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Periasami Mudaliar and anr. Vs. T. Seetharama Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1904)14MLJ84
AppellantPeriasami Mudaliar and anr.
RespondentT. Seetharama Chettiar and ors.
Cases ReferredBeck v. Pierce (already
Excerpt:
.....for recovery of a debt due by the father, yet the son may be joined as a party defendant in a suit brought against the father and if the plaintiff succeeds in the suit against both the father and the son, a sale of joint family property which takes place in execution of such decree will bind the son also--though such decree cannot be executed against him personally--and he will be precluded from bringing a suit to contest the sale on the ground that the debt was incurred for an illegal or immoral purpose--a plea which, if well founded, he ought to have advanced and established in the original suit in which case the decree would have been passed against the father only and the suit would have been dismissed as against the son. this difficulty was sought to be overcome in the case..........for recovery of a debt due by the father, yet the son may be joined as a party defendant in a suit brought against the father and if the plaintiff succeeds in the suit against both the father and the son, a sale of joint family property which takes place in execution of such decree will bind the son also--though such decree cannot be executed against him personally--and he will be precluded from bringing a suit to contest the sale on the ground that the debt was incurred for an illegal or immoral purpose--a plea which, if well founded, he ought to have advanced and established in the original suit in which case the decree would have been passed against the father only and the suit would have been dismissed as against the son.6. if the decree was obtained against the father only and.....
Judgment:

Benson, J.

1. With regard to the first question referred for our decision, it is difficult to see on what principle a judgment-debt due by a father should be less the subject of a pious obligation on the part of his son than any other debt due by the father. That the debt is not the same as the original debt seems clear. It may, in fact, be more, or it may be less. Even though it be more than the original debt the father by virtue of the judgment is bound to discharge it. A judgment of a competent court creates a duty on the part of the father to discharge the sum decreed and there is no reason why such a debt should be excepted from the rule of Hindu Law which imposes a pious obligation on the son to discharge his father's debts, provided they were not incurred for what are technically described as immoral or illegal purposes.

2. I would, therefore, answer the first question in the affirmative.

3. As regards the second question, if the suit had been brought on the original cause of action the article of limitation applicable would have been the same as against the father, i. e., Article 52; but as the suit has been brought on the cause of action arising from the decree against the father, the article applicable is 120. Article 122 has, in my opinion, no application, for the suit is not, in any view, 'a suit upon a judgment'. It is a suit to enforce a son's pious obligation under the Hindu Law to discharge his father's debt. There is therefore no bar by limitation and there is no necessity to answer the third question in the reference.

Bhashyam Aiyangar, J.

4. Before answering the 1st and 2nd questions referred to the Full Bench for its opinion it is desirable to state succinctly the substance of the course of judicial decisions defining the obligation of a son, under the Hindu Law, to discharge debts incurred by his father. It has now been clearly established that though the son is not personally liable for such debts--either during or after the life-time of the father--yet his interest and share in the joint family property belonging to himself and his, father is equally with the father's share and interest in such property, liable for the father's debts during his life-time; and after his death the entire joint family property in the hands of the son is liable for the same. Such liability however does not attach to the son's share in the joint family property during the father's life time or to any portion of the joint family property in the hands of the son, after the father's death, if the father's debt be one of the specified classes excepted by the Hindu Law, such exceptions being generally referred to in judicial decisions--though not very accurately--as illegal or immoral debts. If the father alienates joint family property for the discharge of a debt--not illegal or immoral--due by him, or if such property is sold in discharge of such debt in execution of a decree passed against the father, the voluntary alienation or execution sale will bind the son's interest also in the property alienated or sold though he was not a party to the alienation or decree. If, however, the son has not joined in an alienation by the father or if a sale takes place in execution of a decree passed against the father only, it will be open to the son to contend that the alienation or sale does not affect his interest in the joint-family property by showing that the debt in question of his father was one contracted or incurred by him for an illegal or immoral purpose and as such is not binding upon him.

5. Though during the father's life-time the suit could not be brought against the son only, for recovery of a debt due by the father, yet the son may be joined as a party defendant in a suit brought against the father and if the plaintiff succeeds in the suit against both the father and the son, a sale of joint family property which takes place in execution of such decree will bind the son also--though such decree cannot be executed against him personally--and he will be precluded from bringing a suit to contest the sale on the ground that the debt was incurred for an illegal or immoral purpose--a plea which, if well founded, he ought to have advanced and established in the original suit in which case the decree would have been passed against the father only and the suit would have been dismissed as against the son.

