be attached. Then the question is whether the death of Bihari Lal has made any such difference in the position of the parties as to make the property, which was not attachable before, attachable now. The sons may very well say and they do say that they got the property not from their father but from their grandfather. As a matter of Hindu law the grandsons get their property in their own right, neither through their father nor through their grandfather. But in order to adjust the conflicting rights, viz., of the creditor and of the son, it is said that the property received by sons through their father is liable. In this case the property in question was received by the sons through their grandfather and not through the father. III this view we have to look to the date of the death of Tapeshri Dayal in order to see what property was liable to pay his debts. The result would be that the property now in question cannot be sold in execution.
By The Court.— The appeal is accordingly allowed and the decree of the lower appellate court is set aside and that of the court of first instance restored with costs throughout.
Appeal allowed.