JUDGMENT
Banerji, J.
1. The circumstances which have given rise to the suit in this case are these. One Pemi, with his five sons, formed a joint Hindu family governed by the Mitakshara law, owning a share in a grove which has been found to be the ancestral property of the joint family. He and his brother, since deceased, borrowed some money from Bhawani Pre gad, the appellant, and for the amount so borrowed they executed a simple mortgage of the grove in favour of Bhawani Prasad. Bhawani Prasad brought a suit on his mortgage, making Pemi and the legal representative of his brother the only defendants to the suit, and on the 23rd of February 1892 he obtained a decree for the sale of the mortgaged property under Section 88 of the Transfer of Property Act, 1882. On his applying under Section 89 of the Act for an order absolute for sale, three of the sons of Pemi. the respondents to this appeal, objected to the making of the order. Their objection having been disallowed, they brought the present suit claiming a declaration that their interests in the mortgaged property were exempt from liability for the decree. The main ground of their claim was that they were not parties to the suit in which the decree was passed. They did not deny the fact of the debt, and they did not allege that the debt was incurred by Pemi for immoral or impious purposes. The Court of First Instance dismissed the suit, on the ground that the plaintiffs had not even asserted, much less proved, that the debt of their father was tainted with immorality. On appeal, the Lower Appellate Court set aside the decree of the Munsif and decreed the claim, holding that, as the plaintiffs were not joined as parties to Bhawani Prasad’s suit, the decree obtained by him was not capable of execution as against their interests in the mortgaged property.
2. The correctness of this decision has been assailed in this second appeal, and the question which we have to consider upon this reference to the Full Bench is substantially this: Whether the plaintiffs can succeed in their suit on the solitary ground that they were not parties to Bhawani Prasad’s suit against their father, or they must also establish, either that their father did not incur any debt, or that the debt was one which by reason of their pious obligation as Hindu sons they were not legally bound to pay.
3. The question is one of difficulty, and my difficulty in considering it has been enhanced by reason of certain observations contained in the judgment of the learned Chief Justice in the case of Badri Prasad v. Madan Lal I.L.R. 15 All. 75, which, it is said, have practically decided it. At page 83 the learned Chief Justice is reported to have said: “If the plaintiffs in this suit, which was commenced after the Transfer of Property Act, 1882, came into force, having notice that the sons had an interest in the property had omitted to join them, they could have obtained a decree against the father’s interest only and could not have obtained a decree for sale which would have affected the interests of the sons in the mortgaged property.” These observations are not in my judgment conclusive of the question which we have to decide upon this reference. This particular question did not arise nor was it involved in the case of Badrt Prasad v. Madan Lal, and could not consequently be determined in that case. The questions which were considered and decided in that case were, first, whether “the sons in a joint Hindu family could be sued along with their father upon a mortgage bond given by the father alone,” and, secondly, what was the nature of the decree to which the mortgagee was entitled. In dealing with the second question the learned Chief Justice made the observations to which I have referred above, and it seems to me that they were only some of the reasons which induced him to make the decree which was passed in that case. As such, they can only be treated as expressions of opinion and not as a judicial determination of the question now under consideration. My learned brothers KNOX and BLAIR, or either of them, apparently held this opinion when they referred the case to a Bench of three Judges, and had probably some hesitation in accepting the dictum of the learned Chief Justice, otherwise there was evidently no reason for their making that reference. At the hearing of the case before my brothers Blair and Burkitt and
Missing page no. 342 to 343
7. avoid the effect of a decree obtained against his father except on the grounds that the debt in respect of which the decree was passed was not in fact incurred by the father, or, if it was incurred by him and was a subsisting debt, that it was incurred for an immoral and impious purpose. There is no other ground under the Hindu law on which he can avoid liability for the obligation which that law casts on him in respect of his father’s debts. Those are the only grounds on which he could have resisted the creditor’s suit had he been made a party to it, and as the effect of the omission to make him a party to the creditor’s suit was not to render the decree passed in that suit absolutely null and void, but only to relegate the son back to the position in which he was before the suit was brought, I fail to see how he can, after a decree has been passed, urge any plea in respect of the debt which he could not have put forward before the decree. It has been contended that a decree for sale in respect of a mortgage debt stands on a different footing from the debt itself, and that, although a son may be bound to pay a debt to which he was not a party, he can claim exemption from liability for the decree passed in respect of that debt on the sole ground that he was not a party to the suit in which the decree was passed. Assuming this contention to be correct, it must, to be consistent, apply, in the case of a Hindu son governed by the Mitakshara, as much to a simple decree for money as to a decree for the sale of mortgaged property. Both these descriptions of decrees are, it is true, not alike in all their incidents, but their effect as judgment-debts due by the father on the interests of the son in joint ancestral property is, according to their Lordships of the Privy Council, the same. la the case of persons other than Hindus governed by the Mitakshara, a sale held in execution of a simple decree for money obtained against the father alone cannot pass the interests of the son in property owned jointly by the father, and the son, but, in the case of a son to whom the Mitakshara law applies, it cannot, in the face of the decisions of the Privy Council, be contended for a moment that the son can avoid the effect of a sale held in execution of such a decree on his own interests in the ancestral property on the ground that he was not a party to the suit and the execution proceedings. If he cannot do so in respect of a sale held in execution of a simple money decree, he is equally disentitled to do so in respect of a sale held in execution of a decree for sale under a mortgage. It has been held by a Full Bench of this Court in Fateh Chand v. Muhammad Bakhsh I.L.R. 16 All. 259, that a decree for sale under Section 88 of Act No. IV of 1882 is “one form of a decree for payment of a debt” (at page 268). Where such a decree has been passed against the father of Hindu sons governed by the Mitakshara law it is a decree for the payment of a debt of the father, and the obligation which attaches to a son in respect of all debts of the father not tainted with immorality attaches to this debt also. A son cannot therefore be in a better position in respect of a decree for sale than he would be in respect of any other debt of the father. The son’s obligation has, as held by their Lordships of the Privy Council, reference only to the nature of the debt, and is unaffected by the procedure resorted to by the creditor for the enforcement of the debt. It is imposed on him by law by reason of his being the son of his father, and not by reason of a decree having been passed against the father; and, if the debt to which the decree obtained against the father relates is a debt which is binding on the son by reason of his pious obligation as a Hindu son, the, decree so obtained is binding on the interests of the son also. I am not aware of any authority, nor has any been cited to us, for the contention that during the lifetime of the father it is necessary for a creditor of the father to establish the son’s obligation by a suit against the son. The ruling in Lachmi Narain v. Kunji Lal I.L.R. 16 All. 449, which was not cited at the hearing, but which is supposed to have a bearing on the present question, is not inconsistent with what I have said above. That was a case in which a simple decree for money had been obtained against the father, and after the death of the father execution of the decree was sought against the sons under Section 234 of Act No. XIV of 1882, as his legal representatives, by attachment of joint ancestral property which had not been attached in the lifetime of the father. It was held that as the property had passed to the son by right of survivorship it was not assets of the deceased father in the hands of the sons as his heirs or legal representatives, and could not be attached as such. It was further held that the liability of a legal representative under Section 234 of Act No. XIV of 1882, to the extent of the assets of the deceased judgment-debtor which had come into his hands and had not been duly disposed of, stood on a principle different from that of the pious obligation of a Hindu son to pay his father’s debts not tainted with immorality, and that the question of such pious obligation could not be raised in and determined by the Court executing the decree against the sons