6. If the decree was obtained against the father only and the father dies before the decree is executed or fully executed, the decree can of course be executed against the son (under Section 234 of the Civil Procedure Code) in his character as 'legal representative' of the deceased judgment-debtor; and in that case only the separate or self-acquired property of the deceased father can be attached and sold as the property of the deceased which has come to the hands of the legal representative, but according to the course of decisions in this Presidency, the joint family property in the hands of the son could not be attached and sold either in whole or in part the ratio decidendi of these decisions being that in executing the decree against the son on the death of the father, the question whether the debt is an illegal or immoral one cannot be raised in execution proceedings and that the decree can be executed against the son under Section 234, Civil Procedure Code, only as the legal representative of his deceased father, who, equally with the father, will be bound by the decree whatever may have been the character of the debt but who will be liable to satisfy the decree only to the extent of the 'assets' of the deceased father, i. e., his separate or self-acquired property, which have come to his hands.

7. In my opinion the result will be the same if pending a suit brought against the father only, the father dies before decree and the plaintiff instead of bringing a fresh suit against the son as such prosecutes the suit against him as the legal representative of his deceased father and obtains a decree against him in that character.

8. It has also been establishsd by judicial decisions that notwithstanding that a decree has been obtained against the father, the creditor may after the father's death sue the son, subject of course to the law of limitation, upon the original cause of action--which so far as the father was concerned has merged in the decree against him--and obtain a decree against the son for the debt due by the father or for so much thereof as has not been paid or recovered in execution of the former decree against the father himself or (after his death) against the son in his character as legal representative and that the period of limitation in respect of such a suit against the son begins to run not from the date of the death of the father but from the date from which limitation commenced to ran against the father himself, Mallesam Naidu v. Jugala Panda I.L.R. 23 M. 292. In such a suit against the son, he can of course plead the illegal or immoral character of the father's debt, but if he fails to establish that defence and a decree is obtained against him it cannot be executed against him personally but only by attachment and sale of the whole or any portion of the joint family property in his hands.

9. The difficulty arises in cases in which such an action against the son, upon the original cause of action is barred at the time of the death of the father, though the execution of the decree obtained against the father is not barred. This difficulty was sought to be overcome in the case reported in Mallesam Naidu v. Jugala Panda I.L.R. 23 M. 292 by attempting to treat the suit against the son as a suit upon the judgment which had been obtained against the father--in which case the period of limitation would, under Article 122, be 12 years from the date of the judgment. In that case the Division Bench which referred it for the opinion of a Full Bench on another point overruled this contention on the ground that the sons not being parties to the judgment it was not binding upon them and they could not therefore be sued upon a judgment obtained against the father. As against the judgment-debtor himself or against his legal representative (who as such is equally bound by the judgment) it has long been held that under the Indian processual law the remedy is only by way of execution of the decree and that no suit could be brought upon the judgment (Merwanji Nowroji v. Ashabai I.L.R. 8 B. 1 and Section 94 of the Presidency Small Cause Courts Act XV of 1882) expressly provides that no suit shall lie on any decree of the Small Cause Court and this provision is directly applicable to the present case in which the judgment against the father was passed by the Presidency Court of Small Causes at Madras.

