Alfred Henry Lionel Leach, C.J.
1. The question which the Court is called upon to answer in this case is whether a Hindu father who has been adjudicated an insolvent, can by reason of the acknowledgment of indebtedness embodied in the schedule filed by him in the insolvency proceedings extend the period of limitation against his sons who have separated from him since the debts were incurred, the debts not having been incurred for any illegal or immoral purpose.
2. The first and second respondents filed a suit in the Court of the Subordinate Judge of Cocanada to recover a sum of Rs. 17,909-7-9 claimed to be due on four promissory notes executed by the father of the appellants. The promissory notes are dated the 10th May, the 12th June, the 18th August 1929 and the 31st May, 1930 respectively. When they were executed the first appellant was joint with his father. The second appellant had not then been born. On the 2nd November, 1931 the first appellant brought a suit for the partition of the family estate. On the 16th November, 1931 a preliminary decree for partition was passed, but a final decree did not follow until the 6th April, 1935. The father had died on the 17th January, 1934. A copy of the final decree has not been printed, but it is common ground that its effect was to divide the appellants from their father and from one another.
3. On the 13th March, 1931 a creditor applied to the Court to adjudicate the father an insolvent and on the 13th November, 1931 an order of adjudication was passed. On the 21st December, 1931 the father filed his schedule and thereby acknowledged his indebtedness on the promissory notes now in suit. The plaint was filed on the 21st December, 1934. The appellants pleaded that the suit was barred by the law of limitation, having been filed more than three years after the execution of the promissory notes. The plaintiffs respondents, however, relied on the acknowledgment of indebtedness made by the father of the appellants in his schedule. The Subordinate Judge of Cocanada in whose Court the suit was instituted held that it was in time and passed a decree for the amount claimed. The appellants appealed to this Court and the appeal was called for hearing before Venkataramana Rao and Abdur Rahman, JJ., who have made this reference.
4. In Munisawmi v. Kutti : (1933)65MLJ311 , a Division Bench of this Court (Beasley, C.J. and Bardswell, J,) held that a Hindu son is liable on a promissory note executed by his father before partition and kept alive by an acknowledgment made by the father after partition. If this decision is to stand the appellants are out of Court. The learned Judges who have made this reference, however, formed the opinion that this decision requires reconsideration and consequently have referred to a Full Bench the question stated at the outset of this judgment. I may mention that the learned Judges have found that the plaintiffs respondents have based their claim on the debts as well as on the actual promissory notes.
5. It is a well established rule of Hindu law that a son is under a pious obligation to pay his father's debts, provided that they have not been incurred for any illegal or immoral purpose, but it has been held that the rule does not apply to a debt incurred subsequent to partition. See Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 Baluswami Aiyar, In re : (1928)55MLJ175 and Sat Narain v. Sri Kishen Das (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : I.L.R. 17 Lah. 644 (P.C.). As already indicated, the debts in the present case were incurred before partition, and at the time of the institution of the suit were lawfully enforceable against the father's estate, because of the acknowledgment made by him when he signed his schedule in the insolvency proceedings. The signing of the schedule constituted an acknowledgment within the meaning of Section 19 of the Limitation Act. The acknowledgment was, however, a purely personal matter, and the father cannot here be treated as being the agent of his sons. See Kissendoss v. Khatau Makanjee Spinning & Weaving Co., Ltd. (1916) 36 I.C. 389 (O.S.A. No. 29 of 1915). In that case the Court (Wallis, C.J., and Phillips, J.) was not, however, called upon to consider the question under reference. What the Court has now to decide is whether the sons remain liable under the pious obligation rule of their personal law when the father has extended the period of limitation against himself.
