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Bharatpur State Vs. Sri Krishan Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All327
AppellantBharatpur State
RespondentSri Krishan Das and ors.
Excerpt:
- - in view of all the above circumstances we are satisfied that the property in suit was the joint ancestral property of the family and we accordingly reject this plea. 2,700 for the property in suit, and we are clearly of opinion that the plaintiff-appellant has failed to establish that the lease was beneficial to the family or that there was any necessity whatsoever for charging the family property as security for this lease which incidentally bohra dip chand gave up after three years. where any claim is preferred to or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the.....ordercollister and bajpai, jj. 1. this is a plaintiff's appeal, the plaintiff being the bharatpur state through its administrator. on 15th january 1934 bohra dip chand deceased, 'who was the father of defendants second set took a lease of the village of pani gaon for a period of nine years from the plaintiff at an annual rental of rs. 2,700. on 24th april 1924 he executed a security bond for rs. 8,000 for due payment of the lease money and by means of that security bond he mortgaged a certain property in the village of kanchrouli. bohra dip chand defaulted in payment of the lease money in 1332 and 1333 fasli; and then he gave up the lease, and soon afterwards he died. thereafter the plaintiff state sued the sons of bohra dip chand, i.e. defendants second set for recovery of the arrears of.....
Judgment:
ORDER

Collister and Bajpai, JJ.

1. This is a plaintiff's appeal, the plaintiff being the Bharatpur State through its administrator. On 15th January 1934 Bohra Dip Chand deceased, 'who was the father of defendants second set took a lease of the village of Pani Gaon for a period of nine years from the plaintiff at an annual rental of Rs. 2,700. On 24th April 1924 he executed a security bond for Rs. 8,000 for due payment of the lease money and by means of that security bond he mortgaged a certain property in the village of Kanchrouli. Bohra Dip Chand defaulted in payment of the lease money in 1332 and 1333 Fasli; and then he gave up the lease, and soon afterwards he died. Thereafter the plaintiff State sued the sons of Bohra Dip Chand, i.e. defendants second set for recovery of the arrears of rent in respect of 1332 and 1333 Fasli and the suit was decreed by a Revenue Court in the District of Muttra on 25th May 1928. That decree was subsequently transferred for execution to Aligarh, in which district the property in suit is situated; and in execution of the said decree the property in suit was attached and 21st October 1929 was fixed for sale.

2. Meanwhile, however, defendants first set having obtained in 1927 a simple money decree against Bohra Dip Chand and his son Sardar Singh, defendant 6, put the property in suit to sale and purchased it themselves on 21st August 1929. They accordingly filed an objection under Order 21, Rule 58, Civil P.C. in the execution proceedings of the plaintiff,, and on 19th December 1929 the executing Court passed an order to the effect that the property in suit could not be sold in execution of the decree for arrears of rent of the Bharatpur State, but at the same time the Court recorded a finding that there was a charge of Rs. 8,000 of the State on the property in suit for recovery of which the State was competent to sue. The plaintiff State has accordingly instituted the present suit for recovery of the said amount with interest and costs by sale of the property in suit. The suit was contested by defendants first set and the main ground of contest was that the property in suit was the joint ancestral property of Bohra Dip Chand and his sons and that the mortgage was without legal necessity and was therefore invalid. A written statement to this same effect was put in by Lakshmi Chand, defendant 9, while Karan Singh defendant 7 filed a written statement in which he alleged that according to the plaintiff's own case he had separated from his family before the execution of the deed of lease and he had therefore been unnecessarily impleaded and was, entitled to his costs.

