Subrahmanyam, J.- The plaintiffs appeal from the Judgment of the Subordinate Judge of Vellore pronounced on 20th March, 1957, in A.S. No. 129 of 1956 allowing the appeal preferred by the 7th defendant. The District Munsif had on 28th December, 1954, passed a decree in favour of the plaintiffs. The Subordinate Judge allowed the 7th defendant’s appeal and dismissed the suit with costs. The suit was for partition and separate possession of the plaintiffs 1/4th share in the suit property, namely, a house in Vellore. The plaintiffs and the 2nd defendant are brothers. Their father is the 1st defendant. His brother is the 3rd defendant. The plaintiffs case is this. The suit property belonged to the joint family consisting of the plaintiffs and defendants 1 to 3. It was mortgaged by the 1st defendant in 1936 for Rs. 350 in favour of one Rathnammal. After her death, her heirs obtained a decree in O.S. No. 8 of 1949 on foot of the mortgage. The mortgage was not for family necessity or benefit or for any antecedent debt of the 1st defendant. It was therefore not binding on the plaintiffs They were not parties to that suit, although the 2nd defendant was made a party. The mortgage decree is not binding on the plaintiffs. In the Court sale held in execution of the decree passed on the mortgage in O.S. No. 8 of 1949, the 6th defendant purchased the property. He threatened to interfere with the plaintiffs’ possession. On those allegations, the plaintiffs filed the suit, which has given rise to this Second Appeal, praying for a declaration of their title and for possession. Defendants 4 to 7 contested the suit. In their written statement they said that the allegations that the property belonged to the joint family consisting of the plaintiffs and defendants 1 to 3 were mere inventions and tissues of lies They pleaded that, in pursuance of the purchase at the Court auction, 6th defendant had taken possession of the property through Court and that, at the time of his taking possession, defendants 1 and 2 were in possession of the property They said further that the mortgage executed by the 1st defendant was for discharging antecedent debts and was therefore binding on the plaintiffs. The District Munsif held that the property was the joint family property of the plaintiffs and defendants 1 to 3, that the decree on the mortgage and the sale at the Court auction were not binding on the plaintiffs and that the plaintiffs were in joint possession of the property. On those findings, he passed a decree in favour of the plaintiffs. In appeal, the Subordinate Judge held that the property was the separate property of the 1st defendant. He then proceeded to consider the appeal on the assumption that the property was the joint family property of the plaintiffs and defendants I to 3. He did not give a specific finding on the question whether, on that assumption, the mortgage was binding on the plaintiffs. But he held, that even assuming that the mortgage was not binding, the sale that had been held in execution of the mortgage decree would be effective to convey to the purchaser the interests of the plaintiffs in the mortgaged property as well as the interest of defendants 1 and 2. On those findings, he allowed the appeal and dismissed the suit. The first point for determination is whether the finding of the learned Subordinate Judge that the suit property was the separate property of the 1st defendant is capable of being maintained. The plaintiffs’ allegations regarding title to the property are these. The property belonged to a joint family consisting of defendants 1 and 3 and another person. In a partition between them, the property was allotted to the share of defendants 1 and 3, the other person becoming divided from them. The property was subsequently mortgaged by the 3rd defendant. In execution of the decree obtained on the mortgage, the property was purchased by a stranger. He did not take possession. The property remained in the possession of the family. The purchaser sold the property to the family in the name of the 1st defendant. The family of the plaintiffs and defendants 1 to 3 thus acquired title afresh to the property and continued in possession of the property. He did not take possession. The property remained in the possession of the family. The purchaser sold the property to the family in the name of the 1st defendant. The family of the plaintiffs and defendants 1 to 3 thus acquired title afresh to the property and continued in possession of the property. In reply to those allegations, the 6th defendant, whose written statement was adopted by the other contesting defendants, merely said that those allegations were “false, grotesque, unbelievable........mere inventions and tissues of lies.” It is not surprising that the learned District Munsif declined to give serious consideration to a plea which consisted of mere epithets. As observed by him, there was no allegation that the suit property was the separate property or the self-acquired property of the 1st defendant. The only evidence bearing on the question whether the property was the joint family property of the plaintiffs and defendants 1 to 3 or the separate property of 1st defendant is the evidence furnished by the proceedings in the suit instituted on the mortgage which had been executed by the 1st defendant. The plaint in that suit, namely, O.S. No. 8 of 1949, is Exhibit B-2. The heirs of the mortgagee instituted the suit against defendants 1 and 2 herein. In pleading that the mortgage was binding on the 2nd defendant, the plaintiffs in O.S. No. 8 of 1949 said that defendants 1 and 2 were members of a joint Hindu family, that the 1st defendant was the manager of the family and that he had executed the mortgage with a view to discharge his antecedent debts, which were payable by the 2nd defendant out of his family properties. In instituting the suit, therefore, the holders of the mortgage treated the property as the joint family property of defendants 1 and 2. It is as joint family property that the property was sold and purchased in Court auction by the 6th defendant, who filed a written statement in this suit which was adopted by the other contesting defendants. In giving his finding that the property was the separate property of the 1st defendant, the learned Subordinate Judge overlooked the evidence furnished by this material transaction in which the property was treated and brought to sale as the joint family property of defendants 1 and 2. In giving his finding that the property was the separate property of the 1st defendant, the learned Subordinate Judge overlooked the evidence furnished by this material transaction in which the property was treated and brought to sale as the joint family property of defendants 1 and 2. In the 6th defendant’s written statement, he said that the property was in the possession of defendants 1 and 2 at the time of the delivery in pursuance of the sale certificate, which had been issued to him. There was no evidence that the 1st defendant had purchased the property for his own benefit or out of his own funds. In those circumstances, the Subordinate Judge’s finding that the property was the separate property of the 1st defendant is a finding that is vitiated by failure to consider material evidence bearing on the question. It cannot be supported. Acting under section 103, Civil Procedure Code, I find that the suit property was, at the time of the mortgage and of the Court sale in favour of the 6th defendant, the joint family property of the plaintiffs and defendants 1 to 3. The next question for decision is whether the mortgage executed by the 1st defendant was binding on the plaintiffs. The District Munsif found that the mortgage was not binding on the plaintiffs. The Subordinate Judge has not recorded any express finding on that question. The interests of justice are best served by my recording a finding on that question under section 103, Civil Procedure Code, instead of calling for a finding from the lower appellate Court. Exhibit B-1 is the mortgage deed executed by the 1st defendant in favour of Rathnammal on 17th December, 1936, for Rs. 350. The mortgage deed states that the money was reserved with the mortgagee to discharge an earlier mortgage, which the 1st defendant had executed for Rs. 250 and to discharge the debt due on the decree which had been obtained against the 1st defendant in S.C.S. No. 1164 of 1934 on the file of the Vellore District Munsif’s Court. No evidence was adduced on behalf of the contesting defendants to show that the mortgagee Rathnammal discharged either the one debt or the