# [1952] 1 S.C.R. 544

- **Citation:** [1952] 1 S.C.R. 544
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** Civil Appeal No. 57 of 1951
- **Bench:** SAIYID FAZL Au, MuKHERJEA, VrvIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1952-1-s-c-r-544-49
- **Pages:** 23

## Headnote

Hindu law-Debts-Pre-partition debts of father-Sons' !iabi/J'ty
'•
-Pious liability of son-Nature and extent, and tnode of enforcement-Decree against estate of father in sons' hands as legal representatives-Whether executable against property allotted to sons o-n
partition-Civil Proccdur< Code (Act V of 1908), ss. 47, 52, 53.
B, acting as
n1anager
of a joint Hindu fan1ily, consisting of
himself and his sons
executed a
mortgage deed in favour of the
plaintiff, hypothecating certain movables to secure a loon. Subsequently the sons
obtained a partition
decree
against
their
father and the joint family properties were divi9ed by metes and
bounds and separate possession was taken by the father and the
sons. Later on, the plaintiff filed a suit against B praying for a
decree against the mortgaged
property as well
as against the
joint family.
The sons applied for being impleaded as defendants stating that the mortgaged properties were allotted to them
by the partition decree and B was not the manager
of a
joint
Hindu family.
In reply the plaintiff gave up the claim for a
mortgage decree
stating that
she would
be
satisfied with
a
money decree against B and the plaint was amended accordingly.
B died and his sons were brought on the record as his legal
representatives. The sons pleaded, inte1· alia, that the debt was
illegal and itnmoral as it related to speculative transactions by
the father.
The parties arrived at a. comprotnise and on the basis
thereof a simple money decree was passed in favour of the plaintiff against the estate of B in the hands of his legal representatives.
The judgment-debtors (sons)
disputed their liability
011
three
grounds, viz., (i) that under the terms of the cotnpromise decree,
the decree-holder could
proceed only
against the
properties of
B in the
hands of his legal
representatives
and no property
belonging
to the sons
could be
made
liable for the decree;
(ii) that, as the decree waS obtained after partition of the joint
family properties between the father and his sons, the properties
of the sons obtained in partition
were not liable under Hindu
law for the debt of the father, (iii)
that in
any event if there
was any pious
obligation on the part of the
sons to pay the
father's debt incurred before partition such obligation could be
enforced against the sons only in ·a properly constituted suit and
not by way of execution of a
decree obtained in a suit which
was brought against the father alone during his lifetime and to
which the sons were made parties as legal representatives after
the father's death:
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S.C.R.
SUPREME COURT REPORTS
545
Held, (repelling the contentions), ( l) that as the decree fulfilled
the conditions of sec. 52(1) of the
Civil
Procedure Code it
attracted all the incidents which attach by law to a decree of
that character and therefore the
decree-holder was entitled to
call in aid the provisions of sec. 53 of the Code and if any property in the hands of the sons was liable under the Hindu law
to pay the father's debt, such property would be liable in execution of the decree by virtue of the provision of sec. 53 of the
Civil Procedure Code; (2) that a son is liable even after partition
for the pre-partition debts of his father, which
are
not immoral
or illegal and for the payment of which no arrangement was
made at the time of the partition; (3) that a decree passed
against the separated sons as legal representatives of the deceased
father in respect
of a debt incurred
before partition
can be
executed against the shares obtained by such sons at the partition and this can be done in execution proceedings and it is not
necessary to bring a separate suit for the purpose.
[Case was remanded to the execution court to determine the
question whether the debt was immoral or illegal and whether
any arrangement was made at the time of partition for the payment of the debt.]
Bankey Lal v. Durga Prasad (I.L.R. 53 All. 868 F.B.) approved.
The view of the majority in
Atul Krishna v.
Lala

## Text

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1952
M"1ch 7.
544
SUPREME COURT REPORTS
[1952]
PANNALAL AND ANOTHER
..
f),
MST. NARAIN! AND OTHERS.
(SAIYID FAZL Au, MuKHERJEA and VrvIAN BosE, JJ.]
Hindu law-Debts-Pre-partition debts of father-Sons' !iabi/J'ty
'•
-Pious liability of son-Nature and extent, and tnode of enforcement-Decree against estate of father in sons' hands as legal representatives-Whether executable against property allotted to sons o-n
partition-Civil Proccdur< Code (Act V of 1908), ss. 47, 52, 53.
B, acting as
n1anager
of a joint Hindu fan1ily, consisting of
himself and his sons
executed a
mortgage deed in favour of the
plaintiff, hypothecating certain movables to secure a loon. Subsequently the sons
obtained a partition
decree
against
their
father and the joint family properties were divi9ed by metes and
bounds and separate possession was taken by the father and the
sons. Later on, the plaintiff filed a suit against B praying for a
decree against the mortgaged
property as well
as against the
joint family.
