1952 (3) TMI 57 - SC - Indian Laws

Court directs rehearing for property liability dispute under Civil Procedure Code Section 47

Pannalal and Ors. Versus Naraini and Ors.

The court set aside the judgments of the lower courts and directed a rehearing by the Subordinate Judge. Appellants were permitted to file a fresh ... - Issues Involved:1. Construction of the compromise decree.2. Liability of the sons for pre-partition debts of the father under Hindu law.3. Enforcement of the liability of sons for pre-partition debts in execution proceedings versus separate suit.4. Application of Section 53 of the Civil Procedure Code.Issue-wise Detailed Analysis:1. Construction of the Compromise Decree:The appellants contended that under the terms of the compromise decree, the decree-holder could only proceed against the properties of Baldev Das in the hands of his legal representatives, and not against the properties belonging to the appellants. The operative portion of the decree stated: 'It is ordered that the parties having compromised, a decree in accordance with the terms of the compromise be and the same is hereby passed in favour of the plaintiff against the estate of Baldev Das deceased in possession of his legal representatives.' The court noted that the terms of the decree, though based on the consent of the parties, were similar to those contemplated by Section 52(1) of the Civil Procedure Code. Consequently, the decree-holder could invoke Section 53 of the Code, which allows the execution of the decree against properties in the hands of the sons if they are liable under Hindu law for the father's debts. The court concluded that the compromise decree did not expressly exclude the operation of Section 53, Civil Procedure Code.2. Liability of the Sons for Pre-partition Debts:The court examined the Hindu law principles regarding the liability of sons to pay the debts of their father. It was established that the son is not personally liable for the father's debts, but his share in the joint family property is liable unless the debt is tainted with immorality. The court noted that the pious obligation of the son to pay the father's debts exists whether the father is alive or dead, and this obligation extends to debts incurred before partition. The court referred to various judicial decisions and Hindu law texts to support the view that the sons' shares obtained on partition remain liable for the pre-partition debts of the father if no arrangement was made for the payment of these debts at the time of partition.3. Enforcement of Liability in Execution Proceedings versus Separate Suit:The court addressed whether the liability of the sons for pre-partition debts could be enforced in execution proceedings or required a separate suit. It was held that after partition, the father could no longer represent the family, and a decree obtained against him alone could not bind the separated sons. However, if the sons were made parties to the suit as legal representatives of their father, the decree could be executed against them under Section 47 of the Civil Procedure Code. The court emphasized that the sons should be given an opportunity to show that they are not liable for the debts under Hindu law, and this could be done in execution proceedings.4. Application of Section 53 of the Civil Procedure Code:Section 53 of the Civil Procedure Code provides that for the purposes of Sections 50 and 52, property in the hands of a son or other descendants, which is liable under Hindu law for payment of the debt of a deceased ancestor, shall be deemed to be property of the deceased. The court noted that Section 53 was intended to enable decree-holders to proceed in execution against the property that vested in the son by survivorship after the father's death. The section is comprehensive enough to include all cases where a son is in possession of ancestral property liable under Hindu law to pay the father's debts. The court concluded that the remedy of the decree-holder against such property lies in the execution proceedings and not by way of a separate suit.Conclusion:The court set aside the judgments of the lower courts and directed that the case be reheard by the Subordinate Judge. The appellants were allowed to file a fresh petition of objection under Section 47 of the Civil Procedure Code, raising points regarding their liability for the decretal debt. The court emphasized that the executing court should determine whether the property attached is ancestral and liable for the father's debts, considering whether the debts are illegal or immoral and whether any arrangement was made at the time of partition for payment of the debts. The court also suggested that if the appellants are found liable, the executing court could order that the decree-holder first proceed against the separate property of the father before executing against the ancestral property in the hands of the appellants. There was no order for costs up to this stage, and further costs would follow the result.