3. The Subordinate Judge of Aligarh who tried the suit has found against the plaintiff on the main issue; that is to say, he has found that Bohra Dip Chand was not competent to charge the property under the hypothecation bond of 24th April 1924 which he executed by way of Security. The suit has accordingly been dismissed with costs and the plaintiff State has come to this Court in appeal. The appeal is contested by defendants first set. Defendant 7 is also represented by counsel and he claims his costs on the ground that he has been unnecessarily impleaded in the appeal. Various pleas have been taken before us by learned Counsel for the plaintiff appellant; but some of them can be briefly disposed of. The first plea which we will deal with is a plea whereby learned Counsel for the plaintiff appellant attacks the finding of the Court below that the property in suit was ancestral. It appears to have been accepted at the trial that Bohra Dip Chand and three of his sons (other than Karan Singh) were joint; there does not seem to have been any allegation to the contrary. The property was apparently purchased by Bohra Dip Chand from the heirs of his brother after partition, but the evidence of plaintiff's own witness Ram Sarup discloses that there was a large nucleus of ancestral property from the funds of which the purchase might have been made. The fact that the property in suit was ancestral was practically admitted at the trial and the plea which has now been taken before us finds no place in the memorandum of appeal. In view of all the above circumstances we are satisfied that the property in suit was the joint ancestral property of the family and we accordingly reject this plea. The next point taken before us is that the defendants first set have taken a peculiar plea as regards the competence of Bohra Dip Chand which plea was only open to the sons unless it can be shown that defendants first set have acquired the right, title and interests of such sons as were joint with their father; and it is contended that such acquisition of rights has not been established. The decree of defendants first set was against Bohra Dip Chand and Sardar Singh only, and it is argued that it was duty of the defendants-respondents to show in this suit what members of the family they impleaded in the execution proceedings and whose rights they actually acquired under the sale which took place after the death of Bohra Dip Chand, and that then only would they have a right to impeach the validity of the mortgage. We are unable to accept this plea. As we have shown, Bohra Dip Chand and three of his sons were joint and the property was ancestral; and it was held by a Bench of this Court in Madan Lal v. Chiddu 1930 ALJ 1528, that in suit for sale upon a mortgage executed by the father of a Hindu family an auction-purchaser under a simple money decree against the father was entitled to put the mortgagee to proof of the validity of his mortgage on a ground which might have been taken by the sons. In any case the point is only of academic interest in this suit inasmuch as Lakshmi Chand, defendant 9, who was admittedly joint with his father, has himself set up this plea in his written statement; and he has instituted an appeal in this Court against the auction-sale of 21st August 1929 in favour of defendants first set.

4. The third point argued before us is that the mortgage was a transaction for the benefit of the family and was such as a prudent Hindu father, whose occupation in life was zamindari business, might be expected to negotiate, and therefore it is binding on the sons and creates a valid charge upon the property. On this plea also we must find against the plaintiff. Learned Counsel for the plaintiff concedes that the onus of establishing this plea lay upon the plaintiff. The latter's own witness Ram Sarup admits that Bohra Dip Chand had an income of Rs. 12,000 or Rs. 13,000 per annum. Another witness of the plaintiff, by name Chaube Gopinath, who is in the service of the Bharatpur State as a mukhtariam, says in his evidence that in the lease granted to Bhora Dip Chand 'there was probability and chance of profits' and in his opinion there would be a profit of about Rs. 1,000 per annum; but in cross-examination he has had to admit that before 1923 this property was leased at a rental of Rs. 1,000 only and that in 1928 it was relet at a rental of no more than Rs. 1,500. We cannot find anything on the record which would have justified Bhora Dip Chand in agreeing to pay an annual rent of Rs. 2,700 for the property in suit, and we are clearly of opinion that the plaintiff-appellant has failed to establish that the lease was beneficial to the family or that there was any necessity whatsoever for charging the family property as security for this lease which incidentally Bohra Dip Chand gave up after three years.

