1. On the 13th Falgoon 1295 (1888), Manee Misra, father of the defendant No. 1, executed a surety bond in favour of Kaliram Marwari father of the plaintiff. The bond recited that Janaki Debya had borrowed money from Kaliram Marwari on mortgage with possession., in lieu of interest, of a plot of land, to secure payment of interest on the money borrowed by Janaki Debya, and Manee Misra covenanted to stand surety for payment of the sum of Rs. 161 mentioned in the deed of mortgage, and stipulated that in case Kaliram Marwari were prevented from holding possession or from collecting the rents the debt due to him on the deed of mortgage would be recovered with damages from two specified plots of land, and that neither he nor his heirs would take any objection or exception thereto. The two plots of land so made liable under the surety bond were, therefore, hypothecated for the purpose indicated. The land mortgaged by Janaki Debya having been sold and the plaintiff dispossessed, he brought a suit to enforce the liability accepted by the surety Manee Misra.
2. The suit has been dismissed by both the lower Courts. It has been held, on the question of limitation, that the personal remedy of the plaintiff, against the defendants, is barred, and this finding has not been challenged before us. In fact, the suit was filed more than six years after the date of the plaintiff's dispossession. But the contention raised before us is that although the personal remedy is barred, it is open to the plaintiff to proceed against the ancestral property of the defendant No. 1 which was hypothecated for the father's debt incurred as a surety.
3. The defendant No. 1 and his father were governed by the Mitakshara Law, and the Subordinate Judge very correctly says that the only question for consideration is--whether, under the Mitakshara Law, the security bond (dated the 13th Falgoon 1295) is binding on the defendants or not. He has found that the security bond was not executed by the defendant No. 1's father on account of any antecedent debt; the debt was recklessly incurred by him without any legal necessity and not for the benefit of the family.
4. In these circumstances, can it be said that the ancestral property of the son is liable for his father's debt, because it was hypothecated under the security bond of the 13th Falgoon 1295? There is no authority directly in point of this Court, but our attention has been called to the case of the Maharaja of Benares v. Ram Kumar Misir 26 A. 611 in which two cases of the Bombay and the Madras High Courts, respectively, were followed, namely, Tukaram Bhat v. Gangaram Mulchand Gujar 23 B. 454 and Sitaramayya v. Venkataramanna 11 M. 373 It was held by Sir John Stanley, Chief Justice, and Mr. Justice Burkitt, in the Allahabad case (1) (to quote the head-note) that 'under the Hindu Law, the sons in a joint Hindu family are liable as such for the due fulfillment of an engagement entered into by their father as surety for the payment of rent by a lessee in accordance with the terms of the lease. 'The facts of these cases, upon which reliance has been placed for the plaintiff-appellant, are not similar to those of the case with which we are now concerned, because in none of those cases was there any question raised as to the effect of the personal remedy against the son being barred by the six years' rule of limitation. Hero, no suit was brought against the defendant No. 1 for over six years. The plaintiff cannot, therefore, enforce his remedy against the defendant personally, nor against the joint family property derived from his father and now in the possession of the son. The plaintiff, however, seeks to enforce, what may be called, a superior remedy, namely, against the property hypothecated in the surety bond. But it appears to us that the property, as such cannot be regarded as subject to hypothecation except through the medium of the son of the original mortgagor. If the property in the hands of the son cannot be touched at the suit of the mortgagee, we do not see how any execution can be levied against the self-same property without the intervention of any person holding the property and representing it in the litigation. The pious duty of a son to pay his father's debt involves the joint family property; but that obligation having ceased on the findings of both the lower Courts (because the debt was not an antecedent debt), it appears to us that the property has also ceased to be bound.
5. The liability which became matured and arising out of the default of Janaki Debya, for whom Manee Misra stood surety, was not an actual debt on the date of the surety bond, the 13th Falgoon 1295. It was not a debt antecedent to, that transaction; it was not an obligation for which Manee Misra could have been made liable on the date of the surety bond. Possibly, no default might have occurred and, in that event, the condition, of the bond would have been of no effect. In our opinion, Manee Misra having stood surety for, the payment of money which he might never have to pay, cannot be said to have incurred a debt which, apart from any question of legal necessity or benefit of the family, can be regarded as a debt binding on the family property in the hands of his son. The son might have become personally liable to fulfil the condition of the surety bond and to discharge his father's debt, and the property in his hands would have remained bound to that extent through the medium of the son. But inasmuch as the personal remedy of the plaintiff is barred, we think that the medium as well as the property must disappear from the region of controversy and the claim of the plaintiff held to be incompetent.
6. In Mr. Mayne's work on Hindu Law and Usage, 7th edition, page 389, the learned commentator says: Jagannath denies that a son is not liable for the debts of his father as surety, and says with much reason, that if by a toll is meant one payable at a wharf or the like, that is a cause consistent with usage and good morals and it ought to be paid.' In the footnote there is an observation as regards surety ship, the son's liability has been expressly affirmed,' and the cases to which our attention has been called are cited in that footnote. We do not desire to lay down any principle in conflict with the decisions of the High Courts of Allahabad, Madras and Bombay. Those decisions will require examination, with reference to the original texts, in some case that may come before this Court on a future occasion. But, in the peculiar circumstances of the present case, we do not think that the view contended for by the plaintiff-appellant can be accepted.
7. For these reasons, therefore, we affirm the decision of the lower Appellate Court and dismiss this appeal with costs.