A decree passed in a suit in respect of pre-partition debt against the father can be executed against the shares obtained by the sons on partition and that is the exclusive remedy of the decree-holder.

( 1 ) THIS second appeal arises from a suit for joint possession of 3/4th share of the appellants in the land sold in execution of a decree against their father. The suit was resisted by the purchaser and the decree-holders. The trial Court dismissed the suit not only on the merits but also holding that the suit was not competent being barred by Section 47 of the Code of Civil Procedure. The first appellate Court dismissed the plaintiffs' appeal, although it held that the suit was not barred by section 47, Civil Procedure Code.

( 2 ) SHYAMLAL and Ramanuj in execution of their decree against Shan-kardutt. father of the appellants, got attached and sold the suit lands. They were purchased by sanatkumar (respondent No. 1 ). After the decree was passed against him. Shankardatta died and the execution proceeded against his sons, the appellants. When the sale took place the appellants were party to the execution proceedings.

( 3 ) AFTER the sale, this suit was brought by the appellants. The main contention in the suit was that Shankar-dutta was addicted to gambling and the debts for which the lands were sold were Awyawaharik. that is, immoral. The trial Court found the issue not proved. The first appellate Court affirmed that finding against the plaintiffs.

( 4 ) IN this second appeal. two new points have been raised for the appellants. It is first contended that by virtue of Section 6 of the Hindu Succession Act, 1956. as soon as Shankardatta died, his death effected a notional partition of the ancestral property so that what could be sold in execution of the decree was merely the share of Shankardatta. which would have fallen to his lot. if there had been a partition of the joint family properties immediately before his death. The second contention is that it was for the decree-holders or the purchaser to prove what was actually sold, that is. whether it was the entire estate sold, or merely the interest of the deceased Shankardatta and for this purpose, they should have produced documentary evidence from the record of the execution proceedings.

( 5 ) IN my opinion, the first contention is misconceived. The Hindu Succession Act has not interfered with the Hindu Law relating to Mitakshara coparcenary as it stood immediately before the commencement of that Act except on two points. The first is contained in the proviso to Section 6 and the second in Section 30 of that Act. The latter partly encroaches upon the Mitakshara Law that a coparcener in a joint family cannot make a valid gift or bequest of his interest in the coparcenary property so as to defeat the rights of survivorship of the other members to this limited extent that by virtue of that section a coparcener is competent to dispose at will his undivided interest in the coparcenary property. I shall now deal with the effect of the proviso to Section 6.

( 6 ) UNDER the Hindu Law. as it was in force before the commencement of the Hindu succession Act. 1956. the undivided interest of a coparcener in joint family property, on his death, devolved by survivorship upon the surviving members of the coparcenary. This rule is still maintained in Section 6 of the Act. but the proviso creates a departure to a limited extent.

( 7 ) THE proviso enacts that if the deceased coparcener leaves surviving (a) a female relative specified in Clause I of the Schedule or (b) a male relative specified in that clause who claims through such female relative then the interest of the deceased in the Mita-kshara coparcenary property devolves on his own heirs according to the provisions of this Act either by testamentary or intestate succession, as the case may be but not by survivorship; and the undivided interest of the deceased will be deemed to be that share in the property which would have been allotted to him if a partition of the property had taken place immediately before his death. Thus the interest of a deceased coparcenary, if he died without making a testamentary disposition of