Bavdekar, J. - (1.) THIS is an appeal from a suit filed by the appellant to recover possession of certain lauds which he had purchased in execution of a decree which he had obtained against one Sahebrao Patil, the father of the respondent. It is no longer in dispute that at the time when the appellant obtained the decree against Sahebrao, Sahebrao and his two minor sons, one of whom subsequently died, were members of a joint Hindu family, Under the view of this Court, which has differed in this regard with other High Courts in India, the whole of the joint family property including the sons' interest therein was liable to be brought to sale in execution of the decree against Sahebrao, notwithstanding any partition which may have taken place after the date of the decree. It appears that after the date of the decree the appellant brought to sale the whole of the joint family property and himself purchased it in execution, the sons, who were minors, not having appeared to contest the execution. But, in the meanwhile, the sons who were minors brought a suit for partition against their father, and as a result of this suit they obtained a decree. The suit from which the present appeal arises was brought by the plaintiff for possession of the property which he had purchased in execution of his own decree, and to this suit he made one of the minor sons a party, the other having died prior to the filing of the suit. The respondent, the other minor son, took up a contention that the debt in respect of which the joint family property was sold was contracted by Sahebrao for an illegal and immoral purpose and the decree in that suit and the auction sale in execution were not binding on his share in the properties. He also contended that the auction sale was affected by the principle of lis pendens. Upon this point the defendant failed, and the learned trial Judge came to the conclusion that the plaintiff-appellant purchased in the execution sale only the one third interest of the father, because prior to the sale there had been effected a partition between the father on the one hand and the sons on the other by the filing of the suit. By partition, of course, the learned trial Judge meant a severance of the status of the joint family. He held that consequently the minor sons should have been made parties to the execution proceedings and inasmuch as the plaintiff-appellant had failed to do so, all that passed by the execution sale was one-third interest of the father. In doing so, he has followed the decision of a single Judge of this Court in Sur ajmal Deoram v. Motiram Kalu, 41 Bom, L. B. 1177: (A. I. R. (27) 1940 Bom, 22) and when the appellant went in appeal to the learned District Judge, the learned District Judge relying upon the same case dismissed the appeal.
(2.) THE plaintiff-appellant has come in second appeal, and this matter has now referred to us because subsequent to the decision in Suraj mal's case, 41 Bom. L. R. 1177 : (A. I. R. (27) 1940 Bom. 22) there was reported a case, again of another single Judge, in Tammanji Govind v. Abdul Rahim, 47 Bom. L. R. 884 : (A. I. R. (93) 1946 Bom. 105 ). It was held in that case that members who are united at the time a joint family liability is incurred were not absolved from their liability by the fact that they had become subsequently divided. Consequently, an objection by the sons that they had not been parties to the execution proceedings, and consequently the Court was not entitled to sell their interest was not maintainable. Now, the proposition of Hindu law that in a joint Hindu family governed by the Mitakshara and consisting of a father and sons the whole of the joint family property is liable for the father's debts provided they are not tainted by illegality or immorality may now be taken to have been established beyond any possibility of dispute, and all the High Courts have held unanimously that where the sons and the father CONtinue to be joint, the creditor may sue the father alone and obtain a decree against him, and he may execute the decree not only by attachment and sale of the interest of the father but also by attachment and sale of the entire interest of the father as well as the sons in the joint family property, and the sons will be bound, though they were not made parties to the suit or to the execution proceedings unless the debt was contracted by the father for an immoral or illegal purpose. The sons are entitled to intervene both before the sale and after the sale, and in case they show that either there was no debt of the father or it being assumed that there was no partition there was a debt but it was incurred for an immoral or an illegal purpose, then the sale will not bind their interest. The difference is as to what happens in case the creditor having obtained a decree against the father when the father and the sons are still joint the SONS separate after the obtaining of the decree. One view has been that in such a case the creditor must bring another suit against the sons, obtain a decree against them which would be limited to the shares allotted to them on partition, and then attach and sell the shares, unless the partition was made with intent to defraud the general body of creditors, in which case the decree may be executed against the joint family property, But the other view which, as I said above, has been established now in this Court is that if there is a partition after the decree the decree may be executed notwithstanding the partition against the whole of the family property including the sons interest therein. To an application for execution in such a case the sons are obviously proper parties, and if they are made parties and after hearing their contentions as to whether their interest should or should not be sold the property is gold, then the sons will be bound by the sale. If on the other hand, after hearing their contentions the Court comes to the view that the sons' interest was not liable to be sold in execution, then the sons' interest will not be sold. The question which has been raised in the presant appeal is what happens in case after the partition the sons are not made parties to the suit, and the creditor brings to sale nevertheless their Interest, and purchases it himself. Now, in order to determine what happens in such a case it would be worthwhile to examine first why it been held in this Court that a decree obtained before the partition against the father may mevertheless be executed against the sons after the partition, but only provided the sons fail to show that the debt was not binding upon them. The view proceeds on the ground that in the decree which was obtained by the father the sons are