Karuppanna Goundan vs Marutha Pillai

Wadsworth, J.—This Civil Revision Petition raises a question u/s 8 of Madras Act IV of 1938. The facts have not yet been established by

evidence, but assuming them to be as asserted by the petitioner who was the defendant in the Court below, they are as follows: On 2nd March,

1925, the defendant''s father and brother executed a promissory note in renewal of a series of earlier debts. At some time after the execution of

this note the family divided and in the partition this debt was allotted to the defendant. In pursuance of that arrangement, on 12th July, 1932, the

defendant alone executed the suit promissory note, discharging the prior promissory note executed by his father and brother. The question is

whether in such circumstances the second note can be deemed to be a renewal of the earlier debt.

We have held that in order to apply the explanation to Section 8 the debtor must be the same, though there need not be a complete identity of

the debtors under the earlier and the later documents. For instance, we have held that where there is a joint and several debt due by A and B

discharged by a later debt by A alone, A can claim that his debt is a renewal of the earlier debt. Similarly, we have held that where there is a joint

family debt evidenced by a promissory note executed by one of the co-parceners and this debt is discharged by a fresh promissory note executed

by another of the co-parceners the debtor in each case being the joint family, there is a substantial identity of the debtors and there can be a

renewal. We have also held that where there is a family debt incurred by a joint family consisting of A, B, C and D and after D has left the joint

family there is a fresh document executed by the three remaining co-parceners, there is a substantial identity of the debtor--who is the joint family

under each debt and the second document can be deemed to be a renewal or inclusion in a fresh document of the earlier debt. The present case

goes further than any of these cases. Here we have what is alleged to be a joint family debt, evidenced by a promissory note executed by two co-

parceners and after the disruption of the family, the substitution of a fresh note executed by one of the former co-parceners who was not nominally

a party to the earlier debt. It is argued that the defendant was under a liability to pay the earlier debt, being a member of the family and that that

debt might have been enforced against his interest in the family properties and that in executing the fresh promissory note, he must be deemed to be

discharging his own pre-existing property liability. This argument, of course, follows the reasoning in the case of Perianna Goundan Vs. Sellappa

Goundan and Others, which we have adopted in numerous cases. But we doubt very much whether the principle of that case should govern the

decision of the present case. It is true that the defendant was a member of the family which is alleged to have been liable to satisfy the earlier debt

and that that debt might have been enforced against his interest in the family property. But we must remember that Act IV of 1938 treats the Hindu

joint family as a unit for the purpose of the Act. The definition of ""person"" in Section 3 (1) states that ''person"" means an individual and includes an

undivided Hindu family : and throughout the Act an undivided Hindu family is treated as if it were a person, with the solitary exception that in the

case of a family made up of agriculturist and non-agriculturist members special provisions are contained in Section 14 for working out their several

liabilities. Apart from this provision the family is regarded as a person who may be represented by one or other of the co-parceners, as u/s 19. It

seems to follow that when there is a debt due by this statutory person-a joint family-for which is substituted another debt due by an individual who

formerly constituted part of the statutory person, there is a different debtor and it seems to us that to treat this different debtor as merely renewing

his own liability, which resulted from an interest in the joint family property, is to carry the theory of the property liability too far. When once it is

accepted that the debtor must bet substantially the same in both transactions, on the fact that the first debtor was a joint family and the second

debtor was a divided individual, it must in our opinion be held that the second debt is not due from the same debtor as the first debt and cannot

therefore be regarded as a renewal or inclusion in a fresh document of that debt. The petition is therefore dismissed with costs.