1. The facts of the case, as laid before us, are as follows: One Majlis Sahay brought a suit for recovery of certain land over which the plaintiff had a mortgage. In the end, it was agreed that Rs. 300 should be paid by Majlis to the plaintiff apparently by way of redemption of this mortgage and the defendant's father agreed to pay that sum in the event of Majlis's default. The plaintiff thereupon gave up the land. The defendant's father died and the plaintiff then brought this suit against the defendant for the recovery of the money. It was decreed by the Court below and the defendant obtained from this Court a Rule on the opposite party to show cause why the decision should not be set aside on the grounds, firstly, that the debt was incurred by the defendant's father in respect of a surety ship and secondly, on the ground that the Court had no jurisdiction to award more than six per cent. interest.
2. As regards the 6rst point, we see no reason why the plaintiff should not be entitled to the relief that he has obtained. We have been referred to Yajnavalkya Samhita translated by Babu Manmotha Nath Dutt, Chapter II, page 71. It is there stated that 'surety is sanctioned in darsana (presentation), protagya (creating confidence) and dana (giving). The first two sureties, if their statements be false, must be compelled to re-pay the money. As regards the other, that is, one who undertakes to re-pay the money himself if it is not realised from the party, even his sons are to re-pay the money after his demise.' We can see no reason why the surety ship of the defendant's father should not be regarded as coming within the term dana.' In the foot-note of this section, the word 'dana' is thus defined: 'The third form of surety is when a person undertakes to re-pay the money himself if the party for whom he stands surety fails to do so.' It has been argued that the obligation created by this form of surety is not binding on the sons unless the money covenanted to be re-paid, was a loan. It is difficult for us to see why the obligation of the defendant's father, in the circumstances we have described above, should be any les3 than the obligation would have been if the money had actually been lent to Majlis. In Tukaram Bhat v Gangaram Mulchand Gujar 23 B. 454, it is stated that Brihaspati recognized four different classes of sureties, (1) sureties for appearance, (2) sureties for honesty, (3) sureties for payment of money lent, (4) sureties for delivery of goods: and stress is laid on the description of the third class as being sureties only for payment of money lent. Farther on, however, the Judges say: 'The texts of Narada and Yajnavalkya recognise three classes of surety obligation only, those for appearance, those for honesty and those for payment' and it is not said that the money to be re-paid should be a loan. As we have said, we see no reason why this class of surety should be restricted only to cases in which money has actually been advanced and no case has been shown where this distinction is clearly laid down. The case of the Maharaja of Benares v. Ram Kumar Misir 26 A. 611 is clear authority for holding that a surety obligation of this nature is binding on the son even when no money has been advanced. We think, therefore, that the decision of the learned Sub-Judge in this respect is right.
3. As regards the question of interest, it is conceded that six per cent. interest is sufficient.
4. The Rule will accordingly be made absolute to this extent that the interest is reduced to the rate of six per cent.
5. We make no order for costs in this Court. Costs of the Court below will stand.