Sir John Edge, C.J and Banerji, J.:— This appeal and the connected appeal have arisen in proceedings for the execution of a simple money-decree. The decree-holders are the appellants. Kunji Lal, who is the respondent in this appeal, is one of the surviving sons of Narpat Rai, deceased, against whom the decree in question was obtained by the appellants in the Court of Small Causes of Bombay.

[451] Narpat Rai and his sons, Chote Lal, Jogi Lal, Khannu Lal and Kunji Lal, had, before the debt was incurred in respect of which the decree was obtained, constituted a joint Hindu family governed by the Mitakshara. Before that debt was incurred, Chote Lal, Jogi Lal and Khannu Lal had separated from Narpat Rai and his minor son Kunji Lal, the respondent here. On that separation the joint family property was partitioned, Chote Lal, Jogi Lal and Khannu Lal each getting his partitioned and separated share, and Narpat Rai and Kunji Lal, who, as between themselves, had not separated but had remained joint, getting as their partitioned and separated share of the family property, the property which the appellants here seek, as against Kunji Lal, to attach and to bring to sale in execution of their decree.

The decree in question was one in respect of an unsecured debt due by Narpat Rai to the appellants. Kunji Lal was not a party to that decree.

The appellants after the death of Narpat Rai, and in ignorance of the fact that he was dead, obtained an order for the attachment and sale of the property in question in this and in the connected appeal. Kunji Lal and his brothers were not parties to that order, which was made on the assumption that Narpat Rai was living and that the property attached was his. When it was ascertained that Narpat Rai had died prior to those proceedings for attachment and sale, the decree-holders abandoned those proceedings and presented an application to the Court of the Subordinate Judge of Farakhabad alleging that Narpat Rai was dead and that Chote Lal, Jogi Lal, Khannu Lal and Kunji Lal were the sons and legal representatives or heirs of Narpat Rai, and praying that “execution (of their decree) be proceeded with as against his (Narpat Rai's) legal representatives or heirs aforesaid according to law.” Upon that application the Subordinate Judge issued a notice under s. 248, cl. (b), to Chote Lal, Jogi Lal, Khannu Lal and Kunji Lal and fixed the 2nd of November 1892 as the date upon which cause might be shown why the decree should not be executed [452] against them. On the 2nd of November 1892 the Subordinate Judge made the following order:—

“As the 24th November, 1892 has been fixed in the objection case; ordered, that this case be brought forward on the 24th November, 1892, after the decision of the objections.”

On the 22nd of November 1892 the decree-holders filed an inventory of “the property owned and possessed by the judgment-debtor and left by him,” and prayed for its attachment and sale. The property mentioned in that inventory is the property in question in this and the connected appeal.

On the 24th of November 1892 the Subordinate Judge, without deciding the questions raised by the objections made by Chote Lal, Jogi Lal, Khannu Lal and. Kunji Lal to an attachment and sale of the property under the decree, ordered the property to be attached. We presume that the order of the 24th of November 1892 was an interim order.

On the 5th of December 1892 the property was attached under the order of the 24th of November.

On the 7th of January 1893 the Subordinate Judge considered the objections made by Chote Lal, Jogi Lal and Kannu Lal and the objections made by Kunji Lal, and allowed those objections and released the properties from attachment. The decree-holders appealed from that order to the Court of the District Judge. The District Judge dismissed the appeal, and from his order of dismissal the decree-holders have brought this appeal in which Kunji Lal is the respondent, and the connected appeal in which Chote Lal, Jogi Lal and Khannu Lal are the respondents.

For the decree-holders, appellants, it has been contended that the property for the attachment and sale of which they applied was liable to be attached and sold after the death of Narpat Rai in execution of their simple money-decree against Narpat Rai.

For the respondent to this appeal and for the respondents to the connected appeal it has been contended that they do not hold the properties as the heirs or representatives of Narpat Rai; that [453] Kunji Lal held the property in his possession by virtue of the right vested in him on his birth, and as the survivor of the joint Hindu family which had after the partition consisted of himself and his father Narpat Rai, and that Chote Lal, Jogi Lal and Khannu Lal held the property in their possession respectively by right of separation and partition of the family property prior to the time when the debt in respect of which the decree in execution was obtained was incurred by Narpat Rai. It has been contended on behalf of all these respondents that the property not having been attached prior to the death of Narpat Rai, and they not having been parties to the decree, the remedy, if any, of the decree-holders against this property is by a suit against them in which the question as to whether their properties are liable to be sold in satisfaction of the debt incurred by their father can be determined, and that question cannot be decided in proceedings under s. 234 or s. 244 of Act No. XIV of 1882.

