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Kanuparthi Hanumantha Rao Vs. Kottapalli Venkatakrishnayya and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1933Mad817; (1933)65MLJ609
AppellantKanuparthi Hanumantha Rao
RespondentKottapalli Venkatakrishnayya and ors.
Cases ReferredSubramania Aiyar v. Sabapathi Aiyar I.L.R.
Excerpt:
.....that as stated in paragraph 7 of his judgment by the learned additional subordinate judge that all decree debts are not ipso facto binding on the sons under the doctrine of pious obligation, but only such as would not fall under the exceptions recognised by hindu law. while therefore it would be perfectly open to the sons to have contested, had the nature of this surety bond not been settled by proceedings in execution carried to appeal, that it was not the sort of surety bond on which their father incurred any obligation at all, i hold that when in appeal an execution decree has been given on the bond as one by which the father undertook to pay the decree amount due by the 1st defendant for whom he stood surety in case the latter did not present an insolvency petition, it is not open to..........and on this one kothapalli venkata subbayya, the father of the present respondents, executed a surety bond on the 23rd april, 1919, which was accepted by the court. the 1st defendant in that suit was released from arrest. no insolvency petition was filed by the judgment-debtor within the time allowed, one month. the appellant filed e.p. no. 656 of 1919 against the surety on the 29th july, 1919, and the surety produced the judgment-debtor in court and that execution petition was dismissed. later the decree-holder filed e.p. no. 20 of 1920 on the 3rd january, 1920, against the surety. the latter contended that the bond was only for the appearance of the judgment-debtor and that he was not liable. the surety was ordered to be arrested on the 14th february, 1920, and he preferred an.....
Judgment:

Pakenham Walsh, J.

1. The appellant got a decree on the 1st March, 1917, which was modified in appeal on the 8th November, 1917. The decree was against three defendants. Appellant applied for the arrest of the 1st and 3rd defendants in that suit. The 1st defendant was arrested and brought before the Court. He said he was going to file an insolvency petition and on this one Kothapalli Venkata Subbayya, the father of the present respondents, executed a surety bond on the 23rd April, 1919, which was accepted by the Court. The 1st defendant in that suit was released from arrest. No insolvency petition was filed by the judgment-debtor within the time allowed, one month. The appellant filed E.P. No. 656 of 1919 against the surety on the 29th July, 1919, and the surety produced the judgment-debtor in Court and that execution petition was dismissed. Later the decree-holder filed E.P. No. 20 of 1920 on the 3rd January, 1920, against the surety. The latter contended that the bond was only for the appearance of the judgment-debtor and that he was not liable. The surety was ordered to be arrested on the 14th February, 1920, and he preferred an appeal, A.S. No. 212 of 1920 on the file of the District Court of Guntur. The appeal was dismissed on the 31st August, 1920. Afterwards the surety paid Rs. 300 towards the decree debt. He then died. The decree-holder then filed E.P. No. 216 of 1922'on the 2nd March, 1922, against the surety's sons, the present respondents. This was dismissed for want of batta. The present execution petition, E.P. No. 480 of 1926, was filed on the 9th June, 1926, against the sons. The defence of the latter is that they are not liable for their father's debt. The learned District Munsif overruled their contention and ordered their property to be attached. On appeal to the Subordinate Judge he held that the suretyship was for appearance or assurance and so the sons are not liable. The decree-holder prefers this second appeal.

2. The chief difficulty in the present case has arisen from the extraordinarily defective nature of the bond which it is surprising that any Court should ever have accepted. It runs thus:

Surety Khat filed by Kothapalli Venkatasubbiah, son of Venkata Krish-niah, the surety on behalf of 1st defendant:

1. When the 1st defendant in the above suit was brought into Court in pursuance of a warrant of arrest in execution of the decree, the Court expressed the opinion that in case sufficient security is offered, the Court would grant time to the 1st defendant to file an insolvency petition.

