The following undisputed propositions emerge from the judgment in Pannalal's case:
1. A Hindu son is not personally liable to pay the debt of his father even if the debt was not incurred for an immoral purpose : the obligation of the son is limited to the assets received by him in his share of the joint family property or to his interest in such property, and it does not attach to his self-acquisitions.
2. The pious obligation of the son to pay the debt of his father exists whether the father is alive or dead. It is open to a creditor of the father to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such a suit and obtain an adjudication from the Court that the debt was payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes.
3. So long as the family remains undivided, the father is entitled to alienate for satisfying his personal debt not tainted with immorality the whole of the joint family estate, and a creditor of the father is also entitled to proceed against the entire estate for recovery of the debt borrowed by the father.
4. The sons are not liable for the debts incurred by the father after partition between them and their father. The share which the father receives on partition and which after his death devolves upon his sons, may in the hands of the sons, be available to the creditors of the father, but the shares allotted on partition to the sons cannot be made liable for the "post-partition" debts of the father.
5. The sons are liable to pay the pre-partition debt of the father, even after partition if the debt of the father is not immoral or illegal and for the payment of which no arrangement was made at the date of the partition,
6. A decree obtained against the father alone after partition in respect of a pre-partition debt cannot (during the life-time of the father) be executed against the property which is allotted to the son on partition. A separate and independent suit must be instituted against the sons before their share can be reached. The parenthetical clause is added by us.
A decree passed against the separated sons as legal representatives of the deceased father in respect of a debt incurred before partition can be executed against the property obtained by the sons at the partition. This liability arises by virtue of Section 53 of the Civil Procedure Code. When execution is sought against the sons, the sons are at liberty to show that the property in their hands is not liable to pay the debts of the father; but the enquiry has to be made in the course of execution proceedings and not in a separate suit.
In ref.: Annabhat v. Shivappa [(1928) 30 BOMLR 539, 110 Ind Cas 269],
“…it was held that the son was under a pious obligation to pay the debts of his father incurred by him on account of trade liabilities out of ancestral property, even though the trade may have been started by the father, and that this duty arose even during the lifetime of the father and the liability could not be avoided by the son coming to a partition of the family property subsequent to the filing of the suit against the father and the son. In that case, the debt was not an avyavaharik debt and the plaintiff filed a suit against the father as well as the son, and during the pendency of the suit the defendants arrived at a partition. A decree was then passed against the father and the son, to be satisfied out of the joint family estate and also personally from the father. It was held by this Court that the son was liable to satisfy the debts out of the joint family property allotted to him at the partition. That was a simple case in which the son was impleaded in the suit to recover a debt due by the father and the decree was passed against the son.”
In ref.: Surajmal Deoram v. Motiram Kalu [(1939) 41 BOMLR 1177]
In this case Mr. Justice Lokur set out several propositions enunciating the extent and character of the liability of Hindu sons governed by the Mitakshara Law to satisfy the debts of the father which were not avyavaharik, and the procedure to be followed for enforcement of that liability. In that case, a suit was filed against the father alone when he was the manager of the joint Hindu family and a decree was obtained against him. Thereafter partition was effected between the debtor and his sons, and execution was sought to be levied against the father, and the property of the erstwhile joint family was sold. The decree-holder purchased the property and the son filed a suit for a declaration that the creditor had not purchased his interest in the property. Mr. Justice Lokur in that case held that the son was liable to pay the debt of the father, but the liability of the son could be enforced by a separate suit and not by execution of the decree against the father and that the sale, at the execution, of the property which had been allotted to the son at the partition did not convey to the purchaser that property and that the son was entitled to the declaration claimed by him.
In ref.: Chanmallappa Shivlingappa v. Vannaji Sakalchand [(1942) 45 Bom. L.R. 457] a Division Bench, of Mumbai High Court
held that a decree against a Hindu father for a debt binding on his sons, which was not illegal or immoral, can be enforced against the sons after partition in execution proceeding by attachment and sale of the properties and that it was not necessary to file a separate suit. This case is an authority for the proposition that after a decree is obtained against a Hindu father even if there be partition between him and his sons and division of the joint family estate the property of the joint family including the property which has been allotted to the sons is liable to be resorted to for satisfaction of the debt due to the creditor in execution proceedings after impleading the sons. The distinction between Surajmal's case and Chanmallappa's case is obvious. In Surajmal's case the son was not made a party to the execution proceedings. In Chanmallappa's case, the sons were made parties to the execution proceedings and their interest in the property was held liable to satisfy the debts of the father, and execution was held to be the proper method of enforcing the liability against the sons by impleading them in the darkhast.
The question was again considered by Mr. Justice Lokur in ref.: Ramchandra Rango v. Annaji Venkatesh [(1943) 45 BOMLR 1037]. In that case, Mr. Justice Lokur added one more proposition to the six propositions which he had enunciated in the earlier case of Surajmal as follows (p. 1044):
To obtain such a decree, (i.e. a decree for recovery of a debt due by a Hindu father after partition), the creditor must either join the son as a party to the suit against the father, or, if he has already obtained a decree against the father alone after the partition, he must file a separate suit against the son on the original debt, if it be in time, or sue for a declaration that the son's separated share in the joint family property is liable to be attached and sold in execution of the decree against the father for the satisfaction of the entire decretal amount or such portion of it as may be found binding on the son.
In that case, after the debt was incurred by the father, property of the joint family was partitioned, and a suit was filed against him for recovery of the debt and a decree was passed. That decree was sought to be executed against the sons and the sons contended that the decree could not be executed against them. It was held by Mr. Justice Lokur that the liability could only be enforced after obtaining a decree against the sons declaring their liability and not by executing the decree against their father.
In ref.: Ganpatrao Vishwanathappa v. Bhimrao [(1948) 52 Bom. L.R. 154] it was held that a money decree obtained against a Hindu father could not after partition be executed against the property allotted to the sons on partition without impleading the sons in the execution proceeding. Mr. Justice Bavdekar in delivering the judgment of the Court observed (p. 157):
...a decree obtained against the father alone cannot be executed against the son's 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...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.