10. The principal question which has been referred to the Full Bench in this case is whether a decree for money against the father by its own force creates a debt binding on the father, which his sons are under an obligation to discharge, unless they show that such debt was illegal or immoral. This question does not appear to have been ever before directly raised or considered, though the numerous cases in which a sale of joint family property in execution of a decree for money against the father has been held to bind the son's share and interest therein really proceed on the footing that the decree-debt as a debt of record is binding upon the son and that therefore the sale is binding upon him and the onus has not been cast on the purchaser at such sale to prove and establish as against the son, independently of the judgment, the original antecedent debt or obligation in justification of the sale, as he would have had to do if there had been no judgment against the father but the father had made a voluntary sale of joint family property for the discharge of an alleged antecedent debt. In my opinion the first question referred to the Full Bench must be answered in the affirmative for the following reasons. As the decree-debt cannot be recovered from the son (after the death of the father) by executing the decree against him personally or in respect of joint family property in his hands and as it is always open to him to contend that the decree debt is illegal or immoral and therefore it does not bind him, the reason why no suit could be brought against the father himself for recovey of the judgment-debt is inapplicable to a suit being brought against the son for recovery of the decree-debt. No doubt, as held in the order of reference in the case in Mallesam Naidu v. Jugala Panda I.L.R. 23 M. 292 already referred to, a suit would not lie against the son on a judgment obtained against the father to which the son was no party and which, therefore, as a judgment could not bind him. But I can see no reason why a suit could not be brought against the son to recover a debt of record due by the father, which debt the father was under an obligation to discharge, quite independently of the cause of action or the alleged original debt on which the suit had been brought against him. Under the English law a judgment that the plaintiff shall recover, against the defendant, a sum of money as debt or damage or costs of suit, creates a debt which is therefore a debt or contract of record and a judgment for the defendant that he shall recover a sum of money for his costs of defence also creates a debt of record. Judgments of courts not of record and judgments of foreign and colonial Courts create simple contract debts. (Leake on Contracts, p. 133). Payment of these debts can be enforced not only by ' execution of the ordinary process of the Court,' but also by an action of debt upon the judgment except in respect of judgments of the Statutory County Courts in regard to which it has been held--as it has been held in India with reference to the judgments of all courts governed by the Code of Civil Procedure--that an action upon the judgment would be inconsistent with the remedies on the judgment provided by the County Courts Acts. There is no reason whatever for holding that, under the Hindu Law, judgments given by the Sovereign or by judicial tribunals established by him are less solemn or less obligatory by their own force than they are under the English Jurisprudence. A Hindu father therefore against whom a decree has been passed for a sum of money is under no less obligation--legal and religious--to obey the decree and disharge the debt thereby imposed upon him than to discharge debts ' contracted ' by him; and the pious obligation of the son to discharge his father's debts extends as much to the one as to the other. The whole of the joint family property in the hands of the son must be held liable to satisfy the debt imposed upon the father by the judgment, as a solemn debt of record, quite independently of the original cause of action or alleged debt on which the suit against the father had been brought. In cases in which a cause of action against the father, for a tort, may not survive him. or though surviving him the tort committed by the father may be one in respect of which the son as such may not under the Hindu Law be under a pious obligation to make good the damages out of joint family property, no suit could, on the death of the father, be brought against the son; but if a decree for damages had been obtained against the father in respect of such tort the amount awarded as damages would, subject to the exceptions under the Hindu Law, be binding upon the son as a debt of record due by the father and on his death a suit could be brought against the son to enforce payment of the same out of joint family property in his hands though no suit could be brought against him on the original cause of action against the father. The decree against the father can of course, like any other decree against him, be executed against the son, in his character as legal representative to the extent of the separate or self-acquired property of the father which has come to his hands.

11. In cases, therefore, where a decree for money has been obtained against the father, but he dies before execution of the same, the creditor has, besides executing the same against the son as legal representative, the option of suing the son either on the original cause of action--if it be one in respect of which the son as such would be liable--or to enforce payment of the decree-amount as a debt of record due by the father, in the former case the judgment against the father cannot be relied upon by the creditor as binding the son and he must prove and establish the cause of action or the alleged debt just as if no such suit had been brought against the father and judgment obtained. In the latter case, the judgment as such would not bind the son and it will be admissible only to prove the existence of a judgment-debt due by the father at the date of the judgment; and the only defences open to the son will be either that the decree-debt is not one which is binding upon him--as being illegal or immoral under the Hindu Law--or that the same has been discharged, whether such discharge (by payment or adjustment) has been recorded as certified (vide Section 258, Civil Procedure Code) or not.

12. I need hardly add that it will not be open to the creditor, after the death of the father against whom he had obtained a judgment which has not been satisfied, to recover the amount twice over from the son both by suing him on the original cause of action and also on the judgment-debt, any more than he could at present recover the amount twice over by suing the son on the original cause of action and also by enforcing payment of the judgment-debt by executing the decree (obtained against the father) against the son in his character as legal representative. The same is the case under general law in respect of all joint and several liabilities in regard to which though judgment against one--which remains unsatisfied--is no bar to the recovery of judgment against any other or others of the debtors--there being a cause of action against each severally.--yet the amount can be realised only once and the satisfaction in whole or in part of the decree against any one will in law operate as a satisfaction in whole or in part of the cause of action against each of the other debtors and if any decree had been obtained against any of them, as a satisfaction, in whole or in part, of such judgment-debt also. (Dhunput Sing v. Sham Soondur Mitter I.L.R 5 C. 291. Leake on Contracts, 3rd Edition pp. 377 and 780.)