5. It is however pleaded that the hypothecation bond was executed to liquidate an antecedent debt inasmuch as the mortgage bond would only become operative when a debt or liability came into existence; that is to say, when the hypothecation bond became operative there would already be an existing liability.;The position was this: The hypothecation bond was executed as security for payment of a potential debt; and when the potential debt became an actuality, the hypothecation bond would automatically come to life. Thus its operativeness was dependent upon the contingency of a future debt coming into existence; and when that occurred, the hypothecation bond would ipso facto become enforceable. The happening of these two events would be to all intents and purposes simultaneous and in our opinion it cannot be held that there was any such antecedence in time as was contemplated by their Lordships of the Privy Council in Brij Narain v. Mangal Prasad 1924 46 All 95, and as would render the sons' interests in the ancestral property liable to sale under the mortgage. The next plea in order of logical sequence among those which have been taken before us is that a father of a joint Hindu family has, apart altogether from the question of legal necessity or the existence of an antecedent debt, the power to charge the family property in the capacity of a surety for his subsequent liabilities. But since we propose to refer this matter to a Full Bench, we will first deal with the other remaining plea which has been argued before us by learned Counsel and which is concerned with the effect of the revenue Court's order of 19th December 1929, which was passed in the proceedings under Order 21, Rule 58, Civil P.C., upon the objection of the defendants-respondents. The operative portion of that order reads as follows:

I would not therefore sanction sale of the estate. I accept the objection of Srikrishan Das and order that no sale of the estate can be made in this decree of Bharatpur State. I would however hold this burden of Rs. 8,000 of the Bharatpur State on this estate for which the State may sue.

6. Learned Counsel for the plaintiff-appellant pleads that this was an order passed under Rule 62, Order 21 and that the effect of it is to stop the defendants first set from now challenging the hypothecation inasmuch as a 'claim' by the mortgagee, to the effect that he had a charge on the property, was decided against the said defendants and they instituted no suit within 12 months from the date of such order. If this were so, the question would arise as to whether the written statement of defendants first set, which was filed within 12 months, would or would not satisfy the conditions of the rule of limitation; but in the view which we take of the matter it will not be necessary to consider this point. In order to establish this contention, that the order of 19th December 1929 was an order under Rule 62, counsel has to satisfy us: (1)that the attachment was not raised by the Court, and (2) that there was a 'claim' by the mortgagee within the meaning of Rule 58. As regards the former point there is nothing in the order itself to show that the attachment was not raised and it is admitted in para. 8 of the plaint that the property was relinquished from attachment by the Court. As regards the second point, we have no doubt whatever that the claim or objection as contemplated in Rules 58 to 63 is a claim or objection by a third party and does not include a claim or objection made by the decree-holder who is putting his decree into execution. Rule 58 reads as follows:

Where any claim is preferred to or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects as if he was a party to the suit.

7. The words italicised by us indicate that the claim or objection as envisaged therein is not a claim or objection by the decree-holder. In our opinion the order of 19th December 1929, although it does not in so many words direct that the attachment be raised, cannot have been other than an order under Rule 60, in which the revenue Court purported also to embody a sort of informal notification of the plaintiff's charge of the nature contemplated by Rule 66. The last point which arises in this appeal is whether or not Bohra Dip Chand was competent to charge the ancestral property as security for payment of the lease money as it fell due under the deed of lease dated 24th April 1924. In Maharaja of Benares v. Ramkumar Misir,(1904) 26 All 611, one Ram Prasad took a lease of four villages from the Maharaja of Benares and in order to secure due payment of the rent a surety bond was entered into by the lessee himself and two other persons, each surety hypothecating certain property as surety. The rent for certain years fell into arrears and the Maharaja sued in the revenue Court and obtained a decree; and having failed to realize the decretal money by execution in the revenue Court, he sued the sons of Ram Prasad and of the two other sureties, the fathers being then dead. A Bench of this Court held that the property was liable under the hypothecation bonds. No plea appears to have been taken in that case to the effect that only a personal liability would rest upon the son of a surety for payment of money. In Chakhan Lal v. Kanhaiya Lal 1929 ALJ 199 , the question of a son's liability for the suretyship of his father was considered by the learned Chief Justice and Kendall, J. They re-referred to the case of Maharaja of Benares v. Ramkumar Misir,(1904) 26 All 611 and observed that in that case 'the contention, that the text and the commentary (i. e. of the Mitakshara) refer only to a case where the amount has been previously paid and exists as a debt, was repelled by this High Court;' but they expressed the view that 'the liability of the father as surety did not entitle him to alienate the family property.' They accordingly held that a charge which the father had created upon the family property as a surety was not a valid charge, but that his liability as surety still held good and that it could not be repudiated by the sons. In Mata Din Kandu v. Ram Lakhan Ahir 1929 ALJ 1285, a different view appears to have been taken by Young and Bennet, JJ., who followed the view which was taken in Maharaja of Benares v. Ramkumar Misir,(1904) 26 All 611, and they remarked that no authority to the contrary had been shown to them, from which observation it is clear that the case of Chakhan Lal v. Kanhaiya Lal 1929 ALJ 199, was not referred to. The Privy Council case of Brij Narain v. Mangal Prasad 1924 46 All 95, and the propositions of law laid down therein were discussed and in that connexion the Court observed as follows:

