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Chityala Venkata Satyanarayanamurthi Vs. Chityala Veera Venkata Satyanarayanamurthi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 527 of 1959 and Tr. A. No. 59 of 1961
Judge
Reported inAIR1966AP349
ActsHindu Law
AppellantChityala Venkata Satyanarayanamurthi
RespondentChityala Veera Venkata Satyanarayanamurthi and ors.
Appellant AdvocateR.V. Ramarao, Adv. ;in A.S. No. 527 of 59 and K.V. Rama Sarma, Adv. in Tr. A. No. 59 of 61
Respondent AdvocateR.V. Ramarao, Adv. ;in Tr. A. No. 59 of 61 and K.V. Rama Sarma, Adv. in A.S. No. 527 of 59
Excerpt:
family - pre-partition debt - hindu law - father executed sale deed in respect of family properties - appeal filed against sale deed - whether sale deed binding on sons - sons bound to pay debts of their father under rule of pious obligation - relief could be granted only if there was debt on date of partition - no pre-partition debt - debt arose only after suit for partition - held, sale not binding on sons. - - 22. now i address myself to the alternative contention that to the extent to which the sales failed, the consideration paid should be recoverable from the sons under the pious obligation to pay the debts of their father. the learned counsel relied on the finding of the court below that the sons had failed to prove their case that the debts were contracted for illegal and.....narasimham, j.1. these appeals arise out of o. s. 65 of 1957 and o. s. 83 of 55 on the file of the subordinate judge, eluru, respectively which were tried together as connected. for the said reason, the appeals are heard together. 2. o. s. 65 of 1957 was filed by the sons of the 1st defendant, chityala ramakrishnamurthi as paupers for the partition of family properties into three equal shares and allotment of two such shares to the plaintiffs and for other incidental reliefs. 3. the case they alleged is that they and the 1st defendant, their father, constituted an undivided hindu family. defendants 4 to 6 are their unmarried sisters, and the 3rd defendant is their mother. the 2nd defendant is the divided brother of the 1st defendant, they having partitioned in or about 1926. it is their.....
Judgment:

Narasimham, J.

1. These appeals arise out of O. S. 65 of 1957 and O. S. 83 of 55 on the file of the Subordinate Judge, Eluru, respectively which were tried together as connected. For the said reason, the appeals are heard together.

2. O. S. 65 of 1957 was filed by the sons of the 1st defendant, Chityala Ramakrishnamurthi as paupers for the partition of family properties into three equal shares and allotment of two such shares to the plaintiffs and for other incidental reliefs.

3. The case they alleged is that they and the 1st defendant, their father, constituted an undivided Hindu family. Defendants 4 to 6 are their unmarried sisters, and the 3rd defendant is their mother. The 2nd defendant is the divided brother of the 1st defendant, they having partitioned in or about 1926. It is their case that their father became addicted to vices and so inclined debts for illegal and immoral purposes. The 1st defendant, their father, executed two sale deeds in favour of the 2nd defendant, his divided brother, Exs. 8-11 dated 21-8-1946 and B-12 dated 9-8-1952 in respect of their family properties. They alleged that they were not supported by consideration and that the debts referred to in the sale deeds were fictitious or in the alternative they alleged that the debts were contracted for illegal and immoral purposes. As such they would not bind them and so they disregarded the alienations and claimed partition. Ex. B-11 concerned item 1 of A schedule and Ex. B-12 item 2 of A sch. Defendants 1 and 3 to 6 remained ex parte.

4. The 2nd defendant-alienee--be it noted that he is the divided brother of the 1st defendant-- repudiated the allegations impeaching the sale in his favour, and pleaded that item 1 of A schedule was sold under Ex. B-11 for the necessity of the joint family consisting of the 1st defendant and the 1st plaintiff and that item 2 of A schedule was sold under Ex. B-12 for purposes of family expenses and cultivation expenses.

5. The learned Subordinate Judge held that Exs. B-11 and B-12 were supported by consideration and that the vendor, the 1st deft, was bound by them but that the sales were not justified by any legal necessity and therefore did not bind the sons of the vendor. Finding also that the partidon was beneficial for the minor plaintiff the learned Subordinate Judge decreed the suit for partition.

6. The 2nd defendant-vendee has impugn ed the finding of the learned Subordinate Judge that the sales under Exs. B-11 and B-12 were not justified by any legal necessity. So, the point raised in appeal is whether Exs. B-11 and B-12 sales were justified by legal necessity, and were therefore, binding on the sons of the 1st defendant.

