Horace Owen Compton Beasley, Kt., C.J.
1. The suit out of which this petition arises was for Rs. 200, balance of principal and interest under a promissory note, dated the 27th May, 1918, executed by the 1st defendant, the father of defendants 2 to 4 in the suit. There are three endorsements on the promissory note, dated the 21st May, 1921, 1st July, 1922 and 5th December, 1924, made by the 1st defendant. These endorsements are relied upon by the plaintiff as saving the suit from the bar of limitation. The 1st defendant did not defend the suit and the 2nd and 4th defendants raised the plea that the family had become divided twenty years ago. If they had succeeded in showing that division twenty years ago, clearly no question would have arisen as regards their liability because the promissory note would have been executed by 1st defendant after that division. The learned District Munsif has found that at any rate by 1922 the defendants had become divided and although he does not find the exact date of the division, it must be taken that in his view the family became divided after the execution of the promissory note. The learned District Munsif found that defendants 2 to 4 were not liable because, although the debt had been incurred before the partition, the promissory note in respect of that debt was acknowledged after partition; and in support of that view he referred to Peda Venkanna v. Sreenivasa Deekshatulu : (1917)33MLJ519 where it was held that a Hindu son is not liable during his father's life-time on a promissory note executed by his father after partition in renewal of a note executed by the father before partition. Following this decision he held that the 1st defendant would have no authority to make any payment or endorse such payment on the promissory note on behalf of his sons. I do not think that Peda Venkanna v. Sreenivasa Deekshatulu : (1917)33MLJ519 is any authority upon the latter point. In that case a promissory note had been executed by the father of the other defendants before partition, and as before stated, after partition, the father executed the suit promissory note in renewal of the prior promissory note. Wallis, C.J. on page 142 states that the father had no authority from the son to renew the note after partition. Kumaraswami Sastri, J., the other member of the Bench, at page 143 states:
In the case of renewal by the father alone after partition of a note executed before partition the case is much stronger as I can see no equity in allowing a Hindu father to renew and keep alive a debt (increased by the addition of interest and principal at each renewal) so as to throw upon the son the duty of paying it out of properties that fall to his share. The renewed note must in my opinion be treated as a new obligation incurred after partition.
2. In the Full Bench case of Subramania Aiyar v. Sabapathy Aiyar I.L.R.(1927) 51 Mad. 361 : 54 M.L.J. 726, which held (Coutts Trotter, C.J. and Srinivasa Aiyangar, J., dissenting) that a simple creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons after a bona fide partition between the father and the sons. Anantakrishna Aiyar, J., after a careful review of the authorities touching this question at page 410, states that the trend of judicial decisions has been to the effect, amongst others, that if the cause of action for the suit be not the original debt incurred before the partition but a promissory note executed by the father alone after partition though in renewal of a promissory note executed by him before partition, the sons are not liable to any extent if the suit be based on the renewed promissory note only. That opinion is in conformity with the observations of Wallis, C. J. and Kumaraswami Sastri, J., in Peda Venkanna v. Sreenivasa Deekshatulu : (1917)33MLJ519 . Neither Peda Venkanna v. Sreenivasa Deekshatulu : (1917)33MLJ519 nor Subramania Aiyar v. Sabapathy Aiyar I.L.R.(1927) 51 Mad. 361 : 54 M.L.J. 726 (F.B.) is any authority for the view that sons are not liable for a debt on a promissory note executed by the father before partition and after partition kept alive by endorsement of part payment of the debt made by the father having the effect of course of keeping the debt alive. In Subramania Aiyar v. Sabapathy Aiyar I.L.R.(1927) 51 Mad. 361 : 54 M.L.J. 726 it is quite clear that Anantakrishna Aiyar, J., was referring to a suit not on the original debt but a suit based on a renewed promissory note and in Peda Venkanna v. Sreenivasa Deekshatulu : (1917)33MLJ519 also that was the position. The two positions, in my opinion, are quite distinct. If as Subramania Aiyar v. Sabapathy Aiyar I.L.R.(1927) 51 Mad. 361 : 54 M.L.J. 726 decides, sons are liable after partition for the original debt of the father incurred before partition, then the fact that the debt has been acknowledged by the father, in my view, does not alter the position. The suit in such a case is on the original debt for which the sons are liable. But in the case of a renewed promissory note the suit is not upon the original debt at all but upon the renewed promissory note and I can see nothing which can take away from a father his authority from his sons to make a payment during the period of limitation in respect of a debt incurred by him. It is another matter altogether to wipe out the original debt and substitute therefor another debt. Therefore upon this point, in my opinion, the learned District Munsif was wrong but it is only fair to say that when he gave judgment he had not before him the judgment in Subramania Aiyar v. Sabapathy Aiyar I.L.R.(1927) 51 Mad. 361 : 54 M.L.J. 726, which was delivered in the same month and which of course not being then reported was not referred to in the arguments of counsel. For these reasons, in my opinion, this petition must be allowed with costs.
3. I agree.