13. Where the creditor sues the son on the original cause of Motion, the law of limitation--including the article in the 2nd schedule to the Limitation Act--applicable to such suit will be just the same as that which would be applicable to it if it had been brought against the father himself. This is conclusively established by the principle of the decision of the Court of Appeal in Beck v. Pierce L.R. 23 Q.B.D. 316. It was there held that the cause of action in respect of which a husband is liable for his wife's ante-nuptial debts is his wife's contract, not his own and the. statute of limitations had always been regarded as beginning to run in his favour as well as in his wife's from the time when the cause of action accrued against her and any ackowledgment or part-payment by her before marriage kept her debt alive both against her and her after-taken husband. In the case of a contract, no doubt, the only person who can under the general law be ordinarily sued on it is the contracting party or his legal representative or in some cases his assign. But if a son is under the Hindu Law under an obligation to fulfil the father's contract of debt, as a husband is under the English Law to fulfil his wife's antenuptial contract of debt, the suit against the sou or the husband is a suit on the contract just as much as a suit against the legal representative of a contracting party. It may be that the liability of the contracting party himself is unlimited but that of the son or the husband or the legal representative on the same contract is limited, in the case of the son to the extent of the joint family property in his hands, in the case of the husband to the extent of his wife's property which he may have acquired and in the case of the legal representative to the extent of the assets of the deceased which, may have come to his bands. But in all these cases the cause of action on which the son, husband or legal representative is liable to be sued is that against the father, wife or person represented respectively and the law of limitation applicable is therefore the same.

14. In Narasinga v. Subba I.L.R. 12 M. 139 however, it was held by this Court that a suit on a bond against the executant thereof and his sons was not, with reference to the provisions of Act XI of 1865, a suit of a nature cognizable by a. Court of Small Causes, so far as it sought relief against the son. No reasons are stated in the judgment, but if, as contended by the respondents' pleader, the inference to be drawn from the judgment is that the suit, as against the sons cannot be rogarded as founded upon a ' contract' within the meaning of Section 6 of Act XI of 1865 I am, with all respect, unable to concur in that decision.

15. The decision in Beck v. Pierce (already referred to) is also decisive on the question that the recovery of a judgment against the father--which has however not been satisfied--is no bar to a subsequent suit against the son on the same cause of action.

16. Where the creditor however, sues the son, not upon the original cause of action, but to recover the debt created by the decree (against the father) as a debt of record, the article of the Limitation Act applicable to the suit would be the residuary article No. 120 which prescribes a period of 6 years commencing from the time when the cause of action accrued. The cause of action for such a suit being the contract of record which imposed the decree debt upon the father, time will begin to run from the date of the judgment against the father unless the decree itself provided for payment of the decree-debt at a future date, in which case time will run from such date. It should however be borne in mind that the son is not legally bound to discharge the father's debt if it was not a subsisting debt at the date of the father's death. If therefore the execution of the decree against the father was barred at the date of his death, the creditor cannot bring a suit against the son to enforce payment of the debt of record though the period of 6 years from the date of the judgment has not expired.

17. The answer to the second question therefore is that if the suit against the son is upon the original cause of action, the law of limitation applicable thereto is the same as that which would have applied to the suit if it had been brought against the father, himself; but if the suit is for the recovery of the debt of record arising from the decree against the father, the article of the law of limitation applicable to it is No. 120 of the 2nd schedule toAct XVof 1877.

18. As regards the third question referred to the Full Bench, it is admitted by both sides that in the view which we have expressed on the first and the second questions tins question becomes unnecessary and as the point is one of considerable difficulty involving a consideiation of several English and Indian decisions cited before us, I prefer to express no opinion on it in a case in which the question does not really arise bayond observing that, for purposes of giving a fresh starting point for computing the period of limitation, payment of interest or part payment of principal by a Receiver or guardian may stand on a different footing from an acknowledgment of liability made by him.

Russell, J.

18. I concur.


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