7. O. Section 84 of 1955 was filed by the 2nd defendant in 0. Section 65 of 1957 to enforce the mortgages executed by the 1st defendant in hie favour, Exs. B-1 dated 27-3-1947 and B-2 dated 15-6-1948. In his suit the mortgagor was impleaded as the 1st defendant and the sons of the mortgagor as defendants 2 and 3. It is the case of the mortgagee that the mortgagor borrowed Rs. 1000 from him under Ex. B-1 for family necessity and executed the mortgage hypothecating Item 1 of the plaint A schedule and that again he executed the mortgage Ex. B-2 borrowing Rs. 2000 from him to discharge certain antecedent debts owing by him. The mortgagor alleged that the mortgage deeds were not supported by consideration and they were also not duly attested according to law and as such should not be enforced. He also pleaded that the debts mentioned in the mortgage bonds were not genuine and that they were mentioned only at the instance of the mortgagee.

8. On behalf of the minor defendants, i.e. the sons of the mortgagor, the Court-guardian appointed for them filed a written statement putting the mortgagee to strict proof of the allegations in the plaint regarding the mortgage bonds and pleaded also that they did not bind the sons of the mortgagor.

9. The learned Subordinate Judge found that the mortgage deeds were supported by consideration, that Ex. B-1 was not binding on the sons of the mortgagor and that Ex. B-2 mortgage was binding on them only to the extent of Rs. 1750 and interest thereon at 5 1/2% per annum as claimed in the plaint. So he granted a decree in that suit against the 1st defendant, i.e., the mortgagor for the amount claimed and further interest and costs, but restricted the right of the decree-holder to bring to sale only the mortgagor's half share of the properties covered by Exs. B-1 and B-2 in relation of his debts. The learned Subordinate Judge also directed that the half share of the sons of the mortgagor in Ex. B-2 property should be brought to sale only in case the amount under the mortgage was not realised by the sale of the mortgagor's share.

10. Against this judgment and decree the sons have filed the appeal questioning the finding that Ex. B-2 mortgage was binding on them to the extent of Rs. 1750 and interest thereon at 5 1/2% per annum as claimed in the plaint.

11. Thus the point that falls for determination in that appeal is whether Ex. B-2 is binding on the sons wholly or partly.

A. S. No. 527 of 1959

12. I would now address myself to the point which arises in A. S. 527 of 1959. Sri Rama Rao for the appellant addressed contentions that Exs. B-11 and B-12 sales were supported by legal necessity as recited in the said sale deeds or in the alternative they were binding on the sons by reason of the pious obligation cast on them by their personal law to discharge the debts or the father. He also submitted that as sons were suing for partition, a provision, must be made for the payment of pre-partition debts. He would have it that when the sales were effected, the consideration received thereunder became the debts of the father if the sales were set aside wholly or partly.

13. In respect of the first contention, I would extract here the relevant recitals in Ex. B-11:

'Sale deed for a sum of Rs. 1100 in respect of Zeroyiti dry land, executed and delivered on 21st day of August 1946 in favour of late Chityala China Venkatachalam Gari's son Venkata Satyanarayna Murthy (D-2) ........ jointly by 2 persons, namely, late Chityala China Venkata-chalam Gari's son Ramakrishnamurthy (D-1) and his undivided son Veera Venkata Satyanarayana Murthy (1st plaintiff) being minor by father and guardian the said Ramakrishnamurthy (D-1)

The schedule mentioned land has been soldto you for the sum of Rs. 1100 (in words Rupeeseleven hundred. Out of the sale amount, theamount received in cash this day is Rs. 300, theamount which we have directed you to paytowards the mortgage loan taken by us from theLand--Mortgage Bank of Tadepalligudem isRs. 250, the amount received by way of execution of a promissory note this day is Rs. 550 inall a sum of Rs. 1100 has been received in thesaid manner. The said property has been putin your possession this day itself. Ihave sold to you the said land for dischargingthe debts contracted by me and for meeting myfamily expenses.

SCHEDULE .... Ac. 2-00.........'

14. The father, who gave evidence as P.W. 3 on the side of his sons, said nothing of the family expenses recited in the sale deed. He only made mention of the 2nd defendant having discharged the debt of Rs. 250 due to the Land Mortgage Hank recited in the sale deed.

