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Kalagara Purnayya Vs. Cherukuri Basava Kottkyya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad788; (1931)61MLJ518
AppellantKalagara Purnayya
RespondentCherukuri Basava Kottkyya and ors.
Cases ReferredLahore High Court Pars Ram v. Amir Chaud
Excerpt:
- .....decision goes to the full length of holding that members of joint families liable as such for a family debt but not otherwise are debtors within the meaning of the insolvency act and therefore can be adjudged insolvent on those debts. the decision in muthu veerappa chettiar v. sivagurunatha pillai did not fully follow this, because the learned judges say that each case must depend on its own circumstances and that if the petitioner makes necessary allegations and proves them, then the court would be justified in adjudging the members of the joint family as insolvents. all that the decision amounts to, in my opinion, is that the fact of persons being members of an undivided family does not prevent their being adjudicated insolvents. that is obvious enough, if there must be other.....
Judgment:

Krishnan Pandalai, J.

1. The question in this petition is whether the son of a Hindu father who died after incurring debts on promissory notes can be adjudged insolvent on account of his liability as a member of the family to pay these debts out of the family properties. The Subordinate Judge held that he could be, but the learned District Judge held that he could not be so adjudged.

2. The learned Advocate for the petitioner (creditor) argues that the District Judge's decision is not correct and relies upon the decision in Muthu Veerappa Chettiar v. Sivagurunatha Pillai I.L.R. (1925) 49 M. 217 : 49 M.L.J. 697; which followed an unreported decision in C.M.A. No. 47 of 1916. The unreported decision goes to the full length of holding that members of joint families liable as such for a family debt but not otherwise are debtors within the meaning of the insolvency Act and therefore can be adjudged insolvent on those debts. The decision in Muthu Veerappa Chettiar v. Sivagurunatha Pillai did not fully follow this, because the learned judges say that each case must depend on its own circumstances and that if the petitioner makes necessary allegations and proves them, then the Court would be justified in adjudging the members of the joint family as insolvents. All that the decision amounts to, in my opinion, is that the fact of persons being members of an undivided family does not prevent their being adjudicated insolvents. That is obvious enough, if there must be other circumstances which make them personally liable for the debt; such as that they were members of a trading firm and that the debts were incurred for trading purposes in which case the inference is drawn that all those who are or hold themselves out as partners make themselves personally liable as such; or there may be a case in which a member by obtaining time for payment may be implied to have agreed to become personally liable. These, of course, are facts quite distinct from being a member of the undivided family. But apart from some such special circumstance which would make a member personally liable for the family debt I am not able to see how a member's liability to pay the debt of his family which involves only liability to satisfy it to the extent to which that family property will go can be held to be a personal liability involving liability of his separate or self-acquired property which is a necessary foundation for adjudication, and this has been so held in Nagasubramania Mudaliar v. Krishnamachariar I.L.R. (1927) 50 M. 981 : 53 M.L.J. 403. The learned Advocate relied upon a decision in Somasundaram Chettiar v. Rajahkannoo Chettiar (1929) 118 I.C. 494 but that is of no use to him because that was a case of a trade debt. He also relied upon a decision of the Lahore High Court Pars Ram v. Amir Chaud (1928) 109 I.C. 464 with which I am not able to agree.

3. The petition is dismissed with costs.


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