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Ramchandra Rango Kulkarni Vs. Annaji Venkatesh Mannur - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1003 of 1941
Judge
Reported inAIR1944Bom59; (1943)45BOMLR1037
AppellantRamchandra Rango Kulkarni
RespondentAnnaji Venkatesh Mannur
DispositionAppeal allowed
Excerpt:
hindu law-debt-father's debt-pre-partition debt of father-debt not illegal or immoral-partition between father and son-decree on debt against father alone-son's liability to satisfy decree-separate suit against son for decretal debt.;as regards the liability of sons, under the mitakshara school of hindu law, to pay after partition the debts (not illegal or immoral) incurred by the father before partition, to the six propositions enumerated in surajmal deoram v. motiram kalu (1939) 41 bom. l.r. 1177, 1188, the following should be added as the seventh :-;(7) to obtain such a decree, the creditor must either join the son as a party to the suit against the father, or, if he has already obtained a decree against the father alone after the partition, he must file a separate suit against the son..........debts was thrown on the defendant. but the defendant was not made a party to the plaintiff's suit, suit no. 220 of 1933. hence when the plaintiff sought to execute the decree against the defendant also in darkhast no. 244 of 1937, the defendant contended that he was not bound by the decree which had been passed against his father alone after he was separated from him. that contention was upheld on the strength of the ruling in surajmal deoram v. motiram kalu : air1940bom22 and the darkhast was dismissed. hence on september 3, 1938, the plaintiff filed this suit against the defendant to recover from him rs. 600 with costs and future interest. on that day the amount due under the decree against his father in suit no. 220 of 1933 was nearly rs. 1,200, including rs. 103-12-8 for the.....
Judgment:

Lokur, J.

1. The facts out of which this appeal arises are simple and undisputed. The plaintiff's father Venkatesh had a cloth shop at Bijapur. The defendant's father Rango owed Rs. 968-4-0 to that shop for cloth purchased by him when he and the defendant were joint. The plaintiff obtained a personal decree for that amount against Rango alone in suit No. 220 of 1933 on February 6, 1934. Before that suit was filed, the defendant and his father Rango had separated by an award decree dated February 9, 1932. Under that decree the burden of paying off half the family debts was thrown on the defendant. But the defendant was not made a party to the plaintiff's suit, suit No. 220 of 1933. Hence when the plaintiff sought to execute the decree against the defendant also in darkhast No. 244 of 1937, the defendant contended that he was not bound by the decree which had been passed against his father alone after he was separated from him. That contention was upheld on the strength of the ruling in Surajmal Deoram v. Motiram Kalu : AIR1940Bom22 and the darkhast was dismissed. Hence on September 3, 1938, the plaintiff filed this suit against the defendant to recover from him Rs. 600 with costs and future interest. On that day the amount due under the decree against his father in suit No. 220 of 1933 was nearly Rs. 1,200, including Rs. 103-12-8 for the costs awarded in the decree and future interest. But the plaintiff claimed only Rs. 600 as the defendant had undertaken to pay only half the family debts under the terms of the award decree for partition. The defendant contended that, the plaintiff having already obtained a decree against his father, a second suit to recover the same debt was not maintainable and that the plaintiff's claim was time-barred. The trial Court held that such a suit based on the decree against the father was maintainable, that the period of limitation was six years under Article 120 of the first schedule to the Indian Limitation Act, 1908, and that the suit was in time. The plaintiff's claim was, therefore, decreed, and the decree was confirmed in appeal by the learned District Judge.

2. The plaintiff's claim in the trial Court that as the defendant had undertaken to pay half the family debt by the partition decree, he was liable to the plaintiff for the amount claimed in this suit is not now pressed, since the plaintiff is not entitled to get the benefit of a decree to which he was not a party.

3. It is not disputed that the debt which the defendant's father owed to the plaintiff's father's shop was not tainted with immorality or illegality and was incurred when the defendant was joint with his father, Hence the defendant was under a pious obligation to pay it, and that obligation continued even after he separated from his father, though his liability was limited to his share in the joint family property. But the procedure to be adopted for enforcing that liability is not free from doubt. I have considered this question at some length in Surajmal Deoram v. Motiram Kalu, and discussing the law on the subject, I have deduced six propositions. The sixth proposition which is relevant for the purpose of this appeal is :-

A decree passed after partition against the father alone for his pre-partition debts (not immoral or illegal) is not binding on the separated son, After partition, a decree must be obtained against the son, if his separated share is to be held liable.