6. It must be borne in mind that by signing the schedule the appellant's father did not create new debts. He merely acknowledged debts which had been incurred by him before partition. I agree with Beasley, C.J., who delivered the judgment in Munisawmi v. Kutti : (1933)65MLJ311 , that the position is not analogous to that created when the father, after partition, executes a fresh promissory note in renewal of a promissory note executed by him before partition. In that event there is a fresh cause of action, the cause of action on the new instrument. It follows that I agree with the learned Chief Justice in the distinction which he made between Munisawmi v. Kutti : (1933)65MLJ311 , and Peda Venkanna v. Srinivasa Dheekshathulu (1927) 33 M.L.J. 519 : I.L.R. Mad. 136.
7. It is manifest that unless the Court is to impose a new restriction on the application of the pious obligation rule an acknowledgment by a father which extends the period of his own liability must affect his son. As the law stands at present a debt lawfully incurred by the father before partition must be paid by the son, if the father fails to do so. The son is, of course, only liable to the extent of the family property in his hands. The only restriction which has been placed so far on the application of the rule is that which has been imposed with regard to post-partition debts, but the appellants are asking the Court to place a further restriction on the rule, a restriction by way of limitation. In Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 (F.B.) Coutts Trotter, C.J., expressed the opinion that the doctrine of pious obligation should not be extended beyond the point to which the cases had carried it. He regarded the doctrine as being an illogical relic of antiquity, unsuited to any but a primitive and patriarchal society. It may be unsuited to modern conditions but that is the concern of the Hindu community. The doctrine remains and the Court is bound to apply it until the Legislature steps in and changes the law. I consider that Munisawmi v. Kutti : (1933)65MLJ311 , was rightly decided. To overrule it the Court must go to the length of adding something to the rule which is foreign to it and this would in my judgment amount to the usurpation of power which is vested only in the Legislature. The rule is a simple one and there is no difficulty in its application. All that the Court has to do is to inquire whether the debt was lawfully incurred before partition and whether it is still enforceable against the father. If it was lawfully incurred and is still enforceable against the father the son is liable to the extent of the family property in his hands.
8. I find support for what I have said in the judgment of Bhashyam Aiyangar, J., in Periasami Mudaliar v. Seetharama Chettiar (1903) 14 M.L.J. 84 : I.L.R. Mad. 243 (F.B.). In that case a Full Bench held that independently of the debt arising from an original transaction, a decree against the father, by its own force creates a debt as against him which his sons, according to the Hindu law, are under an obligation to discharge, unless they show that the debt is illegal or immoral. In the course of his judgment Bhashyam Aiyangar, J., said:
Where the creditor sues the son on the original cause of action the law of limitation--including the article in the second 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 (1889) 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 acknowledgment 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 ante-nuptial contract of debt, the suit against the son 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 hands. 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.
9. Bhashyam Aiyangar, J., was, of course, referring to the position in England before the passing of the Married Women's Property Act, 1882. Before then ordinarily a married woman had no capacity in law to contract during coverture. The decision in Beck v. Pierce (1889) L.R. 23 Q.B.D. 316 was that an unmarried woman could by her own acknowledgment of a debt create a fresh period of limitation which would be binding on her spouse when she married. After marriage she could not give any valid acknowledgment because of her inability to contract, but before marriage the position was different and her future husband was affected by her action. Here the father has always the power to give an acknowledgment within the meaning of Section 19 of the Limitation Act; and if he gives one in respect of a pre-partition debt that debt continues to be enforceable for another three years, which in my judgment means that it can within the further period be enforced against the family property in the hands of his son.
10. I would answer the reference in this way. The acknowledgment by the father in his schedule extends the period of limitation against himself and if at the date of the suit pre-partition debts are still enforceable against him or his estate his divided sons are by reason of the pious obligation rule in Hindu law also liable.