But we are of opinion that in laying down these five propositions their Lordships of the Privy Council had no intention to apply the propositions to a case like the present, which is a case of a hypothecation bond of suretyship. There was no mention at all in the judgment of their Lordships of any such question having been raised before them. We consider that if their Lordships had intended to lay down the proposition that a Hindu father could not bind the estate of the joint family by hypothecating the estate for the purpose of suretyship, the proposition would have been clearly stated in the judgment of their Lordships. We consider that a proposition of such an importance as that in the present case would not have been laid down by their Lordships merely by implication but would have received separate treatment and consideration. Accordingly, as we consider that this ruling of their Lordships is not intended to apply to the circumstances of the present case, we consider that we ought to follow the ruling in Maharaja of Benares v. Ramkumar Misir (1904) 26 All 611.

8. In Dwarka Das v. Kishan Das 1933 55 All 675, the existence of some difference of opinion in this Court was recognized. As regards other High Courts, we have been referred to Hira Lal Marwari v. Chandrabali Haldarin,(1909) 13 CWN 9, Rasik Lal Mandal v. Singheswar Rai (1912 39 Cal 843 and Brij Nath Prasad v. Bindeshwari Prasad Singh 1925 Pat 609. In view of the conflict which appears to exist, particularly in this Court, as to whether a son's liability for security given by his father is a personal liability or whether a valid charge can be made by the father on the ancestral property, we are of opinion that the matter is one which should be decided by a Full Bench. We accordingly direct that the case be laid before the Hon'ble Chief Justice with a request that the following question be referred for determination to a Full Bench: Whether the father of a Hindu joint family can lay a valid charge; upon the ancestral property as security for the payment of the rent which would fall due under deed of lease which had been executed by himself and which has been found to have been executed otherwise than for the benefit of the family or for family necessity.

Sulaiman, C.J.

9. I am doubtful whether any question as to the existence of an antecedent debt has been referred to us. In the body of the order of reference there is a clear expression of opinion that no antecedent debt existed, though the form in which the question referred to us is framed does not preclude such a consideration. If execution of the original lease and the subsequent execution of the security bond were part and parcel of the same transaction, then obviously there could be no antecedency in fact or in point of time. The two transactions would become one, and the alienation if without legal necessity and not for the benefit of the estate or the family, would be unjustified.