as the legal representatives of their father. That case was decided upon a principle perfectly distinct from that which is applicable to this case, and there is not the remotest analogy between that case and this. The fact seems to have been overlooked that in the case before us the question of the liability of the interests of the plaintiffs in joint ancestral property for the debt of their father, in respect of which Bhawani Prasad has obtained his decree, has been raised not in execution of that decree, but in a suit brought by the sons. Such a suit must, like every other suit, stand or fall with the strength or weakness of the title of the plaintiffs themselves, and, as the sons of a Hindu father governed by the Mitakshara law are not entitled to claim exemption from liability for their father’s debts on any grounds other than those laid down by the Privy Council, they cannot succeed in their suit simply on the ground that they were not parties to the suit of the creditor. Section 99 of Act No. IV of 1882 also cannot help the plaintiffs. All that s 99 provides is that a mortgagee cannot bring to sale the property mortgaged to him otherwise than by instituting a suit for sale under Section 67, and that he cannot sell up a bare equity of redemption. A suit under Section 67 was brought by Bhawani Prasad the appellant, and he has obtained a decree for the sale of the mortgaged property. The circumstance of the plaintiffs not having been joined in that suit only leaves it open to them to try the fact or the nature of the debt in a suit of their own, as held by the Privy Council, or to exercise their right of redemption. In the case of a subsequent incumbrancer it was held in Namdar Chaudhri v. Karam Baji I.L.R. 13 All. 315., which was a case under Act No. IV of 1882, that the result of the subsequent incumbrancer having been left out of the suit of a prior mortgagee, would be that his right to redeem the prior mortgage would remain unaffected. The rule in England as regards subsequent incumbrancers is thus stated in Coote on Mortgages, Vol. II, p. 1094: “A mortgagee who brings an action of foreclosure or sale, whether he is first or any subsequent incumbrancer, and whether of a legal or equitable estate, must make every incumbrancer subsequent to himself a party to his suit, notwithstanding. With respect to incumbrances subsequent to the mortgagee but prior to the commencement of the action, the rule appears to be that the decree of foreclosure will bind all those who are parties to the action, but not the rest, and it is a general rule to make all such incumbrancers parties, and it seems indeed that they are necessary parties to the suit. And, consequently, a second mortgagee or other subsequent incumbrancer who is not a party to the action may, on payment of the first mortgage debt and costs, redeem the first mortgagee after the decree obtained, although the first mortgagee had no notice of the other incumbrances at the time of the decree.” It was conceded by Mr. Sundar Lal that, except in Janki Prasad v. Kishen Dat I.L.R. 16 All. 478, no Court has held since the Transfer pf Property Act, 1882, came into force in July 1882 that the consequence of the omission to join a subsequent incumbrancer in a prior mortgagee’s suit is to confer on the subsequent incumbrancer any higher right than that of redeeming the prior mortgage. It is, however, not necessary to go into that question for the purposes of the present” suit. In my judgment when a decree has been obtained against the father, whether in respect of a simple money debt or in respect of a mortgage of the ancestral property, his sons cannot by a suit of their own claim exemption of their interest in the property from liability for the decree on any ground other than that of the immoral nature of the debt, or the nonexistence of the debt, or the operation of the law of limitation, and they cannot claim such exemption merely op the ground that they were not parties to the creditor’s suit. In the case of a mortgage, if they were not parties to the creditor’s suit for gale and they do not impeach the validity of the mortgage, they can only claim to be afforded an opportunity to redeem the mortgage, and thereby to discharge the father’s debt, and this they are entitled to do both before sale and after a sale has taken place. Similarly, in the case of foreclosure of a mortgage by conditional sale to which Mr. Sunder Lal referred in his argument, if the sons were not parties-to the mortgagee’s suit, they can equally claim to redeem the mortgage; so that a Hindu son would not in respect of the right of redemption be in any case in a worse position than any of the persons mentioned in Section 91 of Act No. IV of 1882. Any other conclusion will lead to serious anomalies. In the case of an unsecured debt of the father not tainted with immorality, his creditor may bring to sale the whole of the ancestral estate, and such sale will pass the entirety of the estate to the purchaser, even when the sons were not parties to the creditor’s suit; but, according to Mr. Sunder Lal’s contention, in the case of a debt secured by a mortgage, if a decree be obtained without making the sons parties to the creditor’s suit, the creditor will not be competent to sell up the interests of the sons and will be in a worse position than an unsecured creditor. Again, if the father chose to sell the ancestral estate in lieu of the amount of a mortgage of that estate effected by him for purposes which were not immoral or impious, there can be no doubt that such sale would convey the interests of his sons also. But, according to Mr. Sundar Lal’s contention, if the mortgagee, whose rights under the mortgage are not certainly inferior to those of the mortgagor, procured a sale of the mortgaged property by suit, without joining the sons in the suit, the sale would be limited to the interests of the father only. Further, if the mortgagee relinquished his rights as such and took a simple decree for money against the father alone, he would be entitled to sell up the interests of the sons also; but if he took a decree upon his mortgage he would not, according to the contention of the respondents, be entitled to obtain a sale of those interests. It is difficult to believe that the Legislature in enacting Section 85 of the Transfer of Property Act, 1882, intended to create such anomalies. It is said that the creditor will not be without his remedy, and that he will still be able to bring a suit against the sons to enforce his mortgage against their interests in the ancestral estate on the ground of their pious obligation to pay their father’s debts. It cannot possibly be held that no remedy will be open to the creditor, as such a decision will render the rulings of their Lordships of the Privy Council on the question of the liability of Hindu sons in respect of their father’s debts wholly nugatory. But, even assuming that a remedy will, as it must, be still open to the creditor, the result will he to foster and bring about an increase of litigation, which it was undoubtedly the object of Section 85 to prevent. Every son whom a creditor of his father may have omitted to join in his suit against the father would be able to avoid and delay the sale of his interests in the ancestral estate by bringing a suit on the ground of such omission, although he might have nothing to urge in respect of his father’s debts. If the father happened to have several sons, each of them might bring a separate suit of this kind. In such cases the creditor would have to bring suits against the sons to which the sons may have no answer. The result would be the institution of numerous suits which would otherwise have been wholly unnecessary. No doubt a mortgagee bringing a suit for the Sale of ancestral property against the father should join as parties to his suit the sons of the mortgagor of whose interests he has notice, in order that the decree passed in the suit may be binding on the sons as a decree for the payment of their father’s debt and future litigation may thus be avoided. If such a mortgagee violates the provisions of Section 85 of Act No. IV of 1882 by not impleading the sons, he may thereby run the risk of his suit being dismissed with costs for non-joinder of necessary parties. He may also run the risk of the decree for sale being confined to the interest of the father only. He undoubtedly runs the risk of the question of the fact and the nature of the debt being subsequently raised and reopened by the sons in a suit of their own. But where, as in this case, a decree has been obtained against the father alone without joining the sons, the sons cannot, in my judgment, plead against the operation of the decree on their interests any pleas other than those which they could have urged against the claim of the mortgagee in order to relieve themselves from liability for their father’s debt had they been made parties to the mortgagee’s suit. I fail to see how the conclusion at which I have arrived can have the effect of rendering Section 85 practically inapplicable to Hindus governed by the Mitakshara law. On the contrary, the opposite view will, as I have shown above, not only militate against the rules of Hindu law, neutralise the effect of the several rulings of the Judicial Committee of the Privy Council, and create anomalies which the Legislature certainly never contemplated, but will also promote, in many cases, needless litigation contrary to the avowed object of Section 85 of Act No. IV of 1882. For the above reasons 1 would answer in the negative the question referred to the Full Bench, and I extremely regret that this conclusion is not, as I understand, in accordance with the views of my learned and honorable colleagues.