4. In that case I had no occasion to consider how that decree was to be obtained, whether by impleading the separated son in the suit against the father or by filing a separate suit against him. There is no difficulty if the suit to recover a pre-partition debt is filed against both the father and the son and a decree is obtained against both. But if, as in the present case, such a suit is filed against the father alone after he is separated from the son, the latter is not bound by it, and the question is whether a separate suit to recover the same debt lies against him, and if so, what is the cause of action for such a suit. It has been held in Dharam Singh v. Angan Lal I.L.R. (1899) 21 All. 301 that although a decree may have been obtained against the father in a joint Hindu; family for a debt incurred by him, a subsequent suit is maintainable against the son in respect of the same debt for the enforcement of the son's liability for it, such debt being one which the son is legally bound to pay. It was contended in that case that a judgment recovered against one of joint obligors of a bond merges the joint liability on the bond, and is a bar to an action against the others. In repelling that contention Banerji J. observed (p. 304) :-.the analogy of the liability of joint debtors under the same contract does not apply to the case of the pious liability of a Hindu son for the debt of his father not tainted with immorality. Such liability arises, not from the contract entered into by the father, but from the fact that he is the son of the father and that the debt incurred by the father is of such a nature that it is the duty of the son to pay it. It is a liability which the Hindu law imposes on the son, and is independent of the contract made by his father. Whether the debt of the father has merged in a decree, or whether it subsists as a debt in respect of which no decree has been passed, the son is liable for it, provided that it was not incurred for immoral or impious purposes.

5. In other words, as the son's obligation to pay his father's debt is not an obligation incurred jointly with his father, the creditor's cause of action is not a single cause of action which is exhausted upon the decree being obtained against one of them only. Hence, although the creditor may implead the son in the suit against the father and get one decree against both of them, his omitting to do so does not deprive him of his subsequent remedy against the son. This case was cited with approval by, B.J. Wadia J. in Mulchand v. Jairamdas (1934) 37 Bom. L.R. 288. He further observed on the same page (p. 297) :-

The liability of the son is, however, not a personal liability. It is limited to sons who are joint with their father, and it is limited only to their interests in the coparcenary property. It subsists so long us the liability of the father subsists. It would cease on the debt becoming time-barred against the father. It is not a joint or a joint and several liability in the sense in which those terms are understood in English law. At the same, time, a suit cannot be filed against the son alone.

(The italics are mine)

6. If so, what is the nature of the second suit which has necessarily to be filed against the son alone, a decree having already been passed against the father Three kinds of reliefs can be asked for in that suit : (1) recovery of the original debt, (2) recovery of the amount of the decree obtained against the father or (3) a declaration that the son's separated share in the joint family property is liable to be attached and sold in execution of the decree already obtained against the father alone. The first two of these remedies are suggested in the full bench case of Periasami Mudaliar v. Seetharama Chettiari I.L.R. (1903) Mad. 243. In that case Bhashyam Ayyangar J. observed (pp. 251 and 252) :-

In cases...where a decree for money has been obtained against the father, but he dies before execution of the same, the creditor has, besides executing the same against the son as legal representative, the option of suing the son either on the original cause of action-if it be one in respect of which the son as such would be liable-or to enforce payment of the decree-amount as a debt of record due by the father. In the former case the judgment against the father cannot be relied upon by the creditor as binding the son and he must prove and establish the cause of action or the alleged debt just as if no such suit had been brought against the father and judgment obtained. In the latter case, the judgment as such would not bind the son and it will be admissible only to prove the existence of a judgment-debt due by the father at the date of the judgment; and the only defences open to the son will be either that the decree-debt is not one which is binding upon him-as baling illegal or immoral under the Hindu law-or that the same has been discharged, whether such discharge (by payment or adjustment) has been recorded as certified or not.

7. The first remedy is naturally the simplest and easily understandable on the principle laid down in Dharam Singh v. Angan Lal. But if the suit is brought on the original cause of action, the period of limitation would be the same as for a suit against the father, viz. three years from the date when the cloth was sold and delivered to the defendant's father under Article 52 of the first schedule to the Indian Limitation Act. The plaintiff's claim for that relief was admittedly time-barred long before the present suit was filed.

