This appeal arises out of an application for execution of a decree obtained by the Appellants before us against the father of a joint undivided Hindu family governed by the Mitakshara School of Law.
The decree was a personal decree for money obtained against the father. No proceedings seem to have been taken for executing this decree during the father's lifetime, but after his death, an application was presented by the decree-holders asking that the decree might be executed against the son of the judgment-debtor, treating the son as the legal representative of his father, and ??? might ??? sold. Proceedings were then ??? the Court to which the application was made, under sec. 234 of the Code of Civil Procedure, and a notice in accordance with sec. 248 of the Code was served upon the son, and he thereupon appeared and contested the application.
The Sub-Judge held that the decree-holders were entitled to sell the property which was sought to be attached in execution of the decree; and he was of opinion that notwithstanding the death of the father, by reason of the obligation of the son to pay his father's debts the ancestral property could be seized and sold for satisfaction of the claim of the decree-holders.
The Judge of the Appellate Court has, however, taken a different view, and he has held that no charge by way of attachment or otherwise having been created upon the father's share in the property before his death, and the son having, succeeded to the father's interest by survivorship, there was no interest left which could be seized or sold in execution of the decree against the father after his death.
Against this judgment the decree-holders have appealed to this Court, and it has been contended on their behalf first, that by reason of the obligation which the Hindu Law imposes upon the son to pay his father's debts, the creditors are entitled to execute their decree by sale of the properties now in the hands of the son, though they be ancestral properties; secondly, that the properties sought to be attached are assets, and therefore they could be availed of under sec. 234 of ??? if the son raised ??? did not in this case) that the debt incurred by the father was tainted with immorality, that matter could be gone into under sec. 244 of the Code.
A large number of cases decided both by the Privy Council and the different High Courts in India have been cited before us on both sides in support of the two different views that have been presented to us. We do not, however, propose to discuss these cases, but we shall state shortly our views upon the questions raised.
There can be no doubt upon the Mitakshara law, and the cases bearing upon the point, that the son acquires by birth a joint interest with the father, and upon his death he succeeds to the father's interest, not as heir to the father, but by survivorship, his, that is, the son's, interest being simply enlarged by the lapse of the interest of the father. That being so, it is obvious that the interest of the father in the joint ancestral properties is not assets in the hands of the son, when he dies; and it follows therefore that proceedings cannot be taken against the son as the legal representative of the father under sec. 234 of the Code. No doubt during the lifetime of the father, a creditor may realize his dues by sale of the whole of the joint ancestral property, if the debt contracted by the father is not tainted with immorality; but so far as the question of the character of the debt is concerned it can hardly be determined in the course of the execution proceedings; and in no case, that we know of, was such a question deter ??? the decree. But however that may be, so soon as the father dies, his interest in the ancestral property ceases, and if a creditor then wishes to proceed against the son, it must be, not because he is the heir, or the legal representative of the father, but upon some other ground, viz., the obligation of the son to pay his father's debt. But whether having regard to the character of the debt, the obligation can be enforced against the son, cannot, we think, be determined in a proceeding either under sec. 234 or sec. 244 of the Code. Sec. 244 speaks of questions raised in execution between the parties to the suit, or their legal representatives: but so far as the ancestral property is concerned a son is not the legal representative of his father, for he does not succeed to it as the heir of his father; and the question of the obligation of the son to pay his father's debt must necessarily be determined in a separate suit framed for the purpose.
The case which has been chiefly relied upon on behalf of the decree-holders is to be found in Umed Hathising v. Goman Bhaije. But we are unable to take the same view which the Bombay High Court has taken; we are rather inclined to follow the view taken by the Madras High Court in the case of Venkatarama v. Senthivelu, and by the Allahabad High Court in the case of Luchmi Narain v. Kunji Lal; and we may state that view is practically the same as was expressed by a Divisional Bench of this Court in the unreported ??? v. Gopal Lal.
There is, however, one other matter that we may as well refer to, as it has been raised by Babu Golap Chandra Sarkar on behalf of the Appellants. It has been stated that the decree against the father was in his representative capacity, and therefore it may now be executed against the son. In the first place, the decree-holders did not regard the decree in that character; her in that event no proceeding under sec. 234 need have been taken; and in the second place, the question, whether the decree was obtained against the father in his representative capacity would depend upon the nature of the debt, and that matter cannot, we think, be gone into in the course of execution of the decree.
For these reasons, we think that the order of the District Judge is correct, and this appeal must be dismissed with costs. Hearing fee five gold mohurs.
S.C.S
Appeal dismissed.