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Kilaru Kotayya Vs. Polavarapu Durgayya and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in47Ind.Cas.192; (1918)35MLJ451
AppellantKilaru Kotayya
RespondentPolavarapu Durgayya and ors.
Cases ReferredVirabhadra Cowdu v. Guruvenkata Charlu
Excerpt:
.....whether charge on sons, share--pious obligation--res judicata--civil procedure code (act v of 1908), section 11. - - prakasam appearing on behalf of the purchaser is that the plaintiffs should not be allowed to have a decree, so far as their 2/3rd share is concerned, without being directed to pay a like proportion of the amount which has been paid as consideration for the sale, that is to say, he asks us to treat the consideration for the sale, which he bought to get refunded to him, as a debt of the 1st defendant which it is a pious obligation of the plaintiffs to repay. whether the 2nd defendant will be entitled to sue the father and the sons for the consideration which has failed in a separate suit afterwards, is not a question on which we need express any opinion at..........437 : 26 c.l.j. 1, where it is stated that the question of pious obligation of a, son to pay his father's debt does not arise until after the father's lifetime. this passage was considered by a decision of a bench of this court in yinjanampati peda venkanna v. vadlamannati sreenivasa veekshatulu 43 ind. cas. 225 22 m.l.t. 334, arid there it is stated that their lordships of the privy council could not by this statement have intended to modify the law, as laid down in a long series of decisions, as regards the right of a creditor to enforce a debt borrowed by the father both against the father and the son. it is not necessary, however, to discuss this point any further in this case, as i think that the ruling in virabhadra cowdu v. guruvenkata charlu 8 ind. dec. 222 is decisive of the.....
Judgment:

Abdur Rahim, J.

1. The 2nd defendant purchased certain property from the 1st defendant, the father of the plaintiffs, the father and sons belonging to a joint Hindu family. The 1st defendant had instituted a suit previously by which he sought to set aside the alienation on the ground of fraud, undue influence and want of consideration. This Court held that the alienation could not be set aside but though the consideration of Rs. 800 had not been originally paid by the purchaser, yet inasmuch as he undertook to pay that amount the previous suit was dismissed. The plaintiffs were not parties to the suit and no question of necessity was considered or decided by this Court. In fact that was not a question seriously pressed at the trial in that suit. The present suit has been brought by the sons in order to set aside that very sale and the plaintiffs have obtained a decree to that effect.

2. It has not been proved that the sale was made for purposes binding the family. The question that is now raised before us by Mr. Prakasam appearing on behalf of the purchaser is that the plaintiffs should not be allowed to have a decree, so far as their 2/3rd share is concerned, without being directed to pay a like proportion of the amount which has been paid as consideration for the sale, that is to say, he asks us to treat the consideration for the sale, which he Bought to get refunded to him, as a debt of the 1st defendant which it is a pious obligation of the plaintiffs to repay. He drew our attention, in support of this contention, to a passage in the judgment of Spencer, J., in the case of Subbayia Mudaliar v. Thulasi Mudaliar 22 Ind. Cas. 44. But no authorities are cited therein in support of such a proposition. On the other hand, it is clear from the judgment of Sadasiva Aiyar, J., in the same case that, in his opinion, a purchaser in similar circumstances was not entitled to any charge for the consideration or any portion of it, that is, in a case where the sale was held to be not binding on the share of the son; In so holding he followed a ruling of a Division Bench of tins Court in Virabhadra Cowdu v. Guruvenkata Charlu 8 Ind. Dec. 222 and the view of the law laid down by Sadasiva Aiyar, J., in Sabbaiya Mudaliar v. Thulasi Mudaliar 22 Ind. Cas. 44. The consideration of Rs. 800 was paid for the sale of the property and no question of debt could arise until at least the sale is set aside. Whether it could even then be said to be a debt which the son would be under an obligation to pay within the meaning of Hindu Law may be open to question. In any case 2nd defendant is not entitled to any charge on the son's share for any portion of the consideration of a sale which was not for purposes binding on the family. The learned Vakil for the respondent has drawn our attention to a passage in a recent ruling of the Privy Council in Sahu Ram Chandra v. Bhup Singh 21 C.W.N. 698 : 15 A.L.J. 437 : 26 C.L.J. 1, where it is stated that the question of pious obligation of a, son to pay his father's debt does not arise until after the father's lifetime. This passage was considered by a decision of a Bench of this Court in Yinjanampati Peda Venkanna v. Vadlamannati Sreenivasa Veekshatulu 43 Ind. Cas. 225 22 M.L.T. 334, arid there it is stated that their Lordships of the Privy Council could not by this statement have intended to modify the law, as laid down in a long series of decisions, as regards the right of a creditor to enforce a debt borrowed by the father both against the father and the son. It is not necessary, however, to discuss this point any further in this case, as I think that the ruling in Virabhadra Cowdu v. Guruvenkata Charlu 8 Ind. Dec. 222 is decisive of the question raised by the appellant. Whether the 2nd defendant will be entitled to sue the father and the sons for the consideration which has failed in a separate suit afterwards, is not a question on which we need express any opinion at present.

3. The second point urged by Mr. Prakasam is that the decree in the previous suit, to which I have already alluded, operates as res judicata. I think it is rightly pointed out by Mr. Venkatarama Aiyar that the father could not, as plaintiff in that suit, get the sale set aside on the ground that there was no necessity for his own act. I think that is a sufficient answer to this argument.

4. In the result the appeal fails and must be dismissed with costs.

Napier, J.

5. I agree.


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