JUDGMENT

Stuart and Kanhaiya Lal, JJ. - This appeal arises out of an execution proceeding and the question for consideration is whether the property in dispute was liable to attachment and sale in execution of a decree, obtained against Kallu Singh personally. The objectors are the son and grandsons of Kallu Singh, who had been exempted by the decree from liability. They contest the right of the decree-holders to attach the family property.

2. It appears that Kallu Singh, Nathu Singh and Maru Singh took a lease of certain property from Pirthi Singh and executed a mortgage to secure the payment of the lease money. The mortgage purported to hypothecate certain properties belonging to the lessees. As the lease money was not paid, a suit was filad by the lessor for the recovery of the money due to him against Kallu Singh and the present respondents, who are the legal representatives of the other lessees. The present respondents paid the entire decretal money and saved their property and the property of Kallu Singh from sale.

3. They then filed a suit for the recovery of the share of the lease money; payable by Kallu Singh, making the son and grandsons of Kallu Singh, namely the present appellants, parties to that suit. The latter contested the claim on the ground that the lease was not taken for the benefit of the family and that they were not liable to pay the money due under the decree. The finding of the court in that suit was that the lease was a speculative and risky transaction, not binding on the family. The claim of the respondents was accordingly decreed against Kallu Singh personally and the present appellants were exempted from liability.

4. In execution of that decree the property, which had been hypothecated by Kallu Singh for the payment of the rent secured by the lease, was attached and sought to be brought to sale in satisfaction thereof. The appellants objected to the said attachment, urging that they had already been exempted from liability under that decree; but the courts below held that by reason of the pious obligation that rested on them to pay the debts due by Kallu Singh, the decree could be executed against the entire family property.

5. The liability of a son or grandson to pay a debt by his ancestor, which is not-tainted with immorality or was not taken for illegal purposes, cannot, however, be enforced so long as the original debtor is alive and is capable of paying his debts. According to Vrihaspati, if the father is no longer alive, the debt must be paid by his sons. Vishnu, says:-- "If he who best contracted the debt, should die, or become a religious ascetic, or remain abroad for twenty years, the debt shall be discharged by his sons or grandsons, but not by remoter descendants against their will." A similar injunction is laid down by Narada, who declares:-- "After the father's death his sons, whether divided or joint, must discharge his debt in proportion to their shares." So says Yajnavalkya:-- "If a father has gone abroad or died or is subdued by calamity, his debt shall be paid by his sons and grandsons. On their denial the debt must be proved by witnesses." Commenting on this passage, the author of the Mitakshara observes:-- "If the father, without paying the debt which is due, dies or goes to a distant country, or is afflicted with an incurable disease an the like, then his debts must be paid by his son and grandson by reason of their sonship and grandsonship, even if no assets of the father or of the grandfather have been left. The liability will be in this order. In default of father, the Son, and in default of son, the son's son must pay. In case of denial by the son or grandson, the debt being proved by the testimony of witnesses and the like, must be paid by them." He then goes on to discuss how far a debt due by the father could be enforced, if he has gone abroad, and says:-- "By the text 'If a father has gone abroad' the payment is merely enjoined, but the specific time for payment, as decl