I have agreed to be surety (to be liable as surety) in case the 1st defendant does not file an insolvency petition within the time allowed by the Court and for producing the 1st defendant whenever the Court requires. I have, in the village of Cherukuru, lands and houses of the value of Rs. 10,000. I have not made any kind of alienations of my property in favour of anybody.

I, therefore, pray that the Court may be pleased to release the 1st defendant on my surety in order to enable him to file an Insolvency Petition.

3. The astonishing thing about this bond is that the surety does not bind himself to do anything in case of default. The essence of a bond is that in case of default the surety undertakes to pay some money or do something else. As far as can be learnt, the defence which the original surety put up against being held liable under the bond was quite an untenable one, namely, that he only undertook to produce the judgment-debtor and did not undertake that the latter should file an insolvency petition. He might, it appears to me, have put forward a much sounder defence that he incurred no liability at all under the bond. In fact, most of the arguments that have been addressed to me to show that the sons are not liable under the bond, because it does not undertake to pay a sum of money, but only undertakes to do something which may in the end render the surety liable to have to pay money, are equally arguments which might have been advanced on behalf of the surety himself. It is perfectly clear that if the surety was not liable on the bond, as it stood, he could not be liable on anything outside the bond. In connection with this the learned Subordinate Judge has discussed the whole matter very carefully in paragraph 6 of his judgment. With much of what he says I agree but with a portion of it I disagree. He says:

There is not a word in it that he was standing as surety for payment of the money lent to and decreed against the 1st defendant in case of default of payment by the latter of such amount within the specified time.

4. That is quite correct Then he says:

It is true that the contention set up by the appellants' father to the effect that he was not liable for any payment at all under the terms of the bond was, rightly enough, rejected by both the executing as well as the appellate Courts.

5. As regards that, it has certainly been rejected by both Courts, but whether, if I had to decide the matter as res Integra here, I should say it was rightly rejected is another question, though the particular defence that the bond was only one for appearance was no doubt rightly rejected. Then he proceeds:

I do not quite see how that fact converts the liability as one arising on account of an undertaking given for payment of money lent to the debtor. Suretyship from its very nature involves the payment of money due under the decree in case of default of the judgment-debtors for whom it was undertaken; but the question is what was the nature or character of the item in respect of the default of which the surety undertook to indemnify.

6. He then goes on to conclude that the default was one in respect of appearance or assurance. There is no doubt that suretyship for a judgment-debtor in its very nature involves payment of some money due under the decree. In a case of this sort where the undertaking is that the judgment-debtor should file an insolvency petition, it is usual to name a particular sum of money which may be less than the decree amount. Prima facie the very adjudication of insolvency which is anticipated renders it almost certain that the judgment-debtor will not be able to pay the decree debt in full and therefore ordinarily a surety would not contract to pay the whole amount of the decree in default of the insolvency petition being presented but of course there is nothing to prevent him doing so. The Allahabad High Court appears to have a special form of bond prescribed for such an undertaking but there is no prescribed form here. In spite of all this I find it difficult to understand how a man can be held to have undertaken a liability as regards which the bond is entirely silent. The difficulty is that this extraordinary document is not, I imagine, a bond at all. But here we are faced by the fact that it has been held to be a bond for the payment of the decree amount in default and as such has become a decree debt; and the initial question arises whether the sons can in execution challenge the nature of the debt. It is perfectly true that as stated in paragraph 7 of his judgment by the learned Additional Subordinate Judge that all decree debts are not ipso facto binding on the sons under the doctrine of pious obligation, but only such as would not fall under the exceptions recognised by Hindu Law. For instance, a creditor who had supplied drink to a Hindu father might get a decree against the father for the money due to him, but that decree would not be binding on the sons under the doctrine of pious obligation because the debt would be an immoral one which is an exception to this doctrine. It would not, however, be open to the sons, I consider, to contend that the decree as against their father was a nullity because in fact he had incurred no debt. While therefore it would be perfectly open to the sons to have contested, had the nature of this surety bond not been settled by proceedings in execution carried to appeal, that it was not the sort of surety bond on which their father incurred any obligation at all, I hold that when in appeal an execution decree has been given on the bond as one by which the father undertook to pay the decree amount due by the 1st defendant for whom he stood surety in case the latter did not present an insolvency petition, it is not open to the sons to contend that the whole bond is a nullity either as regards their father or as regards themselves. If that view is correct there is an end to much of the discussion and the only point left open is whether the sons are liable for the particular obligation which their father incurred. If this is a bond for appearance or honesty they are not liable. Vide Tukarambhat v. Gangaram Mulchand Gugari I.L.R. (1898) 23 Bom. 454, Thangathammal v. Arunachalam Chettiar I.L.R. (1918) 41 Mad. 1071 : 35 M.L.J. 229 and Dedhraj v. Mahabir Prasad(1920) 5 Pat. L.J. 417 and many other cases which set out the Hindu Law as found in Colebrooke's Hindu Law, Vol. I, p. 164 and Max Muller's Sacred Books of the East, p. 327.