15. The alienee deposed as D. W. 6 that the 1st defendant sold the land under Ex. B-11 for discharging the debts and family expenses, and that he discharged the debt due to Land Mortgage Bank and that Ex. B-18 was the voucher. There is no knowing what the said family expenses were such as to justify the sale. From the evidence it emerges that out of the consideration received by the father, a sum of Rs. 250 went for the discharge of a debt due to the Land Mortgage Bank, Tadepalligudem, evidenced by the voucher, Ex. B-18. That would be an antecedent debt and half of it would be the binding consideration on the 1st plaintiff,

16. In Peramanayakam Pillai v. Sivaraman, : AIR1952Mad419 a Full Bench of the Madras High Court has held that

'If the non-alienating corparcener challengesthe sale made by the father or manager of thejoint family property on the ground that it isnot binding on him ...... and if it is found that the alienation is supported by partial necessity, the common burden discharged from and out of the consideration should be distributed proportionately in the same suit on the principle of Vadivalam v. Natasam, ILR 37 Mad 435: 23 Mad LJ 256: (AIR 1914 Mad 582.)'

17. The same principle could be invoked in the case of a sale justifiable in part for antecedent debts.

18. In that case the father sold the family lands for a consideration of Rs. 13,400 out of which only a sum of Rs. 7,022 was applied for discharge of binding debts of the family. The son sued to partition and a preliminary decree for partition and recovery of plaintiff's half share of the properties was granted in favour of the plaintiff but without making any provision for payment by the plaintiff of the proportion ate share of the binding consideration. The Full Bench, after an exhaustive review of the law on the subject, modified the decree by adding that before the plaintiff recovered possession of the property, he must deposit into Court a sum of Rs. 3,511 being his half share of the binding consideration.

19. The said principle, in my view, equally applies to a sale which is justified partly as for discharge of antecedent debt or debts and if so, the alienee could claim that the plaintiffs would be entitled to their shares subject to their paying a half share of the binding coirsideration, viz. Rs. 125 to the alienee as a condition precedent to their recovering their shares of the property. That disposes of Ex. B-11 sale.

20. Now taking up Ex. 11-12 sale, the relevant recitals therein arc these.

'Sale deed for a sum of Rs. 800 in respectof immovable property executed and deliveredon 9-8-1952 in favour of late Chittiyala ChinaVenkatachalam Gari's son Venkata Syanarayanamurty (D-2) ..... by 3 individuals i.e. lateChittiyala China Venkatachalam Gari's son Ramakrishnamurthy (D-1) and his undivided sonsVeera Venkata Satyanarayanamurthy (1st plaintiff) and Venkateswara Rao (2nd plaintiff) beingminors by guardian and father Ramakrishnamurthy is as follows: For meeting my family expenses and for agricultural investment, I have this day sold to you the immoveable properly mentioned in the schedule hereunder for a sum of Rs. 800. Out of the said amount the amount received as advance is Rs. 145 only, deducting which the remaining sum of Rs. 655 has been settled to be paid before the Sub Registrar at the time of registration of this document. As the sale amount has been received in the said manner, the sale property has been put in your possession this day itself. ........... Ac. 0-30 cents......

Endorsement of the Sub Registrar

'A sum of Rs. 655/- has been paid in my presence by Lakkakula Ganganna on behalf of the claimant to the executant '

21. P.W.3, the father, stated nothing about the recitals referring to family expenses and agricultural investment. The vendee as P.W.8 re- stated that he paid the consideration as recited in Ex. 8-12 and that the property was sold for discharge of sundry debts and family expenses. This evidence is inconsistent in so far as it presents an inconsistency with regard to the recital of family expenses and agricultural investment. There is no mention of the agricultural investment. It is seen from the document that the father received the entire money. There is also the evidence of the vendee. This sale manifestly cannot be supported as for legal necessity or for the discharge of antecedent debts. So I agree with the finding of the learned Subordinate Judge that this sale, though supported by consideration, does not bind the sons.

22. Now I address myself to the alternative contention that to the extent to which the sales failed, the consideration paid should be recoverable from the sons under the pious obligation to pay the debts of their father. The learned counsel relied on the finding of the court below that the sons had failed to prove their case that the debts were contracted for illegal and Immoral purposes. The learned counsel would have it that the sons are under the pious obligation to discharge the debts of their father which are not tainted by illegality or immorality. He would also say that provision has to be made for these debts in partition suit. He relied on the Supreme Court ruling in Pannalal v. Mt, Naraini, : [1952]1SCR544 and Luhar Amritlal v. Doshi Jayantilal Jethalal, : [1960]3SCR842 . The earlier ruling is authority for the proposition that a son is liable even after partition for the pre-partition debts of his father which are not immoral or illegal and for payment of which no arrangement was made on the date of the partition. The second has laid down lucidly that the pious obligation liability is based solely on religious considerations, that the basis of the doctrine is spiritual and that its sole object is to confer spiritual benefit on the father. It was explained that it was not intended for the benefit of the creditor and was not based on any necessity for the protection of third parties.