11. I would make the costs of this reference costs in the appeal.
12. The point that arises for decision is whether the divided son of a Hindu father can be made liable so far as his own share is concerned, for a pre-partition debt of the father which would have been time-barred had it not been for an acknowledgment made by the father after the partition. The referring Judges, Venkataramana Rao and Abdur Rahman, JJ., doubt the correctness of the decision of a Bench of this Court (Beasley, C.J., and Bardswell, J.,) in Munisawmi v. Kutti : (1933)65MLJ311 . At the outset it is worthy of note that Munisawmi v. Kutti : (1933)65MLJ311 , which was decided in 1933 does not appear till now to have been the subject of doubt in any High Court; at least no cases have been cited to us suggesting that. In the tenth edition of Mayne on Hindu Law (published in 1938) in paragraph 328 (page 421) the position is stated as follows:
A son is not under Hindu law liable to pay a debt of the father which is time-barred against the father. But he continues to be liable for a debt of the father kept alive by the latter's acknowledgment whether before or after partition.
13. Similarly in Mulla's principles of Hindu Law, 9th edition, 1940 at page 336, the same proposition is stated as follows:
If the debts are saved from limitation by the father's acknowledgment, the son is bound to pay even though the acknowledgment by the father is after a partition between the father and the son.
14. And as authority, Munisawmi v. Kutti : (1933)65MLJ311 , is cited, the decision of Beasley, C.J., and Bardswell, J. Judgment in that case was delivered by Beasley, C. J. Bardswell, J., expressing agreement and during the course of that judgment certain authorities which have been cited to us are examined. The first was Peda Venkanna v. Srinivasa Dheekshatulu : (1917)33MLJ519 , in which it was held that a Hindu son was not liable during his father's lifetime on a promissory note executed by his father after partition in renewal of a note executed by the father before partition. Beasley, C.J., points out that that decision is not an authority on the question which we now have to consider. The suit was not based, as is evident from the facts, on the original debt of the father but on a new cause of action created by him after partition by the execution of a second promissory note. In Peda Venkanna v. Srinivasa Dheekshatulu : (1917)33MLJ519 , Kumaraswami Sastri, J., observes:
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.
15. If those observations are examined closely they are referable only to a new obligation and not in any way to an acknowledgment within the statute of a pre-partition debt. In Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 the following question was referred to a Full Bench of five Judges:
Whether 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 has taken place between the father and the sons.
16. A majority of the Bench (Waller, Jackson and Ananthakrishna Aiyar, JJ.,) held that the answer was in the affirmative, and the learned Judges approved the decision in Jagannatha Rao v. Viswesam : AIR1924Mad682 . Coutts Trotter, C.J., and Srinivasa Aiyangar J., differed. It is evident from a perusal of the learned Chief Justice's judgment that he considered the whole doctrine of the pious obligation to be out of tune with modern requirements. It is described by him as 'an illogical relic of antiquity unsuited to any but a primitive and patriarchal society.' With great respect I think that we are concerned with administering the Hindu law as we find it leaving it to the Legislature to make such changes as public opinion demands. In Munisawmi v. Kutti : (1933)65MLJ311 , these decisions were considered and at page 836 Beasely, C.J., emphasises that in both Peda Venkanna v. Srinivasa Dheekshatulu : (1917)33MLJ519 , and Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361, the Courts were concerned not with a suit based on a renewed promissory note but a suit on the original debt and observes:
The two positions, in my opinion, are quite distinct. If as Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361. 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.
17. The position thus stated seems to me, with respect, to be a correct statement of the law.
18. It has been argued by the appellant that Clause 19 of the Limitation Act is applicable and that here we have an acknowledgment 'by an agent duly authorised in this behalf. This view is, I think, without real foundation. The consideration of managership or agency should, as contended by the learned Advocate-General on behalf of the respondent, find no place in deciding the question before us. The appellant's argument appears to be founded on an observation of Kumaraswami Sastri, J., in Peda Venkanna v. Srinivasa Dheekshatulu : (1917)33MLJ519 :
The pious duty creates no charge on the son's share prior to partition, the presumed agency of the father ceases on partition and as the creditor can only work out the father's rights at the date of the suit he can have no right if that right is lost owing to a bona fide partition.