10. If however the two transactions were separate and independent, the first would be antecedent in point of time. If the pecuniary liability incurred under the lease were certain, definite and unconditional, it would in my opinion amount to a debt, even though the payment were to be by future instalments. For instance a person may borrow money promising to pay it after five years: he owes the debt from the very moment of borrowing, though he cannot be sued before the expiry of five years. Or again a person may purchase a motor car promising to pay the price after a year; he has incurred a debt, although the debt does not become recoverable until after the expiry of one year. But if under the terms of the lease the pecuniary liability were not only contingent, but also conditional and may accrue in certain contingencies and may not accrue in others, then the legal liability may not amount to the incurring of a debt. In the present case the execution of the security bond was really an offer of a further security in addition to the personal liability previously incurred. It was not a case of a discharge or repayment of an antecedent debt. As the terms of the lease are not before us it is impossible to express any final opinion on this matter. On the main question, even after hearing the point argued afresh, I adhere to the opinion expressed in Chakhan Lal v. Kanhaiya Lal (1929) 27 ALJ 199. It is not necessary for me to add to what has been already said there. I may only say that the primary idea of suretyship is an undertaking to indemnify if some other person does not fulfil his promise. Again under the Hindu law the pecuniary liability for suretyship is binding on the sons only and not on the grandsons. To hold that an alienation can be made straight off without there being an antecedent liability would mean that the alienation would be binding not only on. the sons but also on the grandsons. The liability of the sons to pay a debt is not the same thing as the right of the father to alienate the property to discharge the debt. One creates a liability which can be met out of the family property and the other involves an alienation out and out. The Mitakshara puts suretyship as something distinct and different from debts. The two are dealt with separately in different sections. Now the validity of an alienation in discharge of an antecedent debt has been characterised by their Lordships of the Privy Council in Sahu Ram Chandra v. Bhup Singh 1917 15 ALJ 437, at p. 444 as an exception to the general rule of want of authority in the father to transfer property without legal necessity or when there is no benefit to the estate, and their Lordships have observed that that exception should not be extended. I would therefore hesitate to apply the exception to the case of a suretyship where no antecedency in point of time exists.

Bennet, J.

11. I agree with the opinion of the learned Chief Justice.

Bajpai, J.

12. The facts of this case are stated at length in the referring order and the question of law that we have got to decide is:

Whether the father of a joint Hindu family can lay a valid charge upon the ancestral property as security for the payment of the rent which would fall due under a deed of lease which had been executed by himself and which has been found to have been executed otherwise than for the benefit of the family or for family necessity.

13. Learned Counsel for the appellant argued that it was open to him to go into the facts of the case and to show that the charge upon the ancestral property was made in lieu of an antecedent debt and as such was valid and that the way in which the question was formulated did not suggest that the charge was not in lieu of an antecedent debt. I am of the opinion that this point has been already decided by the Bench which has referred the question to us, and that it is permissible to us to look into the order with a view to satisfying ourselves whether the matter has or has not been decided by the Bench. The order says:

It is, however, pleaded that the hypothecation bond was executed to liquidate an antecedent debt inasmuch as the mortgage bond would only become operative when a debt or liability came into existence; that is to say, when the hypothecation bond became operative, there would already be an existing liability. The position was this: the hypothecation bond was executed as security for payment of a potential debt; and when the potential debt became an actuality, the hypothecation bond would automatically come to life. Thus its operativeness was dependent upon the contingency of a future debt coming into existence; and when that occurred, the hypothecation bond would ipso facto become enforceable. The happening of these two events would be to all intents and purposes simultaneous, and in our opinion it cannot be held that there was any such antecedency in time as was contemplated by their Lordships of the Privy Council in Brij Narain v. Mangal Prasad 1924 46 All 95, and as would render the sons' interests in the ancestral property liable to sale under the mortgage.

14. Even if the question were open, I am of the opinion that it is impossible to hold that the security bond executed by Bohra Dip Chand, the father, was in lieu of an antecedent debt as understood in Hindu law. The facts are that Dip Chand took a lease of some property on 15th January 1924 from the Bharatpur State on an annual rent of Rs. 2,700 for nine years, and on 24th April 1924 ho executed a security bond in which he mentioned the fact that he had taken a lease for nine years and that the Bharatpur State had demanded a security of Rs. 8,000 from him in respect of the said lease and therefore he was hypothecating 137 odd bighas of land of khewat No. 1 in village Kanchrolli. It has been found that the above-mentioned property is ancestral property. The lease which Bohra Dip Chand had taken from the Bharatpur State is not on the record of the case, and it may well be that one of the conditions of the lease was that the lessor would have to execute a security bond in which event the two transactions would be practically one and there would be no 'real dissociation in fact.' Apart from that the lease was taken, as appears from the evidence of Chaubey Gopi Nath, an employee of the Bharatpur State, at an auction-sale held some time in July 1923, although the thekanama itself was executed on 15th January 1924. We do not know whether any sum was paid by Bhora Chand on the date of the auction, and it may well be that a year's rent was paid in advance, and even if nothing was paid the annual rent was not due at the time when the security bond was executed in April 1924. It is true that an undertaking had been given by Dip Chand when he took the lease and that undertaking involved a pecuniary liability, but the question is whether it is possible to construe that undertaking involving a pecuniary liability as a debt. It must be remembered that the general principle in regard to the power of the father under the Mitakshara law in his capacity of manager and head of the family with reference to the joint family property is that,

