Venkatasubba Rao, Offg. C.J.
1. This suit has been brought by the plaintiff for a declaration that he is not bound by the decree obtained in the High Court by the 1st defendant against the 2nd, in C.S. No. 448 of 1932. The facts may be briefly stated. Chidambara, the undivided brother of the 2nd defendant (Vairavan) died in 1907. The plaintiff who was born in 1922, is the natural son of the 2nd defendant but was adopted in 1924, to the deceased Chidambara by his widow Valliammal. A. mortgage by the deposit of title deeds was granted on May 30, 1927, by the 2nd defendant to the 1st, to secure a debt of Rs. 50,000 and on that mortgage the 1st defendant brought the suit above-mentioned and obtained a decree. It is this decree that the plaintiff impeaches and seeks to get rid of.
2. The learned trial Judge on the Original Side has found first, that Chidambara and Vairavan who were members of a Nattukottai Chetty Hindu family, inherited a banking concern, which till Chidambara's death they both conducted and which thereafter the 2nd defendant continued; secondly, that the plaintiff's family, while carrying on business as bankers, had dealings with the 1st defendant and the mortgage in question was granted in respect of a debt that had become due in the course of such dealings. Holding on these findings that the mortgage is binding upon the plaintiff and that he is bound, by the decree, the learned Judge dismissed the suit.
3. The first contenion urged by Mr. Sitarama Rao, is, that his client (the plaintiff) is not bound by the decree, as he was not made a party to the mortgage suit and the 2nd defendant was not sued in a representative capacity, that is, as representing the family of which he was tha manager. There is some evidence to show the R.M.M.S.T. Vairavan Chetty, impleaded as the defendant in the mortgage suit, is not the individual Vairavan but the family firm of which he was the manager. Granting, however, that the initials 'R.M.M.S.T. do not convey this meaning and that the 2nd defendant alone was individually impleaded, there can be no question on the authorities that he effectively represented in the suit the entire family which has, therefore, become bound by the decree. In Dowlat Ram v. Mehr Chand 15 C. 70 : 14 I.A. 187 : 1 PR 1888 : 5 Sar. 84 : 11 Ind. Jur. 435 (P.C.), the leading case on the point, their Lordships point out that where the mortgage extends to the entire interest of the family and is not confined to the share of any particular member and where in the plaint the mortgagee claims not only to recover against the individual mortgagor the amount of the mortgage but asks that the debt may be satisfied out of the mortgaged property--where these conditions are fulfilled, although the manager alone is impleaded, he effectively represents all the members, who, therefore, become bound by the decree. See also Sheo Sankar Ram v. Jaddu Kunvar 36 A 383 : 24 Ind. Cas. 501 : 18 C.W.N. 968 : 16 M.L.T. 175 : (1914) M.W.N. 593 : 1 L.W. 645 : 20 C.L.J. 282 : 12 A.L.J. 1173 : 16 Bom. L.R. 810 : 41 I.A. 216 (P.C.), Sankara Narayana Pillai v. Kajamani 47 M 462 : 83 Ind. Cas. 196 : 46 M.L.J. 314 : 31 M.L.T. 152 : A.I.R. 1924 Mad. 530 : 20 L.W. 357, and Unnamalai Ammal v. Abboy Chetty 50 M.L.J. 172 : 92 Ind. Cas. 524 : 23 L.W. 168. This contention of Mr. Sitarama Rao, therefore, fails.
4. Mr. Sitarama Rao next contends that if any part of the sum of Rs. 50,000 had been utilised in paying off a debt incurred before the plaintiff's adoption, for that portion of the debt, the plaintiff would not be liable. Whether this as a proposition of law is correct or not, we shall examine presemly, but the contention receives no support from the evidence on the record. The question put to the 1st defendant's agents and his answers on this point may be here reproduced.
Q.--So far as you know, you do not know what for he (Vairavan) borrowed this money?
A.--I know: for paying bank dues, for lending to others.
Q. So the debts he borrowed were for discharging his old liabilities?
A.--I do not know all these details. He Was taking ail these things for his banking purposes.
5. This evidence remains uncontradicted and there is nothing to show that any portion of the amount borrowed was utilised for the payment of the debts incurred before the plaintiff's adoption. Here, I must point out, that the finding of the trial Jugde that the debt was incurred for a legitimate purpose in the course of the carrying on of a family concern, has not been attacked. The evidence extracted above shows that the amount was borrowed 'for paying bank dues, for lending to others', these being the natural incidents of a banking concern. Mr. Sitarama Rao's contention, therefore, is opposed to the facts proved and cannot be accepted.