The sons applied for being impleaded as defendants stating that the mortgaged properties were allotted to them
by the partition decree and B was not the manager
of a
joint
Hindu family.
In reply the plaintiff gave up the claim for a
mortgage decree
stating that
she would
be
satisfied with
a
money decree against B and the plaint was amended accordingly.
B died and his sons were brought on the record as his legal
representatives. The sons pleaded, inte1· alia, that the debt was
illegal and itnmoral as it related to speculative transactions by
the father.
The parties arrived at a. comprotnise and on the basis
thereof a simple money decree was passed in favour of the plaintiff against the estate of B in the hands of his legal representatives.
The judgment-debtors (sons)
disputed their liability
011
three
grounds, viz., (i) that under the terms of the cotnpromise decree,
the decree-holder could
proceed only
against the
properties of
B in the
hands of his legal
representatives
and no property
belonging
to the sons
could be
made
liable for the decree;
(ii) that, as the decree waS obtained after partition of the joint
family properties between the father and his sons, the properties
of the sons obtained in partition
were not liable under Hindu
law for the debt of the father, (iii)
that in
any event if there
was any pious
obligation on the part of the
sons to pay the
father's debt incurred before partition such obligation could be
enforced against the sons only in ·a properly constituted suit and
not by way of execution of a
decree obtained in a suit which
was brought against the father alone during his lifetime and to
which the sons were made parties as legal representatives after
the father's death:
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S.C.R.
SUPREME COURT REPORTS
545
Held, (repelling the contentions), ( l) that as the decree fulfilled
the conditions of sec. 52(1) of the
Civil
Procedure Code it
attracted all the incidents which attach by law to a decree of
that character and therefore the
decree-holder was entitled to
call in aid the provisions of sec. 53 of the Code and if any property in the hands of the sons was liable under the Hindu law
to pay the father's debt, such property would be liable in execution of the decree by virtue of the provision of sec. 53 of the
Civil Procedure Code; (2) that a son is liable even after partition
for the pre-partition debts of his father, which
are
not immoral
or illegal and for the payment of which no arrangement was
made at the time of the partition; (3) that a decree passed
against the separated sons as legal representatives of the deceased
father in respect
of a debt incurred
before partition
can be
executed against the shares obtained by such sons at the partition and this can be done in execution proceedings and it is not
necessary to bring a separate suit for the purpose.
[Case was remanded to the execution court to determine the
question whether the debt was immoral or illegal and whether
any arrangement was made at the time of partition for the payment of the debt.]
Bankey Lal v. Durga Prasad (I.L.R. 53 All. 868 F.B.) approved.
The view of the majority in
Atul Krishna v.
Lala Nandanji
(I.L.R. 14 Pat. 732) disapproved. (Case law discussed).
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
No. 57 of 1951. Appeal from a judgment dated 18th
May, 1948, of the High Court of East Punjab at Sjmla
(Khosfa and Teja Singh JJ.) in Letters Patent Appeal
No. 189 of 1946 arising out 0£ the judgment dated
11th February, 1946, of the Senior Subordinate Judge,
Ambala. The facts are set out in the judgment.
Gopinath Kunzru (B. C. Misra, with him) for the
appellants.
Rang Behari Lal (N. C. Sen, with him) for the respondents.
1952. March 7. The judgment of the Court was
delivered by
MuKHERJEA J.-This appeal is on behalf of the
judgment-debtor tn a proceeding for execution of a
money decree and it is directed against the judgment
of a Letters Patent Bench of the Punjab High Court
dated 18th of May, 1949, by which the learned Judges
1952
Pannalal
and Anothlll'
v.
Mst. Naraini
and Others.
1952
Panna/a/
ttnd Another
V4;'
Mst. Naraini
and Others.
Mukhcrjea /.
54{)
SUPREME COURT REPORTS
[1952]
affirmed, in appeal, a decision of a single Judge of that
court dated 29th October, 1946. The original order
against which the appeal was taken to the High Court
was made by the Senior Subordinate Judge, Ambala,
in Execution Case No. 18 of 1945 dismissing the objections preferred by the appellants under section 47
of the Civil Procedure Code.
To appreciate the contentions that have been raised
in this appeal, it would be necessary to give a short
narrative of the material events in their chronological
order. On
September
30,
1925,
Baldev
Das,
the
father of the appellants, who was, at that time the
ffia!lager of a joint Hindu family, consisting of himself and his sons, executed a mortgage bond in favour
of Mst. Naraini, the original respondent No. l, and
another person named Talok Chand, by which certain
movable
properties
belonging
to
the
joint family
were hypothecated to secure a loan of Rs. 16,000.
