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Arunachala Vs. the Zamindar of Sivagiri - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Judge
Reported in(1883)ILR7Mad328
AppellantArunachala;The Zamindar of Sivagiri
RespondentThe Zamindar of Sivagiri;arunachala
Cases ReferredGurusami v. Chinna Mannar I.L.R.
Excerpt:
hindu law - liability of son for father's debt--civil procedure code, section 244--suit against son to enforce decree against father--limitation--suit to recover money charged on land by decree. - - and even if the objection were well founded, it could not be heard, since it was not taken in the memorandum of appeal......specifically mortgaged by the father, liable for two judgment-debts due by the father.2. the first debt is that decreed in original suit 1 of 1865. a razinama was filed making the sum due to plaintiff payable by instalments and a decree was passed to the same effect in may 1867. the only instalment now in question is the last, which fell due on the 25th february 1870.3. the second debt formed the subject of original suit 37 of 1870. it had been assigned by the original obligee to one venkatachalam chetti, in whose favour a decree was passed on the 21st january 1871.4. the defendant's father died in 1873. defendant was brought on the record of both suits as his father's representative and various proceedings were taken against him in execution. eventually on the 21st september 1881 the.....
Judgment:

1. The defendant in this case is the zemindar of Sivagiri, and the plaintiff is a creditor, and the assignee of another creditor of defendant's father, the late zamindar. The object of the suit is to make the whole zamindari in the hands of the son, [334] including portions which had been specifically mortgaged by the father, liable for two judgment-debts due by the father.

2. The first debt is that decreed in original suit 1 of 1865. A razinama was filed making the sum due to plaintiff payable by instalments and a decree was passed to the same effect in May 1867. The only instalment now in question is the last, which fell due on the 25th February 1870.

3. The second debt formed the subject of original suit 37 of 1870. It had been assigned by the original obligee to one Venkatachalam Chetti, in whose favour a decree was passed on the 21st January 1871.

4. The defendant's father died in 1873. Defendant was brought on the record of both suits as his father's representative and various proceedings were taken against him in execution. Eventually on the 21st September 1881 the High Court held, on appeals made by this defendant, that the zamindari was not assets in his hands for which he was accountable in execution, and directed the applications for execution against the zamindari in his hands to be dismissed (T). The present suit was then instituted, 30th January 1882. A similar suit by another of the old zamindar's creditors was before the Privy Council at that time and their Lordships decided it in the creditor's favour on the 10th May I.L.R. 1882 Mad. 1.

5. The Subordinate Judge held that plaintiff's claim as to the first item was barred by the law of limitation. He also held that the suit generally was not maintainable, since all questions between parties to a suit or their representatives, and relating to the execution of the decree, are required by Section 244 to be determined in execution : but in deference to the order of this Court (T) he declined to dismiss the suit on this technical ground, and finally gave plaintiff a decree for the amount of the second item of claim.

6. Both sides have appealed to this Court, and it will be convenient to take the defendant's appeal first. The objection that the two causes of action should not have been joined together with reference to Section 44 of the Code has not been pressed. It was not taken in the Court below and is disallowed. The pleas relied on are (1) that the suit is not maintainable; (2) that it is barred by limitation.

7. The former of these pleas is based on Section 244 of the Code, to which allusion has just been made. On the other hand it has been pointed out that the Judicial Committee has allowed a similar suit, and that, although that was heard ex parte, and therefore the objection now under consideration was not argued, it was not overlooked by their Lordships, who censured the District Judge for adhering to this view in opposition to the judgment of the High Court. Reference has also been made on the plaintiff's behalf to the Full Bench decision [Hanumantha v. Hanumayya I.L.R. 5 Mad. 232 and on behalf of the defendant to two cases in the same volume [Gurusami v. Chinnamannar I.L.R. 5 Mad. 37 Chokkalinga v. Subbaraya I.L.R. 5 Mad. 138.

8. It seems to us that the suit is maintainable. Proceedings were at first allowed against the defendant in execution. He contended in appeal that the zamindari was not assets in his hands which could be made available in execution, and he succeeded in his contention. He cannot now be allowed to say that a regular suit will not lie to make it available. It cannot be denied, after the decision of the Privy Council in Muttayan v. Zemindar of Sivagiri I.L.R. 6 Mad. 1 that it ought to be made available in one way or the other. His argument is that a creditor, who wants to make a zamindari available, is bound to sue not only the zamindar for the time being, but all those possible successors to whom the estate may pass before the debt is liquidated. The effect of this, however, would be to raise a great number of collateral issues, for which there would seldom be any real necessity, and very often to throw needless difficulties in the way of a zamindar's creditors and so to impair a zamindar's legitimate credit. It seems to us that a zamindar represents the estate during his life for all practical purposes, and that after his death, since it has been decided that the estate does not constitute assets which can be seized in execution, it is open to the creditor by a separate suit to enforce the debt, so far as it is binding on him against the successor. The effect of recent decisions is that a son, even in his father's lifetime, is debarred from setting up that the whole undivided ancestral property is not liable for his father's just debts, but it is only after the father's death, when the whole estate has passed to him by survivorship, that he is under a distinct obligation to discharge the debts out of it. The decision in Gurusami v. Chinna Mannar I.L.R. 5 Mad. 37 is now under consideration by the Full Bench I.L.R. 7 Mad. 295 and is distinguishable from the present case on several grounds. This suit relates to an impartible estate and the father is dead. In the other case, not only had there been an actual transfer of the property by the father to the son, but the debt being a trading debt, for which even the son's separate property would be liable, it is quite clear that he ought to have been made a party to the first suit.

9. The next point is limitation. The suit is to enforce the judgment-debts against the property in the son's hands. We think that the cause of action against the son only arose on the father's death in 1873, but in any case the suit is within twelve years from the date on which the debt became due. The instalment of the earlier debt, which is sought to be recovered, did not become payable till 25th February 1870. The second decree was passed in January 1871. Both were charged on the property. This suit was brought on the 30th January 1882.

10. There is nothing in the objection that the latter decree only has been assigned and not the original bond on which it was based, for the suit is really based on the decree and the original obligation had passed into a judgment-debt. And even if the objection were well founded, it could not be heard, since it was not taken in the memorandum of appeal.

11. Upon the plaintiff's appeal the decree of the Subordinate Judge must be reversed in so far as it disallowed plaintiff's claim in regard to the first item of the plaint, but in other respects affirmed. Unless the defendant pays the amount of that item, with further interest on the principal at six per cent. to this date, and the costs thereon in both Courts, with further interest on the entire sum at the same rate, within six months, the property specifically hypothecated first, and after that the rest of the zamindari will be sold for the realization of the debt.

12. The defendant's appeal is dismissed with costs.


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