he is at liberty to effect or to dispose of the joint property in respect of purposes denominated necessary purposes. The principle in regard to this is analogous to that of the power vested in the head of a religious endowment or muth, or of the guardian of an infant family;

but side by side with this principle is the fact that there is

an obligation of religion and piety which is placed upon the sons and grandsons...to discharge their father's debts

and,

although the correct and general principle be that if the debt was not for the benefit of an estate then the manager should have no power either of mortgage or sale of that estate in order to meet such a debt, yet an exception has been made to cover the case of mortgage or sale by the father in consideration of an antecedent debt,

and it was observed by their Lordships of the Privy Council in Sahu Ram Chandra v. Bhup Singh 1917 39 All 437, from which ruling I have been quoting freely, that,

this being an exception from a general and sound principle...the exception should not be extended and should be very carefully guarded.

15. This conflict; was noticed again by their Lordships of the Judicial Committee in Brij Narain v. Mangal Prasad 1924 46 All 95, and they observed:

It is enough to say that both principles are firmly established by long trains of decision, and it certainly occurs to the view that the term 'antecedent' debt represents a more or less desperate attempt to reconcile the conflicting principles.

16. In the present case the father had not borrowed any sum of money from any creditor prior to the execution of the security bond, and it cannot be said that the bond was executed in lieu of the former borrowing. The bond was in the sum of Rs. 8,000, and in no case can it be said that by the time of the execution of the bond he had become liable to pay this sum. The undertaking for the payment of the annual rent given by the father was to mature into a pecuniary liability at a date subsequent to the execution of the bond and, as such, there was no antecedence in time, and in the absence of the lease it is not possible to say that there was any real dissociation in fact; on the contrary the circumstances suggest that the execution of the security bond was one of the conditions on which the lease was given.

17. Coming to the question which has been referred to us, I am of the opinion that the father of a joint Hindu family cannot lay a valid charge upon the ancestral property under the circumstances mentioned in the question. In Ch. 6, Sections 4 and 53 of the Mitakshara, it is laid down as follows:

Suretyship is enjoined for appearance, for confidence, and for payment. On failure of either of the first two, the surety himself in each case shall pay; on that of the third, his sons also must pay.

18. As pointed out by Ranade, J., in Tukaram Bhat v. Gangaram (1899) 23 Bom 454 at pp. 459 and 460:

Brihaspati recognises four different classes of sureties: (1) sureties for appearance, (2) sureties for honesty. (3) sureties for payment of money lent, and (4) sureties for delivery of goods. The obligation of the first two kinds of sureties is limited to themselves personally, and does not bind their sons; but the obligation incurred by the last two kinds of sureties binds them and their sons also after their death. The commentary of Ratnakar on this text expressly states that the sons shall be compelled to pay debts incurred by their father under the last two classes of surety obligations. The texts of Narada and Yajnavalkya recognize three classes of surety obligations only: those for appearance, those for honesty, and those for payment. Narada does not set forth the son's obligation in this place, but the Yajnavalkya text is quite as explicit as that of Brihaspati. The sureties of first two classes must pay the debt, and not their sons, but the sons of the last kind of surety may be compelled to pay their father's debt incurred by him as surety. Katyayana refers to the same kind of surety when he lays down that the grandson of such a surety need on no account pay the debt, but the son must make it good without interest. The text of Vyasa makes the same distinction between the son's and grandson's liabilities for such suretyship. Manu's texts on the subject clearly distinguish between sureties for appearance or good behaviour and sureties for payment. The son shall not, according to Manu, in general be compelled to pay money due for suretyship, or idly promised to musicians and actresses, or lost at play, or due for spirituous liquors, or for tolls or fines. The general words 'money due for suretyship' used in the text are expressly stated by the commentator Kulluka to refer only to sureties for appearance and good behaviour, but, as regards a surety for payment, it is enjoined that the Judge may compel even his heirs to discharge the debt. Even as regards the first two classes of sureties, if they have derived any advantage, or received a pledge, their heirs may be compelled to pay the debt. The commentator Hardatta explains a similar text of Gautama by affirming the same distinction.

