1. A perfumery business was carried on by one Radha Kishen. The business as well as other property moveable and immoveable passed on his death to his two sons Bindesri Pershad and Nandan Pershad and to Sham Sundar and Ram Behari, two sons oi Bindesri Pershad. Nandan Pershad relinquished all his right in the business and property and for some years the business was carried on by Bindesri Pershad. In December 1903 the plaintiff-appellant advanced a sum of Rs. 1,201 to Bindesri Pershad for the purposes of the business.
2. On December 15th, 1905, Bindesri Pershad executed a deed of gift in favour of his son Sham Sundar. He seems to have repented of the gift and litigation followed. Ultimately Musammat Gangajali was appointed guardian of Sham Sundar. In the present suit, instituted in August 1909, plaintiff claims a decree for Rs. 2,369 odd against Bindesri Pershad, Nandan Pershad and Sham Sundar. The amount claimed is made up of the sum of Rs. 1,201 mentioned above, interest thereon and other items, Bindesri Pershad and Nandan Pershad died after the institution of the suit but the plaintiff's rights are not affected thereby.
3. The first Court passed a decree against Sham Sundar for a small sum of money and dismissed the rest of the claim. The plaintiff appealed. The questions for decision in the lower Appellate Court were (1) whether the plaintiff had succeeded in proving the advanca of Rs. l,20i in December 1903 and that the debt was still outstanding; (2) whether the acknowledgment made by Bindesri Pershad on November the 18th, 1906, is binding on the defendant Sham Sundar and could be used for the purpose of extending limitation as against Sham Sundar, and (3) whether the claim should be decreed against Sham Sundar by reason of hjs liability under the Hindu Law to pay his father's debts.
4. The District Judge held that the advance of Rs. 1,201 was proved and that the debt was still outstanding; that the acknowledgment made by Bindesri Pershad in November 1906 was not binding on the defendant Sham Sundar because the father and son had separated before that date and the acknowledgment was made for the purpose of harassing Sham Sundar and his mother, and that the plaintiff's claim could not be decreed against Sham Sundar because on the execution of the deed of gift of December 1905 Bindesri Pershad ceased to have an interest in the property and the family ceased to be joint.
5. The decision of the learned Judge on the first two pointd is accepted by the plaintiff, but it is contended that the claim of the plaintiff should have been decreed in full against Sham Sundar in enforcement of his pious liability to pay his father's debts. On behalf of Sham Sundar it is contended, that as so use can be made of the acknowledgement of the 18th of November 1906 as against him the plaintiff's suit is barred by limitation as against him, and that, in any event, execution could not be taken out against the property transferred to Sham Sundar by the deed of gift.
6. It seems to us that the deed of gift may be put out of consideration. It is not a case of a man who is indebted to others transferring his property to strangers. At the date of the deed of gift there was a joint family consisting of Bindesri Pershad and his two sons. It is contended on behalf of the plaintiff that the deed was altogether ineffectual. We think that if it had any effect it was as a relinquishment by the father of his undivided interest in the joint family property. Both before and after the gift the whole of the property of the family was liable to answer to the plaintiff's claim and it could not cease to be liable by one member of the family relinquishing his interest in it.
7. The plaintiff's case as brought was, no doubt, as contended by Mr. O'Conor, based upon an implied promise made by Bindesri Pershad as manager of the business to re-pay the sum advanced by the plaintiff for the purposes of that business. As against Bindesri Pershad the suit was governed in respect of limitation by Article 57 of the first Schedule of the Limitation Act., it might also be regarded as being governed by that Article as against Sham Sundar if he is liable for the loan as one contracted on behalf of the family by the Manager of the family business. The suit was instituted in August 1909 and the claim is barred by limitation against Sham Sunder, if it is regarded as one for money lent, for, as already stated, the acknowledgment of November 1906 is of no use to the plaintiff as against Sham Sundar. But we think that we should be tying the plaintiff too closely to the words of his plaint if we declined to consider the claim as one to enforce against a. son his pious obligation under the Hindu Law to pay the debts of his father and to obtain a decree which could be executed against the joint family property.
8. In paragraph 4 of the plaint it is stated that 'all the defendants (personally), the property of all the defendants and the family property of all the defendants are liable to pay all the sums due to the plaintiff,' and one of the questions considered by the lower Appellate Court was whether the claim should be decreed against Sham Sundar by reason of his liability to pay his father's debts. It has been held in several cases that the liability of a son to pay his father's debts arises from the moment when the father fails to discharge his obligations and that such a claim is governed by Article 120. This suit was instituted less than six years after the money advanced became due to the plaintiff and is, therefore, within time against Sham Sundar.
9. We, therefore, allow this appeal and in modification of the decree of the lower Appellate Court we give the plaintiff a decree against Sham Sundar for Rs. 1,162 with interest at 6 per cent, per annum from the date of the suit to the date of realization to be enforced Bgainst any portion of the joint family property now in his hands. The sum decreed is, of course, included in the sum already decreed against Bindesri Pershad. The plaintiff will get his costs in all three Courts on the sum of Rs, 1,216 against Sham Sundar and will pay the costs of Sham Sundar on the sums disallowed; the costs of this Court will include fees on the higher scale.