Judgment :- Plaintiffs in O.S. No. 466 of 1982 on the file of the Court of Subordinate Judge, Palghat, are the appellants. Suit is for partition. 2. Deceased Mayilswamy Kounder, husband of the 1st plaintiff and father of plaintiffs 2 and 3 and his father deceased Panchayappa Kounder were members of an undivided Hindu joint family. The properties belonged to the joint family and in a partition by members of the family on 3-2-1953; the plaint schedule properties were allotted to the share of Panchayyappa Kounder as B schedule to the partition deed. Since the property was ancestral Panchayyappa Kounder.s son Mayilswamy Kounder was also entitled to a share in the joint family property. Panchayappa Kounder died six months prior to the filing of the suit and Mayilswamy Kounder died one and a half years prior to the death of Mayilswamy Kounder. Plaintiffs are minor sons of Mayilswamy Kounder. Mayilswamy Kounder was suffering from insanity before his death. After the death of Mayilswamy Kounder, 1st plaintiff was residing with her father at Palghat. One Muthu Kounder, brother of defendant's wife filed a suit against Pachayyappa Kounder for recovery of Rs.1500/- on the strength of a promissory note and obtained a decree against Pachayyappa Kounder. The property was brought to sale and taken delivery of by the defendant. Plaintiffs alleged that the promissory note was not genuine and that in any event the decree cannot be binding on the half right of Mayilswamy Kounder over the property. In O.S.No. 382 of 1977 Mayilswamy Kounder was not a party. The Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force on 1-12-1976 and the family stood divided by virtue of the provisions of S.4 of the said Act and thereafter Pachayyappa Kounder could not represent the joint family or Mayilswamy Kounder in any proceeding and any decree obtained without Mayilswamy Kounder on the party array cannot bind either Mayilswamy Kounder or his share in the joint family property. The plaintiffs averred that the defendant had not got the sale certificate in respect of the whole property and the plaintiffs are entitled to claim partition and separate possession of the one half share of Mayilswamy Kounder. 3. In the written statement filed by the defendant, the defendant disputed the contention that Mayilswamy Kounder was insane. The plaintiffs averred that the defendant had not got the sale certificate in respect of the whole property and the plaintiffs are entitled to claim partition and separate possession of the one half share of Mayilswamy Kounder. 3. In the written statement filed by the defendant, the defendant disputed the contention that Mayilswamy Kounder was insane. He also averred that the suit was decreed against Pachayappa Kounder as the Manager of the family and that since the promissory note was executed in favour of Pachayyappa Kounder long before the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, a decree for attachment and sale of the property is valid and cannot be challenged. 4. On a consideration of the contentions raised by the parties and the evidence in the case, the court below came to the conclusion that there is no illegality in bringing the entire property into sale in view of the provisions contained in Ss.5 and 6 of the Act, and that the decree was binding on the share of Mayilswamy Kounder. In that view of the matter, the court below dismissed the suit. 5. In this appeal, learned counsel for the appellant has challenged the, correctness of the finding of the court below. 6. In order to appreciate the contention raised by the learned counsel for the appellant, it is profitable to refer to the relevant provisions in the Kerala Joint Hindu Family System (Abolition) Act 1975 there in after referred to as .the Act.). The said Act came into force on 1-12-1976. S.4 of the Act reads as follows: "4. 6. In order to appreciate the contention raised by the learned counsel for the appellant, it is profitable to refer to the relevant provisions in the Kerala Joint Hindu Family System (Abolition) Act 1975 there in after referred to as .the Act.). The said Act came into force on 1-12-1976. S.4 of the Act reads as follows: "4. Joint tenancy to be replaced by tenancy in common: - (1) All members of an undivided Hindu family governed by the Mitakshara Law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof-Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if that Act had not been passed. (2) All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof." Learned counsel for the appellant contended that by virtue of the provisions contained in S.4 of the Act, there was a division in status and the members of the co-parcenary family began to hold property as tenants-in-common as if a partition had taken place among all members of the undivided Hindu family with effect from 1-12-1976 the date on which the Act came into force. B schedule properties were allotted to Pachayyappa Kounder and his son Mayilswamy Kounder in the partition of the year 1953. B schedule properties were allotted to Pachayyappa Kounder and his son Mayilswamy Kounder in the partition of the year 1953. Plaintiffs are heirs of Mayilswamy Kounder. Pachayyappa