represented by the father there having been no partition when the decree was obtained. It has got to be remembered that a creditor can bring to sale interest of the sons in the joint family property because a debt binding upon the father is the liability of the joint estate; Sat Narain v. Srikishen Das, 63 I. a. 384: (A. I. R. (23) 1936 P. C. 277), he cannot bring to sale in execution of a decree for debt incurred by the father even before partition the separate property of the sons. The view which, therefore, has prevailed in this Court is that to the extent that he father can represent the interest of the was the decree obtained when the father and the sons were separate would be taken to have been obtained against them and that means to the extent of the whole of the property of the erstwhile joint family consisting of the father and sons: Chanmallappa v. Vannaji, 45 Bom. L. R. 457: (A. I. R. (30) 1943 Bom. 241 ). It appears to us that if that is the case, than it must follow logically that a decree obtained against the father alone cannot be executed against the sons' interests after partition without making the sons parties to the execution proceedings. It is true that the decree can be executed against their interest; but the question is whether the decree can be executed against their interest without making them parties, and the proposition of law which we regard as very well established is that in case a creditor wants to bring to sale the interest of a particular person, that person must be represented in the execution proceedings. That proposition will be found laid down by their Lordships of the Privy Council in the case of Khairajmal v. Dam, 32 Cal. 296 (32 I. A. 23 P. C. ). It was not a case of at joint Hindu family; nor was it concerned with the case of a decree which had been obtained against the father when the sons were not represented; but what happened in that case was that the lands in that suit were held by the plaintiffs under leases granted by Government for terms of seven years, and renewed from time to time. To a suit brought in 1897 for redemption of the lands which had been mortgaged in 1878 by usufructuary mortgages, the defence was that the defendants were not mortgagees of the property but had purchased it at sales in execution of decrees in 1880-81 which could not be set aside, and that the suit was barred by lapse of time. It appeared, however, that to the proceedings as a result of which the execution sales took place certain persons who had interest in the property were not made parties. Their interest was not represented at all in those proceedings. It was held that the Court had no jurisdiction to sell the property of parsons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees or sales under them were void without any proceedings to set then aside. Now, when a father and the sons are joint, the father is entitled to represent the sons, so far as the joint family property is concerned. It can be said, therefore, that when the family consisting of father and sons is joint, the son's interest will pass notwithstanding the fact that they were not in their individual capacity made parties either to the suit or to the execution proceedings. That is of course, provided the sons are not in a position to show after the sale that there was no debt, or that, if there was a debt, it was incurred by the father for an illegal or an immoral purpose; but the capacity of a manager to represent the family only endures up to the date of the partition. We find no authority whatsoever for the proposition that the manager of a Hindu family can represent the family or can represent the several erstwhile coparceners after the date of a partition in that family, and it seems to us that it makes no difference that the manager is the father and the other coparceners are only his sons. After partition the father cannot represent the interest of the sons any more than a manager who is not a father can represent the interest of the other coparceners. Consequently, in the execution proceedings as a result of which the plaintiff-appellant brought to sale the sons' interest, the sons were not properly represented. It is true that the view has sometimes been taken that the reason why the property of a Hindu son who is under a pious obligation to pay the debts of his father can be brought to sale by a creditor in execution of a decree against the father alone is the fact that the father is entitled under the Hindu law to sell for payment of his own debts which are finding upon his sons not only his own interest but also the interest of the sons in the joint family property and under Section 60, Civil P. C. when a decree has been obtained against the father alone, the sons' interest is not indeed the interest of the judgment debtor, but it is property over which the father, the judgment debtor, has a disposing power which he may exercise for his own benefit; but even where that is the view upon which the sale of the interest of a son in execution of a decree against a father is justified, the father would obviously have no power to exercise for his own benefit that power after partition. For example, in Firm Govindram Dwarkadas, Bombay v. Nathulal, I. L. R. (1938) Nag. 101 (A. I. R. (24) 1937 Nag, 45), it was pointed out that the creditor's power to bring to sale the property owned by the judgment-debtor or in which he has disposing interest is co-extensive with the power of the judgment-debtor to dispose of his property or property over which he has disposing power. It must follow that when the property ceases to be the property of the judgment-debtor or the judgment-debtor loses his disposing power over it, the creditor's power also comes to an end and the decree obtained by him becomes incapable of being executed against it. It is true that the case of Firm Govindram Dwarkadas, Bombay v. Nathulal, (I. L. R. (1938) Nag. 10: A. I. R. (24) 1937 Nag. 45) was concerned with the right of the creditor to execute a decree obtained by him against a Hindu father in a suit to which a son was not made a party and which had been filed after there was a partition effected between the son and the father. But that does not affect in any manner the question of principle and that is upto what time the creditor who is entitled to execute a decree obtained against a father can execute it against his sons, and it was pointed out in that case that the father's power to sell the interest of the son mast be lost by a partition, It was held that it does not follow therefrom that the son's pious obligation to pay the debts incurred by the father before partition also came to an end bat that was an entirely different matter.