Edge, C.J.
8. The plaintiffs, who are respondents to this appeal, were and are, with their father Pemi, members of a joint Hindu family, and, as such, were and are, with their father, co-parceners in certain ancestral property of the joint family. The defendant Bhawani Prasad, who is the appellant in this appeal, brought, upon a mortgage of the family property which had been made in his favour by Pemi, a suit, in 1892, for sale under chapter IV of the Transfer of Property Act, 1882 (Act No. IV of 1882). Although Bhawani Prasad had, when he brought this suit for sale, notice that the sons of Pemi were interested in the property comprised in his mortgage, he did not make them parties to the suit. Notwithstanding that the sons of Pemi were not parties to that suit, Bhawani Prasad obtained a decree under Section 88 of the Transfer of Property Act, 1882, for sale of the joint family property, and attempted to execute that decree by sale of not only Pemi’s interest in the joint family property, but the interests of the sons in that property. The sons of Pemi thereupon brought the suit in which this appeal has arisen, praying that their share in the joint family property might be exempted from sale in execution of Bhawani Prasad’s decree. The sons did not allege, and in my opinion there was no necessity for them to allege in this suit, that the debt in respect of which Bhawani Prasad had obtained his decree had been tainted with immorality. I am further of opinion, for reasons which will appear later on, that an issue as to whether the debt upon which Bhawani Prasad obtained his decree for sale was or was not tainted with immorality would have been an irrelevant issue in this suit, in which the simple question is not–was that debt one which, owing to the pious duty of a Hindu son to pay his father’s debts which are. not tainted with immorality, the sons were under a legal obligation to pay but is,–can that legal obligation be enforced by a suit for sale brought under chapter IV of Act IV of 1882, to which suit the sons were not parties? A simple decree for money can be made under the Code of Civil Procedure; it gives no priority to the decree-holder over other judgment-creditors of the judgment-debtor, and confers no right on a purchaser under it against mortgagees, except such right as the judgment-debtor had, namely, aright to redeem the mortgaged property. A decree for sale, on the other hand, can be made only under chapter IV of Act No. IV of 1882. It creates a lien, and gives priority over all holders, of simple decrees for money, and settles the amount on payment of which a coparcener or other person mentioned in Section 91 of that Act may redeem the mortgaged property, and if there are other mortgagees of the property, the priorities of redemption, and orders that if such amount be not paid by the defendant or defendants on or before a day to be fixed within a limited period by the Court, the property shall be sold. The purchaser under a decree for sale takes the property freed from all rights, mortgages and charges of parties to the suit for sale, and the parties to that suit must be all those persons having an interest in the property of whose interest the plaintiff in such suit has notice. It is obvious that the title which passes on a sale under a decree for sale is more certain, and consequently more valuable, than is the title which passes on a sale in execution of a simple decree for money, and that a decree for sale is a more valuable security to the creditor than is a simple decree for money. In order to prevent the recurrence of cases of gross hardship, and so far as possible to remove all grounds for endless and exhausting litigation theretofore the rule, the Legislature, in Section 99 of Act No. IV of 1862, enacted that no mortgagee should be entitled to bring the mortgaged property to sale except by a suit under Section 67 of that Act. One of the suits which may be brought under Section 67 is a suit for sale. Section 67 and Section 85 are two of the sections included in chapter IV of that Act. Section 85 is as follows: “Subject to the provisions of the Code of Civil Procedure, Section 437, all persons having an interest in the property comprised in a mortgage must be joined as; parties to any suit under the chapter relating to such mortgage: Provided that the plaintiff has notice of such interest.” Section 437 of the Code of Civil Procedure enacts that: “In all suits concerning property vested in a trustee, executor or administrator, when the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not be necessary to make them parties to the suit. But the Court may, if it thinks fit, order; them or any of them to be made such parties.” The reference in Section 85 of Act No. IV of 1882 to Section 437 of the Code of Civil Procedure is instructive as showing the cases, and those cases only, in which, for the purposes of a suit under chapter IV of Act No. IV of 1882, a party to a suit under that chapter may be treated as representing a person interested in the mortgaged property who is not a party to the suit. I have not yet heard any one suggest even in the wildest arguments that the father in a joint Hindu family is, as such, a trustee, executor or administrator, within the meaning of Section 437 of the: Code of Civil Procedure, of his son, particularly if that son is alive and sui juris. Consequently we may dismiss from the consideration of this case the suggestion that Pemi in Bhawani Prasad’s suit for sale of the interests of the sons in the family property represented his sons or could have been treated by Bhawani Prasad or by the Court in that suit as representing them for the purposes of Section 85 of Act No. IV of 1882. This will clear away one fog which at the hearing to some extent obscured the question of law before us.
9. As I understand Sections 99, 67 and 85 of Act No. IV of 1882, the Legislature intended that no mortgagee should bring the mortgaged property to sale except by a suit for sale under Section 67, and in that suit all persons interested in the mortgaged property of whose interest the plaintiff had notice must he parties, except when the title to the property is vested in a trustee, executor or administrator, in which case the trustee, executor or administrator must be a party to the suit, and may, as such trustee, executor or administrator represent for the purposes of the suit and of any decree which may be passed in it the persons beneficially entitled to the property. The word “must” is one of the strongest words of compulsion which a Legislature can employ, and Courts are, in my opinion, bound to give effect to it, and not to ignore it and its significance. The less significantly imperative word “shall” of Section 541 of the Code of Civil Procedure has been held by all the Judges of this Court to be so imperative as to preclude a Court from accepting a memorandum of appeal which is not accompanied by a copy of the decree appealed against, and from treating the presentation of a memorandum of appeal which is not accompanied by a copy of the decree as a valid presentation of an appeal.
