(1) This is a plaintiff's second appeal against the decree and judgment of the Court of the Subordinate Judge of Narasaraopet, modifying the decree of the Court of the Distriict Munsif of Gurazala in a suit filed by the appellants for a declaration that the gift and the sale deeds executed by the second defendant in favour of the first defendant in respect of the plaint schedule property ae not binding on them and for recovery of possession.
(2) The facts may be briefly stated. The plaintiffs are the brothers of one Venkatasubbaiah and were members of a joint Hindu family. There was a partition between them in the year 1932 and the plaint schedule property fell to the share of Venkatasubbaiah. During his lifetime, he adopted on Subbarao and died in 30.4.1945 intestate, leaving behind him his widow and his adopted son. Subbarao died in 1946 and his mother Seshamma, the second defendant, succeeded to his estate. On 1.5.1947 under Ex. B. 20 she made a gift of item 6 of the plaint schedule to the first defendant. On 26.8.1948 she executed Ex. B. 28 a sale, under which she conveyed items 1 to 5 to the first defendant. The plaintiffs, who are the reversioners, originally filed the suit for a declaration that the said transactions were not binding on them, but as the second defendant died pendente lite, the plaint was amended asking for possession.
(3) The first defendant contended that Venkatasubbaiah himself sold item 6 to the secod defendant and that Subbarao had no title and did not die possessed of the same. In regard to the sale deed he pleaded that it was executed to discharge a mortgage executed by the second defendant, which was fully supported by consideration and binding on the estate.
(4) The learned District Munsif held that the mortgage was not supported by consideration nor was executed for legal necessity. With regard to item 6 he, found that the sale deed executed by Venkatasubbaiah in favour of the second defendant was a normal document and that the gift by her to the first defendant did not, therefore, convey any little to him. On appeal, the learned Subordinate Judge held that the sale deed executed by Venkatasubbaiah conveying item 6 to the second defendant was a real transaction supported by consideration. Though he found that the sale deedEx. B. 26 was not blinding on the reversioners, he held that the mortgage Ex. B.2 was supported by consideration and was blinding on the estate of Subbarao. In that view, he dismissed the suit in regard to item 6 but gave a decree to the plaintiffs on their paying to the first defendant a sum of Rs. 492/-, the amount due under the mortgage deed.
(5) The learned Counsel for appellants contended that the mortgage deed Ex. B.5 was not supported by consideration and was alsonot executed for purposes binding on Subbarao's estate. The learned District Judge held on the evidence that the mortgage deed was execjted by the second defendant in discharge of thre debts incurred by Venkatasubbaiah during his lifetime and two binding debts incurred by the second defendant during the minority of Subbarao as guardian. These are the findings of fact and there are no plermissible grounds for interference with them. I, therefore, accept the finding of the Court below that the mortgage was supported by consideration and that it was executed to discharge binding debts of Venkatasubbaiah and Subbarao.
(6) Even so, it is contended that a mother succeeding to the estate of her son has no power to allienate any part of her son's estate, to discharge the debts of her husband which her son was liable to pay only on the principle of pious obligation. I shall now proceed to consider the soundness of this argument. It cannot be and is not disputed that an heir succeeding to the estate of another takes both the assets and the legal liabilities of the latter. He cannot take the assets and disown liabilities. Theoriginal text of Narada as transalated in sacred books of the East (edited by Max Muller), Vol. 33 Page 46 Recognises this principle. The text reads:
'A sonless widow, and one who has been enjoined by her dying husband (to pay his debt) must pay it. Or it must be paid by him who inherits the estate. (For) the liability for the debts goes together with the right of succession'.
This passage clearly lays down the principle that a person inheriting the estate of another takes it subject to the debts of the latter. Now does the fact that the heir is a limited owner like a widow or a mother make any difference in the matter of her liability of discharge the debt out of the estate inherited by her. In the case of a widow succeeding to her husband's interest under the Hindu Women's Rights to Property Act, Venkatarammana Rao J., in -- 'Saradamabl v. Subbarama Iyer', AIR 1942 Mad 212 (A), held that a creditor is entitled to the same remedy against the interest of the widow accrued under the Act which he had against her husband in his lifetime. At page 213, the learned Judge observed:
'Even in the case of a female who takes a Hindu woman's estate, the inheritance vests in her for the time being as fully as it vested in any male succeeding to the property, but only with a restricted right of alienation ...............................the property is taken by her subject to all the right and liabilities which the husband would have had because it is the same interest that is conferred upon her.'
If a widow takes the interest of her husband subject to his liabilities, I cannot discover any reason why a different Rule should apply in the case of a mother succeeding to her son. The mother, who takes a similar estate like a widow, also necessarily takes the property of her son subject to his liabilities. It is, therefore, contended that the son's liability to discharge his father's debt is not a legal liability, but only one arising out of pious obligation, which obligation is only personal to him and ceases with his death. To appreciate this argument, it is necessary to consider the nature and the extent of the theory of pious obligation of a son to pay his father's debts. In -- 'Abdul Hameed Sasit v. Provident Investment Co. Ltd.', : AIR1954Mad961 (B), a Full Benchof the Madras High Court, of which I was a member, incidentally considered the nature of the son's liability to discharge his father's debts. In considering that question. I made the following observations, which may usefully be extracted in this context. I said at page 974:
'What was a pious duty on the part of the son to pay his father's debts had gradually crystallised into a legal liability of the joint estate of the father and the sons'.