(3.) IT is true that Sen J. seems to have been inclined to take a somewhat different view in the case of Tammanji Govind v. Abdul Rahim, (47 Bom. L. R. 884: A. I. R. (33) 1946 Bom. 105 ). That was a case of a morlgaga decree which had been obtained by a mortgagee creditor of the father. The decree was payable by instalments, and while some of the amounts due upon the decree still remained un-recovered from the debtor, one of the sons filed a suit against the father, his brother and his another, the decree-holder and other creditors of the father for partition and a declaration that Govind's debts and his liabilities under the decree were not binding on his share in the joint family property. The partition suit resulted in a decree which gave a declaration that the award decree was binding on the father as well as on the sons. After the date of the decree in this partition suit there was filed by the mortgagee creditor an application for execution against the father only praying that the amount due be recovered by sale of the mortgaged property. A sale was ordered and papers were sent to the Collector, but after the date of the order for the sale and before the property was sold the father died. The sons were brought on the record as the heirs, and they contended that the mortgagee being aware of the decree in the partition suit and the sons not having been made parties to the darkhast filed after the date of the decree he could not proceed against them or their separate shares in the family property. Reliance was placed in support of this proposition upon the decision of the Madras High Court in the case of Venkatanarayana v. Somaraju, I. L. R. (1937) Mad. 880 : (A. I. R. (24) 1937 Mad, 610 (F. B.) ). The creditor relied in support of his contention that he is entitled to bring to sale the sons' interest also on the decision of Lokur J. which I have referred to above in Surajmal Deoram v. Motiram Kalu, 41 Bom. L. R. 1177 : (A. I. R. (27) 1940 Bom. 22 ). Sen J. purporting to follow the case of the Madras High Court held that the members who were united at the time a joint family liability was incurred were not absolved from their liability by the fact that they became subsequently divided, A creditor is entitled to have recourse to every item of the joint family property so long as it is in the hands of the persons who are under the law liable for his debt. When they must be held to be parties to the suit, it is immaterial what the character of the property in their hands is, whether it is still un-divided property or has become separate property by division. In doing so he followed, as I have said above, the view of the Madras High Court in the case of Venkatanarayana v. Somaraju, I. L. B. (1937) Mad. 880 : (A. I. R. (24) 1937 Mad. 610 (F. B.) ). Now, it appears to us with respect that the case before Sen J, did not present any very formidable difficulty. The case was a case upon mortgage deed; the mortgage decree was obtained at a time when the father and the sons were joint. IT is well established again that both a mortgage decree as well as a money decree which had been obtained against the father when he was joint with his sons can be executed not only against the father's interests in the pro-party but also in the sons' interest in the property in execution of the decree after partition that is, I mean, in so far as Bombay is concerned. The sons did not dispute this proposition of the law. Their only contention was that to the darkhast which was filed after the decree in the partition suit the decree-holder has made only the father as a party, and the sons, as a matter of fact, had not been made parties. IT appears to us that the contention of the sons could have been met merely by making the sons parties to the suit. No question of limitation appears to have been raised, inasmuch as if there is a partition after a suit there does not seem to be any period of limitation prescribed for making the sons parties. If there was any objection taken on the ground that the sons ought to have been made parties to the darkhast because after the decree the father was not a person who was entitled to represent the estate and any application to make the sons parties after the objection was taken would be of no avail as on that date a fresh application would be barred, then the objection should have been treated as an objection of limitation. IT could easily have been met under the explanation to Article 182. But so far as the question which was raised, namely, that the sons interest could not be sold was concerned, it could be dealt with by a simple answer that the decree having been obtained when the father and sons were still joint, the sons' interest was liable to be sold in execution after the partition provided the sons were made parties to the suit. I shall now come to the case of Venkata narayana v. Somaraju. I. L. R. (1937) Mad. 880: (A. I. R. (24) 1937 Mad. 610 (F. B.) ). In that case A and his sons B and C were members of an undivided Hindu family. A, for and on behalf of the joint family, purchased certain property which was then subject to a mortgage. Subsequent to the said purchase, the mortgagee brought a suit to enforce the mortgage and impleaded A as the purchaser of the equity of redemption. A represented the joint family in that suit. There was a decree for sale and, in execution of the decree, the mortgagee purchased the property, and on the foot of that purchase filed a suit against A, B and C to recover possession of the property and mesne profits. On the plea raised by B and C that they ceased to have any interest in the property by virtue of a partition effected in the joint family in and by which the property fell to the share of A, they were exonerated from the suit. At the said partition A obtained the said property for himself and on behalf of another son, D (a minor), with whom he continued to remain joint. The trial Court dismissed the suit, but the High Court, on appeal, pronounced judgment on 3rd May 1933, decreeing possession to the plaintiff and directing the ascertainment of mesne profits. A decree for mesne profits was ultimately passed on 3rd April 1935. Two months later A died and in February 1936 an application was filed to recover the amount by sale of the other properties in D's hands. D resisted the suit on the ground that, during the pendency of the above mentioned appeal in the High Court, there was a partition between him and his father A, in and by which the suit property fell to the share of his father, and by reason of the said partition the properties which fell to his share could not be rendered liable in execution on the basis of a decree obtained against his father alone. It was held by the Full Bench that the properties of the joint family in D's hands could be proceeded against in execution.;