19. With respect I cannot suppose that the suit against a son claiming payment of his father's debts is based on the debt in the strict sense that it is alleged that the father and the son are jointly liable or that the father contracted the debt on behalf of his son, which logically eliminates the father's own liability. In my view, the learned Judge was using a convenient phrase and no more. His observations on page 143 suggest to me that in any case it was only referable to the acts of a father manager of a joint family. The son's liability is based on a doctrine peculiar to Hindu law by which there is an obligation on him to pay another's debts, namely his father's, provided that the debt is not immoral and incurred before partition. This appears to be the present position as held in modern decisions, for example, Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 In re Baluswami Aiyar : (1928)55MLJ175 , Sat Narain v. Sri Kishen Das (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : I.L.R. 17 Lah. 644 (P.C.) and Sat Narain v. Bank of Upper India (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : I.L.R. 17 Lah. 644 (P.C.). There is, therefore, in my opinion, no question of agency as between the father and the son. To emphasise the position, let us take a case of a debt incurred by the father for his own, not family, purposes, not being illegal or immoral. In such a case it could not be suggested that the father was the son's agent. Equally, if the father acknowledges it, no question of agency could arise. Limitation finds no place in Hindu law. It is true that the Legislature has made irrecoverable certain debts for which a suit is not brought within a certain time; but no statute has attempted to touch the realms of piety. It seems to me that unless piety, as certain observations in Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 (F.B.) suggest is to be regarded as an anachronism today, which I have no doubt would offend Hindu opinion as a whole, the pious obligation to pay still exists, whether the debt is legally recoverable or not. A consideration of these matters makes the decision in Munisawmi v. Kutti : (1933)65MLJ311 , readily acceptable not only as representing good law but as representing the spirit of the Hindu law as well. The acid test is : Is there a debt owed by and recoverable from the father? The fact that the father has, instead of sheltering himself behind the machinery of a modern statute, acknowledged the debt seems to me irrelevant. The relationship of a Hindu father and son is dealt with by Curgenven and Sundaram Chetty, JJ., in Virayya v. Pardhasarathi Appa Rao : AIR1933Mad690 , and the learned Judges emphasise the comprehensive nature of the pious obligation, and that it exists
irrespective of the fact whether the father is or is not the manager of the joint family or whether the joint family is or is not composed of persons other than the father and the sons.
20. This is a quotation from the remarks of Iqbal Ahmad, J., in Lalta Prasad v. Gajadhar Shukul I.L.R.(1932) All. 283 with which the learned Judges express their assent. In Periasami Mudaliar v. Seetharama Chettiar (1903) 14 M.L.J. 84 : I.L.R. Mad. 243 (F.B.) Bhashyam Aiyangar. J., remarks at page 252:
Where the creditor sues the son on the original cause of action the law of limitation--including the article in the second 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.
21. Bhashyam Aiyangar, J., considers that that position is conclusively established by the principle of the decision in Beck v. Pierce (1889) L.R. 23 Q.B.D. 316 where it was 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 that the statute of limitations has always regarded as beginning to run in the husband's favour as well as in his wife's; and the time when the cause of action accrued against her and any acknowledgment or part payment by her before marriage kept her debt alive both against her and her after-taken husband. This decision is instructive, but 1 consider that the position of a Hindu father and son is far simpler than was that of an English wife and husband although the principle may be of assistance.
22. I would answer the reference in the manner proposed by my Lord the Chief Justice, whose judgment I have had the advantage of reading and with which I respectfully agree. I also concur with the order as to costs.
Krishnaswami Aiyangar, J.