10. In order to prevent the point of law which we have to determine being obscured and to prevent confusion of thought and of legal principles, I propose now to state concisely what the point of law is: it is this–does the pious duty which makes it incumbent on a Hindu son to pay out of his share in the joint family property the debts of his father which are not tainted with immorality render the son’s share in the family property liable to be sold in execution of a decree for sale passed against his father in a suit for sale under chapter IV of the Transfer of Property Act, 1882, brought in violation and contravention of the Statute, and to which suit the son was not a party, unless the son pleads that the debt in respect of which the suit was brought was tainted with immorality’? In other words, does the pious duty estop the son from showing that the decree as against the property and his father creating the judgment-debt was obtained by the decree-holder in contravention and violation of the law?
11. There are some points upon which we all are agreed. They are these: It has not been disputed at the Bar or on the Bench, and we all are agreed, that it is the pious duty of a Hindu son to pay such debts of his father as are not tainted with immorality. That pious duty creates a legal obligation in the son which can be enforced by a suit against the son for sale under chapter IV of Act No. IV of 1882, or by a suit for a simple decree for money to the extent of the family property in his hands, and can also be enforced in execution of a simple decree for money obtained in a suit brought in accordance with law against the father, although the son was not a party to the suit, provided that attachment of the family property was obtained in the father’s lifetime. It would seem unnecessary to state that the Judges of this Court are agreed upon what is now firmly established law. I make that statement, however, now once and for all in this case, as experience has taught me that, if I did not make it, it might be assumed that I was ignorant of what the law on that point is, and because experience has also taught me that the reiteration of an admitted principle of law distracts attention from the point in issue and may conceal the fact that the admitted principle of law is being wrongly applied or that an unsound deduction is being drawn from it.
12. I believe we all are agreed that the legal obligation of a Hindu son in a joint family to pay those debts of his father which are not tainted with immorality cannot be enforced except by a suit under chapter IV of Act No. IV of 1882, if the enforcement is sought against joint family property mortgaged by the father to the creditor, or by execution of a simple decree for money obtained in a suit authorized by the Code of Civil Procedure, if the enforcement be not sought against property mortgaged by the father to the creditor, and that in no case does the law allow the creditor to enforce that legal obligation except by due process of a Court of law.
13. We all are agreed that Section 85 of Act No. IV of 1882 applied equally to Hindus as to Muhammadatis or Christians, and that there is nothing in Act No. IV of 1882 to indicate that the Legislature did not intend that section to apply as fully to Hindus as to Muhammadans and Christians. We all are agreed that Section 85 is highly imperative, and that it is the duty of a Court to dismiss a suit brought and attempted to be maintained by the plaintiff in contravention of that section, whether the suit be brought by a Hindu, Muhammadan or a Christian; but that the Court, if it sees fit so to do, may add necessary parties under Section 32 of Act No. XIV of 1882. We all are agreed that the sons in a joint Hindu family are persons having an interest in the property comprised in a mortgage of the family property within the meaning of Section 85 of Act No. IV of 1882, and thus they must be joined as parties to a suit under chapter IV of Act No. IV of 1882 relating to such mortgage, provided that the plaintiff in such suit has notice of such interest, and seeks a decree for sale of the interests of the sons, and not merely a decree for sale of the interests of the mortgagor, their father.
14. We all are agreed that Section 85 applies as fully to the case of a Hindu son who has an interest in the property comprised in a mortgage as it does to any prior or subsequent mortgagee of the property or to any person mentioned in Section 91 of Act No. IV of 1882. We all are agreed that it has been found by the Court of first appeal in this suit that when Bhawani Prasad, the defendant-appellant, brought his suit for sale under chapter IV of 1882 upon his mortgage, he had notice that these plaintiffs-respondents were interested as members of a joint Hindu family in the property comprised in the mortgage. We all are agreed that, if it had been brought to the attention of the Judge in Bhawani Prasad’s suit for sale that these plaintiffs-respondents were interested in the property and that Bhawani Prasad was aware of that fact when he instituted his suit, it would have been the duty of the Judge to have dismissed that suit, and not to have made a decree for sale of the family property, unless the Judge thought fit to exercise the discretion vested in him by Section 32 of the Code of Civil Procedure.
15. We all are agreed that, notwithstanding the pious duty of a Hindu son to pay his father’s debt not tainted with immorality, the law does not impose upon him any obligation to discharge those debts in any way if a suit to recover them happens to be barred by limitation.
16. We all are agreed that it is the duty of a Court under Section 4 of Act No. XV of 1877, subject to the other provisions of that Act, to dismiss every suit which is instituted after the period prescribed there for by the second schedule annexed to that Act, although limitation has not been set up as a defenee.
17. It was conceded at the Bar, and we are agreed, that if a creditor of a Hindu father obtains a decree against the father for sale of the family property, or simply a decree for money, in a suit against the father alone which was barred by limitation and seeks to enforce the decree against the share of a son in the family property, the son is entitled to show that the suit was, when brought, barred by limitation, and that the suit and the decree were in contravention of the Indian Limitation Act, 1877; and that in such a case, even if the son admitted that the debt in respect of which the creditor had brought his suit was one which he, the son, was under a pious obligation to pay, and even if the creditor’s decree had become final against the father, that decree could not be enforced against any interest of the son in the family property.
18. We all are agreed that the sons in a joint Hindu family can defeat the right of a decree-holder to execute against their interests in the family property a decree which he has obtained against their father in a suit against the father alone, notwithstanding that such decree has become final, upon proving that at the time when the suit against their father was brought the debt of their father had been discharged, as, for example, by payment.
19. We all are agreed that my brother BANERJI and I rightly held in our carefully considered judgment in Lachmi Narain v. Kunji Lal, I.L.R. 16 All. 449, that a creditor, who, in order to obtain payment of a debt due to him by a Hindu father, obtained in a suit against that father alone a decree for money, cannot, after the father’s death, bring any part of the family property to sale in execution of that decree unless he had obtained attachment of the property in the father’s lifetime; and that in such case the only remedy which is open to the creditor is such suit as he can maintain against the son, and that in such suit by the creditor, and not in the execution proceedings, the question as to whether the father’s debt was tainted with immorality could be inquired into. If we are to hold here that Bhawani Prasad’s decree for sale can be enforced in this case, there would be startling anomaly in the law or rather in judicial decisions.
