Last Updated on
Michael Westropp, C.J.
1. Subapa had two sons, Krishnapa and Sinapa (alias Shrinivas), who, it is alleged by the plaintiffs, inherited the house, the subject of this suit, from their father Subapa. While Krishnapa and Sinapa were undivided in estate, one undivided moiety of the house was, by public auction, sold by a Civil Court in execution of a decree obtained against Sinapa, and the other undivided moiety was also by public auction sold by the same Court to the defendant Narayanacharya in execution of a decree obtained against Sinapa and Krishnapa. Narso and Svajirav, the sons of Krishnapa, have brought their suit against Narayanacharya to recover two-thirds of a moiety of the house on the ground that at the time of the sale, to Narayanacharya they had a vested interest to that extent in their father’s undivided moiety of the house.
2. On behalf of the defendant it has been questioned whether the house was ancestral property of Krishnapa and Sinapa, and alleged that they acquired it from their uncle Venkapa, brother of their father Subapa; and Baboo Nund Coomar v. Moulvi Razeeooddeen Hoosein (10 Beng. L.R. 183; S.C., 18 Cal.W.R. 477 Civ. Rul.) has been cited to show that the house, having been thus acquired from a collateral kinsman, and not from a lineal ancestor, cannot be regarded as ancestral. But it is unnecessary for us to consider either the law or the fact as to the mode in which Krishnapa and Sinapa succeeded to the house, for, even assuming that the contention of the plaintiffs is correct, viz., that the house was ancestral property in the hands of Krishnapa and Sinapa, we think that the plaintiffs must fail in their suit, and that the sale to the defendant was binding upon them. The sale was unquestionably made by the Court in or towards satisfaction of a debt of Krishnapa as well, as of his brother Sinapa; and, there is not any allegation that such debt was contracted for purposes either illegal or immoral. That being so, it is settled by the highest authority that even the ancestral property of the father may be sold either by himself or by a Civil Court having jurisdiction in satisfaction of such-debt, and that such sale will bind sons in esse at the time of the sale: Girdharee Lall v. Kantoo Lall and Muddun Thakoor v. Kantoo Lall (14 Beng., L.R., 187; s.c., L.R. 1. Ind. App. 321; 22 Cal. W.R. 56 Civ. Rul.),. Hunooman Persaud Panday v. Mussamut Babooee Munraj Koonweree (6 Moore’s Ind., App., 393), in which last case it was said by Knight Bruce, L.J., (at page 421) in giving judgment, that, “by the Hindu law, the freedom of the son from the obligation to discharge the father’s debt has respect to the nature of the debt and not to the nature of the estate, whether ancestral or acquired by the creator of the debt.” That was a case decided in accordance with the Mitakshara. The liability of ancestral estate in the hands of sons or grandsons to the debts of the father or grandfather is provided for by special texts, ex. gr., Narada (1 Dig. Bk. I, ch. V, pl. CLXIX): “A father being dead, his sons, whether after partition or before it, shall discharge his debt in proportion to their shares, or that son. alone who has taken the burden on himself”; and Vrihasputi (1 Dig. Bk. I, ch. V, pl. CLXVII) says that “the father’s debt must be first paid, and next a debt contracted by the man himself; but the debt of the paternal grandfather must even be paid before either of those”;2. “The sons must pay the debt of their father, when proved, as if it were their own, or with interest; the son’s son must pay the debt of his grandfather but without interest; and his son or the great-grandson shall not be compelled, to discharge it unless he be heir and have assets,” and see 1 Dig. Bk. I, ch. V, pl. CLXX, CLXXVII, CLXXVIII, CXCVI, CXCVII, et seq. And nowhere was the responsibility of the sons and grandsons of a Hindu for their father’s and grandfather’s debts more stringent than in the Mofussil of this Presidency. Until the Bombay Legislature, at the suggestion of Mr. White, intervened in their favour by passing Bombay Act VII of 1866, they were personally liable for the debts of those ancestors, whether or not they received assets from them. It is true that under the Mitakshara and Mayukha the son takes a vested interest in ancestral estate at his birth, but that interest is subject to the liability of that estate for the debts of his father and grandfather.
3. An attempt was made to distinguish a sale by private transfer from an execution sale, by which latter, it is said, only the right, title and interest of the judgment-debtor is sold. But it is as we have seen, the right of that debtor to appropriate even ancestral estate in payment of his debts, and such an appropriation has been upheld by the Privy Council in the two appeals in 14 Beng. L.R., first above-mentioned by us, in one of which the sale was by private transfer and in the other by judicial order. It may be said that the latter sale was under Act IV of 1846, the 10th section of which puts judicial sale on the same basis as private transfers, and not under the Civil Procedure Code. But Sir B. Peacock, in giving the judgment of the Privy Council, did not make any distinction between a judicial sale under that Act and a judicial sale under the Civil Procedure Code. The plaintiffs have relied on the decision of Phear, J., in Jugdeep Narain Singh v. Deendial (12 Beng. L.R. 100; s.c., 20 Cal. W.R., 174 Civ. Rul.), but that decision was made previously to the Privy Council decisions in Girdharee Lall v. Kantoo Lall (L.R. 1 Ind. App. 321; s.c., 14 Beng. L.R. 187; 22 Cal., W.R. 56 Civ. Rul.).
4. We reverse the decrees of the Courts below, and make a decree for the defendant Narayanacharya, and we direct the plaintiff’s to pay to him the costs of the suit, but order that the parties respectively shall bear their own costs of both appeals.