Chandra Reddi, J.
1. This second appeal arises out of a suit instituted in the Court of the District Munsif of Tirupur for a declaration that the sale-deed Ex. B-7 executed by defendant 2 on 7-6-1945 in favour of defendant 1 is not binding on the plaintiff after defendant 2's lifetime. The plaintiff filed the present suit claiming to be reversioner to the estate of one Kandaswami who died in or about August 1936 and whose estate devolved on his mother, defendant 2. The suit properties were sold for a sum of Rs. 400 in favour of defendant 1. The consideration was made up of Rs. 272 to be paid to the mortgagee Subbakkal under Ex. B-3 dated 14-6-1941 for Rs. 200 and Rs. 128 to be paid in discharge of the mortgage, Ex. B-6 dated 15-4-1941, both the mortgages having been executed by defendant 2 in discharge of the debts incurred by the last male-holder himself in connection with his marriage. Two promissory notes were executed by Kandaswami one on 9-5-1936 for Rs. 200 evidenced by Ex. B-1 in favour of a person called Kandaswami Tevan and another for a sum of Rs. 200 on 25-5-1936 evidenced by Ex. B-4 in favour of defendant 1. Defendant 2 executed Ex. B-2 in renewal of Ex. B-1 on 9-6-1939 while Ex. B-4 was renewed by her by Ex. B-5 on 15-6-1939. It was to discharge the debt due under Ex. B-2 that Ex. B-3, the morgage in favour of Subbakkal, was executed while Ex. B-6 was executed in favour of Kandaswami Tevan, in discharge of Ex. B-5. The plaint proceeded on the footing that tha mortgages in discharge of which the sale-deed Ex. B-7 was executed were nominal and that nothing was really due and payable by Kandaswami the 1st male holder. According to the plaint all these documents were brought into existence with a view to defraud the reversioner.
2. The suit was resisted on the ground that the mortgages were really supported by consideration and the sale-deed brought about for the purpose of discharging the mortgages was a valid and binding one. The trial Court went into the question whether the debts were really in existence during the lifetime of Kandaswami or not and came to the conclusion that the sale-deed Ex. B-7 and the mortgages in discharge of which the sale-deed was executed were fully supported by consideration and the sale-deed Ex. B-7 was binding on the reversion. In the result, the District Munsif dismissed the suit.
3. On appeal by the plaintiff the lower appellate Court while holding that both Ex. B-7 the sale-deed and the mortgages were genuine transactions, reversed the decision of the trial Court as it thought that the major portion of the consideration for Ex. B-7 was in discharge of a time-barred debt. According to the learned District Judge, Ex. B-2 in renewal of Ex. B-1 was executed after Ex. B-1 was time barred and Ex. B-3 the mortgage in favour of Subbakkal was created for the purpose of discharging the time-barred debt evidenced by Ex. B-1. In the opinion of the learned District Judge the mother of the last male holder was under no pious obligation to renew a time-barred debt and therefore Ex. B-3 which was executed for the purpose of discharging the debt, under Ex. B-2 could not bind the reversion and therefore to the extent that the consideration of Ex. B-7 was utilised for the discharge of Ex. B-3, it would not bind the plaintiff. The result was that he decreed the suit subject to payment of Rs. 128 which was the amount paid by defendant 1 to discharge Ex. B-6. Evidently, the learned District Judge, in coming to the conclusion that Ex. B-2 was a renewal of a time-barred debt, relied on the deposition of defendant 3 that on the date on which Ex. B-2 was executed the debt under Ex. B-1 was already barred and that she did not make any payment to the payee towards interest.
4. I think the lower appellate Court should not have granted a decree on a point not taken by the plaintiff in the pleadings. It may be stated that it was not pleaded in the plaint that as a portion of the consideration for Ex. B-7 covered a time-barred debt, the sale-deed would not bind the reversion to that extent nor was any issue raised on that question. If the lower appellate Court wanted to base its decision on the question of limitation, in fairness to the parties concerned it ought to have framed an issue whether Ex. B-2 was in renewal of a time-barred debt and sent it back to the trial Court to determine that issue after giving opportunities to both sides to let in evidence on that point. It is not desirable that some stray statements made by the parties in the witness-box should be made the basis of a finding when it had no relation to any issue that was raised in the suit. Since the lower appellate Court has based its decision on the question of limitation without giving an opportunity to the parties concerned to agitate this matter fully in the trial Court, I think I have to ask the trial Court to consider the issue afresh on the material to be placed before it and submit a finding on the question whether Ex. B-2 was in renewal of a time-barred debt. Finding to be submitted within two weeks of the reopening of that Court after summer recess. The parties are at liberty to adduce evidence on this point. Objections, if any, within two weeks thereafter.
5. The question whether the mother can renew a time-barred debt of her son will be considered after the submission of the finding..... .... .... .... .... .... .... .... (After the return of the finding, the Court delivered the following judgment.)
6. The finding submitted by the learned District Munsif is that Ex. B-2 was executed in renewal of time-barred debt. The question therefore arises for consideration whether a mother succeeding to the estate of her son, can alienate property to discharge the time-barred debt of her son. Mr. Ramachandran appearing for the appellants contends that it is the duty of the mother, to discharge the son's debt, as the Hindu Law recognises no limitation, so far as the discharge of the debts is concerned. In support of this contention he relied on a decision of a Bench of the Patna High Court in -- 'Darogi Rai v. Basdeo Mahto', : AIR1937Pat40 (A). There the daughters during the lifetime of their mother who succeeded to that estate of her husband borrowed some monies for performing the Shradha of their father. In order to discharge these debts which became barred, they alienated a portion of their father's estate. This alienation was attacked by the ultimate reversioners on two grounds, viz., (1) that the daughters were not competent to contract debts during the lifetime of the widow so as to bind the reversioners, and (2) that they could not alienate property for payment of debts incurred for legal necessities which had become barred. The learned Judges construed the borrowing as one on behalf of the widow. On the second point the learned Judges held that since it was open to the daughters to keep the debts alive by renewing them so as to bind the reversion, there is no reason why they should not be allowed to pay off the debts which they could have kept alive merely because they became time-barred. No doubt this decision lends support to the position taken up by Mr. Ramachandran.
7. But another Bench of the same High Court was inclined to doubt the correctness of this ruling in -- 'Sunderbali v. Sukhdeo', : AIR1946Pat120 (B). The learned Judges thought that the case in -- : AIR1937Pat40 (A)', required reconsideration.
8. A case on the point is to be found in -- 'Sheoram v. Sheoratan', : AIR1921All163 (C). There it was laid down that a Hindu mother succeeding to her son's estate could not validly alienate a part of the property in order to pay off the time-barred debts of her husband. Referring to cases in which the opinion was expressed that the debt contracted by the husband could be discharged by the widow, if sonless, or if her husband enjoined on her to do so on the death-bed, the learned Judges stated that they were not authorities for the proposition put forward in that case. The case in -- : AIR1921All163 (C), is quoted with approval in Mayne's Hindu law and Usage, 11th End. page 771. This is referred to also in 'Principles of Hindu Law' by Mulla at page 187 (11th Edn.).
9. In my opinion, this decision if I may sayso with respect is sound and I express my respectful accord with the reasoning adopted inthat case. Applying this principle, I must holdthat a mother succeeding to the estate of herson is not competent to alienate the properly inorder to discharge the time-barred debt of herson. In these circumstances I must uphold thedecision of the lower appellate Court subject tothis modification that the appellant will get Rs.128 with interest at 6 per cent, per annum fromthe date of sale. The parties will bear their owncosts throughout.