20. In the present case it is not suggested by anyone that Bhawani Prasad’s decree was obtained otherwise than in contravention of the imperative provision of Section 85 of Act No. IV of 1882, and yet it is said that he is entitled to execute that decree by sale of the shares of the Hindu sons in the family property, because in fact, although contrary to law, Bhawani Prasad had obtained that decree, and it has become final as against the father, and because there is a pious obligation upon the sons to pay their father’s debt unless they can show that the debt was tainted with immorality. On the other hand, in Lachmi Narain v. Kunji Ltd. I.L.R. 16 All. 449, a creditor who bad in fact obtained in due course of law and procedure a decree against a Hindu father which had become final, but who had not obtained attachment in the father’s lifetime was held not to be entitled to execute that decree against any part of the family property, and not even against what had been the father’s share, whether or not the debt was one which it was the pious duty of the son to pay. Further, we all are agreed that if Bhawani Prasad’s suit for sale had been barred by limitation at the time when it was brought, these plaintiffs-respondents would be entitled to a decree in their suit declaring that Bhawani Prasad’s decree could not be enforced against their interests in the family property upon proving that Bhawani Prasad’s suit had been in fact barred by limitation, notwithstanding that it was not dismissed and that he got his decree, which bad become final against the father, and that the sons would be entitled to such declaratory decree without either alleging or proving that the original debt of their father was tainted with immorality. The decision in Luchmi Narain v. Kunji Lal I.L.R. 16 All. 449, and the admittedly correct proposition of law to which I have last referred show that the sole test as to the right of a judgment-creditor of a father in a joint Hindu family to sell the interests of the sons in the family property in execution of his decree is not the issue whether or not the debt of the father was tainted with immorality; that admittedly true proposition of law and the admittedly true proposition of law that a son in a joint Hindu family can successfully resist the execution against his interests in the family property of a decree obtained against his father, and which has become final, by simply proving that the debt of his father hid been discharged, as, for example, by payment, before the suit against the father was brought, show that the finality of the decree so far as the father is concerned is not the test of the ‘liability or non-liability of the sons’ interest in the family property to be brought to sale in execution of a decree against the father. It appears to me that these considerations must dissipate two other fogs which during the argument were to some extent obstructing a clear view of the question of law upon which this appeal depends.
21. I had great difficulty in understanding at the hearing what the contention in favor of Bhawani Prasad really was. At one time it was argued that Bhawani Prasad was entitled to execute the decree for sale by a sale of the son’s interest in the family property because the sons had not in their suit pleaded and proved that their father’s debt in respect of which the suit for sale was brought was tainted with immorality. At another time it was argued that Bhawani Prasad was entitled to execute his decree by sale of the son’s interest in the family property because, rightly or wrongly, Bhawani Prasad had obtained that decree and it was the pious duty of the sons to discharge the judgment-debt. It appears to me that there has been some confusion of ideas and of legal principles. What the sons say is: We do not deny that there is a legal obligation upon us to pay our father’s debts which are not tainted with immorality; it will be time enough for us to raise the question as to immorality when a suit is brought against us which is in compliance with Section 85 of Act No. IV of 1882, and by reason of Section 99 of Act No. IV of 1882, it is only in execution of a decree obtained in a suit against us under chapter IV of that Act that bur interests in the family property can be sold by this mortgagee; up to the present no such suit has been brought, and this suit of ours is not brought in aid of the decree which Bhawani Prasad obtained, but is brought to obtain a declaration that the decree which Bhawani Prasad got in his suit under chapter IV of Act No. IV of 1882, to which we were not parties, cannot be enforced against our interests in the family property. We entirely dispute the proposition that there is under the Hindu law any pious duty to pay a judgment-debt, as such of our father, obtained in a suit to which we were not parties if that judgment was obtained in contravention of the Indian Limitation Act, 1877, or in contravention of chapter IV of the Transfer of Property Act, 1882, or if the debt, if it ever was incurred, had been discharged by payment before suit; in none of those cases would there be any pious duty or legal obligation upon us to pay the judgment-debt, as such.
22. The legal obligation arising upon the pious duty of a Hindu son to pay his father’s debts which are not tainted with immorality can only be enforced in a properly constituted suit and in due process of law. No one would suggest that a creditor of a Hindu father could, except in the execution of a decree, seize and sell the family property.
23. Prior to the passing of the Transfer of Property Act, 1882, the procedure allowed by, and the law as administered by, most Courts had caused great hardship to the people and gross scandal to the administration of justice. The only class of people who had benefited in that state of things were the legal practitioners. In those days a mortgagee was allowed by the Courts to bring a suit for sale on his mortgage and to get a decree for sale, and to execute it, without making any person interested in the mortgaged property except the mortgagor a party to his suit, whether the mortgagor happened to be a Hindu father who had mortgaged the joint family property of himself and his sons, and whether there were two or a dozen other mortgagees, prior or subsequent, holding separate mortgages’ over the same property. After the sale the prior or subsequent mortgagees and the Hindu sons brought separate suits against the purchaser, against the mortgagor, and against each other, to the ruin of some, if not all, of them, and the mortgaged property in too many cases finally disappeared in Court-fees and the charges of legal practitioners. It was to remedy such a state of things and prevent its recurrence that Section 85 of Act No. IV of 1882 was enacted. The Legislature was not at all concerned, nor am I, with the fact that the enforcement by Courts of Justice of the provisions of chapter IV of Act No. IV of 1882, and particularly of those contained in Sections 99 and 85, would interfere with the means of livelihood of those who adopt the profession of the law in this country. What the Legislature was concerned about, and what it desired to protect, was the interests of those persons in this country who have an interest in property sought to be affected by a suit for sale, or by a suit for foreclosure, or by a suit for redemption, interests which theretofore had been neglected.
24. The Legislature advisedly used the word “must” in Section 85. That there was necessity for the use of the word “must” by the Legislature to carry its meaning is amply proved by the persistent attempts which have been made to evade compliance with that section and to recur to the former harassing procedure which had been tolerated by the Courts. In enacting Section 85 the Legislature made no exception in respect of joint Hindu families, their contracts, or their property, or the remedy of thecreditor of the father in a joint Hindu family. The Legislature in enacting the Transfer of Property Act, 1882, did not overlook the fact that Hindus, Muhammadans and Buddhists had peculiar laws of their own. By Section 2 of the Act it is enacted that “nothing in the second chapter of this Act shall be deemed to affect any rule of Hindu, Muhammadan or Buddhist law.” Section 85 is in chapter IV of the Act. Had the Legislature intended that the provisions of Section 85 should not apply to Hindus, it would have expressly exempted them from its operation, as it has excluded them by Section 69 from the exercise of a power of sale in a mortgage without the intervention of a Court. I infer that the Legislature intended Section 85 to be applied to all alike, no matter what might be the peculiar rule of their law.
25. So far as I am aware, no case arising on Section 85 of Act No. IV of 1882 has yet come before their Lordships of the Privy Council, and unless and until I am told by the Privy Council or by the Legislature to apply Section 85 as Bhawani Prasad would have us apply it, I shall not be a party to driving a coach and six through the beneficent provision of that section and to opening the door to a recurrence of the state of things which existed before that section was passed and to bringing ruin and harassing litigation upon the members of Hindu joint families, and for no other purpose than to assist a creditor out of a difficulty which by his wilful disregard of Section 85 he has got himself into.