other, or paid consideration for the mortgage in any other manner. No evidence was adduced on behalf of the contesting defendants to show that the mortgagee Rathnammal discharged either the one debt or the other, or paid consideration for the mortgage in any other manner. If an alienation were so ancient that it would not be reasonable to expect direct evidence of the truth of the statements made in the instrument of transfer, the recitals made in the instrument might themselves be regarded as evidence of the facts stated. But transactions of the year 1936 do not qualify for exemptions of that kind. It was therefore the duty of the contesting defendants, if their case were true, to have adduced evidence of the passing of consideration for the mortgage Exhibit B-1, either in the manner stated in it or in any other manner. There was no such evidence. The only fact proved in relation to consideration for the mortgage is that a decree was passed on the mortagage against defendants 1 and 2. That may give rise to a presumption as against the 1st defendant that the mortgage was supported by consideration, but cannot, as against the plaintiffs, give rise to a presumption that the consideration was such as would bind their interests in the property. I find that the contesting defendant has not proved that the mortgage was executed for family necessity or for the benefit of the family, or for an antecedent debt payable by the 1st defendant. The mortgage, as an alienation of the interests of the plaintiffs in the property, was, therefore, of no effect. The mortgage was executed in 1936. The suit on the mortgage was instituted in 1949. There is no allegation in the plaint Exhibit B-2 in that suit that personal remedy was alive. Personal remedy was clearly barred. The point for decision is whether the Court sale held in execution of the decree passed on O.S. No. 8 of 1949 has the effect of conveying to the purchaser, (6th defendant) the plaintiffs’ interests in the property as well as the interest of the 1st defendant. Personal remedy was clearly barred. The point for decision is whether the Court sale held in execution of the decree passed on O.S. No. 8 of 1949 has the effect of conveying to the purchaser, (6th defendant) the plaintiffs’ interests in the property as well as the interest of the 1st defendant. Any discussion on the question of the power of a father in a joint Hindu family consisting of himself and his sons to alienate his sons’ interests as well as his own in joint family property or of the power of the Court to seize the sons’ interests as well as the father’s to satisfy a debt incurred by him, at the present day, has to start with Brij Narain v. Mangal Prasad1. In that case, their Lordships of the Judicial Committee laid down the following five propositions: “(1) The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but (2) If he is the father and the reversionaries are the sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt. (3) If he purports to burden the estate by the mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate. (4) Antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached. (5) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.” We are concerned in this case with the propositions 1 to 3. Applying propositions 1 and 3, we have held that the mortgage Exhibit B-1 executed by the 1st defendant in 1936 was of no effect as against the plaintiffs’ interest in the property. Applying propositions 1 and 3, we have held that the mortgage Exhibit B-1 executed by the 1st defendant in 1936 was of no effect as against the plaintiffs’ interest in the property. We have now to consider the effect of proposition No. 2 and see whether the sale in execution of the decree obtained on that mortgage has the effect of conveying the plaintiffs interest in the property as well as the 1st defendant’s. Where a decree is obtained on a promissory note executed by the father, in a suit in which his undivided sons are not eo nomine parties, the property of the joint family can be attached in execution and sold. The purchaser at such Court auction would acquire title to the entire joint family property inclusive of the son’s interests. (The word “debt” in this discussion denotes only an avyavaharika debt) That is because of the pious obligation of the sons to pay their father’s debts. That obligation extends to a debt whose repayment is secured by a mortgage executed by the father. Where a father executes a mortgage to secure repayment of a debt which, though an avyavaharika debt, is not a debt borrowed for family necessity or benefit, then, the alienation of the property by way of mortgage is not binding on the sons. That follows from propositions 1 and 3 laid down by their Lordships in Brij Narain’s case1. But the debt payable under the mortgage has to be discharged by the sons out of their family property by reason of their pious obligation. There was some controversy as to the method by which the son’s pious obligation could, in such a case, be enforced. The Punjab High Court took the view that, in a suit instituted on foot of the mortgage against the father without the sons being eo nomine, made parties a decree could be obtained against the father for the sale of the property and the mortgaged property could, as a whole, be sold, with the consequence that the purchaser would obtain a valid title as regards the sons’ interests in the property as well as the father’s. That view was as regards procedure, dissented from by the Bombay High Court in Bhanumappa v. Hanumantappa2. Beaumont, C.J., said, in effect, that the correct thing to do would be first to obtain a decree for sale of the father’s interest in the mortgaged property and then, if the sale proceeds were insufficient to satisfy the debt, to obtain a decree for payment of the balance of the debt by the father personally and by the sons out of their family properties. In execution of such personal decree, the sons’ interests in the mortgaged property could be sold. The other properties of the joint family could also be sold, if necessary. Whether, in such a case, a person who, after the date of the mortgage sued on but before the date of the personal decree, has obtained an alienation from the father of his and his sons’ interests in the joint family would obtain precedence over the purchaser in Court auction of the son’s interest in the property would be an interesting question, which, does not appear to have come up for consideration so far. Where a father creates a charge over the properties of the joint family for repayment of money, without making himself personally liable to pay the money, no question of the pious obligation of the sons to pay the money could arise. If the charge was created for a purpose not binding on the sons, then the son’s interest in the property could not be sold in enforcement of the charge. A case of that kind arose in Kesar Chand v. Uttam Chand3. In that case, there was a mortgage decree against one Hans Raj and his brother. They appealed to the High Court and prayed for stay of execution. The appellate Court granted stay on condition that the appellants furnished security in the form of a charge upon immovable property. Thereupon Uttam Chand executed a security bond in which he said: “.... In that case, there was a mortgage decree against one Hans Raj and his brother. They appealed to the High Court and prayed for stay of execution. The appellate Court granted stay on condition that the appellants furnished security in the form of a charge upon immovable property. Thereupon Uttam Chand executed a security bond in which he said: “.... I hereby stand as surety for Hans Raj and others, minors, judgment-debtors, and agree that in the event of the appellate Court’s decision being against the judgment-debtors, my movable and immovable properties, detailed hereinafter, shall be liable for making good the deficiency, if the sale proceeds of the hypothecated property are not sufficient to meet the demand i.e., the amount which may then be found due from the judgment-debtors according to the decision.” In the Appeal by Hans Raj and his brothers, there was a decree for sale of the property which had been mortgaged by them. In execution of the mortgage decree, the mortgaged property was sold. The sale proceeds were not sufficient to satisfy the decree. Consequently, one of the items of property included in the security bond filed by Uttam Chand and certain other family properties of Uttam Chand and his. sons were sold to satisfy the debt payable by Hans Raj and his brothers. The sons and grandsons of Uttam Chand