Kounder had taken a loan of Rs.1500/- from Muthu Kounder who is brother-in-law of the defendant and executed a promissory note. O.S.No.388 of 1977 was filed by Muthu Kounder on the basis of the promissory note in the Mastiffs Court, Chittur. A decree was obtained by. Muthu Kounder against Pachayyappa Kounder and the B schedule properties were brought to sale and it was purchased by the defendant and delivery was taken by him. It was alleged in the plaint that the promissory note was not genuine and it was a fabricated one. It was also contended that even if the decree was genuine the decree was not binding on the one half right of Mayilswamy Kounder over the properties. According to the appellant in 1977 there could not have been any Hindu Joint Family and Pachayyappa Kounder could not have represented the joint Hindu family as the Manager. 7. Learned counsel for the respondents heavily relied on sub-section (2) of S.5 and S.6 of the Act, and contended that replacement of joint tenancy by virtue of the provisions of S.4 of the Act does not affect the liability created prior to the commencement of the Act. Sub-section (2) of S.5 reads as follows: "2. In the case of any debt contracted before the commencement of this Act, nothing contained in sub-section (1) shall affect - (a) The right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) Any alienation made in respect of, or in satisfaction of, any such debt, And any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable if this Act had not been passed. Explanation.-For the purpose of sub-section (2), the expression "son" "grandson" or "great grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of this Act." S.5.6 of the Act reads as follows: "Where a debt binding on a joint Hindu family has been contracted before the commencement of this Act by the Karnavan, Yejman, Manager or Kartha, as the case may be, of the family, nothing herein contained shall affect the liability of any member of the family to discharge any such debt and any such liability may be enforced against all or any of the members liable therefore in the same manner and to the same extent as it would have been enforceable if this Act had not been passed." The substance of the argument of the counsel for the respondent is that sub-section (2) of S.5 and S.6 enable the parties to proceed against the son, grandson or great-grandson in respect of any debt contracted before the commencement of the Act in the same manner and to the same extent as it would have been enforceable if the Act had not been passed. In other words, in respect of a debt contracted prior to the commencement of the Act, there is no bar in proceeding against the son, grandson or great grandson and such liability can be enforced as in the same manner and to the same extent as it would have been enforceable if the Act had not been passed. Learned counsel argued that prior to the commencement of the Act, Manager or Kartha alone need be on the party array and that position continued unaltered after the commencement of the Act in respect of liability or debt incurred prior to the commencement of the Act, in view of the expression "in the same manner" used in the Sections. In my view Ss.5 and 6 only save the pious bligations of a Hindu son, grandson or great grandson in respect of any debt or liability Binding on the joint Hindu family created before the commencement of the Act by Manager or Kartha. That does not mean that even after the commencement of the Act the person who contracted the liability or debt continues to be the Manager or Kartha. There is nothing in the Act to lead to a different conclusion. That does not mean that even after the commencement of the Act the person who contracted the liability or debt continues to be the Manager or Kartha. There is nothing in the Act to lead to a different conclusion. It follows that notwithstanding the aforesaid saving provisions it is necessary that members of co-parcenary should be made parties to the suit in order to make the decree binding on their shares. That is because after the commencement of the Act, joint family ceased to exist and the head of the family also ceased to be the Manager or Kartha and became incompetent to represent the members who became co-owners. So viewed, it is only the enforcement of such obligation or liability that has been saved by sub-section (2) of S.5 and S.6 of the Act. In the instant case, the plaintiffs. case is that the promissory note was not genuine and that it was brought into existence collusively. Whatever be the merit of such a contention, there is no doubt in mind that to make the decree binding on the shares of other members; it is obligatory that such members should be parties to the suit. 8. In this connection, reference may be made to the decision of the Supreme Court in Pannalal and another v. Mt. Naraini and others (AIR 1952 SC 170). In that case the Supreme Court held: 1111 in our opinion, a son is liable even after partition for the preparation of debts Of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition. The question now is, how is this liability to be enforced by the creditor, either during the lifetime of the father or after his death? It has been held in a large number of cases: Vide .Kameswaramma v. Venkatasubba Rao (38 Mad. 1120) Subramanya v. Sabapathi (51 Mad. 361), Thirumala Muthu v. Subramanya (AIR 1937 Mad. 458), Surajmal v. Motiram (ILR 1939 Bombay 658) Atul Krishna v. Lala Nandanji (14 Pat. 732) Govindram Dwarkadas (Firm) Bombay v. Nathulal (ILR 1938,Nag.10) -all of which recognize the liability of the son to pay the pre-partition debts of the father -that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition. 