On
April 16, 1928, the appellants along with a minor brother of theirs named Sumer Chand filed a suit-being
Suit No. 23 of 1928-in the Court of the Subordinate
Judge of Shahjahanpur against their
father
Baldev
Das for partition of the joint family properties\ The
suit culminat:ed in a final decree for partition on 20th
July, 1928, and the joint family properties were divided by
metes and
bounds
and separate
possession
was taken by the father and the sons. On 29th September, 1934, Mst. Naraini filed a suit in the Court of
the Senior Subordinate Judge,
Ambala,
against Baldev
Das for recovery of a sum of R&. 12,500 only on the
basis of ·the mortgage bond referred to above. It was
stated in the plaint that the money was borrowed by
the defendant as manager of a joint Hindu family and
the plaintilf prayed for a decree against the mortgaged
propert)i as well as against the joint family. On 18th
December, 1934,
the appellants made an application
before the Subordinate Judge under Order I, Rule 10,
and Order XXXIV, Rule 1, Civil Procedure Code, praying that they might be added as parties defendants
to the suit and the points in ~sue arising therein might
be decided in their presence.
It was
asserted in the
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S.C.R.
SUPREME COURT REPORTS
547
petition that Baldev Das was not the manager of a
joint family and that the family properties had been
partitioned by a decree of the court, as a result of
which the properties alleged tlo Pe the subject-matter
of the mortgage were allotted to the share of the petitioners.
In reply to this petition, the plaintiff's counsel stated in court on 7th February, 1935, that his
client would give up the claim for a mortgage decree
against the properties m suit and would be satisfied
only with a money decree against Baldev Das personally. The plaint was amended accordingly, deleting
all refetence to the joint family and abandoning the
claim against
the
mortgaged
property. Upon this
the appellants withdrew their application for being
made parties to the suit and reserved their right to
take proper legal action if and when necessary. On
AprN 17, 1935, Baldev Das died and on 2nd September
following the appellants as well as their mother, who
figures as respondent No. 5 m this appeal, were
brought on the record as legal representatives of Baldev Das. On October 9, 1935, the appellants filed a
written statement m which a number of pleas were
taken in answer to the plaintiff's claim and it was
asserted m paragraph 10 of the written statement
that Baldev Das
dealt Badri or speculative transacuons, and if any money was due to the plaint·
iff at
all
m
connection
with
such
transactions
the debt was illegal and immoral and not binding
on the
family
property. On the
same
day
the
court recorded an order to the effect that as the plaintiff had given up her claim for a mortgage decree,
the legal representatives of the deceased could not be
allowed to raise pleas relating to the validity or otherwise of the mortgage. On 20th November, 1935, the
parties arrived at a compromise and on the basis of
the same, a simple money decree was passed in favour
ci the plaintiff for the full amount claimed in the suit
together with half costs amounting to Rs. 425 annas
odd against the estates of Baldev Das m the hands of
his
legal
representatives. After
certain
attempts at
execution of this decree which did not prove successful.
1952
Pannalal
and Another
v.
Mst. Naraini
and Others.
Mukheriea /.
1952
Pannalal
and Another
v.
Mst, Naraini
and Others.
Mukheriea }.
548
SUPREME COURT REPORTS
[1952]
the present application for execution was filed
by
the decree-holder on March 13, 1945, in the court of
the Senior Subordinate fudge, Ambala, and in accordance with the prayer contained therein, the court
directed the attachment of certain immovable properties consisting of a number of shops in possession of
the appellants and situated at a place called Abdullapur. On April 23, 1945, the appellants filed objections
under section 47, Civil Procedure Code, and they opposed the
attachment of the properties substantially
on the ground that those properties did not belong to
Baldev Das but were the separate and exclusive properties of the objectors which they obtained on partition with their father long before the decree was
passed. It was
asserted
that these properties could
not be made liable for the satisfaction of the decretal
dues which had to be realised under the terms of the
decree itself from the estate left by Baldev Das.
After hearing the parties and the evidence adduced
by them the Subordinate fudge came to the conclusion ,that there was in fact a partition between Baldev
Das and his sons in the year 1928 and as a result of
the same, the properties, which were attached at the
instance of the decreeholder, were allotted to the share
of the sons. The decree sought to be executed was
obtained after the partition, but it was in respect of
a debt which was contracted by the father prior to it.
It was held m these circumstances that the separate
share of the wns which they obtained on partition
was liable under the Hindu law for the pre-partition
debt of their father if it was not immoral and under
section 53 of the Civil Procedure Code the decreeholder was entitled to execute the decree against such
properties. As no point was raised by the objectors
m their petition alleging
that the debt covered by
the decree was tainted wi:th immorality, the objections
under section 47, Civil Procedure Code, were dismissed.