23. The substantial question which arises for decision in this reference is whether a Hindu father can after partition keep alive a pre-partition debt against his divided sons by an acknowledgment of liability made by himself alone. In Munisawmi v. Kutti : (1933)65MLJ311 , a Division Bench of this Court consisting of Beasley, C.J., and Bardswell, J., have answered the question in the affirmative. The learned Judges who heard the appeal from which the present reference has arisen have doubted the correctness of this decision, and hence it was that they felt obliged to refer the question to a Full Bench. The judgment in that case was pronounced after a consideration of the effect of Peda Venkanna v. Srinivasa Dheekshatulu : (1917)33MLJ519 and Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361. In the first of these cases it was held that the father had no authority to bind his divided sons by a promissory note executed after partition in renewal of one executed before. The grounds of the decision are found more fully expressed in the judgment of Kumaraswami Sastri, J., than in that of Wallis, C. J. They are two in number. The first is that if a bona fide partition had been arrived at between the father and the sons the creditor must seek his remedy against the father alone as, in the absence of a term to the contrary expressly agreed to, the share received by the sons at the partition would be wholly exempt from the liability. The learned Judge observed:
So far as the creditor of the father is concerned, all that he can do, is to avail himself of any remedy that may be open to the father and work it out either by suit or in execution proceedings and if the father has lost his power of dealing with the son's interest owing to a bona fide partition between them, the creditor can be in no better position. The effect of a bona fide partition is prima facie to secure to each of the parties absolute control over the properties that fall to his share unfettered by any liabilities which at the date are not charged upon them....There is nothing in Hindu law to prevent a father from taking certain properties absolutely or receiving certain benefits and releasing the son from the duty cast upon him by Hindu law to pay his debts and so long as the transaction is bona fide, a simple creditor can have no right to object to a transaction which both the father and son were competent to enter into.
24. The second ground is contained in the following sentence occurring in the judgment:
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 shares The renewed note must, in my opinion, be treated as a new obligation incur-red after partition.
(The italics are mine).
25. So far as the first of these two grounds is concerned, It had definitely been rejected by the Full Bench in Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 the decision in which case has finally established the proposition that notwithstanding a bona fide partition the sons continue to be liable for a pre-partition debt in so far as the creditor's remedies are concerned. It is the second ground which may be said to approach the question on hand, but it does not in fact touch it. The learned Judge was dealing with the case of a renewed, and not a merely acknowledged promissory note, and he was content to rest his judgment on the fact that the renewal gave rise to a fresh cause of action which of course stands on a different footing from an acknowledgment which only operates to keep the old cause of action alive. But it is to be observed that the learned Judge did not, and was not called upon to, decide whether the father had the right after partition, to make an acknowledgment so as to bind the sons. This case was, if I may say so with respect, rightly distinguished by the learned Chief Justice in Munisawmi v. Kutti : (1933)65MLJ311 , on the ground that it only dealt with a case of a renewed promissory note giving rise to a fresh cause of action. The Full Bench decision in the second of the cases referred to above did not go beyond establishing the liability of a divided son for a pre-partition debt. The question therefore fell to be decided as a matter which was res Integra, and was apparently decided on that footing. The ground of the decision is to be found from the following passage in the judgment of Beasely, C.J., concurred in by Bardswell, J.:
If, as Subramania Aiyar v. Sabapathy Aiyar (1927) 54 M.L.J. 726 : I.L.R. Mad. 361 (F.B.) 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.
26. If I may say so with the utmost respect, this statement of the law involves the proposition that a father continues to possess even after partition an authority from the sons to make a part payment or acknowledgment, so as to keep alive against them a pre-partition debt. It is with this proposition that the referring Judges in the present case are in disagreement and it therefore becomes necessary to examine the Hindu law, in order to find out which is the correct view to be taken.
27. The general principles governing the liability of the son under Hindu law to pay the debt of the father, and the limitation to which his interest in the ancestral estate is subject, are now so well settled that it is unnecessary at this time of day to enter upon a detailed examination of the case-law, much less to trace its development. In origin, the obligation was legal as well as personal; it was capable of being enforced in a Court of law, and prevailed both against the person and property of the son, irrespective of whether that property was ancestral or self-acquired. Since the advent of the British Courts, the liability has become circumscribed and is now limited to the ancestral estate received by the son. In other words, the obligation has ceased to be personal, as it can no longer be enforced by arrest of the person or by attachment of the son's separate or self-acquired property.