23. The law as stated in the said decisions is beyond controversy. But, these rulings do not traverse the point which is now raised, viz, that the sons will be liable to pay the consideration, which failed, for the sales which they successfully impugned, under the rate of pious obligation or that the sales themselves would be binding on them under the rule of pious obligation. We may take it as settled law that the sons are bound to pay the debts of their father which are not tainted by illegality or immorality under the rule of pious obligation; but such a relief could be granted only if there was a debt existing on the date of the suit. When the sons impugn the sales by the father and they succeed, it can never be said that on the date when they filed the suit, the consideration paid for the sales was a debt due by their father. It became a debt only after the suit was brought when it was so adjudged by a court. This distinction has been Drought out clearly in Lingayya v. Punnayya, ILR (1942) Mad. 502: (AIR 1942 Mad. 183) (FB). In the said case, the facts were that a suit was filed by the sons of a Hindu father after his death to set aside a sale by him of joint family property. It was found that the sale was not made for family necessity and that the sale was consequently set aside to the extent of the sons' interest in the property. Subsequently the vendee filed a suit against the sons for the recovery of a proportionate part of the purchase price paid by him. It was held that the sons could be compelled by reason of the rule of pious obligation to discharge a liability incurred by the father to refund a proportionate share of the purchase consideration.

On behalf of the sons the decision in Sreenivasa Aiyangar v. Kuppuswami Aiyengar, ILR 44 Mad. 801: (AIR 1921 Mad. 447) was invoked, wherein it was held that a son was entitled to recover his share without any obligation to refund being imposed upon him. At page 307 (of ILR Mad); (at p. 185 of AIR), the distinction was pointed out clearly thus:

'There exists an important distinction between that case and the present one. There the question was whether the sons were entitled in a suit for partition filed by them against their father to have unlawful alienations made by him set aside unconditionally. Here the question is whether the sons can in a suit by the vendee be compelled by reason of their personal law to discharge a liability incurred by their father, namely, a liability to refund a proportionate share of the purchase consideration.'

and later at pages 511 and 512 (of ILR Mad); (at p. 187 of AIR) thus:

'When a father sells family properly without the needs of the family requiring the transaction to be entered into, he becomes liable to return to the vendee a proportionate part of the purchase consideration should the other coparceners insist, as they have the right to do, on the sale being set aside so far as they are concerned. On this event happening the vendee can compel the father to make the refund. The position then is that until the transaction is set aside at the instance of one or more of the other coparceners the father's liability is contingent, but when the event has happened the liability becomes a present one.'

Krishnaswami Ayyangar J., who agreed with the Chief Justice, had his own comments to make at page 314 (of ILR Mad): (at pp. 187-188 of Apt) thus:

'But where on account of a total absence either of necessity or antecedent debt, the father's sale is declared not binding on the sons to any extent whatever, the alienee can claim no equity as the liability of the sons to refund the consideration arises independently of the sale successfully impeached by them In the suit. It Is in fact an extraneous obligation cast upon them by their personal law.'

24. There is a lucid commentary pertaining to this subject in Mulla's Hindu Law, 12th Edition, 1959; at page 406 under the heading 'Equities on setting aside alienations', the following occurs:

'Where an alienation is not for legal necessity or for payment of an antecedent debt, and it is set aside at the instance of the other coparceners as regards their shares, there is no equity entitling the alienee to a refund of a proportionate part of the purchase-money in respect of those shares. And it has been held that even if a suit is brought by the sons for a partition and for setting aside an alienation made by their father, the sons are not as a condition to recovering their share of the property, under a pious obligation to refund to the alienee their share of the consideration received by the father. The ground of the decision is that the pious obligation to pay the father's debts attaches only to a debt existing at the date of the suit, and that the consideration received by the father from the alienee is not in the first instance a debt due from the father; it becomes a debt only when the alienation is set aside and a decree is obtained by the alienee against the father for failure of consideration -- ILR -14 Mad. 801: (AIR 1921 Mad 447). See the cases cited in para 269 (2).'