The objectors thereupon took an appeal to the High
Court of East Punjab which was heard by Rahman J.
sitting
singly.
The learned
Judge
dismissed
the
appeal and affirmed the decision of the Subordinate
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S.C.R.
SUPREME COURT REPORTS
549
Judge. A further appeal taken to a Division Bench
under the Letters Patent was also dismissed and it is
the propriety of the judgment of the Letters Patent
Bench that has been challenged before us m this
appeal.
Mr. Kunzru appearmg for the appellants put for1952
Pannalal
and Another
v.
Mst. Naraini
and Others.
ward a three-fold contention in support of the appeal.
Mttkherjea /.
He contended m the first place that under the terms
of the compromise decree the decreeholder could proceed only against the properties of Baldev Das in the
hands of his legal representatives and no property
belonging to the appellants could be made liable for
the satisfaction of the decree. The second contention
put forward is that as the decree in the present case
was obtained after particion of the joint fami:ly property between the father and his sons, the separate
property of the sons obtained on partition was not
liable under Hindu law for
the debt of the father.
It is urged that of all that i!n any event if there was
any pious obligation on the part of the sons to pay
the father's debt incurred before partition, sudh obli~
gation could be enforced against the sons, only m a
properly constituted suit and not by way of execution
of a decree obtained m a suit which was brought
against the father
alone during hi1> lifetime and to
which the sons were made parties only as legal representatives after the father's death.
As regards the first point, the determination of the
question raised by Mr. Kunzru depends upon the
construction to be put upon the terms of the compromiise decree. The operative portion of the decree as
drawn up by the court S,tands as follows:
"It IS
ordered
that the parties
having compromised, a decree in accordance with the terms of the
compronnse be and the same Is hereby passed m
favour of the plaintiff against the estate of Baldev
Das deceased in po~isession of his ite~l 1repre~ntarives.
It is also ordered that'. the defendants do also pay
Rs. 425-7-0, half costs of the suit."
1952
Pannalal
•nd Another
v;
Mst. N 11r<lini
and Others.
Muk_herjea /.
550
SUPREME COURT REPORTS
[1952]
There was no petition of compromise filed by the
parties and made part of the decree, but there are on
the record two sitatements, one made by Pannalal, the
appellant No. 1, on behalf of himself and his mother,
and the other by Lala Haraprasad, the special agent
of the plaintifl, setting out terms of the compromise.
The terms are worded much in the same manner as in
the decree itself and are to the effect that a decree for
the amount in suit together with half costs would be
awarded against the property of Baldev Das deceased.
It is argued by Mr. Kunzru that the expression "estate
of Baldev Das deceased"
occurring in the decree must
mean and refer to the property belonging to Baldev
Das at the date of his death and could not include
any property which the sons obtained on partition
with their father during the father's lifetime and in
respect of which the latter possessed no interest at the
time of his death. Stress is laid by the learned counsel in this connection on the fact that when the
appellants were brought on the record as legal representatives of their deceased father in the mortgage
suit, they specifically asserted in their written statement that there was a partition between them and
thel.r father long before the date of the suit as a result
of which the h ypothecated properties were allotted to
them. Upon
that the plaintiff
definitely
abandoned
her claim to a mortgage decree or to any relief against
the joint family and agreed finally to have a money
decree executable against the personal assets of Baldev
Das in the hands of his heirs.
In these circumstances,
it is urged that if it was the intention of the parties
that the decreeholder would be entitled to proceed
against the separate property of the sons nothing could
have been easier than to insert a provision to that
effect in the compromise decree. There is undoubtedly
apparent force in this contention but there is another
aspect of the question which requires consideration.
The terms of the decree that was passed in this suit,
though based on the consent of the parties, are precisely the same as are contemplated by section 52 (1) of
the Civil Procedure Code. It was a decree for money
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S.C.R.
