Judgement B. K. MUKHERJEA J.: Civil Appeal No. 53 of 1951. This appeal is on behalf of the plaintiff and is directed against a judgment and decree of a Division Bench of the Patna High Court, dated 8-9-1948, modifying those of the Additional Subordinate Judge, Moihari, passed in Partition Suit No.108/6 of 1943/46. There were two Money Suits between the same parties which, were tried along with the suit for partition and both of them were decreed by the trial judge, but dismissed by the High Court on appeal. Civil Appeals Nos. 54 and 55 of this court arise out of these appeals and we will deal with them separately. 2. So far as the main appeal is concerned, the material facts are uncontroverted and the dispute centres round one short point, which relates to the extent of share in the disputed properties to which the plaintiff can be said to have acquired a legal title. The plaintiff averred that he was entitled to a 4 annas share in the schedule lands and this claim was allowed by the trial judge. The High Court held, on the other hand that the plaintiff s title extended only to 1 anna 4 pies share in the disputed properties, and with regard to this share alone he could claim partition. It is the propriety of this decision that has been challenged before us in this appeal. 3. To appreciate the contentions that have been raised by the parties before us, it may be convenient to narrate a few material facts. The properties in suit, which are comprised in Tauzi No. 703 of the Champaran Collectorate, belonged admittedly to the defendants first party and their ancestors. Defendant No. 1 Bhubneshwar Prasad, who is the main defendant in the present litigation, borrowed a sum of money from one Panchanan Banerjee on the basis of a promissory note some time before 1932. Panchanan instituted a suit in the court of the Subordinate Judge at Motihari against Bhubneshwar for recovery of this loan and having obtained a decree, put the decree in execution in Execution Case No. 16 of 1932 of the court of the Subordinate Judge at Motihari. Panchanan instituted a suit in the court of the Subordinate Judge at Motihari against Bhubneshwar for recovery of this loan and having obtained a decree, put the decree in execution in Execution Case No. 16 of 1932 of the court of the Subordinate Judge at Motihari. In course of these proceedings, the right, title and interest of the judgment-debtor in the properties in suit which was described as amounting to 4 annas share in the same, was put up to sale and purchased by the decree-holder himself on 7-9-1932. The purchaser got delivery of possession on 25-1-1935. " It is admitted that at the time of the sale, Bhubneshwar along with his grand-father Bishun Prakash, his father Lachmi Prasad and his two sons who are defendants 2 and 3 in the suit, constituted an undivided Hindu family, of which apparently his grand-father was the karta; and it is not disputed that if a partition had taken place at that time, Bhubneshwar Prasad along with his sons would have got 4 annas share in the joint ancestral property. Panchanan sold the interest purchased by him at the execution sale to the plaintiff by a conveyance dated 1-2-1935 and it is on the strength of this conveyance that the plaintiff instituted the present suit claiming specific allotment of a 4 annas share in the suit properties. Bhubneshwar and his three sons, to with defendants 2, 3 and 4, are the main defendants in the suit and it is not disputed that at the present moment they own the remaining 12 annas share in the suit properties. The defendants 5, 6 and 7 were impleaded as parties defendants on the allegation that they held different portions of the joint properties as zarpeshgidars under the 12 annas proprietors. 4. The suit was contested primarily by defendant No. 1 and the substantial contention put forward by him was that in the Money Suit was Instituted by Panchanan against him alone and his sons were not made parties either to the suit or the execution proceeding, his own undivided Interest in the joint family properties and not that of his sons passed by the sale. Consequently, the execution creditor could not by his purchase acquire more than 1 anna 4 pies share in the suit properties and to this share alone the plaintiff could legitimately lay a claim. Consequently, the execution creditor could not by his purchase acquire more than 1 anna 4 pies share in the suit properties and to this share alone the plaintiff could legitimately lay a claim. This contention was repelled by the Subordinate Judge who took the view that as the debt contracted by Bhubneshwar was not for immoral purposes, it was open to his creditor to realise his dues not merely from the father s undivided coparcenary interest in the ancestral property but from the entire interest of the father and the sons in the same. The execution proceedings showed that the creditor intended to attach and sell the interest of the sons as well and unless, therefore, the sons succeeded in showing that the debts were such which they were not obliged to pay under the rules of Hindu Law, the fact that they were not made parties to the proceedings was altogether immaterial. The result was that the trial judge allowed the plaintiff s claim in its entirety and passed a preliminary decree declaring the plaintiff s one-fourth share in the schedule properties. The defendant No. 1 thereupon took an appeal to the High Court. The learned Judges of the High Court, who heard the appeal, were of the opinion that the decision of the trial court would have been unassailable it the defendant No. 1 was the head of a joint family consisting of himself and his sons. In such cases he could have represented the interests of his sons and the entire interest could have been sold in the execution sale. But as in this case the plaintiff himself was a junior member of the family, he had neither any right of disposition over the