A decree against a deceased person's estate cannot be executed against coparceners' interests in joint family property if those coparceners were dismissed from the suit. Liability must be established by obtaining a decree against them as representatives under Section 52 of the Civil Procedure Code to invoke Section 53.

Sir George Rankin:-

On 15th November 1920, two persons named Badri Singh and Chandika Singh, members of a joint Hindu family governed by the Mitakshara, executed a mortgage deed in favour of the appellant, Raja Ram. Badri Singh having died, the appellant on 25th August 1930 brought a suit in the Court of the Subordinate Judge at Hardoi to enforce the mortgage. He impleaded 17 defendants. In addition to Chandika Singh (defendant 3) and other persons, he sued Badri Singh's two sons, Gaya Singh and Randhir Singh (defendants 1 and 2), and their five sons (grandsons of Badri Singh, defendants 8 to 12), who are now the five respondents to this appeal. The relationship of the defendants to the suit may be exhibited as follows :

For reasons which may or may not have been valid, regard being had to the case made by the plaintiff, the decision of the Subordinate Judge, dated 13th May 1931, was as follows:

The result is that a simple money decree can only be passed on the basis of the deed in suit as against the estate of Badri Singh and against defendant 3 personally.

I therefore decree the sum of Rs.19,500 with costs, interest at the contract rate on Rs. 10,000 daring the pendency of the suit and future interest at 6 p.c.p.a. on the entire decretal amount as against defendant 3 personally and against the estate of Badri Singh in the hands of defendants 1 and 2 under R.1, O.20 and R.6, O.9, Sch.1, Civil PC. The suit is dismissed as against the other defendants. Defendants 4, 7 and 8 to 17 will get their respective costs from the plaintiff.

On 15th May 1931, the appellant applied for execution of this decree, not only against Chandika Singh and the two sons of Badri Singh, but also against the present respondents and their interest in the family property, notwithstanding that they had been dismissed from his suit with costs. The latter objected that execution of the decree could not be had against them, but on 27th October 1931, the Subordinate Judge, on the ground that the whole family estate was liable for Badri Singh's debt, dismissed their objections and allowed execution to proceed. On appeal the Chief Court of Oudh set aside this order, and directed (27th February 1933) that the interest of the respondents in the family property be released from attachment. This is the decision of which the appellant complains.

Their Lordships are of opinion that the decision is correct. If the debt in question was not contracted for purposes regarded as immoral by the Hindu law, and if the respondents being grandsons of Badri Singh were liable therefor to the extent of their interest in the joint family property, then the Subordinate Judge's decree of 13th May 1931 was erroneous. The appellant should have appealed therefrom, claiming that, instead of dismissing the suit as against the respondents, the Subordinate Judge should have given decree against them in like manner as against defendants 1 to 3, namely as representatives of Badri Singh, for a sum to be realised out of any property of Badri Singh come to their hands. Such a decree passed in accordance with S.52, Civil PC, would have attracted the operation of S.53, and the respondents' interests in the joint property would have been liable to attachment under the decree, notwithstanding that such interests were not "property of the deceased" in the strict meaning of those words. The same result might have been attained in more ways than one, had the appellant recovered judgment against Badri Singh in his lifetime. But the interests of the respondents cannot be regarded as property of their deceased ancestor come to the hands of their coparceners, defendants 1 to 3 or any of them. The respondents having been dismissed from the suit with costs cannot be made liable under the decree. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellant must pay the respondents' costs.

Appeal dismissed.