instituted the suit, which gave rise to the appeal before their Lordships of the Privy Council, praying that the sale be set aside. Their Lordships held that while the security bond created a charge on the properties mentioned in it, it excluded all personal liability and this, since the bond was executed not for the payment of any debt due by Uttam Chand but for the payment of a debt, which was due from third parties the doctrine of pious obligation of the sons to pay their father’s debts could not make the transaction binding on the ancestral property. The plaintiffs in the suit were given a decree that the sale proceedings were null and void. We are now in a position to consider the Full Bench decision of our Court in Abdul Hameed v. The Provident Investment Co. Ltd.1, The parties in that case were Muslims, who in the matter of the holding of property, were governed by the Hindu Law. We are now in a position to consider the Full Bench decision of our Court in Abdul Hameed v. The Provident Investment Co. Ltd.1, The parties in that case were Muslims, who in the matter of the holding of property, were governed by the Hindu Law. The 2nd defendant in that case executed a mortgage over the properties which belonged to the joint family consisting of himself and his son and grandson for purposes which were not binding on the joint family. The mortgage was on 5th December, 1929. In 1932 the mortgagee obtained a preliminary decree for sale and in 1933 a final decree for sale. The mortgaged properties were sold and were found insufficient to satisfy the decree. On 16th March, 1937, a personal decree was passed against the 2nd defendant for the balance. The son and the grandson of the 2nd defendant instituted the suit, which gave rise to the reference to the Full Bench, alleging that the Court sale was not binding on their share of the property and claiming a partition. It was found that the mortgage was not binding on them. The questions then, arose whether, though the mortgage was not binding the decree for sale was binding on the son, and, secondly, whether the sale held in execution of the decree was binding on the son’s share. Those two questions and another question, which is not relevant for the purpose of the present appeal, were referred to a Full Bench. The two questions were: “(1) Whether a mortgage decree for sale simpliciter, without any personal liability, obtained against a father alone on a mortgage of the joint family property created by him for a purpose not binding on the family, is binding on the son’s share by the application of the principle of pious obligation ? (2) Whether a sale held of the joint family property in execution of such a decree is binding on the son’s share?” The Full Bench answered the first question in the negative and the second question in the affirmative. So far as our State is concerned, that decision disposed of the controversy regarding the procedure to be adopted in enforcing the son’s pious obligation to pay a debt secured by a mortgage executed by the father. So far as our State is concerned, that decision disposed of the controversy regarding the procedure to be adopted in enforcing the son’s pious obligation to pay a debt secured by a mortgage executed by the father. In that case personal remedy was alive when the suit was instituted but the mortgage as an alienation of joint family properties was not binding on the son. That decision is authority for the position that in such a case, it is not necessary in order that the creditor may have the son’s interest in the property sold as well as the father’s in satisfaction of the mortgage debt, that the creditor should first obtain a decree for sale of the father’s share of the property and then obtain a personal decree for payment of the balance. The question for consideration now is whether the answer given by the Full Bench to Question No. 2 referred to it for opinion extends to a case where, on the date of the suit personal remedy on the mortgage is barred. Let us take a case in which on a mortgage executed by the father for purposes not binding on the sons, a suit is instituted against the father alone after the personal remedy on the mortgage has become barred and a decree is passed for sale of the property. In execution of the decree, the entire mortgaged property inclusive of the the sons’ share is sold. The question is whether the purchaser acquires a valid title to the sons’ share. If we answer that question in the affirmative, the position would be this, namely, that the creditor would by deliberately omitting to implead the sons, gain an advantage at their expense, which the creditor could not possibly get if he had impleaded the sons. Let us suppose that the sons of the mortgagor as well as the mortgagor were impleaded as the defendants in the suit. On the facts, since the mortgage was not binding on the sons the suit would be dismissed as against them and, since personal remedy was barred there would have been a decree only for sale of the father’s share in the property. The sons’ share could not be sold at all. Could the creditor be in a better position by not impleading the sons ? The sons’ share could not be sold at all. Could the creditor be in a better position by not impleading the sons ? The ordinary rule of law on that matter is that nothing done in a suit could prejudice a person, who is not a party to such suit. But there are cases where a person may be bound by the decree in a suit, although he is not eo nomine a party. Those ordinarily are cases in which such person is represented by a person who is eo nomine on record. But a person who represents another person in a suit cannot, by such representation, bring about, as regards such other person, adverse consequences more far-reaching than could be brought about if such other person were himself a party. Therefore, to hold that in a case in which the son’s interest in the mortgaged property cannot be sold if he were eo nomine added as party to a suit on the mortgage his interest could be validly sold if he were not eo nomine impleaded as a party would be to state a thing that would be opposed to the fundamentals of procedural law. I am hence of the view that the answer given by the Full Bench in Abdul Hameed v. The Provident Investment Co. Ltd.1, to Question No. 2 referred to it for opinion should not be extended to cases where personal remedy on the mortgage was barred on the date of the institution of the suit. It is necessary at the same time that we set out the argument that might be advanced in favour of the view that the answer given by the Full Bench to the second question referred to it extends also to a case where the personal remedy on the mortgage is barred on the date of the institution of the suit. The argument is this. When the Court sells the son’s interest in joint family property in satisfaction of a debt payable by the father, the Court is really exercising the father’s power to sell the son’s interest as well as his own in satisfaction of a debt payable by him. A father may sell joint family property inclusive of his son’s interest in such property for a debt payable by him, whose recovery is barred by the law of limitation (Please see Satyanarayana v. Satyanarayana Murthi2). A father may sell joint family property inclusive of his son’s interest in such property for a debt payable by him, whose recovery is barred by the law of limitation (Please see Satyanarayana v. Satyanarayana Murthi2). Therefore, since the father could have validly sold the mortgaged property to the decree-holder in satisfaction of the decree for sale passed on the mortgage notwithstanding that the personal remedy against the father was barred, the Court could also sell the entire joint family property in satisfaction of the debt and in selling the entire property in execution of the decree, the Court must be deemed to have exercised that power. That argument throws into relief the question whether, in selling, the son’s interest in joint family property for the discharge of a debt payable by the father the Court is exercising the father’s power of sale or whether the Court is enforcing the pious obligation of the son to pay the debt. That question is considered in great detail, and if I may say so, with a wealth of illustration by the Supreme Court in Sidheshwar v. Bhubneshwar3. If, in selling joint family property for a debt payable by the father the Court is merely exercising the father’s power of sale, the Court’s power would cease, when the father’s power ceases. But Proposition 5 laid down by the Privy Council in Brij Narain v. Mangal