The decree-holders had not obtained any attachment under their decree in the lifetime of Narpat Rai.

The following are the questions which appear to us to arise on the arguments in the appeal in which Kunji Lal is a respondent:—Can a creditor of a father in a joint Hindu family governed by the law of the Mitakshara, who obtained a simple decree for money in a suit against the father alone, obtain execution of that decree against the joint family property or any part of it in the hands of the son in a proceeding against the son in execution of that decree instituted after the death of the father, and not being a proceeding in continuation of an attachment of the property effected during the lifetime of the father, the proceeding in execution not being barred by the law of limitation and the son not being precluded by any estoppel from proving that the property was joint family property at the time of his father's death, and is in his hands ancestral property and not assets representing what was at the time of his father's death separate property of his father, or, in such a case, if the creditor desires to obtain a remedy against the ancestral property or any part of it in the hands of the son, [454] must he seek that remedy in a suit against the son, in answer to which suit when brought the son will be entitled to prove that the suit is barred by limitation, that the debt was tainted by immorality, or any other matter which would be a defence to the suit against the son?

In order to answer those questions, so far as it is necessary to do so in this appeal, it appears to us to be necessary to consider what is the liability in law of a Hindu son in respect of debts contracted by his deceased father at a time when the father and son were members of a joint Hindu family governed by the law of the Mitakshara, and in what character or capacity such son is a party to proceedings in the execution of a simple decree for money obtained by the creditors in a suit against the father alone, in which proceedings a notice under s. 248, cl. (b) of Act No. XIV of 1882 was necessarily issued to the son.

It is in our opinion necessary in considering those questions to bear in mind the distinction between the assets strictly so called of the father in the hands of the son and other property in the hands of the son which, although, strictly speaking, not assets of the father in the hands of the son, is liable to be sold in discharge of those debts of the father which were not tainted by immorality.

It appears to us that separate and self-acquired property of a father in a joint Hindu family governed by the law of the Mitakshara which had not become an accretion to the joint family property in the father's lifetime would, on the death of the father and in the hands of the son, be assets strictly so called of the father, against which a decree which had been obtained against the father alone could be executed after his death in proceedings instituted by the service of a notice upon the son under cl. (b) of s. 248 of Act No. XIV of 1882, whether the debt in respect of which a decree was obtained was or was not tainted with immorality; because in such case the son took such assets as an heir to, and not as a surviving coparcener of, his father.

On the other hand, it appears to us that in a joint Hindu family governed by the law of the Mitakshara joint family property, [455] whether such property was ancestral at the time of the birth of the son, or is composed, as to part, of property which was ancestral at the time of the birth of the son and, as to the remaining part, of property acquired after the birth of the son and in the lifetime of the father which became an accretion to the ancestral property, cannot be considered in whole or in part us assets of the father in the hands of the son after the father's death, although a sale of such property by the father alone for a consideration not tainted with immorality would have been binding as against the son, and although a creditor of the father would have a remedy against such property in the hands of the son after the father's death in respect of a debt not tainted by immorality due by the father, whether such debt was or was not contracted for family purposes. One reason for holding that opinion is that in a Hindu family to which the law of the Mitakshara, uncontrolled by legislative enactment or well-established special custom as to inheritance, applies, a son upon his birth takes with his father and his brothers, if any, a coordinate and co-parcenary share in all ancestral property of the father or of the family; and on the death of a brother without male issue or descendants in the male line surviving him, or on the death of his father, such surviving son takes, not as heir to his brother in the case of the brother, or as heir to his father in the case of the father, but by survivor ship, the interest of such deceased brother or of such deceased father, as the case may be, simply lapsing on his death and so enlarging the share of the surviving son or sons of the father of the joint family. It appears to us that in such case there is no difference in the title of the survivor, whether he be the son surviving his father or the brother surviving a brother who has died leaving no male issue or descendants in the male line, and that in neither case is the ancestral property or any part of it assets of the deceased member of the joint family in the hands of survivor. The fact as established by the decision of their Lordships of the Privy Council in Suraj Bansi Koer v. Sheo Proshaol Singh that a creditor who has obtained a decree against a member of a joint Hindu family (the father in that [456] case), and has under such decree and in the lifetime of the judgment-debtor attached the judgment-debtor's interest in the joint family property has thereby obtained a valid charge upon the joint family property to the extent of the undivided share and interest of the judgment-debtor which cannot be defeated by the death of the judgment-debtor before partition or sale under the decree, is not at variance with, but, on the contrary, supports the view which we have expressed. The principle of that decision is that each member of a joint Hindu family possessed of ancestral property which is not impartible, has a right to have his share partitioned off, and the judgment-creditor of a member of such family gets by a subsisting attachment under his decree effected in the lifetime of the judgment-debtor a charge upon the undivided share of the judgment-debtor which enables him or the purchaser at a sale under his decree to work out his rights under the decree and charge by means of a partition, whether the judgment-debtor had or had not died before the sale under the decree. Again, the fact as finally established by the decision of their Lordships of the Privy Council in Mussamut Nanomi Babuasin v. Modun Mohun that the sons in a joint Hindu family cannot set up their co-parcenary rights in the ancestral family property against the remedies of the creditors of their father for their debts if not tainted with immorality, does not; conflict with the opinion which we have expressed. The principle of the decision in Mussamut Nanomi Babuasin v. Moduli Mohun is that, although in a family governed by the Mitakshara a son on his birth takes a present vested interest jointly with his father in ancestral estate, he, by reason of the moral obligation upon a Hindu son, is legally bound to pay his father's debts not incurred for immoral purposes, to the extent of the joint ancestral property which is in his hands. This Court in Badri Prasad v. Madan Lal has held that legal liability can be enforced, even in the lifetime of the father, in a suit against the father and sons on a mortgage of the ancestral property made by the father alone.