8. Both the Courts below have held that the present suit is filed by the plaintiff to recover the amount of the decree against the father and, therefore, falls under the second category of the suits suggested above, the period of limitation for such suits being six years under Article 120. In Periasami Mudaliar v. Seetharama Chettiair the plaintiffs in 1896 obtained a decree against the father of the defendant who died in 1897. Execution of that decree was refused as against the family property in the possession of the defendants. So in 1899 the plaintiffs filed a suit against the defendants on the cause of action arising from the decree against their father. It was held that the suit was maintainable and was in time, though at that time a suit to recover the original debt was already time-barred. The cause of action for such a suit is in the words of Bhashyam Ayyangar J., 'the contract of record which imposed the decree debt upon the father,' and time begins to run from the date of the judgment against the father unless the decree itself provided for payment of the decree debt at a future date, in which case time will run from such date. Both the Courts below have relied upon this ruling for holding the plaintiffs suit based on the decree in suit No. 220 of 1933 to be maintainable and to be in time, but a closer examination of the ratio decidendi of that case will show that it is not applicable to the facts of the present case. What is held in that case is that a decree obtained against the father creates by its own force a debt against him which his sons are under a pious obligation to discharge, and a suit can be brought against the sons to recover such a decree debt. But, as pointed out by Patanjali Sastri J. in Venkatranga v. Sithamma A.I.R. [1941] Mad. 440 the decision clearly envisaged cases where a decree was obtained against the father alone, and, the father being dead and the decree not being executable against the family properties, according to the view then taken by that Court under the old Code, the creditor was held entitled to file a suit against the sons on the decree debt within six years from the date of the decree although a suit on the original debt might be barred. But now such a suit is rendered unnecessary by the newly added Section 53 of the Civil Procedure Code of 1908.

9. One other important factor in the case of Periasami Mudaliar v. Seetharama Chettiar is not to be lost sight of. There the decree against the father was passed when his sons were joint with him, and though he died in union with them, the decree could not be executed against them according to the view then prevailing in that High Court. Different considerations would have arisen if the sons were separated before the decree was passed against the father. In that case the sons would not be bound by the decree against their father alone and no suit would lie against the sons to recover the amount of the decree. As already stated, the decree against the father creates by its own force a debt against him. But the sons would not be under a pious obligation to discharge it, as such debt was created after they had separated from their father, although it arose out of the old debt incurred when they were joint with him. By way of analogy reference may be made to Peda Venkanna v. Sreenivasa Deekshatulu I.L.R. (1917) Mad. 136 where it was held that the father had no power to bind his divided sons by a promissory note executed by him after partition in renewal of the one executed before partition. Kumaraswami Sastri J. observed (p. 143) :-

In the case of renewal by the father alone after partition of a note executed before partition the case is much stronger as I can see no equity in allowing a Hindu father to renew and keep alive a debt (increased by the addition of interest and principal at each renewal) so as to throw upon the son the duty of paying it out of the properties that fall to his share. The renewed note must in my opinion be treated as a new obligation incurred after partition.

10. On the same reasoning, if the decree against the father is sought to be used as giving rise to a fresh cause of action, it must be treated as a new obligation incurred after partition and the sons would be under no pious obligation to discharge it. In this connection Mr. Hungund relied upon the ruling in Mohana v. Gangaraju [1942] Mad. 95 in which two out of the three learned Judges of the full bench held that where a Hindu father, after partition between him and his son, acknowledges a pre-partition debt incurred by him, his divided sons are, by reason of the pious obligation rule in Hindu law, also liable if, at the date of the suit, the pre-partition debt is still enforceable against him or his estate, The third Judge Krishnaswami Ayyangar J. and the two learned Judges who referred the question to the full bench took a different view and were of opinion that an acknowledgment of a pre-partition debt made by the father alone after a partition between him and his son would not keep alive the debt against the divided sons.

11. Whichever be the correct view, it does not help the plaintiff in the present case. A suit to recover a pre-partition debt kept alive by an acknowledgment is after all a suit on the original debt and the acknowledgment is used only to save the bar of limitation. But a decree obtained against the father alone after a partition creates a new debt in itself which the divided son is under no pious obligation to pay. A suit to recover such decree debt is more akin to a suit on a promissory note passed by the father after partition in renewal of a promissory note passed by him before partition.