6. Granting for a moment that a portion of the debt was incurred before the plaintiff's adoption, does that circumstance make any difference? Mr. Sitarama Rao has had to assume for his contention that the debts were incurred not my before the plainiiffs adoption but also his birth. Before dealing with this contention, we may usefully refer to certain principles which may be regarded fundamental and have not been and cannot be controverted. The doctrine that a son is liable to pay his father's debts not incurred for immoral or illegal purposes; applies as much to debts incurred previous to as after his birth. Similarly, a nephew subsequently born is liable for the debts incurred by his uncle for purposes recognised by the Hindu Law as proper. This principle is incontestable and has been tacitly assumed or acted upon in several decisions Muthayyan Chetty v. Sivagiri Zamindar 3 M. 370 at p. 378, at bottom of p. 378 Muthayyan Chetty v. Zamindar of Sivagiri 6 M. 1 : 9 I.A. 28 : 12 C.L.R. 169 : 4 Sar. 354 : 6 Ind. Jur. 486 : 5 Shc. L.R. 57 (P.C.), on appeal from Muthayan Chetty v. Sivagiri Zamindar 3 M. 370 at p. 378, Ponnambala Chetty v. Sundarappier 20 M. 354 and Maharja of Bobilli v. Zamindar of Chundi 35 M. 108 : 8 Ind. Cas. 860 : 9 M.L.T. 155 : (1911) 1 M.W.N. 101 : 21 M.L.J. 593, and Mr. Sitarama Rao, as already stated, far from disputing it, affirms its correctness. There is a distinction in this respect between alienations and debts. In the case of alienations, whether they are for justifiable purpose or not, the person subsequently born or adopted cannot question them Ponnambala Chetty v. Sundarappief 20 M. 354, and Vatti Kutti Veeranna v. Katuii Sayamma 52 M. 398 : 118 Ind. Cas. 821 : 29 L.W. 309 : AIR 1929 Mad. 296 : 56 M.L.J. 401 : Ind. Rul. (1929) Mad. 853, but in the case of debts, as already pointed out, the character of. the debt when incurred becomes the decisive element. Mr. Sitarama Row acceding to these propositions, puts his argument thus: From Vatti Kutti Veeranna v. Katuri Sayamma 52 M. 398 : 118 Ind. Cas. 821 : 29 L.W. 309 : AIR 1929 Mad. 296 : 56 M.L.J. 401 : Ind. Rul. (1929) Mad. 853, it follows that the 2nd defendant as the sole survivor of the family (this argument implies that the plaintiff had not even born at the material' time, that is, when a portion of the debts Was incurred) was the absolute owner of the business assets. If that be so, the learned Counsel proceeds to argue, the 2nd defendant when contracting those debts acted on his own behalf and not as representing. any Hindu co-parcenery, which may be likened to a corporation. The next step in the argument is, that as the 2nd defendant never purported to act on behalf of a co-parcenery, the debts incurred by him cannot be binding upon the plaintiff, who having been subsequently born became by adoption his nephew. This position, which is said to be a logical deduction from Vatti Kutti Veeranna v. Kature Sayamma 52 M. 398 : 118 Ind. Cas. 821 : 29 L.W. 309 : AIR 1929 Mad. 296 : 56 M.L.J. 401 : Ind. Rul. (1929) Mad. 853, is untenable and we cannot accept it as sound That case relateu to an alienation and not to a debt. There, it was argued that so long as any widow remained in the family possessing an unexercised power of adoption, no alienation by way of gift made by the last surviving male member could be binding upon the son subsequently brought into the family by adoption. This contention was repelled as being opposed to the basic principles of Hindu Law. In the judgments delivered in that case, the theory that the last survivor is no more than a provisional heir, based upon the fiction of relation back in the case of such adoptions, was repudiated. The effect of the decision is no doubt that for the purpose of alienations the sole survivor is regarded as the absolute owner, but we agree with Mr. Dorasamy Ayyar that it would be wrong to apply the principle to the case of debts by extending the analogy. The property in the hands of the sole survivor is separate property, which, however, must not be confused with self-acquired property; what, is separate property becomes, on the introduction of a fresh member into the family, ancestral property with all its incidents.
7. Similarly, although when the debts are incurred, the family consists of a single member, he must be deemed in contracting debts to be acting on behalf of a. potential joint family, which is capable by expansion of comprising more than one member. Viewed in that light, the act of the last single survivor must be deemed as that done in a representative capacity, that is to say, as representating a potential joint family. Mr. Sitarama Rao had been driven to concede, that if at the time a debt is incurred, there happen to be two or more members instead of a single surviving member, the foundation on which his contention rests, disappears. That is the reason why he has had to confine his argument to the period not before the plaintiffs adoption which was in 1924 but before his birth which was in 1922. It would be a strange thing to hold in a matter of this sort, that where there are two or more surviving, a different legal consequence would follow that from where there is a single survivor. Indeed to Accept Mr. Sitarama Rao's contention would lead to grave anamolies and leaves this branch of the Hindu Law in a most confused state. Nothing that has been shown compels us to take such a view.
8. In the result, the appeal fails and it is dismissed with costs.