[457] Beading together the decisions of their Lordships of the Privy Council in Suraj Bunsi Koer v. Sheo Proshad Singh and in Mussamat Nanomi Babuasin v. Modun Mohun, we think it is manifest that ancestral property is not, nor is any part of it, in the hands of a son to whom the Mitakshara law applies, assets of his deceased father, and that the son's right to such property is, not that of an heir or legal representatives of his deceased father, but that of a surviving coparcener, although, by reason of the moral duty on a son to pay his father's debts which are not tainted with immorality, there is upon him a legal liability to pay such debts which can be enforced against the ancestral property in his hands. Such liability must stand, as it does, upon a principle entirely different from the liability of an heir or legal representative whose liability in the execution of a decree obtained against a deceased person of whom he is heir or legal representative is, by s. 234 of Act No. XIV of 1882, confined to the extent of the property of the deceased which has come to the hands of such legal representative and has not been duly disposed of. If it were not so, a creditor who had obtained a simple decree for money against the father in a joint Hindu family governed by the Mitakshara in a suit in which the sons were not parties, could for the first time after the father's death, attach what represented the undivided share of the father in the ancestral property and bring that interest to sale in execution of his decree, whether the debt in respect of which the decree had been obtained was or was not tainted with immorality, and consequently whether or not such debt was one which the sons were morally and legally bound to pay, to the extent of the ancestral property in their hands. This Court has in Full Bench in Seth Chand Mal v. Durga Dei held, Tyrrell, J., dissenting, that when the holder of a decree against the father in a joint Hindu family governed by the Mitakshara proceeds under s. 234 of Act No. XIV of 1882, after the death of the father, to execute the decree by attachment and sale, and the son objects that the property in his hands, sought to be attached and sold, is his own property and not assets of his deceased father, that question is one to be decided under s. 244 of Act No. XIV of 1882 by the Court [458] executing the decree; but that when the objection is that the property in the hands of the son is, not his beneficially, but is solely vested in him as trustee for another, that question cannot be decided under s. 244, but must be decided in a separate suit. From the distinction having been drawn in that case between the case of a son setting up a claim to the property as his own and the case of his objecting that he holds the property merely as trustee for another, it appears to be considered that the opinion of the Full Bench was that all questions which might arise upon the claim of the son that the property was his own and not assets of his father, including the question whether the debt was one which it was the pious and legal duty of the son to pay, are to be decided under, s. 244 of Act No. XIV of 1882 by the Court executing the decree. That is not, in our opinion, what the judgment of the Full Bench means. The reason for the distinction drawn in that case by the Full Bench is obvious. In the first case the Court executing the decree has before it in the son the person who admittedly is legally and beneficially entitled to the property in his hands, if it be ancestral property or if it be property which was separately from his father acquired by him, and who, if the property was not ancestral property or so self-acquired, has the property in his hands as assets of his deceased father. In the other case the beneficiary for whom the son alleges that he holds the property as trustee is entitled to be heard on the question as to whether the property is trust property and not assets of the deceased judgment-debtor, and such beneficiary, unless he was a party or is a representative of a party to the suit in which the decree was passed, is not and cannot