Prasad4, says expressly that the Court’s power is not affected by the fact that the father is dead. Further,the Court could sell the son’s share even in a case where by partition between himself and his sons the father has lost his power of selling his son’s share. The case in Sidheshwar v. Bhubneshwar3 related to a branch consisting of a father and his sons, which formed part of a larger joint Hindu family. Under the law in Bihar, which governed the case, the father could not alienate his and his son’s share in the property for the debt which he had to pay. But the law recognised at the same time the pious obligation of the sons to pay the debt. Under the law in Bihar, which governed the case, the father could not alienate his and his son’s share in the property for the debt which he had to pay. But the law recognised at the same time the pious obligation of the sons to pay the debt. It was held that although the father could not himself alienate his and his son’s interest in the joint family property for the payment of his debt, the Court could attach his and his son’s interest in the joint family property and sell it for the satisfaction of the debt payable by him. The father’s power of sale itself is a consequence of the son’s obligation to pay the father’s debt. I am, therefore, of the opinion that the Court’s jurisdiction to sell the son’s share is based not on the father’s power of sale, but on the son’s pious obligation to pay. There is no legal obligation on the part of the son to pay a debt of his father, whose recovery is barred by the law of limitation (Please see Subramania Aiyar v. Gopala Aiyar)1. It seems to me therefore that where the son is not made a party to a suit on mortgage executed by the father, instituted after the personal remedy on the mortgage is barred, the son’s interest in the mortgaged property cannot be conveyed by a sale held in execution of a decree obtained against the father. But, since the language of the answer given by the Full Bench in Abdul Hameed v. The Provident Investment Co. Ltd.2, to question No. 2 referred to it for opinion would seem to extend to such a case also, it is necessary that the question should be considered by a Full Bench. But, since the language of the answer given by the Full Bench in Abdul Hameed v. The Provident Investment Co. Ltd.2, to question No. 2 referred to it for opinion would seem to extend to such a case also, it is necessary that the question should be considered by a Full Bench. I would, therefore, refer the following question to a Full Bench namely whether the answer given by the Full Bench in Abdul Hameed v. The Provident Investment Co., Ltd.2, to Question No. 2 referred to the Bench extends to a case where the decree is passed in a suit instituted after the personal remedy on the mortgage had become barred by the law of limitation, that is to say, whether a sale held in execution of a decree passed in a suit instituted against the father to which the undivided sons are not eo nomine parties, on a mortgage executed by the father which is not binding on the sons and as to which the personal remedy is barred on the date of the institution of the suit, is effective to convey the interest of the sons in the property as well as the interest of the father. The papers will be placed before my Lord the Chief Justice for such orders as he deems fit. In pursuance of the Order of reference the Second Appeal came on for hearing before the Full Bench (Ramachandra Iyer, O.C.J., Veeraswami and Ramakrishnan, JJ.). The Judgment of the Court was delivered by Ramachandra Iyer, O.C.J.- This reference raises a question regarding the binding nature of an execution sale under a mortgage decree over the interest of the sons in the mortgaged property, the debt secured not being personally enforceable against the father and not being of avyavaharika character. The question as framed and placed before us would appear to cover a mortgage decree on the basis of an avyavaharika debt as well. The question as framed and placed before us would appear to cover a mortgage decree on the basis of an avyavaharika debt as well. We have, therefore, thought it necessary to re-cast the question which will be as follows:- “Whether a sale of joint family property, held in execution of a decree in a suit instituted against the father alone on a mortgage executed by him, the debt covered thereby not being avyavaharika but which, however, was contracted neither for discharging an antecedent debt of the father, nor for any necessity or benefit of the family and, in respect of which personal remedy against the father had become barred by limitation, would be binding on the sons’ interest in the mortgage property.” We entertain no doubt that the question has to be answered in the affirmative and that the decision of the Full Bench of this Court in Abdul Hameed v. Provident Investment Co. Ltd.2, would cover this case as well. Before giving our reasons for the conclusion stated above, it is necessary to state a few facts which give rise to this reference. Shanmugam, the second respondent to the appeal and his three sons, namely, the two appellants and the third respondent are members of a joint Hindu family. During the year 1936, Shanmugam created a mortgage over the suit property to secure a sum of Rs. 350. It is admitted that the loan was not incurred for the discharge of any antecedent debt incurred by Shanmugam or for any benefit or necessity of the family; but at the same time it was not for any illegal or for immoral purpose. In the year 1949 by which time, the personal remedy against the mortgagor had become barred, the mortgagee instituted a suit for the sale of the property covered by the security. The sons were not made parties to the suit. The suit ended in a decree in execution of which the predecessorin-title of the first respondent purchased the property, the sale certificate issued being wide enough to cover the sons’ interest in the property as well. The sons were not made parties to the suit. The suit ended in a decree in execution of which the predecessorin-title of the first respondent purchased the property, the sale certificate issued being wide enough to cover the sons’ interest in the property as well. Alleging that the Court auction sale would not bind their interest in the property and complaining that the purchaser was improperly interfering with their possession the appellants, the two minor sons of Shanmugam instituted a suit, out of which this Second Appeal arises, for a declaration of their title to the property and for recovery of possession of the same. The learned District Munsif held that the Court sale would not be effective to convey the interest of the appellants and decreed the suit. On appeal the learned Subordinate Judge reversed that judgment holding that the property was the separate property of Shanmugam and that even otherwise the sale in execution would bind the interests of the sons by reason of the pious obligation of the latter to discharge their father’s debts. The appellants contest the propriety of that conclusion in this Second Appeal. Subrahmanyam, J., before whom the Second Appeal came on for hearing originally was not satisfied with the finding of fact arrived at by the learned Subordinate Judge as to the property being the separate property of the father and acting under the provisions of section 103 of the Civil Procedure Code, considered the evidence afresh and came to the conclusion that the mortgage property did form part of the joint family property in which the appellants had an interest. He was further of the view that the mortgage not being for any necessity or benefit it would not bind the sons’ interest, and as the personal remedy against Shanmugam was not alive on the date of the institution of the suit, the Court sale must be held to be not effective to convey the interest of the sons in the property sold. This conclusion was opposed to the opinion expressed by the Full Bench in Abdul Hameed v. Provident Investment Co., Ltd.1, and so the learned Judge formulated the following question for consideration: “Whether the answer given by the Full Bench in Abdul Hameed v. The Provident Investment Co., Ltd.,1 to Question No. 2 would extend to a case where a decree is passed in a suit instituted against the father to which the undivided sons are not eo nomine parties, on a mortgage executed by the father which was not binding on the sons and in which the personal remedy was barred on the date of the institution of the suit, would be effective to convey the interest of the father.” The law relating to the