interests of his sons, nor could he represent them in any suit or proceeding. What the purchaser acquired by the execution sale was not any interest in a specified portion of the joint property, but the right of the judgment-debtor to have his share defined and allotted by partition, and in this claim for general partition the question of the pious obligation of the sons to pay their father s debts would not at all arise. It was held, therefore, that the plaintiff was legally entitled to 1 Anna and 4 pies share in the joint properties which the father himself could claim on partition at the date at the sale. It was held, therefore, that the plaintiff was legally entitled to 1 Anna and 4 pies share in the joint properties which the father himself could claim on partition at the date at the sale. The sole point for our consideration is whether the view taken by the learned Judges is right? 5. For a proper determination of this point it would be necessary to consider first of all whether the sons of defendant No. 1 were legally liable to pay the decretal debt due by their father and could this liability be enforced by attachment and sale of their undivided coparcenary interest in the joint family property along with that of their father? If the liability did not exist, no other question would arise; but if it did exist, a question of procedure would still have to be considered as to whether the sons interest in the coparcenary could be attached and sold without making the sons parties to the suit and the execution proceedings. 6. So far as the first point is concerned, the question whether the sons of defendant No. 1 were liable in law to discharge the decretal debt due by their father could be answered only with reference to the doctrine of Mitakshara law which imposes a duty upon the descendants of a person to pay the debts of their ancestor provided they are not tainted with immorality. This doctrine, as is well-known, has its origin in the conception of Smriti writers who regard non-payment of debt as a positive sin, the evil consequences of which follow the undischarged debtor even in the after-world. It is for the purpose of rescuing the father from his torments in the next world that an obligation is imposed upon the sons to pay their father s debts. The doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions. Under the law, as it now stands the obligation of the sons is not a personal obligation existing irrespective or the receipt of any assets; it is a liability confined to the assets received by him in his share of the joint family: property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts. 7. We dot not find any warrant for the view that to saddle the sons with this pious obligation to pay the debts of their father, it is necessary that the father should be the manager or karta of the joint family, or that the family must be composed of the father and his sons only and no other male member. No such limitation is deducible either from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions. Where a debt is incurred for necessity or benefit of the family, the manager, whether he be the father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts, irrespective of the fact as to who actually contracted the debts. The authority of the manager is based upon the principle of agency or implied authority which has been formulated in a text quoted by Mitakshara. "Even a single individual" thus runs the next, "may make a donation, mortgage or sale of immovable property during a season of distress, for the sake of the family and especially for religious purposes; Mitak 1-1-28." Such family debt, however, stands on quite a different footing from a personal debt contracted by the father which does not benefit the family. The liability of his sons to pay such debt does not rest on the principle indicated above, according to which the junior members of a family are made to pay the family debts. It is a special liability created on purely religious grounds and can be enforced only against the sons of the father and no other coparcener. The liability, therefore, has its basis entirely on the relationship between the father and the son. There is no authority to show that it is in any, way dependent upon the constitution of the family either at the time when the, debt was contracted or when the obligation is sought to be enforced. The liability, therefore, has its basis entirely on the relationship between the father and the son. There is no authority to show that it is in any, way dependent upon the constitution of the family either at the time when the, debt was contracted or when the obligation is sought to be enforced. On the other hand, the subject of debts has been dealt with by the author of Mitakshara quite separately and it has apparently no connection with the provisions made by the author relating to inheritance and constitution of the family. 8. The learned Judges of the High Court laid great stress on the fact that the defendant No. 1 in the present case was a junior member and not the karta of the family and consequently had no rights of disposal over his own interest or the interest of his sons in the joint property. The idea seems to be that if the father was incompetent to alienate the coparcenary rights of his sons for satisfaction of his own debts, the creditor of the father could not claim to occupy a better position. This way of approach does not seem to us to be correct. It cannot be laid down as a proposition of law that the creditor s power of proceeding against the son s share in the joint estate for recovere of the debt due by the father is co-extensive with the father s power of disposal over such interest. As has been observed by this court in the case of - Pannalal. v. Mst. Naraini , AIR 1952 SC 170 at p. 175 (A) "the father s power of alienating the family property for payment For Citation : AIR 1953 SC 487