Skip to content


Maria Pillai and anr. Vs. Muthukumaran and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1949)2MLJ104
AppellantMaria Pillai and anr.
RespondentMuthukumaran and ors.
Cases ReferredKrishnamurthi Iyer v. Kailasatn Aiyar
Excerpt:
.....in o. as regards ayya pillai, he was not a mere surety, but a person obliged to make good the amount in case the title he warranted by endorsing the promissory note proved to be a broken reed, as in this case, where the promissory note was held to be unsupported by consideration. tatareddi air1947mad162 ,that, in cases like these, where there is a pious obligation on the part of sons and grandsons, a decree can be passed against them and can be executed not only against the father's separate-property but also against the joint family properties of his in their hands. we consider that, in view of section 53, the subordinate judge should not have limited the decree to the separate assets of the father in the hands of the sons, but he should have made it apply as well to the share of the..........to sale the join family properties in the hands of those defendants. the appellants, the two sons of kumaraswami pillai, felt aggrieved by this. they filed an objection against such execution. the district munsiff of kallakurichi; dismissed the petition and' held that the properties were liable to be proceeded against. they went in appeal to the district judge of south arcot who too held that the properties were liable to be proceeded against and that in fact the decision in prior proceedings would operate as res judicata. he dismissed the appeal with costs. hence this second appeal.2. the learned advocate for the appellants has urged three main contentions before me. i may add that none of these contentions.seems to have been urged-before the lower appellate court; but, as they.....
Judgment:

Panchapakesa Ayyar, J.

1. The appellants in this second appeal are the sons of one Kumaraswami Pillai and are aggrieved at the joint family properties in their hands being proceeded against for recovering the decree amount in O.S. No. 60 of 1932, on the file of the District Munsiff's Court Kallakurichi. That suit was filed against Kumaraswami Pillai, the father of the appellants, by one Ayya Pillai, an immediate endorsee of a promissory note executed in favour of Kumaraswami Pillai by someperson and endorsed by him for valuable consideration. The trial Court dismissed that suit; but, on appeal, a. decree was passed, in 1937, in favour of the plaintiff By that time, Kumaraswami had died. So, the decree was passed against the assets of the deceased Kumaraswami Pillai in the hands of his sons and grand sons, defendants 2 to.6 in the suit. The decree was sought to be executed by attaching and bringing to sale the join family properties in the hands of those defendants. The appellants, the two sons of Kumaraswami Pillai, felt aggrieved by this. They filed an objection against such execution. The District Munsiff of Kallakurichi; dismissed the petition and' held that the properties were liable to be proceeded against. They went in appeal to the District Judge of South Arcot who too held that the properties were liable to be proceeded against and that in fact the decision in prior proceedings would operate as res judicata. He dismissed the appeal with costs. Hence this second appeal.

2. The learned advocate for the appellants has urged three main contentions before me. I may add that none of these contentions.seems to have been urged-before the lower appellate Court; but, as they are pure arguments in law, I have heard and decided them. The first point urged was that the debt in question was an Avyavaharika one, being in the nature of a surety debt, and that, under the Privy Council ruling in Kesarchand v. Uttamchand (1945) 2 M.L.J. 160 : L.R. 72 IndAp 165 the theory of pious obligation, would not apply to this case. I have looked into that ruling; that has no application to the facts of this case. Their Lordships have remarked that, to make the ancestral property liable, there must, in reality, be a debt due by the father, and that., unless the security bond was executed by a surety for a debt due by himself, the doctrine of pious obligation of the sons to pay their father's debts cannot make the transaction binding on ancestral property. That is undoubtedly so, and has long been the law. But, here, there is no question of any security bond or surety debt. Kumaraswami Pillai endorsed a promissory note executed in his favour in favour Ayya Pillai, the plaintiff in O.S. No. 60 of 1932, after receiving valuable consideration from him. As regards Ayya Pillai, he was not a mere surety, but a person obliged to make good the amount in case the title he warranted by endorsing the promissory note proved to be a broken reed, as in this case, where the promissory note was held to be unsupported by consideration.

3. The second contention was that the decree, as it stood, had only been granted against the assets of Kumaraswami Pillai in the hands of the appellants and others, and that, as Kumaraswami Pillai had no self-acquired properties of his own, but only ancestral properties, which descended by survivorship to these appellants, and others, both the lower Courts went wrong in allowing, execution to proceed against such ancestral properties. The argument is untenable. It has been held by a Bench of this Court, in Venkatasami v. Tatareddi : AIR1947Mad162 , that, in cases like these, where there is a pious obligation on the part of sons and grandsons, a decree can be passed against them and can be executed not only against the father's separate-property but also against the joint family properties of his in their hands. Indeed, it was remarked there:

We consider that, in view of Section 53, the Subordinate Judge should not have limited the decree to the separate assets of the father in the hands of the sons, but he should have made it apply as well to the share of the father in. the family estate in the hands of the sons

and the decree of the Subordinate Judge was amended accordingly. It was urged by the learned advocate for the appellants that in this case there was no specific decree against the ancestral properties. Happily, there is also no specific decree against the separate properties of the father alone and there is no need for any amendment as in the Bench case. The ruling in Krishnamurthi Iyer v. Kailasatn Aiyar : AIR1947Mad355 has also made it abundantly clear that, at any rate, as regards the Madras Presidency, ancestral properties in the hands of sons and grandsons can be proceeded against freely to enforce their pious obligation under a decree. I may also add that, if it were otherwise, great hardship will result to the decree-holders against fathers, as most of these fathers have only ancestral properties and have not got any self-acquired properties of their own to be proceeded against; and the theory of pious obligation. Will become a costly futility in many cases, if the ancestral properties are not to be proceeded against.

4. The last contention was that not only the father s share of the ancestral properties but all the ancestral properties were being proceeded against, in spite of the partition, and that this at least was illegal. I cannot agree. The partition was found to be a bogus and nominal one, like the promissory note itself; it is obvious that a dead father who died undivided cannot have any specific share in the ancestral properties to be proceeded against, and that the entire ancestral properties can be proceeded against under the theory. Of pious obligation for a decree obtained against the father.

5. In the result, the second appeal deserves to be, and is herby, dismissed with costs. Leave refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //