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Ramaswami Ayyar Vs. Doraiswamy Ayyar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in114Ind.Cas.226
AppellantRamaswami Ayyar
RespondentDoraiswamy Ayyar
Cases Referred and AnsurSubba Naidu v. Bathula Bee Bee Sahiba
Excerpt:
contract - partition between father and son--debt bonds executed by father allotted to son's share for discharge--omission of son to pay--renewal of debts by father and subsequent discharge--suit for breach of contract against son--liability of son. - .....learned subordinate judge is that the creditors were pressing the father and in consequence the father discharged the bonds. there was, of course, no undertaking on the part of the creditors to look for satisfaction of their debts to the son. it, therefore, seems to me that there is nothing in the second point taken by the petitioner that the father should not have renewed these promissory notes and discharged them after the date of partition.5. the third point is as to 12 per cent interest. there appear to be three bonds of 12 per cent and one bond of 18 per cent, the subordinate judge has given interest as damages at 12 per cent, which is apparently less in the aggregate than the father had to pay for the discharge of these bonds. it seems to me on the whole that there is no reason.....
Judgment:

Odgers, J.

1. When these cases came before me at the end of April last, I adjourned them to see if a settlement could not be effected as it is a case of a father suing a son.

2. These two persons entered into a partition deed, Ex. A, in 1922 and very ill-advisedly, as it seems to me, four debts due on bonds executed to creditors by the father alone, Exs. B, C, D and E were allocated to the son i.e., he was bound to pay them. The debts had been undertaken for family expenses in connection with the funeral of the wife of the plaintiff and the mother of the defendant. In 1924 the father renewed the debts by keeping them alive and in 1926 he discharged them. The suit is now for recovery of this money that he paid for the discharge of these debts from his son. The Subordinate Judge has found in favour of the plaintiff and gave him a personal decree against his son with interest as damages at 12 per cent, per annum.

3. It is first contended before me that there is no personal liability to re-pay. As to that I am unable to agree and I think the learned Subordinate Judge is correct in the way in which he has interpreted the partition deed, which contains the clause: 'Bach should discharge the debts, if each fail to discharge the debts allotted to his share and thereby cause loss to the other, it should be collected from the property allotted in partition to the person who has not discharged the debt.'

4. Two cases were cited by Mr. Muthuswami Ayyar for the petitioner, a case, viz., Imbichi v. Achampat Avukoya Haji : (1917)33MLJ58 which at first sight looks in favour of the petitioner, but the question there was, did certain words in the deed of partition create a charge? The default of the dividing co-parceners as regards their personal liability does not seem to have been raised or considered by the Court. The other case in Beti Mahalakshmi Bai v. Badan Singh : AIR1924All105 is not relevant as there the charge was stated to be on certain hypothecated properties. On the other hand, Mr. Watrap Subramania Ayyar has cited Dorasinga Tevor v. Arunachalam Chetti 23 M. 441 which, apparently decided that an agreement of this sort is not merely a contract of indemnity but the defendant is bound to discharge the debt within a reasonable time and his failure to do so within three years was a breach notwithstanding the fact that the third party had not enforced his claim against the plaintiff. See Raghunatha Ghariar v. Sadagopa Chariar : (1911)21MLJ983 and AnsurSubba Naidu v. Bathula Bee Bee Sahiba 7 Ind. Cas. 269 : 34 M. 479 : (1910) M.N. 302 : 1910 8 M.L. T. 188. Here the son had three or four years in which, to discharge the claims and the evidence which is believed by the learned Subordinate Judge is that the creditors were pressing the father and in consequence the father discharged the bonds. There was, of course, no undertaking on the part of the creditors to look for satisfaction of their debts to the son. It, therefore, seems to me that there is nothing in the second point taken by the petitioner that the father should not have renewed these promissory notes and discharged them after the date of partition.

5. The third point is as to 12 per cent interest. There appear to be three bonds of 12 per cent and one bond of 18 per cent, the Subordinate Judge has given interest as damages at 12 per cent, which is apparently less in the aggregate than the father had to pay for the discharge of these bonds. It seems to me on the whole that there is no reason to interfere with this question of interest. Holding, as I do, that The Subordinate Judge was justified in coming to the conclusion that he has arrived at on all the points raised, the civil revision petitions must be dismissed with costs in one petition only.


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