26. I am confident that by applying firmly the rulings of this Court in Mata Din Kasodhan v. Kazim Husam I.L.R. 13 All. 432 and Janki Prasad v. Kishan Dat I.L.R. 16 All. 478, and the rule which is, I think, the true rule, and which is enunciated in Badri Prasad v. Madan Lal at pages 82 and 83 of I.L.R. 15 All. litigation on mortgages will, so far from increasing, decrease. We shall have before the Courts in suits on mortgages all the parties who are known to the plaintiff to be interested in the property, and their respective rights will be determined in one suit and not in a dozen. It is better to follow the law and insist upon its being obeyed than to act loosely in the administration of the law and perpetuate an evil. If Bhawani Prasad had joined the sons as defendants in his suit for sale there could have been but one suit, and, if he had succeeded, but one set of costs to be paid out of the property under the decree passed under Section 88 of Act No. IV of 1882. If the view of the law contended for on behalf of Bhawani Prasad be correct, Bhawani Prasad, by bringing the suit which he brought in contravention of Section 85, and by concealing from the Court in that suit the fact that his suit was in contravention of the Statute, obtained a decree to which he was not entitled, and yet that decree is to be executed by a sale of the interests of the sons in the family property, unless the sons bring a suit against Bhawani Prasad and prove in it that the original debt was tainted with immorality, was barred by limitation, was never incurred, or if incurred, was satisfied by payment or in some other way, before the suit for sale was brought.
27. I was much struck by one illustration, given by Pandit Sundar Lal, when arguing this case, of the legitimate result of our accepting the view of the law contended for on behalf of Bhawani Prasad. It was this: If it be the law that these Hindu sons cannot resist the execution of this decree for sale except by bringing a suit in which they prove that the debt was tainted with immorality, the same rule must be applied in the case of a suit for foreclosure of a mortgage by way of a conditional sale. In such a suit the decree under Section 86 of Act No. 17 of 1882 may declare what is the amount due to the plaintiff for principal and interest on the mortgage and for his costs of suit, if any, awarded to him, and may order that upon the defendant paying to the plaintiff or into Court the amount so due on a day within six months from the date of declaring in Court the amount due to be fixed by the Court, the plaintiff shall deliver up to the defendant all documents, &c, and shall transfer the mortgaged property to the defendant, but that if the payment is not made on or before the day to be fixed by the Court the defendant shall be absolutely debarred of all right to redeem. According to the view of the law contended for on behalf of Bhawani Prasad not one of the persons mentioned in Section 91 of Act No. IV of 1882 would be in any way bound by a decree passed under Section 86 unless he was a party to the suit, or unless, although not a party to the suit, he happened to be a son in a Hindu joint family and his father happened to be the defendant to the suit. Any other person mentioned in Section 91 who was not a party to the suit for foreclosure or for sale could, notwithstanding such decree, bring his suit to redeem at any time within sixty years from the time when the right to redeem accrued, and yet the unhappy Hindu son, whether he knew or did not know of the suit or of the decree, would be precluded from, all right of redemption unless he paid the amount decreed on or before the day fixed by the Court, which, in the case of the decree in the suit for foreclosure to which I have referred, would be a day within six months of the date of the decree. The unhappy Hindu son could not dispute the validity of that decree and its binding effect upon his interest in the family property unless he could succeed in a suit brought by him against the mortgagee decree-holder in proving that the mortgage debt had been tainted by immorality. According to the proposition contended for as law on behalf of Bhawani Prasad, it would in such case be sufficient that the mortgagee had got a decree under s 86 against the father, and it would be absolutely immaterial that the Hindu son had no knowledge of the suit or of the decree until after the period fixed by the decree for redemption had expired and the rights to redeem of the members of the joint Hindu family had been for ever barred. That would indeed be another startling anomaly in the law. I have heard no attempt made to meet that illustration of Pandit Sundar Lal, yet if we hold that Bhawani Prasad’s decree can be executed by sale of the interests of these Hindu sons in the joint family property, we must, if we are to be consistent in our construction of Section 85 of Act No. IV of 1882, and in the application of the law, hold, should the case arise, that the rights of the sons in a Hindu joint family to redeem the family property are for ever barred by a decree of foreclosure obtained in their absence, and of which they have had no notice, on the expiration of the time fixed by the Court for redemption, if the original debt was not tainted with immorality. I have not heard any one suggest what is the principle of law, of equity, of justice, or of good conscience by which the period of sixty years allowed to anyone else who is within Section 91 of Act No. IV of 1882 is, in the case of a son in a joint Hindu family to be cut down by a decree under Section 86 (to which he is not a party and of which he had had no notice) to a period within six months from the date of the decree.
28. The pious duty of a Hindu son to pay his father’s debts which are not tainted with immorality is a fact beyond dispute: the corollary sought to be applied here on behalf of Bhawani Prasad if it be a legitimate inference from the preceding proposition, reduces, in my opinion, that proposition to an absurdity.
29. The decree in Bhawani Prasad’s suit for sale decreed the sale of the property unless the amount due for principal and interest on the mortgage and the costs of that suit awarded to Bhawani Prasad were paid within six months. In the course of the arguments, I asked on what possible principle, or on what rule of Hindu or other law, there was any obligation, legal, pious or otherwise, on the sons to pay Bhawani Prasad’s costs of the suit for sale which was brought in contravention of Section 85 of Act No. IV of 1882 to which the sons were no parties. To that question no one ventured to offer an answer. In truth, no answer except one could have been given, and that was that neither the sons nor their interests in the family property could on any principle or rule of any law be made liable for these costs and yet we are asked to hold that their interests may be sold to satisfy the amount decreed, which includes those costs.
30. Before concluding, I may say that in my opinion that part of my judgment in Badri Prasad v. Madan Lal I.L.R. 15 All. 75, which is contained in the paragraph which commences at page 82 and concludes at page 83, was all strictly relevant to one of the questions which the Full Bench had in that case to decide, namely, what was the decree which we should make in the case? Every word of my judgment in that case was carefully considered in consultation with the other five Judges of the Court as it was then constituted, and as the result of that consultation the judgment as reported was delivered and was concurred in by all the then Judges of the Court. It has not been suggested that the following passage in that judgment was obiter: “In that suit, as they sought a decree for sale against not only Madan Lal’s interest in the mortgaged property, but against the interests of his sons, they, having notice that the sons had an interest in the mortgaged property, properly and in accordance with Section 85 of that Act, joined the sons as parties to the suit.” That was the opinion which we expressed as to the construction of Section 85 of Act No. IV of 1882. It is said, however, that the following opinion was obiter: “If the plaintiffs in this suit, which was commenced after the Transfer of Property Act, 1882, came into force, having notice that the sons had an interest in the property had omitted to join them, they could have obtained a decree against the father’s interest only, and could not have obtained a decree for sale which would have affected the interests of the sons in the mortgaged property. It appears to me that the latter proposition was necessarily involved in the former. When this case was called on for argument it was pointed out by Pandit Sundar Lal that, so far as this Court was concerned, the question of law was concluded by the judgment from which I have quoted. As, however, my brother Banerji was of opinion that the question was still open, and as two other Judges on the Bench thought it arguable whether the passage which I have last quoted was not obiter, we decided to hear the arguments in the case. I have already to some extent indicated what in some respects is the difference between a simple decree for money and a decree for sale, and as that subject has been also dealt with in the judgment of my brother Burkitt, which I have had an opportunity of reading, it is not necessary that I should go further into that’ question. No doubt each is a decree for payment of a debt, but the effect of each decree upon the rights of persons not parties to the suit is totally dissimilar, and the procedure under which each is obtained is different.