28. The decisions of the Privy Council in Girdharee Lal v. Kantoo Lal (1874) L.R. 1 IndAp 321 and Suraj Bunsi Koer v. Sheo Proshad tended to introduce a remarkable change in the law as theretofore understood. Under the law of the Smriti writers, the son's liability arose not during the lifetime of the father, but only after his death, natural or civil. The effect of the change was to sustain the liability of the son even during the lifetime of the father, as an incident of the heritage from the very inception of the son's interest, on the apparent ground that if it is the pious duty of the son to save the father from sin after his death, it must be equally meritorious to him to permit the father to anticipate it by an alienation made by him during his own life. It stands to reason that the son could not validly object to a sale of the family property by the father to save himself from the very sin from which after his death the son is himself legally bound to purge him. The next step is easy; if the father has the power to alienate the family property inclusive of the son's interest in order to discharge his own debt, it is a necessary corollary that the interest of the son, along with that of the father in the ancestral estate may be attached and sold, the Court merely stepping in to execute the father's power by doing what the father can himself do, for the benefit of a creditor whose debt is neither immoral nor illegal. The son's equal ownership with the father in the heritage thus came to be burdened with a liability which may result in its partial or total destruction owing to the pious duty of the son to provide for the discharge of the debt of the father. The Privy Council have made it clear that the liability is one that is annexed to the estate though it does not amount to a hypothecation or charge. The overriding power of the father is thus founded entirely on the pious obligation of the son and is inseparable from it, in the sense that it begins when the obligation begins and ceases when it ceases. The pious obligation is, so to say, the touchstone of the father's power over the son's share.
29. But the situation materially changes once a partition takes place between the father and the son, The obligations so far incurred, even those arising out of the individual acts of the father done for his personal benefit, still bind the son's interests in the joint estate. But his pious obligation in respect of all future acts of the father is extinguished for ever and with it the power of the father to affect the share of the divided son. After partition the community of interest entirely ceases; the father and the son thenceforth hold their respective shares as if they are independent owners; they become in fact strangers so far as property rights are concerned. But this, of course, is without prejudice to the rights of the creditor which remain unaffected notwithstanding the partition, in respect of the pre-partition debts of the father. In respect of such debts, their rights had already become crystallized. It is the power of the father to affect the son's interest in future, which is eliminated simultaneously with the disappearance of the pious obligation on a disruption of the joint status in consequence of a partition.
30. It is important in this connection to remember that there is no distinction recognised in Hindu law between a debt incurred by a manager for the necessary purposes of the family and a debt of the father incurred for his personal purposes if they are neither illegal nor immoral, in so far as the creditor's remedies are concerned. In the origin and in the matter of the proof to be adduced there is undoubtedly a difference but none in the nature or quality of the resulting liability once it is validly incurred. Both classes of debts rank pan passu and the family property is equally liable for both.