SUPREME COURT REPORTS
551
passed against the legal representatives of a deceased
debtor and it provided expressly that the decretal
amount was to be realised out of the estate of the
deceased in the hands of the legal representatives. It
is argued on behalf of the respondent, and we think
rightly, that as the decree fulfils the conditions of
section 52(1) of the Civil Procedure Code, it would
attract all the incidents which attach by law to a
decree of that character. Consequently the decreeholder would be entitled to call in aid the provision of
section 53 of the Code; and if any property in the hands
of the sons other than what they received by inheritance from their father, is liable under the Hindu law to
pay the father's debts, such property could be reached
by the decreeholder in execution of the decree by virtue
of the provision of section 53 of the Civil Procedure
Code. Whether the property which the sons obtained
on partition during the lifetime of the father is liable
for a debt covered by a decree passed after partition
and whether section 53 has at all any application to
a case of this character are questioru which we have
to determine m c'onnection with the second and the
third points raised by appellants. Section 53, Civil
Procedure Code, it is admitted, being only a rule of
procedure, cannot create or take away any substantive
right. It is only when the liability of the sons to pay
the debts of their father in certain circumstances exists
under the Hindu law, is the operation of the section
attracted and not otherwise. The only other question
that can possibly arise by reason of the decree beiQg_
a compromise decree is, whether the parties iihemselves
have,
by agreement,
excluded the operation of section
53,
Ciivil Procedure Code. It is certainly possible for
the parties to agree among themselves that the decree
should be executed only against a particular property
and no other, but when any statutory right is sought
to be contracted out, it is necessary that express words
of exclusion must be used. Exclusion cannot be inferred merely from the fact that the compromise made
no reference to such right. As nothing was said in
the compromise decree in the Dresent case about the
1952
PannalaZ
and Another
v.
Mst. Naraini
and Otllers.
MukJ1eriea /.
1952
Panna/al
and Another
v.
M st. N araini
and Others.
552
SUPREME COURT REPORTS
[1952]
right of the decreeholder to avail herself of other provisions of the Code which might be available to her in
law, we cannot say that the plaintiff has by agreement
expressly given up thO;Se rights. The first point, therefore, by itself is of no assistance to the appellants.
We now come to the other two points raised by Mr.
Mukhcrica /.
Kunzru and as they are inter-connected they can conveniently be taken up together. These points involve
consideration of the somewhat vexed questlion relating
to the liabifoy of a son under the Hindu law other
than that of the Daybhag school to pay the debts of
his
father,
provided they are not tainted with immorality. In the opinion of the Hindu Smriti writers,
debt is not merely a legal obligation, but non-payment
of debt is a sin, the consequences of which follow the
debtor even after his death. A text (1), which is attric
buted to Brihaspathi, lays down:
"He who having received a sum lent or the like does
not repay it to the owner, will be born hereafter in the
creditor's house a slave, a servant, a
woman
or a
quadruped."
There are other text-' which say that a person in
debt goes to hell.
Hindu law-givers therefore imposed a pious duty on the descendants of a man including
his son, grandson and great grandson to pay off the
debts of their ancestor and relieve him of the afterdeath
torments
con$equent on non-payment. In the
original texts a difference has been made in regard to
the obligation resting upon sons, grandsons and great
grandsons in this respect. The son is bound to discharge the ancestral debt as if it was his own, together
with interest and irrespective of any assets that he
might have · received. The liability of the
grandson
is much the same except that he has not to pay any
interest; but in regard to the great grandson the liabi~
lity arises only if he received assets from his ancestor.
It is now settled by judicial decisions that there is no
difference as between son, grandson and great grandson
so far as the obligation to pay the debts of the ancestor· js, concerned; but none of them has any personal
(1) Vide Co\ebrooke's Digest I, 228.
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S.C.R.
SUPREME COURT REPORTS
553
liability m the matter
irrespect~ve of
receiving any
assets (1). The position, therefore, is that the son is
not personally liable for the debt of his father even if
the debt was not incurred for an immoral purpose and
the obligation is limited to the assets received by him
in his share of the joint family property or to his
interest in such property and it does not attach to his
self-acquisitions. The duty being religious or moral, it
ceases to exist if the debt is tainted with immorality
or vice. Acmrding to the text writers, this obligati'on
arises normally on the death of the father ; but even
during the farher's lifetime the son is obliged to pay
his fat!her's debts in certain exceptional cilrcumstances,
e.g., when the father is afflicted with disease or has
become insane or too old or has been away from his
country .for a long time or has suffered civil death by
becoming an anchorite (2). It can now be taken to be
fairly well settled that the pious liability of the son to
pay the
debt.~ of his father exists whether the father
is alive, or dead (3). Thus i.t is open to the father,
during his lifetime, to effect a transfer of any joint
family property including the interests of his sons in
the same to pay off an antecedent deb~ not incurred
for family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor
to obtain a decree against the father and in execution
of the same put up to sale not merely the father's but
also the son's interest in the joint estate. The creditor
can make the sons parties to such suit and obtain an
adjudication from the court that the debt was a proper debt payable by the sons. But even if the sons
are not made parties, they cannot resist the sale unless
they succeed in establishing that the debts were contracted for immoral purposes. These propositions can
be said to be well recognised and reasonably beyond
thr region of controversy( 4). All of them, however,
(1) Vi de Masitul!ah v. Damodar Prasad, 53 I.A. 204.
(2J Vi de Mayne's Hindu Law, 11th edition, p. 408.
(3) Vide Bnj Narain v. Mang/a Prasad, 51I.A.129.
