Sir Lionel Leach, C.J:— These second appeals have been placed before a Full Bench for decision because they raise a question of Hindu law of some importance and there is no textual or other authority which has bearing.
On 7th September 1931, Seshayya Chetti, the appellant in Second Appeal No. 158 of 1939, filed a suit in the Court of the District Judge of Nellore to recover an amount claimed by him to be due on a promissory note. The promissory note had been executed by the first respondent and his brother Rami Reddi, who is now dead and is represented by his sons, the second, third and fourth respondents. The defendants to the suit were the makers of the instrument and their respective sons, the family being joint. On 26th September 1931 the plaintiff obtained an interim order for attachment before judgment of the properties in suit and the interim order was made absolute on 11th January 1932. On 7th October 1932 the Court passed a decree for Rs. 3,118 with interest and costs against the makers of the promissory note personally and against their sons, limited so far as the sons were concerned to their interests in the family properties. On 16th November 1932 the two principal defendants applied for their own adjudication he insolvency, and on 8th March 1933 an order of adjudication was passed. On 2nd May 1933 the decree-holder asked to be allowed to implead in the execution proceedings the Official Receiver as the representative of the makers of the instrument. The District Judge refused the application on the ground that execution could, not be allowed against the Official Receiver. It is regrettable that an arrangement was not made that the interests of all the members in the properties should be sold in the execution proceedings. This could have been done by consent with full safeguard to the creditors of the insolvents and, if such an arrangement had in fact been made, the present suits would have been avoided. The result of non-co-operation was that the decree-holder was compelled to limit his application for execution to the interests of the sons in the properties attached. On 19th October 1933 the sons' interests in some of the items of the properties were sold by the Court and purchased for Rs. 10,455 by the appellant in Appeal No. 57 of 1939. Their interests in the rest of the properties were sold on 27th October 1933 and were purchased by the decree-holder for Rs. 830.
It is common ground that the promissory note sued upon represented moneys borrowed in order to meet a family necessity. After the order of attachment had been passed, five other creditors who had obtained decrees against the family applied for rateable distribution of the proceeds of sale. Again, it is common ground that the debts due to them were debts which were binding on the family. When the proceeds of the sales were paid into Court, they were paid out to the decree-holder and the five other creditors rateably. On 19th March 1934 the purchasers of the properties obtained symbolical possession and on 16th April 1935 each of them filed a suit for partition of the shares of the sons in these properties. These suits were numbered as Original Suit No. 52 of 1936 and Original Suit No. 70 of 1936 respectively. Second Appeal No. 57 of 1939 arises out of the first of these suits and Second Appeal No. 58 of 1939 out of the second. The Subordinate Judge of Nellore, in whose Court the suits were tried, granted to the plaintiffs decrees for partition but at the same time held that they were only entitled to take the shares of the sons in the properties in suit subject to the payment of other family debts. The total value of the properties held by the family was Rs. 25,000 and the family owed altogether Rs. 40,000. The plaintiffs appealed to the District Judge against the decision of the Subordinate Judge that they were only entitled to the shares of the sons subject to the liability for payment of the remaining debts of the family, but the District Judge concurred in the decision of the Subordinate Judge. The question which this Court is called upon to decide is whether the condition imposed by the Courts below is, sound in law.
Under the Mitakshara law a member of a joint family cannot claim to be given his share in a particular asset of the family. The co-parceners are entitled to joint possession and there is community of interest. If a member of the family wishes to take his share, there must be a partition of the whole estate. In the same way, a person who has acquired the interest of a member of a joint family in the family properties must, when he wishes to enforce his rights, institute a suit for partition of all the assets and the value of the share acquired is, of course, only arrived at after making provision for the payment of the debts of the family. When the plaintiff has obtained a decree for partition and it appears that the value of a particular property does not exceed the net value of the member's share, the Court may direct that the particular property shall be allocated to the plaintiff, but in ordinary circumstances the Court will not go beyond this.
The appellants limited their claim for partition to the sons' interests in the attached properties and, in holding that they were only entitled to take the sons' interests in the properties subject to the sons' liability in respect of other family debts, the Courts below had regard merely to the principles to which reference has just been made. The appellants say, however, that the Subordinate Judge and the District Judge lost sight of an important factor which must be taken into consideration under the peculiar circumstances which we have here. They admit that, if the moneys paid into Court had not been utilized for the payment of debts due by the family, they would be compelled to take the sons' interests in the properties in suit subject to the liability for payment of the debts due by the family, but they say that, inasmuch as the sons' interests had already been sold for the payment of family debts, the condition imposed below amounts to a direction that the same properties shall be sold twice over for this purpose, a position which no Court with the power to apply principles of equity could ever contemplate.
We agree and, in doing so, we have regard also to the terms of the decree under which the appellants bought the interests of the sons in the properties in suit. By the decree all the sons were directed to pay from their interests in the properties the decretal amount and, therefore, under it the decree-holder had the right of bringing to sale the interests of the sons as they then stood. By reason of the sales which took place on 19th and 27th October 1933 the value of the sons' interests in the properties was realized and applied in full in the discharge of family debts, a burden which the Courts below would subject them to again. The situation is undoubtedly unique and consequently the Court is called upon to formulate a rule which is in keeping with natural justice and the spirit of Hindu law. We consider that it is in consonance with both to hold that a sale for the satisfaction of family debts is capable of conveying to the purchaser a good title in such circumstances as we have here, notwithstanding that other debts equally binding on the family were left unsatisfied. The creditors who had been diligent got their shares of the proceeds when the sons' interests in the properties were sold in order to meet family liabilities and we can see no warrant for the condition which has been attached to the decrees obtained by the appellants. The interests of the fathers remain and as these have devolved on the Official Receiver he can realize them for the benefit of the creditors who are still unpaid.
For these reasons we hold that the decisions of the Courts below are erroneous and the appeals will be allowed. This means that the appellants will be entitled to a decree for partition free from any condition. It follows that the appellants are entitled to their costs throughout.
N.S