liability of a Hindu son to pay the debts of his father, the right of the latter to alienate the joint family property for the purpose of discharging his debts and the rights of the creditor of the father to proceed against the son’s interest in the family property has been clearly laid down in a number of cases and it needs no restatement except by way of introduction for the purpose of the reference. The liability of the son to pay his father’s debts has, as is well known, its origin in certain texts of Hindu Law. According to the Smrithis it is a sin to remain in debt ; the debtor has a duty to discharge the debt and failure on his part to do so will not merely amount to a breach of the legal obligation incurred but also of a moral one for which the debtor would have to account in his after-life. It is because of this a duty on the part of the son, grandson and great grandson of the debtor arises - a duty to save the ancestor from such consequences. The Smrithis themselves impose a duty on them to save the ancestor from the consequences of the sin resulting from non-payment of a debt. The liability of the son is, therefore, not by reason of any obligation incurred by him or any benefit received by him or even by reason of any right inhering in the creditor who lends the money to the father but because he is obliged to save the soul of his indebted father. The liability of the son is, therefore, not by reason of any obligation incurred by him or any benefit received by him or even by reason of any right inhering in the creditor who lends the money to the father but because he is obliged to save the soul of his indebted father. Prima facie, therefore, the obligation on the part of the son would subsist so long as the father remains indebted, whether such debt is to be recovered as against the father personally or against his property alone or against both. But the origin and nature of the liability of the son, itself suggest a limitation regarding the debts which will have to be paid by him. The liability having as it does its foundation in religion, it stands to reason that there should be no obligation on a son to discharge a debt, incurred by the father for purposes opposed to the tenets of religion - debts known as aoyavaharika debts, otherwise termed illegal or immoral debts. Where the debt is not an aoyavaharika but a vyavaharika one, no limitation exists under the texts as regards the obligation of the son to pay. The obligation is a personal one irrespective of any assets having been received from his father or possession of property. Being one intended to save the debtor from penalties in the other world, the obligation would therefore, subsist not withstanding any bar by limitation. But judicial decisions have developed the legal aspect of the liability and put certain limits on its application. Under the existing law the son, which term, includes grandsons and great grandsons, the obligation would undoubtedly be a personal one irrespective of receipt of assets from his father namely, his separate property, but his liability would be confined to the extent of the joint family property in his hands. In case the father left any separate property for him to inherit, there will be the sons’ liability to the extent of that asset as well. Secondly as the liability of the son arises the moment the debt is incurred by the father, it would be based on the same cause of action. If therefore, the father’s liability stands discharged or extinguished, the liability of the son on the same cause of action would also stand similarly discharged or extinguished. Secondly as the liability of the son arises the moment the debt is incurred by the father, it would be based on the same cause of action. If therefore, the father’s liability stands discharged or extinguished, the liability of the son on the same cause of action would also stand similarly discharged or extinguished. It follows that, if the claim against the father is barred by any law like limitation, the son would have no obligation to pay the creditor. Closely following the liability of the son to pay his father’s debts, is the power of the father to discharge his liability by sale of the joint family property. The law as it now stands, has been stated by Mukherjea, J., in Pannalal v. Mst. Naraini1 thus: “It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead ; thus it is open to the father, during his lifetime to effect a transfer of any joint family property including the interest of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up for sale not merely the father’s but also the son’s interest in the joint estate. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up for 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 a proper debt 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.” The power of a manager and father in a joint family to alienate family property for discharging debts has been laid down in the form of five propositions in the classic passage in the judgment of Lord Dunedin in Brij Narain v. Mangal Prasad2 thus: “(1) The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; (2) if he is the father and the reversioners are the sons he may by incurring the debts so long as it is not for an immoral purpose lay the estate open to be taken in execution proceedings upon a decree for payment of that debt. (3) if he purports to burden the estate by mortgage then unless that mortgage is to discharge an antecedent debt, it would not bind the estate; (4) antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached ; (5) there is no rule that this result is affected by the question whether the father who contracted the debt or burdens the estate is alive or dead.” We are concerned in this case with the second of the five propositions mentioned above. There was a controversy at one time whether the word “debt” in the Second proposition would only apply to a simple money debt or would cover a mortgage debt as well. The view taken by Sulaiman, J., in Gajadhar Pande v. Jadubir Pande3, that the word “debt” would include both a mortgage as well as a money debt, later accepted by a Full Bench of the same High Court in Hiralal v. Puran Chand1, has been accepted by the learned Judges in Abdul Hameed v. The Provident Investment Co. The view taken by Sulaiman, J., in Gajadhar Pande v. Jadubir Pande3, that the word “debt” would include both a mortgage as well as a money debt, later accepted by a Full Bench of the same High Court in Hiralal v. Puran Chand1, has been accepted by the learned Judges in Abdul Hameed v. The Provident Investment Co. Ltd.2, and the matter could be said to be settled so far as our Court is concerned. A mortgage is a transfer of property by way of security to repay a debt; there are, therefore, two aspects in a transaction by way of mortgage, namely, a transfer of property and the existence of a debt. Where there is no personal liability on the mortgagor to repay the debt, the debt would nevertheless exist but it can be recovered only from out of the property. So long as there is the debt, the doctrine of pious obligation would import an obligation on the part of the son to pay and a right of the father to convey family property for its discharge. In Abdul Hameed’s case2 the question before the Full Bench was whether a sale of joint family property in execution of a decree obtained against a father alone on the basis of a mortgage of the joint family property created by him for a purpose which was neither for paying off an antecedent debt nor for any necessity or benefit of the family, would be binding on the son’s share. The question was answered in the affirmative. The father in that case (a Muslim who by custom was governned by the Hindu Law) created a mortgage to secure a debt incurred by him over several items of his ancestral properties. The mortgage decree resulted in a sale but the decree was not entirely satisfied by the sale, the personal remedy against the father was subsisting on the date of the suit and it appears that a personal decree-was also actually passed against him later.. But the case was not concerned with the liability under the personal decree as what was impugned was the Court-sale in execution of the mortgage decree as such. But the case was not concerned with the liability under the personal decree as what was impugned was the Court-sale in execution of the mortgage decree as such. The learned Judges held that notwithstanding the fact that the mortgage debt was not one incurred either for payment of an antecedent debt or for the benefit or necessity of the family, the Court