(4) Vide Girdltarec? Lall v. Kantoo Lall, 1 I.A. 321 : Maddan Tltakoor v.
Kmitoo Lall, I I.A. 333; Suraj Bumi v. Sheo Prasad, 6 I.A. 88, Brij Narain v.
Mang/a Prasad, 51 I. A. 129.
1952
Pannalal
and Another
v.
Mst. Naraini
and Others .•
Mukher;ea /,
1952
PannaJal
an.d Another
v.
Mst. Naraini
and Others.
Muk_herjea /.
554
SUPREME COURT REPORTS
[1952]
have reference to the period when the estate remains
jomt and there is existence of coparcenership between
the father and the son. There is no question that
so long as the family remains undivided the father
is entitled to alienate, for satisfying his own personal debts not tainted with immorality, the whole
of the ancestral estate. A creditor ils also entitled to
proceed against the entire estate for recovery of a debt
taken by the father. The position is somewhat altered when there is a disruption of the joint family by
a partition between the father and the sons. The question then arises, whether the sons remain liable for the
debt of the father even after the family is divided; and
can the creditor proceed against the shares that the
sons obtain on partition for realization of his dues
either by way of a suit or in execution of a decree
obtained against the father alone? It must be admitted
that the law on the subject as developed by judicial
decisions has not been always consistent or uniform
and the pronouncements of some of the Judges betray
a lack of agreement in thefu- approach to the various
questions involved in working out the law.
As regards debts contracted by the father after
partition, there $. no dispute that the sons are not liable
for such debts. The share which the father receives on
partition and which after his death comes to his sons,
may certaJcly, at the hands of the 1atQer, be available
to the creditors of the father, but the shares allotted
on partition to the sons can never be made liable for
the post-partition debts of the father (1). The question
that ~ material for our present purpose is, whether the
sons can be made liable for an unsecured debt of the
father incurred before partition, in respect to which
the creditor filed his suit and obtained decree after the
partition took place. On this point admittedly there
is ditvergence of judicial opinion, though the majority
of decided cases are in favour of the view that the
separated share of a son remains liable even after
partition for the pre-partition debts of the father which
II) Vide Mayne's Hindu Law, I !th Edition, 430.
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S.C.R.
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555
are not illegal or immoral(1).
The reasons given in support of this view by different Judges are not the same
and .on the other side there are pronouncements of
certain learned Judges, though few in number, expres~
sing the view that once a partition takes place, the
obligation of the sons to discharge the debts of their
father comes to an end (2).
The minority view proceeds upon the footing that
the pious obligation of ·the son is only to his father
and corresponding to this obligation of the son the
father has a right to alienate the entire joint property
including the son's interest therein for satisfaction of
an antecedent debt not contracted for immoral purposes. What the creditor can do is to avail himself of
this right of the father and work it out either by suit
or execution proceedings ; in other words, the remedy
of a father's simple contract creditor during the father's
lifetime rests entirely on the right of the father himself to alienate the entire family property for satisfaction of his personal debts. The father loses this right
as soon as partition takes place and after that, the creditor cannot occupy a better position or be alJowed to
assert rights which the father himself could not possess .
The reasoning in support of the other view which
has been accepted in the majority of the decided cases
is thus expressed by Waller J. in his judgment in the
Madras Full Bench case(3) :
.
"On prindple, I can see no reason why a partition
should exempt a son's share from liability for a prepartition 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 trans--
action to which he was not a party and of which he
(I) Vide Subramanya v. Sabapathi. 51 Mad. 361 (F. B.);Annabatv.
Saivappa, 52 Born. 376; Jawahar Singh v. Parduman, I 4 Lah. 399· Atul
Krishna v.
Lala Nandanji, 14 Pat.
732 (F.B.);· BankeyLalv. Dttrga
Pra;ad, 53 All 868 (F.B.); Raghunandan v. Matiram,6 Luck. 497 (F.B.).
(2) Vide Krishnaswamiv. RamasW01f1i, 22 Mad 519,
V. P. Venkanna
v. V. S. Deefc.;hatu/u 41 Mad 136 V1dealso the dissemient judgment of
Ayyanga J. in Sabramanya v. Sabapathi, 51 Mad. 361 (F.B.).
(3) Vide Suhramanya v. Savapu1h1; 51 Mad. 361at369 (F.B).
6-6 SC India/71
1952
Pannalal
and Another
v.
Mst. Narainz
and Others.
Mukherjea /.
1952
Pannalal
and Another
v.
Mst. Naraini
and Others.
Mukherjea f.
SUi>REME COURT REPORTS
[1952]
Was not aware ? and what becomes of the son's pious
obligation? It was binding as regards the particular
debt before partition ; does it cease to apply to that
debt simply because there has been a partition?"