This exposition of the authorities removes all apparent conflict, and the Pandits, whose advice was sought by the late Sadar Diwani Adalat in the case of Moolchand v. Krishna Civil Reference No. 7 of 1898, must have based their opinion on these same texts, though there is no express mention of the texts in the judgment. The more general texts which class suretyship obligation with reckless and immoral debt must, therefore, be qualified by the particular texts quoted above; and when so explained, it becomes clear that they refer to particular classes of sureties which do not include sureties for payment of debts, in respect of which last class, unless the debts can be shown to have been incurred for immoral or illegal purposes, the sons are liable to discharge their father's debts.

19. It would thus appear that there is an obligation on the sons only when the father is a surety for payment of money lent or at least for delivery of goods and not when he stands surety for appearance or for honesty; and so far as Narad is concerned he does not set forth the son's obligation even in these two cases; but none of the ancient law-givers would make the grandson liable in any class of suretyship. In ancestral property the grandson has a vested interest by birth and it would be anomalous to hold that although the grandson is under no pious obligation to pay his grandfather's debts incurred as a surety, the grandfather has the right to lay a valid charge on ancestral property for payment of debts incurred by him as a surety.

20. I have already in an earlier part; of my judgment emphasized the conflict that exists in the two principles, namely the limitation imposed on the father of a joint Hindu family in connexion with the alienation of the family property when he has sons and grandsons and the pious obligation of the son and the grandson to pay his father's and his grandfather's debts, if they are not tainted with immorality, and the attempts to reconcile the conflicting principles, one of such attempts being to give to the father power to alienate ancestral property in lieu of an antecedent debt, but I am not prepared to introduce a further head and to say that a father can mortgage or alienate ancestral property in discharge of debts incurred as 'a surety for payment.' One anomaly I have already pointed out and I can see no serious difficulty in reconciling the two principles at least so far as the question of suretyship is concerned. The son (and not the grandson) is liable to discharge the debts incurred by his father as a surety for payment; that is his personal obligation, and if the creditor is alert he loan obtain relief as long as the personal 'remedy is open to him, for if he were to obtain a decree within the time available for a personal decree the ancestral property might become liable by being taken in execution on the back of the decree, but it is not possible for him to enforce the mortgage after the personal remedy has become barred by time. In Brij Narain v. Mangal Prasad 1924 46 All 95, mentioned above, their Lordships of the Privy Council summed up five propositions in connexion with the powers of a manager and a father regarding joint ancestral property, and although it cannot be said that these five propositions are fully exhaustive, yet I venture to suggest that if the father had such a power, as is contended for by the appellant, one might have expected another proposition.

21. It is not necessary for me to discuss the various authorities that were cited before us at the bar, and I hold the view that the case in Chakhan Lal v. Kanhaiya Lal (1929) 27 ALJ 199, takes the correct view of the law on the subject. It is one thing to say that the son is under a pious obligation to pay his father's debts incurred as a surety for payment and it is quite another thing to say that a father can lay a valid charge upon the ancestral property for payment of such a debt. The liability of the son is personal and can be enforced only as long as the personal remedy is alive, and recourse might be had by the creditor against the property in the hands of the son after he has obtained a simple money decree. My answer to the question that has been referred to us is in the negative.

22. (1) Even if an answer be wanted, no definite answer can be given as to the antecedency or otherwise of the liability under the lease without knowing the terms of the lease. (2) In case there is no antecedency in point of time and in fact, the hypothecation of joint ancestral property by way of security would not be valid without the existence of legal necessity or benefit to the estate.


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