sale would be effective enough to convey to the purchaser the interest of the son as well. The reasons given and the view taken by the learned Judges in Abdul Hameed’s case2 would appear to cover all cases of liability of the father whether such liability was personal or confined to the mortgaged property alone. But it is contended for the appellants and that contention is supported by the view expressed by Subrahmanyam, J., in his order of reference, that the decision in Abdul Hameed’s case2, should be confined to a case where the personal remedy against the father is subsisting and not extended to one where there is no personal remedy. But as pointed out earlier the execution sale in that case was not in enforcement of any personal decree. The contention, therefore, can be stated thus:- A Court sale in execution of the mortgage decree could convey the interest of the mortgagor’s sons only where the personal remedy against the latter actually subsists though it is not necessary that it should have been availed of. The contention however ignores the basic reason of the liability of the son, namely, a pious obligation; that obligation would be there so long as the obligation of the father exists. The existence of an obligation cannot be negatived if one of the remedies available for its enforcement is lost or not available; nor is it necessary for the obligation to subsist that the liability of the father should be enforceable in a particular form against him by arrest or other personal process. For example, suppose a Hindu father (in a joint family) is adjudicated an insolvent and he obtains a protection order under section 31 of Provincial Insolvency Act; that does not prevent the creditor from filing suits against the sons on the basis of the latter’s pious obligation. For example, suppose a Hindu father (in a joint family) is adjudicated an insolvent and he obtains a protection order under section 31 of Provincial Insolvency Act; that does not prevent the creditor from filing suits against the sons on the basis of the latter’s pious obligation. A creditor of the father in execution of a decree against the father alone or against the father and son in respect of a personal debt of the father may notwithstanding the insolvency of the father attach and sell the son’s interest. Vide Arunachalam v. Subratnam3. The position will, however, be different if the father had obtained an order of absolute discharge in his insolvency releasing him from the debt in question ; the son in that case would be freed of his liability because the obligation of the father no longer existed. Therefore, the son’s liability would depend on the subsistence of the debt and not the availability of a particular form of remedy against the father. A debt is money that is due or owing to another, whether the liability to pay is personal or one of property. A debt would nonetheless be a debt even if there is only a property liability in respect of the same. In Periannan v. Sellappa1, Varadachariar, J., while construing the definition of the term ‘debt’ under the Madras Act IV of 1938 in relation to the position of a purchaser of the equity of redemption vis a vis the mortgage money, held, that the words “any liability” and “due” would include a liability which is payable out of a property alone in the hands of the debtor implying that the word liability is wide enough to include a mere property liability. In the text of Yagnvavalkva and in the commentary of Mitakshara, the word used for denoting a debt of the father which the son would be liable to pay is (rina). I he word rina is a word of wide connotation signifying a variety of obligations. Krishnaswami Iyengar, J., in delivering the judgment of the Bench in Nachimuthu v. Balasubramanyam2, had occasion to consider the meaning of the term rina in relation to the obligation of a Hindu son; the learned Judge referred to the variety of meanings attached to it which shows that it cannot be restricted to a mere personal obligation to pay a definite sum of money. The actual question that arose in that case, and which was answered in the affirmative, was whether a liability, an unascertained one, of a partner to the heirs of a deceased partner, could be said to be a debt so as to constitute an antecedent debt to support a mortgage created by the former. An obligation to pay a debt incurred by the father under a mortgage but in respect of which the personal remedy had become barred would undoubtedly be a (rina) under the texts of Hindu Law which imposes an obligation on the son to pay. It is true that in certain respects the law as to the extent of the obligation of a Hindu son to pay his father’s debts as understood and laid down by judicial decisions has made a departure from the law as laid down by the texts. The restrictions to the doctrine of pious obligation recognised by the Court are but a logical extension of the principle underlying the liability, namely (1) being religious avyavaharika debt would not come within it; (2) being co-extensive with the father’s liability, a discharge or extinction of the latter’s liability would terminate the son’s liability and (3) the liability is limited to assets received or to the extent of the joint family property. But none of the cases have gone so far as to hold that where the debt as such is alive, but one of the several remedies against the father is lost, the obligation of the sons could be held to be extinguished. In Abdul Hameed v. The Provident Investment Co., Ltd.3 the learned Judges examined fully the principle underlying the doctrine of pious obligation after making a detailed reference to the cases on the subject and came to the conclusion that even though a mortgage created by a Hindu father and the decree that superseded it would not qua mortgage or mortgage decree bind the son’s interest in the mortgaged property, that would constitute a lawful debt of the father which in turn would support the execution sale under the same decree as an antecedent debt. Two main reasons are given in the judgment in support of that conclusion. Two main reasons are given in the judgment in support of that conclusion. (1) The word “debt” is the Second proposition laid down in Brij Narain v. Mangal Prasad4, includes a mortgage debt as well; a mortgage, however is an alienation of property and in a case where a mortgage is not for necessity or benefit or for payment of an antecedent debt, a decree thereon qua mortgage decree will not bind the son’s interest. But where a property is put up for sale in execution of such decree, another principle applies, namely, that which is stated in Suraj Bansee Koer v. Sheo Prasad Singh 1, where the Privy Council observed: “Where ancestral property has passed out of the family either under a conveyance executed by the father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt or under a sale in execution of a decree for his father’s debts (italics ours) his sons by reason of their duty to pay their father’s debts cannot recover that property unless they shew that the debts were contracted for immoral purposes for which they would not have been liable and that the purchasers had notice that they were so contracted.” Therefore, although a mortgage decree cannot, as such, bind the son, once a sale has ensued under the decree, the son cannot recover his property back from the purchaser in an execution sale unless he shows that the debt which formed the basis of the decree was avyavaharika, the assumption being that the Court purported to sell the entire property including the son’s share. (2) The mortgage decree (debt not being avyavaharika) though it may not bind the son as such, would by itself constitute a debt of record and an execution sale which follows the decree can be supported on the theory that the sale was for the discharge of an antecedent debt, namely, the decree, the Court’s power of sale being co-extensive with the father’s. None of the two aforesaid reasons depend for its validity on the subsistence of any personal remedy against the father. Indeed the observations of the Privy Council in Suraj Bansee Koer’s case1, which enunciates the right of the son once the property has passed out of the family, would appear to show that there can be no distinction between a case where property is sold where there is no personal liability of the father and one where there is such liability. In Periaswami Mudaliar v. Seetharama Chettiar2, Bashyam Iyengar J., recognised that a decree obtained against a father would constitute a debt of record. This was followed in Reddi Krishnan Naidu v. Chintala Somi