be made under Act No. XIV of 1882 a party to the proceeding in execution of the decree. Section 437 of Act No. XIV, 1882, would not enable the Court executing the decree to order the beneficiary to be made a party to the proceeding in execution of the decree against the deceased father of the beneficiary's trustee, as the suit in which that decree was passed was not one against the trustee and was not one concerning property vested in any one as trustee who was a party to that suit, and as Act No. VI of 1892 prohibits the application of s. 647 of Act No. XIV of 1882 to applications [459] for the execution of decrees. According to the practice of the Court of Chancery in England all cestnis que trustent were, subject to certain exceptions, necessary party to suits against their trustees by which their rights were likely to be affected. Although, under the practice of the High Court of Justice in England, trustees may be sued without joining their cestilis que trustent as representing the property of which they are trustees and as representing the persons for whom they are trustees, the Court may, at any stage of the suit, order the cesluis que trustent to be made parties to the suit. It appears to us that the High Court of Justice in England would in a suit in which the question was whether, for the discharge of a debt incurred by a person for the payment of whose debts a cestui que trust was not responsible, the property sought to be sold was assets of the deceased judgment-debtor in the hands of his heir or legal representative, or was property vested in the persons who happened to be such heir or legal representative, vested in him not as such heir or legal representative but as the trustee for such cestui que trust, order such cestui que trust to be made a party. That we infer from Clegg v. Rmvlands and from Payne v. Parker. In such a case the trustee would have an interest adverse to the cestui que trust, for it would be to the interest of the trustee that the trust property, and not his own ancestral property, or the assets of his father, should be sold in satisfaction of the debt of the judgment-creditor. In Chowdry Waited Ali v. Mussamat Jumaee in execution of a decree a person had been made a party to the proceedings in execution in a representative capacity, and their Lordships of the Privy Council held that the question whether property in the hands of the representative defendant belonged to him in his own right or in his representative character was one which related to the execution of the decree. The procedure in that case was the procedure of Act No. XXIII of 1861. In Raghubar Dyal v. Hamid Jan it was held that the representative of a deceased judgment-debtor, who as such representative was a party [460] to the proceedings in execution of the decree, not having taken an objection in those proceedings that the property was his own and not assets of the deceased judgment-debtor, and the property having accordingly been sold in execution of the decree, neither he nor his subsequent vendee could question the title of the purchaser at the sale under the decree. The last two decisions to which we have just referred appear to us to support the view which we entertain as to ss. 234 and 248 (b) and 244 of Act No. XIV of 1882. In our opinion it was competent for the Subordinate Judge in these proceedings to determine the question as to whether the property sought to be sold was ancestral property in the hands of Kunji Lal or was assets of his deceased father Narpat Rai, and we are further of opinion that he rightly decided that the property in question was ancestral property in the hands of Kunji Lal and not assets of his deceased father. Upon that finding we think it necessarily follows that the jurisdiction of the Court of the Subordinate Judge was in these proceedings in execution limited to making an order allowing the objection of Kunji Lal and releasing from attachment under the decree the property sought to be sold. We think that such view is not only consistent with but is supported by all the authorities which have been cited to us in argument.