The first part of the observation of the learned Judge
does not impress us very much. An unsecured creditor,
who has lent money to the father, does not acquire any
lien or .charge over the family property, and no question
of his security being diminished, at all arises. In spite
of his having borrowed money the father remains
entitled· to alienate the property and a mere expectation
of the creditor however reasonable it may be, cannot
:be guaranteed by law so long as he does not take steps
necessary in law to give him adequate protection.
·The_ extent of the pious obligation referred to in the
latter part of the observation of the learned Judge
certainly requires careful consideration. We do nat
·think that it is quite correct to say that the creditor'!
claim is based entirely upon the father's power of
dealing with the son's interest in the joint . estate. The
father's right of alienating the family property for
payment of his just debts may be one of the consequences of the pious obligation which the Hindu law
imposes upon the sons or one of the·_means of enforcing
it, but it is certainly not the measure of the entire
obligation.
As we have said already, according to the
strict Hindu theory, the obligat1Qn of 'the sons to pay
the father's debts normally arises when the father is
dead, drsabled or unheard of for a long time. No question of alienation of the family property by the father
arises in these events, although it is precisely under
these circumstances that the son is obliged to discharge
the debts of his father. As was
said by Sulaiman
A. C. J. in the case of Bankey Lal v. Durga Prasad(') :
"The Hindu law texts based the liability on the
pious · obligation itself and not on the father's power
to <sell the son's share."
It is thus necessary to see what exactly is the extent
of the obligation which is recognised by the Hindu
(I) (1931)"53 All. 868 at 876 (F.B.).
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S.C.R.
SUPREME COURT REPORTS
557
texts writers in regard to the payment by the son of
the pre-partition debts of his father. Almost all the
relevant texts on this point are to be found collected
in the ju,dgments of Sulaiman A C.J. and Mukherji J.
in the Allahabad Full Bench case referred to above.
A text of Narada recites (1) :
"What is left after the discharge of the father's
ooligation and #ter the paymerit of the 'f:ilther's debts
shall be divided by the brothers so that the father
may not remain a debtor."
Katyan also says (2) :
"The sons shall pay off the debts and the gifts
promised by the father and divide the remaining among
themselves."
There is a further passage in Manu (3 ) :
"After due division of the paternal estate if any
•·
debt or estate of the father be found out let the brothers
equally divide the same among themselves."
According to Yagnavalka (4) :
"The sons should divide the wealth and the debts
equally."
It is true that the partition contemplated in these
passages is one after the death. of_ the father, but whenever the partition might take place, the view of the
Hindu law gives undoubtedly is that the binding debts
on the family property would have to be satisfied or
provided for before the coparceners can divide the property.
In Sat Narat~n v. Das(5), the Judicial Committee
pointed out thait when the family ;esta.te iis divided, .it
is necessary to take account of both the assets and the
debts for which the undivided estatl\'. is liable. It was
argued in that case on behalf of the appellants that
the pious obligation of the sons was an obligation not
to object to the alienation of the joint estate by the
(I) Narada, 13,32.
(2) Hindu Law in its Sources by Dr. Ganga Nath Jha, Vol. l, p.
202 quotation No. 21 l.
.
(3) Chap. 9. v. 218.
(4) J.C. Ghosh's Hindu Law, Vol. II, page 342.
(5) (1936) 63 I A. 384.
72
1952
Pannalal
and Another
v.
Mst. Naraini
and Others.
Mukherjea J.
1952
Pannalal
and Another
v.
Mst. Naraini
Rnd Others.
Mukherjea /.
558
SUPREME COURT REPORTS
[1952]
father for
his · antecedent debt
unless
they
were
immoral or illegal,
but these debts were not a liability
on the joint estate for which provision was required
to be made before partition. This contention did not
find favour with the Judicj,,J Committee and in their
opinion, as they expressed in the judgment, the right
thing to do was
to make provision for discharge of
such liability when there was partition of the joint
estate. If there is no such prov1S1on, "the debts are
to be paid severally by all the sons according to their
shares of inheritance," as enjoined by Vishnu('). In
our opinion, this. is the proper view to take regarding
the liability of the sons under Hindu law for the prepartition debts of the father. The sons are liable to
pay these debts . even after partition unle.<;s there was
an arrangement for payment of these debts at the
time when the partition took place. This is substantially the view taken by the Allahabad High Court m
the Full Bench case referred to above and it seems to
us to be perfectly m accord with the principles of
equity and justice.
The question now comes as to what is meant by an
arrangement for payment
of debts. The expressions
"bona fide"
and "mala fide"
partition seem to have
been frequently used m this connection in vanous
. decided cases. The use of such expressions far from
being useful does not unoften lead to error and confusion. If by mala fide partition is meant a partition
the object of which is to delay and defeat the creditors
.who · have
claims upon the joint family
property,
obviously this · would be a fraudulent transaction not
binding in law and it would be open to the creditors
to avoid it by appropriate means. So also a mere
colourable · partition not meant to operate between the
parties can be ignored and the creditor can enforce his
remedies as if the parties still continued to be joint.