Naidu3. In that case a decree was passed against the father after exonerating the sons who were originally impleaded as parties. It was held that the decree would give a new right under which the decree-holder would be enabled to proceed against the son’s interest in the family property in execution of that decree. Whether the decree debt will constitute only a fresh cause of action on the basis of which a suit alone can be laid against the son or whether it can support a sale in execution of that decree itself can no longer be a matter of controversy so far as our Court at any rate is concerned, as both the second of the two decisions aforesaid, and the Full Bench decision in Abdul Hameed v. The Provident Investment Co., Ltd4, have accepted the latter view. The executing Court can, therefore, sell the son’s interest under a mortgage decree against the father where there is no personal liability, if the father himself could do so. The question then arises whether a father has power to convey the son’s interest in the property with a view to discharge a debt of his in respect of which there is no personal liability on his part but where the creditor could proceed against his property for recovery of the debts. Arumugam v. Muthu Goundan5, accepted the principle that a mortgage debt would constitute an antecedent debt to support a subsequent alienation by the father to discharge the same. Although the personal liability appears to have subsisted in that case, the decision did not rest on that ground. Arumugam v. Muthu Goundan5, accepted the principle that a mortgage debt would constitute an antecedent debt to support a subsequent alienation by the father to discharge the same. Although the personal liability appears to have subsisted in that case, the decision did not rest on that ground. It was observed that in order to support an alienation by the father all that was necessary to show was that there was an antecedent debt (not avyavaharika) and not that such debt should be otherwise than on a security of property. The question directly arose for consideration in Gouri Sankar Singh v. Sheo Nandan Misra6, where a father in a Hindu family originally executed a simple mortgage over certain family property. After the personal remedy had become barred and while the property liability was subsisting, the father executed an usufructuary mortgage in favour of the same creditor to discharge the earlier mortgage. It was held that although the personal liability had become barred, the earlier mortgage nevertheless constituted an antecedent debt which could support the subsequent mortgage by the father so as to bind the interest of the sons as well. Sulaiman, J., observed: “Although a debt which has become absolutely barred by time and the liability to pay which has not been undertaken in previous writing, it cannot be deemed to be a good antecedent debt so as to validate a conveyance by the father in lieu of it. Yet where the mortgage debt, as such has not been time-barred but only the personal remedy against the father is barred it can still be a good antecedent debt so as to justify an alienation in lieu of it.” This decision was cited with approval and the principle stated therein accepted in Satyanarayana v. Satyanarayana Murthi1, where a subsequent mortgage executed in discharge of a prior mortgage in respect of which the personal remedy of the executant had become barred, was held to bind the son’s interest as well. If so much can be taken as settled, that is to say, that the father would be competent to sell joint family property to discharge a mortgage liability incurred by him albeit no personal liability existed in respect of such liability, the next step is easy, for a Court executing a decree against the father will have at least his power in regard to alienations. A Court can, therefore, put up for sale and convey the son’s interest in execution of a decree against the father. The precise point before us directly arose for consideration in Muthusami Chettiar v. Subramania Iyer2, where Benson and Miller, JJ., held that a Court sale in execution of a mortgage decree, where in respect of the mortgage, the personal liability of the father had become barred by limitation, was competent to convey the son’s interest. The principle stated was that in such a case the debt continued to exist though its recovery in a particular way had become barred. In our opinion this decision is in accord with the principle and authority. Substantially two reasons have been given by Subrahmanyam, J., whose attention, however, does not appear to have been invited to the above decision, in support of a contrary view. The first, if accepted as good, would render the decision in Abdul Hameed’s Case3, itself incorrect. Learned counsel for the appellants who adopted it as his main argument in this appeal formulated his argument in this way: The Court’s jurisdiction to sell the son’s share is based not on the father’s power of sale but on the son’s pious obligation to pay. Where a creditor brings a suit against the father impleading the sons as well, but the suit is dismissed against the sons, it is settled law that it will not be open to him to proceed against the son’s share in the family property in execution of the decree against the father alone. The rule should not be different where the sons were not made parties to the suit as in the present case. To hold otherwise would in the words of Subrahmanyam, J., be: “But a person who represents another person in a suit cannot by such representation bring about as regards the other persons adverse consequences more far-reaching than could be brought about if such other person were himself a party. To hold otherwise would in the words of Subrahmanyam, J., be: “But a person who represents another person in a suit cannot by such representation bring about as regards the other persons adverse consequences more far-reaching than could be brought about if such other person were himself a party. Therefore to hold that in a case in which the son’s interest in the mortgaged property cannot be sold if he were eo nomine added as a party to a suit on the mortgage his interest could be validly sold if he were not eo nomine impleaded as a party would be to state a thing that would be opposed to the fundamentals of procedural law.” There are three fallacies in the arguments: (1) It is true that the legal basis for the Court’s power to sell the son’s share is the latter’s obligation under the Hindu Law. But the existence of that very obligation entitles the father to exercise a power of alienation for the discharge of his avyavaharika debt. The Court in selling the sons share only exercises the father’s power, (2) where a father is sued for a recovery of a personal debt or on a mortgage executed by him neither for necessity or benefit of the family, he could be and is sued only in his individual capacity and not in any representative capacity. The decree against him will be against him in his individual capacity ; the son’s share in the joint family property is made liable because it is a debt of the father and not on any theory of representation. For if it were to be held that in contracting the liability and in the suit the father represented the sons, there would be no need to invoke the doctrine of pious obligation at all, (3) the cases which hold that where the sons are impleaded along with the father but the claim against them (the former) is dismissed, the son’s share in the family property would not be liable, are not based on any theory as to the necessity of making them parties, but on the principle of res judicata. There can be no controversy on the first of the three points stated above. The second too can be taken as well settled. In Pannalal v. Mst. There can be no controversy on the first of the three points stated above. The second too can be taken as well settled. In Pannalal v. Mst. Naraini1, Mukherjea, J., while setting out the settled principles of law recognised that it was open to the creditor of the father to obtain a decree against the father alone and in execution of the same put up for sale not merely the father’s but the son’s interest in the joint family estate. But it is contended that the liability of the son is on the basis of a constructive representation of his case by his father in the proceeding and where there is no such representation there would be no obligation. Mr. Venkataswami appearing for the appellants placed considerable reliance on the decision in Shiam Behari Lal v. Bhure Lal2. In that case a suit was filed on the basis of a mortgage by the father