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Kuppuswami Goundan Vs. Devakottah Lakshmanan Chettiar - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Reported inAIR1943Mad552; (1943)1MLJ285
AppellantKuppuswami Goundan
RespondentDevakottah Lakshmanan Chettiar
Cases ReferredIn Mohana Reddi v. Gangaraju
Excerpt:
- - in fact, there is a decision of a full bench of this court which clearly shows that the decision is right. 3. the present debt is clearly enforceable against the father......receiver of guntur v. sait lalchand khushalchand : air1941mad772 and allowed the appeal. the learned judge was apparently of the opinion that it was a hard case and consequently deprived the respondent of his costs. each party was directed to bear his own costs. leave having been granted under clause 15 of the letters patent the appellant has appealed, against the decision holding him liable on the debt and the respondent has filed a memorandum of cross-objections against the decision of the learned judge on the question of costs.2. the learned advocate for the appellant says that section 78 (2) of the provincial insolvency act does not apply so far as his client is concerned; it operates merely to save limitation as against the father. we will take this to be the case, but that.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The appellant is the undivided son of one Ponnambala Goundan. On the 23rd March, 1925, the father and another person executed a promissory note in favour of the respondent for the sum of Rs. 855. On the 18th March, 1928, they made a payment towards the amount due on the promissory note. The fact of payment was indorsed upon the instrument and the indorsement was signed by the makers. On the 12th April, 1928, the father applied to be adjudicated an insolvent under the provisions of the Provincial Insolvency Act and the order of adjudication was passed on the 5th September of that year. The adjudication was annulled on the 25th August, 1934, whereupon the respondent instituted a suit against the father and son to recover the amount due to him. The father was sued on the instrument and the appellant on the debt by reason of the pious obligation rule. The appellant pleaded that the suit was barred by the law of limitation so far as he was concerned. The District Munsif accepted this plea and granted a decree against the father. This decision was concurred in by the Subordinate Judge on first appeal. The respondent then appealed to this Court. His appeal was heard by Somayya, J., who held that the case was governed by the decision of this Court in The Official Receiver of Guntur v. Sait Lalchand Khushalchand : AIR1941Mad772 and allowed the appeal. The learned Judge was apparently of the opinion that it was a hard case and consequently deprived the respondent of his costs. Each party was directed to bear his own costs. Leave having been granted under Clause 15 of the Letters Patent the appellant has appealed, against the decision holding him liable on the debt and the respondent has filed a memorandum of cross-objections against the decision of the learned Judge on the question of costs.

2. The learned advocate for the appellant says that Section 78 (2) of the Provincial Insolvency Act does not apply so far as his client is concerned; it operates merely to save limitation as against the father. We will take this to be the case, but that does not mean that the decision of Somayya, J., is wrong. In fact, there is a decision of a Full Bench of this Court which clearly shows that the decision is right. The case referred to is Mohana Reddi v. Gangaraju. This case is referred to in the judgment under appeal but the learned Judge preferred to base his decision on The Official Receiver of Guntur v. Salt Lalchand Khusalchand : AIR1943Mad94 , because there direct reference is made to Section 78. In Mohana Reddi v. Gangaraju : AIR1941Mad772 the question was whether an acknowledgment by a Hindu father in a schedule filed by him in insolvency proceedings operated to save limitation on the debt so far as his son was concerned, the debt being a pre-partition debt. It was held that as the acknowledgment saved the debt as against the father the son was liable under the pious obligation rule; all that the Court had to do was to inquire whether the debt was lawfully incurred before partition and whether it was still enforceable against the father; if it was lawfully incurred and was still enforceable against the father, the son was liable to the extent of the family property in his hands.

3. The present debt is clearly enforceable against the father. In fact, the creditor has obtained a decree in respect of it. Here there has been no partition. The debt is a lawful one and as the father is liable, the son is also liable under his personal law. The appeal must be dismissed with costs.

4. We can see no valid reason for depriving the respondent of his costs. He succeeded before Somayya, J., and should have had his costs in that Court and in the Courts below. The memorandum of cross-objections will be allowed with costs. The decree for costs in the first two Courts will be against the father and the son.


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