Maria Pillai and Another vs Muthukumaran and Others

Panchapakesa Ayyar, J.—The appellants in this second appeal are the sons of one Kumaraswami Pillai and are aggrieved at the joint family

properties in their hands being proceeded against for recovering the decree amount in O.S. No. 60 of 1932, on the file of the District Munsiff''s

Court Kallakurichi. That suit was filed against Kumaraswami Pillai, the father of the appellants, by one Ayya Pillai, an immediate endorsee of a

promissory note executed in favour of Kumaraswami Pillai by someperson and endorsed by him for valuable consideration. The trial Court

dismissed that suit; but, on appeal, a. decree was passed, in 1937, in favour of the plaintiff By that time, Kumaraswami had died. So, the decree

was passed against the assets of the deceased Kumaraswami Pillai in the hands of his sons and grand sons, defendants 2 to.6 in the suit. The

decree was sought to be executed by attaching and bringing to sale the join family properties in the hands of those defendants. The appellants, the

two sons of Kumaraswami Pillai, felt aggrieved by this. They filed an objection against such execution. The District Munsiff of Kallakurichi;

dismissed the petition and'' held that the properties were liable to be proceeded against. They went in appeal to the District Judge of South Arcot

who too held that the properties were liable to be proceeded against and that in fact the decision in prior proceedings would operate as res

judicata. He dismissed the appeal with costs. Hence this second appeal.

The learned advocate for the appellants has urged three main contentions before me. I may add that none of these contentions.seems to have

been urged-before the lower appellate Court; but, as they are pure arguments in law, I have heard and decided them. The first point urged was

that the debt in question was an Avyavaharika one, being in the nature of a surety debt, and that, under the Privy Council ruling in Kesarchand v.

Uttamchand (1945) 2 M.L.J. 160 : L.R. 72 IndAp 165 the theory of pious obligation, would not apply to this case. I have looked into that ruling;

that has no application to the facts of this case. Their Lordships have remarked that, to make the ancestral property liable, there must, in reality, be

a debt due by the father, and that., unless the security bond was executed by a surety for a debt due by himself, the doctrine of pious obligation of

the sons to pay their father''s debts cannot make the transaction binding on ancestral property. That is undoubtedly so, and has long been the law.

But, here, there is no question of any security bond or surety debt. Kumaraswami Pillai endorsed a promissory note executed in his favour in

favour Ayya Pillai, the plaintiff in O.S. No. 60 of 1932, after receiving valuable consideration from him. As regards Ayya Pillai, he was not a mere

surety, but a person obliged to make good the amount in case the title he warranted by endorsing the promissory note proved to be a broken reed,

as in this case, where the promissory note was held to be unsupported by consideration.

The second contention was that the decree, as it stood, had only been granted against the assets of Kumaraswami Pillai in the hands of the

appellants and others, and that, as Kumaraswami Pillai had no self-acquired properties of his own, but only ancestral properties, which descended

by survivorship to these appellants, and others, both the lower Courts went wrong in allowing, execution to proceed against such ancestral

properties. The argument is untenable. It has been held by a Bench of this Court, in Bhadri Venkataswami Vs. Mandi Tata Reddy and Another, ,

that, in cases like these, where there is a pious obligation on the part of sons and grandsons, a decree can be passed against them and can be

executed not only against the father''s separate-property but also against the joint family properties of his in their hands. Indeed, it was remarked

there:

We consider that, in view of Section 53, the Subordinate Judge should not have limited the decree to the separate assets of the father in the hands

of the sons, but he should have made it apply as well to the share of the father in. the family estate in the hands of the sons

and the decree of the Subordinate Judge was amended accordingly. It was urged by the learned advocate for the appellants that in this case there

was no specific decree against the ancestral properties. Happily, there is also no specific decree against the separate properties of the father alone

and there is no need for any amendment as in the Bench case. The ruling in G.V. Krishnamurthi Ayyar Vs. R. Kailasam Ayyar and Another, has

also made it abundantly clear that, at any rate, as regards the Madras Presidency, ancestral properties in the hands of sons and grandsons can be

proceeded against freely to enforce their pious obligation under a decree. I may also add that, if it were otherwise, great hardship will result to the

decree-holders against fathers, as most of these fathers have only ancestral properties and have not got any self-acquired properties of their own to

be proceeded against; and the theory of pious obligation. Will become a costly futility in many cases, if the ancestral properties are not to be

proceeded against.

The last contention was that not only the father s share of the ancestral properties but all the ancestral properties were being proceeded against,

in spite of the partition, and that this at least was illegal. I cannot agree. The partition was found to be a bogus and nominal one, like the promissory

note itself; it is obvious that a dead father who died undivided cannot have any specific share in the ancestral properties to be proceeded against,

and that the entire ancestral properties can be proceeded against under the theory. Of pious obligation for a decree obtained against the father.

In the result, the second appeal deserves to be, and is herby, dismissed with costs. Leave refused.