in respect of which a personal remedy had become barred. The father confessed judgment on behalf of himself and his son. The son applied later and succeeded in getting the suit against him dismissed on the ground that the mortgage was not binding on him and that the father had no authority to confess judgment on his behalf. The mortgage property was then sold. The decree-holder then applied for a personal decree against both the father and the son. The son was again successful in resisting the claim against him and the personal decree was passed only against the father. The father died. The decree-holder sought to attach in execution of the personal decree the joint family property obtained by the son by right of survivorship. It was held that as on the date of the institution of the suit the personal remedy was barred the decree could not be executed against the son. The learned Judges stated in that case that as the personal decree in respect of the suit-mortgage had by the time the suit was filed, become barred, the personal decree against the father relative to that claim was equally barred and the son who was no party to it would not be bound. There is a slight inaccuracy in this. The learned Judges stated in that case that as the personal decree in respect of the suit-mortgage had by the time the suit was filed, become barred, the personal decree against the father relative to that claim was equally barred and the son who was no party to it would not be bound. There is a slight inaccuracy in this. Factually the son was made a party to the proceedings for the passing of the personal decree and the claim against him was dismissed ; it was not a case where the son was not a party at all. The actual decision in the case can, however, be justified on the ground that the question as to the son’s liability which arose under sections 50 and 53 of the Civil Procedure Code had been already decided in suit itself. We cannot, however, accept as correct that where a personal decree is passed against the father in a suit to which the sons are not made parties, the decree could not be executed against the son’s share in the family property if the claim had been barred and the decree was erroneously passed. In respect of a liability incurred by a Hindu father a creditor can file a suit on the basis of the contract ; to such a suit he can also implead the sons in order to get an adjudication that the liability is such that the sons would be bound to pay on the principle of pious obligation. To implead the sons or not, is entirely at the option of the creditor. If he does not implead, it does not mean that the decree obtained against the father alone is not executable against the son’s share in the family property. That depends upon the quality or nature of the debt, and riot on the fact of the sons being made a party or not. If they are not parties they can raise the question as to the binding nature of the debt whenever their rights are sought to be infringed. If they are made parties, they should raise the question of their liability in the suit itself. If they do not do so, or if they raise the plea and it is’ rejected it would mean that they are liable and the question cannot be raised again. If they are made parties, they should raise the question of their liability in the suit itself. If they do not do so, or if they raise the plea and it is’ rejected it would mean that they are liable and the question cannot be raised again. Per contra if they are impleaded as parties to the suit against their father and the suit against them is dismissed, it would mean that the Court had decided in their favour and against the creditor on the question of their liability. The principle is, therefore, one of mere res judicata and not on the effectiveness of the representation of the sons by their father in the suit. In Reddi Krishnah Naidu v. Chintala Somi Naidu1, a decree was obtained against a Hindu father after his sons who were impleaded in the suit had been exonerated and dismissed therefrom. Whether such a decree could be executed against the interest of the sons in the joint family property came up for consideration in the case. That was answered in the affirmative. In so doing reference was made to two earlier decisions of this Court where it was held that a decree passed against the father personally after his sons had been exonerated could be executed against the sons’ interest in the family property as the result of the withdrawal of the suit or exoneration of the sons was not to bring about any bar of res judicata. That was a case where the sons were impleaded and exonerated ; the position would be the same even where the sons were not impleaded at all. Where, however, the suit has been dismissed against the sons and the decree is made against the father alone, the same principle would show that the son’s share in the property could not be made liable as the Court must be deemed to have decided that there was no pious obligation on his part to pay the suit debt vide Panchaiti Akhara Mahanirvani v. Bindhi Shri Prasad2,. It will be apparent from the above that the true principle of the right of a creditor to proceed against the son’s share in the family property is not on any representation of his independent interest in the suit, but whether the debt is not an avyavaharika debt. It will be apparent from the above that the true principle of the right of a creditor to proceed against the son’s share in the family property is not on any representation of his independent interest in the suit, but whether the debt is not an avyavaharika debt. An omission to implead the son in the suit against the father cannot mean that the pious obligation is at an end ; its only consequence is that there will be no adjudication as to the binding nature of the suit debt at that stage. The son can, therefore, contest his liability with reference to the nature of the debt in other proceedings. But where the debt is not an avyavaharika one, his liability would exist although the decree is against the father alone. The omission to implead the sons in the instant case in the suit cannot therefore amount to an implied adjudication that the debt was avyavaharika. In view of the finding that though avyavaharika debt it was neither one for necessity or benefit of the family, the father could not have represented them in the suit. Nevertheless the decree against the father will constitute a debt payable by him in respect of which the liability of the sons would also exist. The second reason urged in support of the view that where there is no personal liability of the father there could be no pious obligation on the part of the son to discharge his father’s obligations is based on the decision of the Privy Council in Kesar Chand v. Uttam Chand3. In that case a Hindu father executed a security bond to the Court for the payment of a debt due from a third party by charging certain properties belonging to him for the due performance of the obligation of the third party. The Privy Council held that there would be no personal obligation on the part of the sons to pay their father’s debts as there was no debt due by the father himself. That was a case where the liability in respect of the charge created by the father was not referable to any debt due by the father; the charge created was to answer the debt of a third party. That was a case where the liability in respect of the charge created by the father was not referable to any debt due by the father; the charge created was to answer the debt of a third party. That principle cannot obviously apply where there is a debt of the father to support the charge or mortgage, as in the case of a mortgage executed by a father as security for his personal debt without there being; a personal liability therefor. It would follow that a Court-sale obtained in execution of a mortgage decree passed against a Hindu father (the debt being avyavaharika) the personal decree against whom had become barred by limitation, would, if it is not inconsistent with the terms of the sale certificate, include the sons’ interest in the property as well. We accept the decision in Muthuswami Chettiar v. Subramania Iyer1, as laying down the correct law and hold that the opinion expressed by the Full Bench in Abdul Hameed v. The Provident Investment Co., Ltd.,2 on the second point would comprehend a case where a mortgage decree was passed after the personal decree against the father had become barred. The result is that the appeal fails: it is dismissed with costs of Respondent 1. V.S. ----------- Second Appeal dismissed.