7. Admittedly there was no default in producing the appearance of the judgment-debtor and therefore the question is what was the nature of the undertaking that he should file an insolvency petition. There are four classes of cases mentioned in Max Muller's Sacred Books of the East, p. 327 - for appearance, for confidence, for payment and for delivering the assets of the debtor. The first says I will produce the man the second says ' He is a respectable man the third says 'I will pay the debt'; the fourth says 'I will deliver his assets'. For appearance and confidence the sons will not be liable but for payment and for delivery of the assets of the debtor they will. The learned Subordinate Judge holds that the undertaking that the debtor will file an insolvency petition is one either of appearance or assurance but I am unable to agree. It seems to me that it is stretching language very widely to say that 'this man will file an insolvency petition' is the same as saying 'he is a respectable man'. For the appellant on the other hand it is argued that, even if the bond be not regarded as one for payment of money, it is one for undertaking delivery of the assets of the debtor, because the insolvent must put all his property before the Court. With this contention also I am unable to agree. The insolvent does not actually put all his property before the Court at the time he files his insolvency petition, and if the debtor in this case had filed an insolvency petition but had subsequently failed to put his property before the Court, I do not see how it can be held that the surety would be liable for the latter default. Therefore in my opinion the obligation undertaken that the judgment-debtor will file an insolvency petition is not any one of the four sorts mentioned above. It has therefore to be considered whether the sons would be bound by it. The general principle of course is that sons are under a pious obligation to pay the father's debts unless they are illegal or immoral. It would therefore appear that the debts which they need not pay are the exceptions and not the rule. From this point of view the two sorts of suretyship obligations, for appearance, for which they are not liable, are the exceptions to the general rule that they are liable for suretyship undertaken by their father. If that is the correct view they would be liable for this particular obligation unless they could show that it was either illegal or immoral and it is certainly not either of these two things. Mahabir Prasad v. Siri Narayan (1918) 3 Pat. L.J. 396 has been quoted for the respondents. That is a very peculiar case and the head-note gives an inadequate idea of what was really held. The bond there was an indemnity bond. The head-note in one part runs as follows:

A Hindu son or grandson governed by the Mitakshara law is liable for the debt of his father or grandfather due on account of a contract of suretyship for the payment of money, but not for money due on a contract of indemnity unless the transaction comes within the meaning of the term Vyavaharika, i.e., lawful, useful or customary.

8. Another part of the heading states:

A Hindu son is required to discharge such of the liabilities of his father as are usual or customary but he is not under a pious obligation to discharge out of the ancestral property in his hands every liability of his father which he cannot show was illegal or immoral.