12. Mr. Hungund next contends that, as the original debt is still recoverable from the father by the execution of the decree obtained against him, the son's pious obligation to absolve his father from his indebtedness has not come to an end. In support of this contention he relies upon the following remark of Leach C.J. in Mohana v. Gangaraju (p. 115) :-

The rule is a simple one and there is no difficulty in its application. All that the Court has to do is to inquire whether the debt was lawfully incurred before partition and whether it is still enforceable against the father. If it was lawfully incurred and is still enforceable against the father, the son is liable to the extent of the family property in his hands.

13. With respect, I agree that the son's pious obligation continues so long as the father's pre-partition debt remains unpaid. But the proper mode of enforcing it after the son is separated and a decree to recover that debt is obtained against the father alone, does present some difficulty. Out of the three modes which I have already indicated, there can be no objection to seek to recover the original debt, if that claim is still in time. But when that debt is merged into a decree against the father, it gives rise to a new cause of action and a suit based on that cause of action, which accrued after the partition, is not tenable. But there can be no such objection against the third relief, viz. a declaration that the son's separated share in the joint family property is liable to be attached and sold in execution of the decree against the father. As observed by Hill J. in Nitayi Bekari Saha Paramanick v. Hari Govinda Saha I.L.R. (1899) Cal. 677 it is a recognised principle

that a decree-holder may sue to have it declared that the interests of third persons may be made liable for the satisfaction of a decree made in a suit to which they were not parties, although the decree was one in execution of which ordinarily the rights and interests of the judgment-debtor alone could be disposed of.

A simple illustration, of the application of this principle is to be found in Mathura Prasad v. Ramchandra Rao I.L.R. (1902) All. 57. In that case the plaintiff obtained a simple money decree against one Sarju Prasad upon a bond executed by him. In execution of that decree the decree-holder attached certain property as that of Sarju Prasad, but the latter's sons raised objections and got the property released from attachment. The decree-holder thereupon filed a suit against them for a declaration that the property in question was liable to attachment and sale in execution of his decree; It was contended by the defendants that they had separated from Sarju Prasad twenty years previously and the debt was not binding on them. The trial Court dismissed the suit as not maintainable, sustaining the preliminary objection to the effect that the plaintiff ought to have made the defendants parties to his original suit if he wanted to bind them. But the High Court held that such a suit would lie, and that it was no bar thereto that the plaintiff had omitted to make the sons parties to his original suit. In such a suit the sons can raise such objections as they might have raised had they been parties to the original debt and have the extent of their pious obligations determined. If their objections are wholly or partially disallowed and a declaration is given, whether in respect of the entire decretal amount or a portion of it, then the original decree against the father can be executed to that extent against the property which the sons have got as their shard in the joint family property. For that purpose the decree is to be kept alive and executed within the period of limitation allowed by law. This remedy is not only equitable but necessary to avoid the defeat of a creditor's right to enforce the son's pious obligation to pay the father's pre-partition debt when that creditor has obtained a decree against the father alone in good faith, not knowing that a bona fide partition had already taken place between the father and the son. In this way effect can be given to the dictum that the son's pious obligation to pay his father's pre-partition debts continues as long as those debts are recoverable from the father.

14. This is quite different from the relief claimed by the plaintiff in the present suit. He has claimed to recover from the son the amount of the decree obtained against the father after partition. If such claim be decreed, it would give the plaintiff another period of twelve years to execute the decree, even though the father's liability may have ceased to be enforceable after twelve years from the date of the decree against him.

15. The net result of this discussion is to add one more proposition to the six propositions I have laid down in Surajmal Deoram v. Motiram Kalu, viz. :-

(7) To obtain such a decree, the creditor must either join the son as a party to the suit against the father, or, if he has already obtained a decree against the father alone after the partition, he must file a separate suit against the son on the original debt, if it be in time, or sue for a declaration that the son's separated shard in the joint family property is liable to be attached and sold in execution of the decree against the father for the satisfaction of the entire decretal amount or such portion of it as may be found binding on the son.

16. The plaintiff has not resorted to either of these modes, but has sued to recover half the amount due under the decree against the defendant's father, the cause of action being stated to be that decree and also the partition decree between the defendant and his father. Such a suit is not maintainable and must be dismissed.

17. The appellant's pious obligation to satisfy his father's pre-partition debt is not disputed. But he has succeeded in defeating the creditor's just claim, by reason of a technical defect in the frame of the suit. I, therefore, think this to be a fit case where the successful party should not get his costs.

18. The appeal is allowed and the plaintiff's suit is dismissed, but the parties should bear their own costs throughout.


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