31. The pious obligation is then the only source of the son's liability and its subsistence is the very foundation on which the superior power of the father as such is based. In its absence, the position of the father is indistinguishable from that of a mere manager. After a severance in status is established, the father, no less than the manager, sinks to the level of any other divided parcener of the family. If a manager cannot after the cessation of his managership acknowledge a debt so as to extend the period of limitation as against his divided kinsmen, it is difficult to see how the father can, after the extinction of the pious obligation, as against his divided son. The decisions of this Court in Peda Venkanna v. Srinivasa Dheekshatulu : (1917)33MLJ519 and Baluswami Aiyar In re : (1928)55MLJ175 should in my opinion be regarded as being merely illustrative of a wider principle, which is that the father after partition is as incompetent to affect or extend an existing liability of the son as he is to impose on him a fresh one. To acknowledge a debt is certainly to affect the liability of the son to his possible prejudice, by giving it a new term of life, and holding his share bound for a longer period. If the. father has the power, it would lead to the startling result that he could by successive acknowledgments prolong the period of limitation for an indefinite length of time, without the consent and against the will of the son. It would be illogical to recognise the existence of such a power after the destruction of the son's pious obligation from which alone the father's power is derived. In the Full Bench decision of this Court in Baluswami Aiyar In re : (1928)55MLJ175 the learned Judges who formed the majority held that the power of the father to sell though derived from the theory of the pious obligation existed only so long as the family remained joint. In substance and effect there is no difference between the two theories as a partition puts an end to both the joint status and the pious obligation, and takes away the power of the father to deal with the son's interest thereafter. But existing obligations in favour of the creditor are saved, though the father has lost his right of disposal over the son's share. It would be more in consonance with principle, to hold that the loss of the father's power is the necessary resultant of the cessation of the pious obligation rather than of the joint status.
32. One other aspect of the question also deserves notice. The Hindu law as such contains no rules of limitation such as are known to modern jurisprudence. There were perhaps rules of prescription affecting property rights, but the sanctity of the obligation to pay a debt properly incurred knew no limit of time. The idea of keeping a debt alive by an acknowledgment or part payment is foreign to the ancient law and it is purely the creation of statute in this country. It would therefore be an anachronism to speak of a power to acknowledge as based on a rule of Hindu law. It is the Limitation Act which has fixed periods of limitation for all kinds of suits without exception and it has been held that on a personal debt of the father there is but one cause of action, enforceable both against the father and the son to the extent of their interests in the joint family property but within the time fixed by the article appropriate for the cause of action against the father; Periasami v. Seetharama (1903) 14 M.L.J. 84 : I.L.R. Mad. 243. Prima facie, it would seem then if the Limitation Act applies as it undoubtedly does, Section 19 must be held to govern the suit against the son as much as a suit against the father. An acknowledgment of liability to come within the section must be in writing signed by the party against whom, the property or the right in suit is claimed or by some person through whom he derives his liability to be sued. The signature may be that of the defendant or of his agent duly authorised in that behalf. The explanation contained in Section 21 (3) (b) while recognising in the manager a right to make an acknowledgment binding on the other members, confers no similar power on the father. So long as he is joint with his sons, the pious obligation would subsist enabling him to incur fresh debts, and acknowledge old ones already incurred. But after a severance of status, the power ceased under Hindu law, and Section 21 does not help to recreate it. The principle involved is not very different from that laid down by the Full Bench decision of this Court in Pavayi v. Palanivelu : AIR1940Mad470 , where a mortgagor who had lost all interest in the mortgaged property was held not entitled to bind by his acknowledgment, the person on whom his interest had devolved. That principle in the words of Lord Westbury quoted in extenso in the above decision is that an acknowledgment by one person cannot bind another on the ground that the latter derived his liability from the former unless the derivation of title or liability takes place after the acknowledgment has been given. I find it difficult to hold that an acknowledgment by a person who has ceased to have any interest in the property or right claimed, could still be efficacious to bind the party against whom such property or right is claimed in the absence of a writing signed by him. This appears to be a condition of the acknowledgment operating against him, expressly so enacted by Section 19 of the Indian Limitation Act.
33. I regret therefore that I feel obliged with great respect to differ from my Lord, the Chief Justice and my learned brother Mockett, J. I may add that I have refrained from considering the applicability of the decision of Beck v. Pierce (1889) L.R. 23 Q.B.D. 316 to the question before us in view of the fact the two systems of law differ materially, though there may be analogies here and there.
34. With respect, it seems to me that it is safer to try and gather the limits of a rule so peculiar to Hindu law as the doctrine of pious obligation by resort to the principles of that law than by resort to analogies derivable from another system.
35. My answer to the question referred is in the negative.