In Sangili Virapandia Chinnathambiar v. Alwar Ayyangar in which case the property was an impartible zamindari, it was held that, as the entire interest in an impartible zamindari passes upon the death of the father to the son, there is nothing in the estate itself which can be attached after the father's death under a decree against him or which can be made liable in the execution of such decree against the son as the representative of the father. The decision in that case does not, upon an examination of the judgment, appear to have turned upon the fact that the property there was impartible, but upon the rule of procedure of s. 234 of Act No. X of 1877, and upon the view that the son was merely a party to the decree, or rather to the proceedings in execution of the decree as the representative of his father, and as such representative could [461] only be liable under the decree to the extent of such assets of his father as had come to his hands and had not been duly disposed of. The learned Judges in that case declined to decide what would have been the result if the property had been attached in the father's lifetime under the decree and the subsequent proceedings had been a continuation of proceedings in execution of an attachment made in the father's lifetime.

In Karnataka Hannmantha v. Andukuri Hanumayya in Full Bench it was held, in proceedings to execute a decree which had been obtained against a father for money, that the father having died and his interest in the ancestral property of the joint Hindu family not having been attached in his lifetime, his interest passed on his death to his son by survivorship and ceased to be his property, and that, although the interests of sons in Hindu ancestral property are liable to satisfy a father's debt, that liability does not attach to the ancestral property in their hands in their representative character, and in such case the decree-holder must have recourse to a separate suit. In that case the procedure referred to was that of Act No. X of 1877, which in that respect was the same as that of Act No. XIV of 1882. That decision was followed in Mulhia v. Virammal.

In Ariabudra v. Dorasami the judgment-debtor having died before execution of a decree against him, the judgment-creditor sought to have the decree executed against the representatives of the judgment-debtor. The decree was one for sale in a suit upon a hypothecation bond and was passed prior to the coming into force of Act No. IV of 1893.

The legal representatives were sons of the judgment-debtor. In the execution proceedings the objection of the legal representatives to the attachment and sale of their interest in the hypothecated property in execution of the decree was allowed.

Thereupon the execution creditor brought a suit against the representatives claiming a declaration that their shares were liable for the debt.

[482] The High Court at Madras dismissed that suit under the proviso to s. 42 of Act No. I of 1877 (The Specific Relief Act, 1877). Thereupon the execution creditor brought a suit against the sons to recover from them the balance of the judgment debt which remained unsatisfied to the extent of the value of the ancestral property which had come to their hands; and, it having been found that the debt was not tainted with immorality, the claim was decreed in the first Court and in first appeal. In second appeal it was contended on behalf of the sons that the liability of the ancestral property in their hands was a matter which ought to have been dealt with in the execution proceedings under s. 244 of Act No. X of 1877 in execution of the original decree, as to that contention Sir Arthur Collins, C.J, and Muthusami Ayyar, J., said in their judgment:— “It is provided by s. 244 that all questions arising between the parties to the suit in which the decree is passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by order of the Court executing the decree and not by a separate suit. The question therefore for decision in this second appeal is whether the son's pious obligation under the Hindu Law to pay the debt of his father out of his share in the ancestral property is a matter which relates to the execution of a decree against his father within the meaning of that section. We are of opinion that it is an obligation distinct from that created by the decree which was passed against the father, that if the decree debt was either illegal or immoral the sous would be under no obligation to satisfy it, though the decree against the father might be perfectly valid, and that the questions contemplated by s. 244 are those which relate to the enforcement of the obligation created by the decree. It is one thing to execute a decree as we find it, and another to add to the obligation created by it so as to extend its scope.”

Those learned Judges also held that “the suit was clearly one to enforce payment of money charged on immoveable property, and the contest was whether the charge was validly created by the father as against his son. The claim is therefore not barred by [463] limitation,” and they dismissed the appeal, holding that the suit lay.

That was a very instructive case.

In Venkatarama v. Scnthiveli Muthusami Ayyar and Parker, JJ., held:— “When, therefore, there is a money decree against the father and when the judgment-creditor seeks to attach ancestral property after it has vested in the son by survivorship under Hindu Law upon the father's death, he cannot be considered as executing the decree against the property of the deceased judgment-debtor within the meaning of s. 234 of Act No. XIV of 1882. How far the son's pious obligation would make him liable for the decree debt is a matter to be investigated in a fresh suit.”

In Balbir Singh v. Ajudhia Prasad it was held that the plaintiff was entitled to a decree declaring that his proprietary right in certain ancestral property was not liable to be sold in execution of a decree for money against his father alone. That part of the judgment in that case in which it was held that a decree against the father alone for sale upon an hypothecation bond could be executed against the ancestral property, if it meant that under that decree, to which the sons apparently were not parties, their shares in the ancestral property could be sold, may require reconsideration when a similar case arises.

In Jagannath Prasad v. Sita Ram it was held that a judgment-creditor of a father could not, in execution of the decree, which was for money against the father alone, attach and bring to sale after the father's death the ancestral property in the hands of the son.

In Beni Prasad v. Parbati Koer it was held that a decree for sale upon a mortgage which was passed against the father in a joint Hindu family governed by the Mitakshara could, after the father's death be executed against the interest which the father had in the ancestral property, it appearing that [464] there was subsisting an attachment against that interest made prior to the death of the father. The inference to be drawn from the judgment in that case is in support of the view of the law which we have expressed.

We hold that the decree-holders, appellants, cannot execute their decree against any part of the ancestral property in the hands of Kunji Lal, and that, if they have any remedy now against the ancestral property in the hands of Kunji Lal, as to which we express no opinion, it must be sought in a suit against Kunji Lal.

We dismiss this appeal with costs.

Appeal dismissed.