But a partition need not .be mala fide in the sense that
the dominant intention. of the parties was 'to defeat
the claims of the creditors; if it makes no arrangement
or provision for the payment of the just debts payable
(1) Vishnu, Chap. 6, verse 36.
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S.C.R.
SUPREME COURT REPORTS
S.59
1952
out of the joint fami'ly property, the liability of the
sons for payment of the pre-partition debts of the
Pannalal
father will still remain. We desLre only to point out
and Another
that an arrangement for payment of debts does not ,
v.
necessarily imply that a separate fund should be set
Mst. Naraini
apart for payment of these debts before the net assets
and Others.
are divided, or that some additional property, must be
given to the father over and above his legitimate share
sufficient to meet the demands of his credit:ors. Whether
there is a proper arrangement for payment of the debts
or not, would have to be
dec~ded on the facts and
circumstances of each individual case. We can conceive of cases where the property allotted to the father
in his own legitimate share was constdered more than
enough for his own necessities and he undertook to
pay off all his personal debts and release the sons from
their obligation in respect thereof. That may also be
considered to be a proper arrangement for payment of
the creditor in the circumstances of a particular case.
After all the pfiimary liability to pay his debts is upon
the father himself and the sons should not be made
liable if the property in the hands of the father IS
more than adequate for the purpose. If the arrangement made at the time of partition Js reasonable and
proper, an unsecured creditor cannot have any reason
to complain. The fact that he IS no party to such
arrangement is, in our opinion, immaterial. Of course,
if the transaction is fraudulent or is not meant to be
operative, it could be ignored or set aside ; but otherwise it is the duty of unsecured creditor to be on hi~
guard lest any family property over which he has no
charge or lien is diminished for purposes of realization
of his dues.
Thu~, in our opinion, a son Is liable, even after
partition for the pre-partition debts of his father which
are not immoral or illegal and for the payment of
which no arrangement was made at the date of the
partition. The question now is, how Is this liability
to be enforted by the creditor,
either during the life-
>..
time of the father or after his death? It has been held
7-6 S. C, Inda/71
.
.
Mukherjea /.
1952
Pannalal
and Another
y;
Mst. Naraini
and Others.
Mukherjea /.
560
·SUPREME COURT REPORTS
[1952]
in a la;ge number of cases(' )-all of which recognise the
liability of the son to pay the pre-partition debts of
the father-that a decree
against the father alone
obtained after partition in respect of such deht cannot
be executed against the property that is allotted to
the son on partition. They concur in holding that a
separate
and
independent
suit
must be
instituted
against the sons before their shares can be reached.
The principles underlying these decisions seems to us
to be quite sound. After a partition takes place, the
father can no longer represent the family and a decree
obtained against him alone,
cannot he hinding on the
separated sons.
In the second place, the power exercisable by the father of selling the interests of the
sons for sati,sl'action of his personal debts comes to an
end with partition. As the separated share of the sons
cannot be said to belong
to the father nor has he any
disposing power over it or its profits which he can
exercise for his benefit,
the provision
of section 60 of
the .Civil Procedure Code would operate as a bar to the
attachment and sale of any such property in execution
of a decree against the father. The position has been
correctly stated by the Nagpur High Court(2) in the
following passages :
"To say a son is under a pious obligation to pay
certain debts is one thing;
to say his property can be
taken in execution is another. In our view,
property
can only be attached and sold in execution if it fa1ls
within the kind of property that can be attached and
sold. What that is, is found by looking at section 60.
When one looks at section 60 one finds that the property
in question should either belong to the judgment-debtor
or he should have a disposing power over it. After partition, the share that goes to the son does not belong to
the father and the father has no disposing power over
it. Therefore such property does not fall within section
60. . . . . . It by no means follows that a son cannot
(1) Vi de KamesWaramma~v. Venkatasubba. 38 Mad. 1120; Subramanya
v. Subapathi,
51
Mld.
36l;~Thirumal; Muthuv. Subramania, A.l.R.
1937 Mad. 458; Surajmaf v. Mottram, 1939 .Born. 658, Atul Krishna v. Lala
Nandal!fi, 14 Pat. 732; Govindram v. Nathulal, I. J •. R 1938 Nag. 10.
(2) Joi•aray•n v. Sona}f, A.LR. 1938 N•i· 24 at 29.
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561
be made liable. He could be made Ii.able for his father's
debts if he had become a surety; he can be made
liable under the pious obligation rule.