9. This latter heading would appear to make the debts which a son has to pay the exception rather than the rule and the whole heading would convey the impression that he would not be liable on an indemnity bond even though he could not show that it was illegal or immoral. But if the text of the judgment is read it will be seen that the Court found that the liability created by the indemnity was an immoral one, the representation being known to be false to both parties. At page 402 we find the following observations:

If it was intentionally false and if it deceived the purchaser it might have rendered the father liable to prosecution for the offence of cheating. For myself, having regard to all the circumstances, I find it difficult to believe that it was true. The purchaser's failure to realise the enhanced rate by suit is strong evidence that the representation was not true and the view I take is that the purchaser did not honestly believe that the representation was true. Both parties knew that the true rent was Rs. 303.

10. Later on the learned Judge proceeds no doubt to hold that whichever view is taken as to its falsity the sons would not be bound. He says:

I hold, therefore, that if the representation was intentionally false the liability created by the indemnity was immoral; if it was not intentionally false the liability was not usual or customary and therefore not enforceable against the sons as a pious obligation.

11. But earlier in the judgment there is a remark which differentiates that case entirely from the present case. The learned Judge says:

In the present case the indemnity given by the father would undoubtedly be enforceable against the sons after his death provided it came within the list compiled by Mookerjee, J. in the above mentioned case.

12. That case is Chhakauri Mahton v. Ganga Prasad I.L.R. (1911) 39 Cal. 862. In the case now under consideration there has been a decree against the father on the bond. Turning now to Chhakauri Mahton v. Ganga Prasad I.L.R. (1911) 39 Cal. 862 there is a very long dissertation upon the liabilities of the sons to pay the debts of their father. No doubt at page 869 suretyship debts appear in the list as debts which the sons are not under any obligation to pay. But the debt in question in that suit not being a suretyship debt the matter is not gone into, and the learned Judge says at page 875, referring to certain cases including Tukarambhat v. Gangaram I.L.R. (1898) 23 Bom. 454 which deal with the liability of sons to satisfy a suretyship debt of a father,

It is not necessary, however, to discuss for our present purpose the question of the liability of a Mitakshara son for the suretyship debt of his father, because the determination of that question depends upon the interpretation of special texts, specially the text of Vishnu, which defines the different kinds of sureties, namely, for appearance, for honesty, for debt and for delivery of the debtor's effect.

13. I do not think therefore the obiter remarks in that judgment as regards suretyship debts and the fact that surety debts are apparently all classed as debts which prima facie the sons are not bound to pay can be taken as any authoritative ruling in the matter. It appears to me that a surety debt which is not either immoral or illegal is one which the sons are bound to pay unless it is one for honesty or appearance, and in my opinion the obligation undertaken that the judgment-debtor would file an insolvency petition being outside any of the four undertakings enumerated in the texts should be held as one binding on the sons. If there had not been a decree against the father that he was liable on the bond to pay the decree debt, I think the sons might very well have contended that there was no liability whatsoever created on anybody under the bond, but that defence being, in my opinion, not open to them in view of the fact that in appeal it has been held as against the father that the obligation under the bond was to pay the decree debt in case the judgment-debtor did not file the insolvency petition, the surety bond must be taken to be one by which in default of the judgment-debtor filing such petition the father undertook to be liable for the decree debt. Therefore in my opinion the bond being found to be of this nature is one by which the sons are bound. Even where the sons have been exonerated from the decree they will still be liable to pay the debts if they are not illegal or immoral. In Doraiswami Nadan v. Nagasami Naicken ( : AIR1929Mad898 , a case decided by the late Sir Murray Coutts-Trotter, C.J. and myself, we held, following the Full Bench ruling in Subramania Aiyar v. Sabapathi Aiyar I.L.R. (1927) 51 Mad. 361 : 54 M.L.J. 726, that a decree passed against the father personally and after his sons had been exonerated can be executed against the shares of his sons in the family property and such property is liable for the father's debt. The sons can claim exoneration from the liability only on the ground that the debt is-immoral or illegal. This is a decree debt. It is not, I consider, exempted as coming under the two sorts of suretyship for appearance and for honesty for which the sons would not be liable and it is not illegal nor immoral.

14. I therefore allow this appeal. The decree of the lower appellate Court will be set aside and that of the District Munsif restored with costs in this Court and in the lower appellate Court.


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