31. I would reply to the question sent to the Full Bench by saying that, under the circumstances stated in that question, the sons can successfully sue for a declaration that the mortgagee decree-holder is not entitled to sell in execution of his decree for sale the interests of the sons in the property comprised in the mortgage given by Pemi, although the sole ground of their suit is that they were not parties to the suit by Bhawani Prasad.
Burkitt, J.
32. The question referred to the Full Bench is as follows:
When a plaintiff-mortgagee institutes a suit for the sale under Section 88 of Act No. IV of 1882 against his mortgagor, who is the father of sons in an undivided Hindu family governed by the Mitakshara, without joining as parties to the suit the sons of the mortgagor, of whose interest in the mortgaged property he has notice, and obtains a decree and an order absolute for sale against the father only, can the sons successfully sue for a declaration that the mortgagee decree-holder is not entitled to sell their interests in the mortgaged property in execution of that decree, the sole ground of their suit being that they were not parties to the suit of the mortgagee?
33. The facts on which it has arisen are very simple. One Pemi and his son constituted a joint undivided Hindu family possessed as such of certain ancestral property. Pemi mortgaged a share in a grove, being a portion of the ancestral joint property, to the defendant-appellant Bhawani Prasad. The latter instituted a suit under the Transfer of Property Act against Pemi to recover the debt by sale of the mortgaged property and obtained a decree for sale. In that suit Pemi’s sons were not impleaded. When Bhawani Prasad applied under Section 89 of the Transfer of Property Act for an order absolute for sale some of Pemi’s sons intervened and objected to the order being made. Their objections were overruled. Accordingly in the present suit Kallu, Zprawar and Khiali, three out of the five sons of Pemi, ask for a declaration that their interest in the joint property, of which they declare themselves to be in possession, is not liable to be taken and sold in execution of the decree against their father. In, their plaint many matters were alleged, but they have all fallen to the ground, excepting the plea that as the plaintiffs, though being “persons having an interest in the property comprised in the mortgage,” of which interest Bhawani Prasad bad notice, were not joined as parties to the suit, they are not bound by the decree against their father, and that their interest in the joint property could not be sold to satisfy that decree. The first Court dismissed the suit on the ground that the plaintiffs, the sons, had not attempted to prove that their father’s debt was contracted for immoral purposes. The Lower Appellate Court held that the plea as to non-joinder of the sons was fatal and gave a decree in favor of the sons. Hence this appeal by the mortgagee decree-holder.
34. The question for our consideration and decision is–can the interests of the sons, respondents, be sold under the circumstances mentioned above in execution of the decree against the father? Now, Section 85 of the Transfer of Property Act lays down in very comprehensive and imperative language that “all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this chapter (i.e., chapter IV) relating to such mortgage.” The suit by the appellant on his mortgage against his mortgagor, Pemi, was a suit under Chapter IV of the Transfer of Property Act. It is clear also that, as Pemi had sons, and as the mortgaged property being ancestral was the joint undivided property of Pemi and of his sons, the latter were persons who had an interest in the property comprised in the mortgage. They therefore, under the provisions of Section 85, should have been made parties to the suit. They were not so impleaded. No question has been raised as to appellant having notice of the son’s interest. He has not denied that he had such notice, and the suit and this reference proceeded on the assumption that he had notice. What then is the result of the, appellant’s failure to implead Pemi’s sons? That question is answered in very distinct and unmistakeable language by the Full Bench of this Court in the case of Badri Prasad v. Madan Lal I.L.R. 15 All. 75. That was a case in which a person who held a mortgage executed by the father in a Hindu joint family sued not only the father but also the sons on the mortgage. It was held that the sons were properly impleaded in their father’s lifetime under Section 85 of the Transfer of Property Act, and the Full Bench added: “If the plaintiffs in this suit, which was commenced after the Transfer of Property Act, 1882, came into force, having notice that the sons had an interest in the property, had omitted to join them, they could have obtained a decree against the father’s interest only, and could not have obtained a decree for sale which would have affected the interests of the sons in the mortgaged property.” I was one of the Judges who concurred in that dictum, and I see no reason whatever for dissenting from it now. It is contended however that the dictum is merely “obiter,” and that possibly is so, as it was not strictly necessary for the decision of the case. But even so, it is a dictum of the learned Chief Justice, in which the five other Judges of the Court after consultation unanimously concurred.
35. The effect of the non-joinder of Pemi’s sons in the suit on the mortgage of the joint property, in my opinion, is that those sons are not bound by the decree in that suit nor are their interests affected by it. It was faintly contended for the appellants that the sons were not persons “having an interest” in the mortgaged property. In my opinion there is no force in that contention. Bach of the sons at his birth acquired an interest in the ancestral joint property of the family into which he was born, and I have no doubt that such an interest is “an interest in the property” within the meaning of Section 85 of the Transfer of Property Act, 1882. It was further contended that the omission to implead the sons did not vitiate the decree obtained against Pemi. That proposition is, I think, correct as far as Pemi is concerned; the decree having now become final is a perfectly good decree, though, had a plea of non-joinder of necessary parties been taken before decree, either the suit would necessarily have been dismissed or the sons would have been added as parties under Section 32 of the Code of Civil Procedure. But I cannot accede to the further proposition that the decree is a good decree against, and is one which affects the interests of, the sons, unless they can show either that there was no debt of the father or that the debt was contracted for immoral purposes. To affirm such a proposition would, in my opinion, have the effect of repealing pro tanio Section 85 of Act No. IV of 1882, inasmuch as it would relieve a plaintiff instituting a suit under chapter IV of Act No. IV of 1882 from the necessity of complying with the imperative requirements of that section in the matter of the joinder of the parties jointly interested in the mortgaged property as members of an undivided Hindu family of whose interest the plaintiff has notice.
36. It was argued that under the “pious duty” incumbent on sons in a Hindu family of paying their father’s debts when not tainted with immorality the respondents in this case could not resist the appellant’s claim to take their interests in the joint property to satisfy their father’s debt. Such no doubt might have been the case if the decree against the father had been a simple money decree. In that case, the ancestral property of the family might have been sold in execution of that decree. But if the mortgagee in the present case had been content to ask for and obtain such a decree he would have subjected himself to the risks attaching to the holder of a simple money decree, such for instance, as that he would not be entitled under Clause (c) of Section 295 of the Code of Civil Procedure to have the proceeds of the sale applied (after payment of expenses) to the discharge of the principal and interest due on his incumbrance in priority to other holders of decrees for money. That is one of the risks he would incur, and I may also mention another and a very serious risk which he would be subject to as holder of an ordinary money decree against the father only in a joint Hindu family, there being in existence sons who were not parties to the decree. Unless the holder of such a decree takes steps during the father’s lifetime to enforce his decree by attachment of the joint ancestral property, he cannot after the father’s death have execution of his decree against the joint ancestral property, and must institute a suit against the sons if he desire to enforce against them the “pious duty” of paying the debt of their deceased father. This rule is very fully and clearly laid down in the recent cage of Lachmi Narain v. Kunji Lal I.L.R. 16 All. 449, in which, after an elaborate examination of the authorities bearing on the question it was held that a “creditor of a father in a joint Hindu family governed by the law of the Mitakahara, who has obtained a simple decree for money in a suit against the father alone, cannot obtain execution of that decree against the joint family property or any part of it in the hands of 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 affected during the lifetime of the father.” In such a case it was further held that “if the creditor desire to obtain a remedy against the ancestral property or any part of it in the hands of the son he must seek that remedy in a suit against the son,” in answer to which the son will be entitled to prove any matter which would be a defence to the suit. It is impossible to entertain any doubt as to the correctness of the rule of law propounded in that case. To my mind it goes very far towards minimising the “anomaly” on which so much stress was laid at the hearing of this appeal. That anomaly consisted in this, that the holder of a simple money decree against the father alone in a joint Hindu family might have execution of that decree against the joint ancestral property of the whole family (the debt not being one tainted with immorality), while the holder of a decree for sale under the Transfer of Property Act against the father alone could sell in execution of that decree the interest of the father alone, if the view of the law for which the respondents contend is correct. But the force, if any, of that anomaly is much lessened by the consideration I have adverted to above, and further I would add that if the appellant had obeyed the law laid down in Section 85 of the Transfer of Property Act, and on impleading the respondents had obtained a decree for sale against them also, he would have been entitled to have execution of that decree against the whole joint ancestral property, whether or not other persons held simple money decrees against the father or against any of the sons or against all of them, and also whether or not the father had died before process of execution had commenced. Clearly, if a plaintiff, when instituting a suit under chapter IV of the Transfer of Property Act, complies with the provisions of Section 85 of that Act, he, on obtaining a decree for sale, occupies an immeasurably stronger position than the holder of a simple decree for money, despite of the length to which the rights of the latter have been recently extended by the Privy Council.
37. In my opinion, in a suit under Act No. IV of 1882, the “pious liability” of a son to pay his father’s mortgage debt can be enforced only in a suit for sale properly framed for that purpose, and with a proper array of parties, as was the case in Badri Prasad v. Madan Lal, where the sons were impleaded. It must be enforced by a suit for sale which complies with the provisions of Section 85 of the Transfer of Property Act, and not by a suit in which those provisions are entirely disregarded.
38. I hold that the present is not the stage at which any question of a son’s “pious duty” can be raised, The respondents here are not directly questioning the fact that such a “pious duty” is incumbent on them. They ask for no more than a declaration that the decree for sale obtained in a suit for sale under Act No. IV of 1882, to which they were not parties, does not affect their interests in the joint property mortgaged by their father. They do not, by this suit say that they are not liable to pay the debt if there be a subsisting debt enforceable against them by virtue of a “pious duty,” but they do say that the procedure by which it is sought to enforce that liability on them, that is to say in execution of a decree for sale to which they ought to have been, but were not, made parties, is not one permitted by the Transfer of Property Act. In my opinion that contention ought to be allowed, as I hold that here the liability arising out of the “pious duty” incumbent on the respondents cannot be fixed on them in execution of a decree for sale under the Transfer of Property Act obtained against their father alone. Recently in the case of a prior mortgagee who had instituted a suit for sale without joining a puisne incumbrancer of whose interest he had notice,–Janki Prasad v. Kishen Dat I.L.R. 16 All. 479 a similar rule was laid down. And in the case of Matadin Kasodhan v. Kazim Husain I.L.R. 13 All. 342, the object of Section 85 of the Transfer of Property Act is stated to be to “enable parties to protect their own interests and to prevent litigation.”
39. The present case is a very apt illustration of the mischief which Section 85 was intended to prevent; for, had the mortgagee-appellant, Bhawani Prasad, obeyed the directions of that section by impleading Pemi’s sons, this suit would have been unnecessary and impossible. The present litigation is due solely to the appellant’s having disobeyed the plain provisions of the law and not to any fault of the respondents.
40. I cannot possibly assume that, when framing Act No. IV of 1882 the members of the Legislature lost sight of so well-known and so widespread a tenure as that of land held in co-parcenary by a joint undivided Hindu family. When therefore Section 85 of that Act imposes on a plaintiff instituting a suit under chapter IV of the Act the obligation of joining all parties who possess an interest in the mortgaged property, and of whose interest he has notice, I am unable, without making the impossible assumption mentioned above, to see my way to inferring that the Legislature intended to exempt from that obligation a plaintiff who institutes a suit for sale of the joint property of an undivided Hindu family. The wording of Section 85 is most imperative. It contains no hint that it is not to be applied to all suits under chapter IX of the Transfer of Property Act, and, that being so, I am of opinion that the obligation imposed by it should, like other positive obligations created by law, be enforced by a Court of Justice.
41. For the above reasons I would reply in the affirmative to the question referred to the Full Bench.
Knox, J.
42. I concur with what the learned Chief Justice has just said. Personally, I never had any doubt but that the question set out in the reference could only be decided in favor of the respondents. There seemed no room for a dispute upon the point. The imperative provisions of Section 85 of Act No. IV of 1882, the interpretation placed upon that section by the Court in Matadin Kasodhan v. Kazim Husain I.L.R. 13 All. 342, and the subsequent decision in Badri Prasad v. Madan Lal I.L.R. 15 All. 75, in my mind pointed irresistibly to the conclusion that the decree which Bhawani Prasad obtained was one which conveyed the father’s interests only. Still, as it was earnestly pressed upon us by a leading vakil of this Court that the question was not concluded, and it was a question which in the interests of the public should be placed beyond all possible doubt, I consented to make the reference. Moreover, in order to avoid a misconception which may arise from what has been said in another judgment of the Court in this case, I think it well to point out that the decrees for sale to which their Lordships of the Privy Council referred were decrees passed before the Transfer of Property Act, 1882, came into force.
43. My answer to the reference is in the affirmative.
Blair, J.
44. I also would unhesitatingly answer this question in the affirmative, for the adequate and, as it seems to me, conclusive reasons urged by the Chief Justice and my brother Burkitt. I have no doubt whatever that the language of Section 85 of the Transfer of Property Act is absolutely imperative. I see, neither in that section nor in the chapter which contains it, any hint of limitation or exception; and it is to me quite inconceivable that in a territory peopled by Hindus, an immense number of whom hold their property under the Hindu family system, they could have been intended by the Legislature to be exempted from the action of Section 85, unless there had been, which there are not, words to indicate such exemption. I agree with my brother Burkitt that this is one of the cases which indicates the object of the section and the necessity for its enforcement, I also would answer the question referred in the affirmative.
Aikman, J.
45. I concur in the judgments of the learned Chief Justice and my brother Burkitt, and would answer the question referred in the affirmative.