Later the learned author refers to a conflict of opinion between the courts, and then states about the opinion of the courts in Madras thus at page 409:

'It has been held by those Courts that the pious obligation to pay the father's debt does not attach except to a debt existing at the date of the suit, and the price received by the father from the purchaser is in no sense a debt owing by him to the purchaser. It becomes a debt only when the sale is set aside by the court, for it is only then that the purchaser is entitled to a refund of the price for failure of consideration. It has accordingly been held by those courts, that the sons are not, as a condition to recovering the property, under a pious obligation to refund any portion of the purchase money, and the sale must be set aside unconditionally.'

25. The Madras ruling referred to supra and the statement of the law as set out by Mulla make it abundantly clear that on the date of the partition suit there was no debt of the father and that the price received by the father from the purchaser in no sense could be a debt owing by him to the purchaser on the date of the suit. I considered this position and came to the same conclusion in a judgment of this court rendered in A. S. Nos. 496 of 1955 and 360 of 1956 and Cross-objections, A. S. Nos. 545 of 1959 and 83 of 1960 on 7-6-1965 (AP).

26. If so, in the present suit for partition, the sons cannot be made liable for the consideration that failed under the rule of pious obligation. For the same reason, this cannot be a pre-partition debt as it became a debt of the father only after the suit for partition was laid. The contentions of Sri Rama Rao cannot therefore be acceded to.

27. The appeal therefore fails in other respects except to the extent of the modification that the plaintiffs shall pay a sum of Rs. 125/-to the 2nd defendant in the suit for partition i.e., O.S 65 of 1957 before they recover possession of their share in item 1 of plaint A schedule which was the subject-matter of sale under Ex. B-11. The appeal A. S. 527/59 has substantially failed. It is therefore dismissed with costs. Tr. A. S. No. 59 of 1961

28. The point raised in this appeal relates to Ex. B-2 mortgage dated 15-6-48. A translation of the mortgage bond, which is in vernacular, has been placed before me which for convenience may be set out hereunder:

'Non-possessory mortgage bond for Rs. 2,000/-.

* * * * For the discharge of the debts incurred for the family necessity and benefit of the Ist individual of us viz. for the discharge of the balance outstanding on the promissory note dated 17-4-1940 executed in favour of Sade Bhashanam for the discharge of the sum borrowed by me from Mylavarapu Veeraraghavulu under pronote dated 9-6-1913 for the discharge of the sum borrowed from Narapareddi Sitharamayya under pronote dated 26-11-45 and the sum of Rs. 250/- sent to me by money order previously. Together with the sum of Rs. 1750/- paid towards discharge of the above debts, I have received in all Rs. 2000/- and from today T have to pay interest at the rate of Rs. 0-8-0 per month per 100 on the aforesaid amount.

* * * * Witnesses. Sd. Chityala Ramakrishnamurthi

1. Sd. Vatti Sriranganaikulu

2. Sd. Mylavarapu Veeraraghavulu Scribe: Chityala Ramakrishnamurty.'

29. The learned Subordinate Judge accepted the payment of Rs. 1750/- towards the discharge of the debts recited in Ex. B-2. Apparently he took this payment as for discharge of antecedent debts. He had come to that conclusion mainly on the foot of Ex. B-13 dated 20-7-18 a receipt given by the 1st defendant to the 2nd defendant (Reference is to the array of parties in O. S. 65 of 1957) for Rs. 1750/. The 1st defendant went back on this receipt and said that it was written in the dictation of the 2nd defendant and that all the debts recited were fictitious. The learned Subordinate Judge apparently ignored the Ist defendant disowning the receipt and acted on Ex. B-13.

30. Sri Sarma has contended that from the evidence of D. Ws. 1, 2 and 3 and Exs. A-20 and A-21, the discharged promissory notes which were filed, it cannot be accepted that antecedent debts totalling Rs. 1750/- were discharged. He submits that the debts discharged amount to Rs, 1322-13-0 as per the evidence oral and documentary referred to above. The amount is arrived at thus:

31. D.W.1 is Mylavarapu Veera Raghavulu who is referred to as the promisee under promissory note dated 9-6-43 in Ex B-2. The discharged promissory note is not produced. But Mylavarapu Veera Raghavulu deposed that he was paid Rs. 1100/- at the time when the mortgage was executed and that was the amount owing to him under the pronote executed by the Ist defendant.