732) Govindram Dwarkadas (Firm) Bombay v. Nathulal (ILR 1938,Nag.10) -all of which recognize the liability of the son to pay the pre-partition debts of the father -that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition. They concur in holding that a separate and independent suit must be instituted against the sons before their shares can be reached. The principles underlying these decisions seem to us to be quite sound. After a partition takes place, the father can no longer represent the family and a decree obtained against him alone, cannot be binding on the separated sons. In the second place the power exercisable by the father of selling the interests of the sons for satisfaction of his personal debts comes to an end with partition. As the separated share of the sons cannot be said to belong to the father nor has he any disposing power over it or its profits which he can exercise for his benefit, the provision of S.60, Civil P.C., would operate as a bar to the attachment and sale of any such property in execution of a decree against the father. The position has been correctly stated by the Nagpur High Court in Jainarayan v. Sonaji (AIR 1938 Nag. 24 at p.29 - in the following passages: "To say a son is under a pious obligation to pay certain debts is one thing; to say his property can be taken in execution is another. In our view, property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold. What that is, is found by looking at S.60? When one looks at S.60 one finds that the property in question should either belong to the judgment debtor or h<< should have a disposing power over it. After partition, the share that goes to the son does not belong to the father and the father has no disposing power over it. Therefore such property does not fall within S.60...It by no means follows that a son cannot be made liable. He could be made liable for his father.s debts if he had become a surety, he can be made liable under the pious obligation rule. Therefore such property does not fall within S.60...It by no means follows that a son cannot be made liable. He could be made liable for his father.s debts if he had become a surety, he can be made liable under the pious obligation rule. In neither of the cases put, could his liability take the form of having his property seized in execution and sold without any prior proceedings brought against him, leaving him to raise the question whether his liability as surety or under the pious obligation rule precluded him from claiming in execution." In my view, the same principle should govern in regard to a statutory partition provided under the Act. In introducing Ss.5 (2) and (6) the legislature has only incorporated the principle underlying the above decisions. S.5(2) and S.6 certainly save the obligation or liability contracted prior to the commencement of the Act but it does not in any way dispense with the necessity of impleading the son, grandson or great grandson as the case may be, in order to obtain an effective decree, which is binding on such person. 9. In the instant case admittedly Mayilswamy Kounder was not impleaded in the suit or in the application for execution and therefore the sale cannot operate against the share of Mayilswamy Kounder, which was inherited by plaintiffs. The sale is valid to the extent of share of Pachayyappa Kounder and therefore the defendant acquired right in his 1/2 share. Plaintiffs are entitled to the remaining 1/2 share. It follows that the judgment and decree of the court below are unsustainable and they are accordingly set aside. I pass a preliminary decree for partition and allotment of one out of 2 shares jointly to the plaintiffs. The appeal is allowed as above. There will be no order as to costs. The appeal was disposed of on 21-6-1980. It was posted for being spoken today at the request of the counsel for the respondent. Counsel for the respondent brought to my notice that in view of the finding of the trial court that the plaintiffs were not entitled to partition, the court below did not consider Issue No.5. Defendants had raised a contention that he is entitled to value of improvements. It was for this reason that Issue No.5 was raised. Counsel for the respondent brought to my notice that in view of the finding of the trial court that the plaintiffs were not entitled to partition, the court below did not consider Issue No.5. Defendants had raised a contention that he is entitled to value of improvements. It was for this reason that Issue No.5 was raised. As the question was not considered by the court below, I direct that Issue No.5 will be considered in the final decree proceedings.