After considering the case law on the subject, I proceeded to state at page 975:
'From the aforesaid discussion of the cases, the settled law on the subject may be summarised. The theory of pious obligation, which had its roots in the texts of Brihaspathi and Narada and which was originally a religious and moral duty of the son to save the soul of his father from perditioin, has developed step by step till it has imposed a liability on the entire family property to meet the said obligation. Though in its origin, the son was bound to discharge the debts not only from his joint family property but also from his self-acquisitions, the later development of the law confined it only to the family assets in his hands'.
It follows from the aforesaid observations that the liability of the son is a legal liability binding on the joint family estate. During the lifetime of the father, the father can alienate the sons's interest also in the joint family property to discharge his debts. A creditor of the father may realise the debt from the entire estate. Even after the father's deabt, the entire joint family property in the hands of the son would be liable for the father's debts, provided it is not incurred for illegal and immoral purposes. If so, at the time of the son's deaht, his estate consists of not only his assets, but also his liabilities whatever may be the source or origin of that liability. A heir succeeding to the estate -- it is immaterial whether the heir takes a limited estate or an absolute estate-- takes both the assets and liabilities.
Tek Chand and Dilip Singh JJ. in -- 'Mt. Mallan v. Parmatma Das', AIR 1936 Lah 558 (C), came to the same conclusion. There, a Hindu governed by the Mithakshara incurring a debt during his lifetime, died leaving a son and a widow, and the son also subsequently died leaving a widow. The learned Judge held that the property left by the son and in the hands of the widow was liable to satisfy the debt incurred by the original owner of the property. At page 559 the learned Judges observed:
'The word 'encumbered' therefore does not in the rulling mean an 'incurmbrance', in the sense of a hypotheca or charge on the property at all. It is merely used in the ordinary sense that the estate or a person who owes a debt is liable to pay it upon the decease of that person and anybody inheriting that estate takes it subject to the debt. There is no distinction at all between a personal obligation to pay a debt, which is the duty of the original debtor and the plous obligation conferred by the Hindu Law against the son of the original debtor. The piety of the obligation does not make it cease to be a personal obligation to pay a debt ......................
Upon the death of the husband, if there had been no son, it is clear that the property would have been subject to the debt created by the husband and Mt. Malan's right of maintenance would not have priority over the debt. In the hands of Nand Lal, there was personal obligation on Nand Lal to pay the debt of his father Nathan Mal, and similarly when he died and Mt. Prakasho inherited his estate she took it subject to the obligation to pay the debts due sfrom Nand Lal'.
(7) I respectfully accept the observations as laying down the correct principle.
(8) Reliance is placed upon the decisions of a Division Bench of the Allahabad High Court in -- 'Sheo Ram v. Sheo Ratan', AIR 1921 All 163 (D), in support of the contrary conclusion. The learned Judges there held, relying upon the text of Narada, that a mother is not bound to pay the debts which the son was liable to pay by reason of the principle of piious obligation. At page 163 the learned Judges observed:
'There is no authority which lays down that a mother is bound to pay her son's debt, and can validly alienate the estate which has come to her by inheritance from her son at his death. ................. it has only the pious duty of the son to pay the debts of his father. The property was in no way encumbered. So that, even relying on this textof Narda, the appellant must fail'.
The learned Judge in effect laid down that, unless the debt was charged on the estate, unless the debt was charged on the estate, ' the mother would not be liable to pay the debt of the son. Tek Chand and Dilip Singh JJ. in -- 'Mt. Mllan v. Parmatma Das', (C), which I have already referred to pointed out that the translation adopted by the Allahabad High Court of Narada's text was wrong and that the word 'encumbered' in the translation should not be understood in the sense of a charge, but only in the ordinary sense that the estate of a person who owes a debt is liable to pay it upon the decease of that person. Nor can I agree with the learned Judges that the liability of the son was not a legal liability. As I have already pointed out, though originally it was merely a pious obligation, it has now become crystallised into a legal liability of the son, though confined to joint family properties.
(9) The decision of Chandra Reddy J. in -- 'Anganna Thevan v. Ayyaswamy Thevan,' : (1953)2MLJ692 (E), deals with a different point altogether. There, the learned Judge held that a mother, succeeding to the estate of her deceased son, is not competent to alienate property in order to discharge the time-barred debts of her son. In the instant case, it is not suggested that the debts were time-barred when the mortgage deed was executed. That question, therefore, does not arise in this appeal and it is not necessary to express my opinion thereon. For the aforesaid reason, I hold that the second defendant was within her rights when the executed the mortgage deed in discharge of the liabilities of her son, whose estate devolved on her.
(10) In the result, the appeal fails and is dismissed with costs. No leave.
(11) Appeal dismissed.