32. Then the learned counsel referred to D.W.3's evidence with regard to the discharge of a pronote dated 17-4-1940, Ex. A-20 executed in favour of Sade Bhushanam. Sade Bhushanam died and his wife deposed as D W 3. She is an illiterate woman. She said that she returned the note after the Ist defendant paid her Rs. 50/-. Ex. A-20 pronote bears an endorsement of discharge by payment of Rs. 12-13-0 on 18-1-1949. The endorsement is as under:

'Towards full satisfaction of the amount due on the pronote, the sum of Rs. 12-13-0 paid this day on 18-1-1949. Since the holder of this promissory note Sade Bhushanam died, the same is paid to his wife Sade Veeramma as the mother and guardian of her minor children: 1. Apparao, 2. Mohan Rao,

Sade Veeramma Nisani.'

The learned counsel submitted that we have to take Rs. 12-13-0 as having been paid towards the pronote and nothing more and the evidence to the extent to which it is inconsistent with this authentic record of the payment has to be disregarded. T think he is right in his contention.

33. The learned counsel then referred to the evidence of D.W.2 with reference to Ex, A-21. He is the promisee under Ex. A-21 dated 26-11-1945. He speaks to the promissory note executed in his favour for Rs. 275/-, Ex. A-21. it bears two endorsements of payment: (1) Rs. 100/- on 24-11-1946 and (2) Rs. 210/- on 15-11-1949. The endorsement of later date reads thus:

'On 15-11-1949 the sum of Rs. 210/- is paid towards full satisfaction of the pronote debt. This note is accordingly cancelled. So there is no debt.

Sd. Chityala Ramakrishnamurty

(Ist Defendant).'

34. The evidence of D.W.2 which is inconsistent with the record of payments made on the note has to be disregarded. So the learned Counsel's plea that Rs. 210/- when? in discharge of the pronote debt merits acceptance.

35. Totalling these payments, i.e., Rs. 1100/- plus Rs. 12-13-0 plus Rs. 210/-, the aggregate comes to Rs. 1322-13-0. The learned trial Judge apparently made short work of this aspect of the matter by accepting Ex. B-13 and sparing himself the trouble of probing into the record. I consider that the learned counsel's submissions before me merit acceptance. The learned counsel Sri Rama Rao has nothing contrary to say in this regard. I would therefore find that the antecedent debts discharged from the consideration under Ex. B-2 amount to Rs. 1322-13-0 and not Rs. 1750/.

36. I may recall the judgment of this Court in Venkateswarlu v N. Venkata Narasimham, (1956) Andh W R. 1165: (AIR 1957 Andh Pra 557) where al p 1169 (of Andh WR). (at p 560 of AIR) dealing with the proof by an alienee in respect of alienations it was held that the alienee had to prove (1) that there was in fact consideration for the alienation and (2) that the consideration went to discharge the antecedent debts of the father or to meet the necessities of the family.

37. In the present case the consideration for the mortgage binding on the coparceners is only Rs. 1322-13-0 and to this extent the decree of the trial court in O. S. 84 of 1955 requires modification. That is to say, in the decree the sum of Rs. 1322-13-0 would be substituted for Hs. 1750/- wherever it occurs. The sons could redeem their half share of the hypotheca on payment of their half share of the binding consideration, viz, half of Rs. 1322-13-0.

38. Sri Rama Rao has also pleaded that though the binding consideration for the mortgage could be taken as Rs. 1322-13-0, the balance of the amount due under the mortgage is still recoverable from the sons on the footing that they are liable therefor under the rule or pious obligation. He has agued that the mortgage may not be enforceable in full against the sons but the amount is still recoverable as a debt from the father which they are under a pious obligation to 'pay. He would say that he could proceed against the entire hypotheca i.e., against items 3, 4 and 5 of the plaint schedule. But the snag here is that he is confronted with the position that on the date of the suit no definite sum was due from the father which he could not recover from him and which the sons were therefore under a liability to pay The mortgagee could recover his debt by proceeding against the half share of the hypothecated property, viz. items 3, 4 and 5 of plaint A Schedule. It cannot now be predicated whether he could recover all the amount or only a part of it. It is only in the event of his not recovering the entire amount, that the question of a debt of the father arises, and the further question of enforcing the pious obligation of the sons. The learned counsel is not therefore right in claiming for the mortgagee a right to proceed against the entire property.

39. The result is that Tr. A. S. 59 of 1961 succeeds only to the extent of the modification in the binding consideration as set out supra. In other respects the trial court's decree stands. The appellants will have their proportionate costs here and in the court below. The success of the appellants is not substantial. The court fee on the memorandum of appeal will be paid by the appellants. Time for redemption six months.


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