Munisawmi Goundan vs Kutti Moopan and Others

Beasley, C.J.—The suit out of which this petition arises was for Rs. 200 balance of principal and interest under a promissory note dated

May 27, 1918, executed by the first defendant, the father of defendants Nos. 2 to 4 in the suit. There are three endorsements on the promissory

note dated May 21, 1921, July 1, 1922, and December 5, 1924, made by the first defendant. These endorsements are relied upon by the plaintiff

as saving the suit from the bar of limitation. The first defendant did not defend the suit and the second and fourth defendants raised the plea that the

family had become divided twenty years ago. If they had succeeded in showing that division twenty years ago, clearly no question would have

arisen as regards their liability because the promissory note would have been executed by first defendant after that division. The learned District

Munsif has found that at any rate by 1922 the defendants had become divided and although he does not find the exact date of the division, it must

be taken that- in his view the family became divided after, the execution of the promissory note. The learned District Munsif found that defendants

Nos. 2 to 4 were not liable because, although the debt had been incurred before the partition, the promissory note in respect of that, debt was

acknowledged after partition; and in support of that view he referred to Peda Venkanna v. Sreenivasa Deekshatula 43 Ind. Cas 225 : 41 M 136 :

22 MLT 334 : 33 MLJ 519 : 6 LW 649 : (1918) MWN 55, where it was held that a Hindu son-is not-liable during his father''s lifetime on a.

promissory note executed by his father, after partition in, renewal of-a note executed by the father before partition. Following this decision he held

that the first defendant would have no authority to make any payment or endorse such payment on the promissory note on behalf of his sons. I do

not think that Peda Venkanna v. Sreenivasa Deekshatula 43 Ind. Cas 225 : 41 M 136 : 22 MLT 334 : 33 MLJ 519 : 6 LW 649 : (1918) MWN

55 is any authority upon the latter point. In that case a-promissory note had been executed by the father of the other defendants before; partition,

and as before stated, after., partition, the father executed the suit promissory note in renewal of the prior promissory note. Wallis, C. J., on p.

142* states that the father had no authority from the son to renew the note after partition. Kumara-swami Sastri, J., the other member of the

Bench, at p. 143 states:

In the case of renewal by the father alone after partition of, a-note executed before partition the case is much stronger as I can see no equity m

allowing a Hindu father to renew and keep alive a debt (increased by the addition of interest and principal at each renewal) so as to throw upon the

son the duty of paying it out of properties that fall to his share. The renewed note must, in my opinion, be treated as a new obligation incurred after

partition.

In the Full Bench case of Subramania Ayyar v. Sabapathy Aiyar 110 Ind. Cas. 141 : 51 M 361 : (1928) MWN 346 : 27 LW 688 : AIR 1928

Mad. 657 : 54 MLJ 726 which held (Coutts-Trotter, C.J., and Srinivasa Ayyangar, J., dissenting) that a simple creditor of a father in a joint Hindu

family is entitled to recover the debt from the shares of the sons after a bona fide partition between the father and the sons. Anantakrishna Ayyar,

J., after a careful review of the authorities touching this question at page 410*, states that the trend of judicial decisions has been to the effect,

amongst others, that if the cause of action for the suit be not the original debt incurred: before the partition but a promissory note executed by the

father alone after partition though in C renewal of a promissory note executed by him before partition, the sons are not liable to any extent if the suit

be based on the renewed promissory note only. That opinion is in conformity, with the observations of Wallis, G.J., and Kumara-swami Sastri, J.,

in Peda Venkanna v. Sreenivasa Deekshatula 43 Ind. Cas 225 : 41 M 136 : 22 MLT 334 : 33 MLJ 519 : 6 LW 649 : (1918) MWN 55. Neither

Peda Venkanna v. Sreenivasa Deekshatula 43 Ind. Cas 225 : 41 M 136 : 22 MLT 334 : 33 MLJ 519 : 6 LW 649 : (1918) MWN 55 nor

Subramania Ayyar v. Sabapathy Aiyar 110 Ind. Cas. 141 : 51 M 361 : (1928) MWN 346 : 27 LW 688 : AIR 1928 Mad. 657 : 54 MLJ 726 is

any authority for the view that sons are not liable for a debt on a promissory note executed by the father before partition'' and after partition kept

alive by endorsement of part payment of the debt made by the father having the effect, of course, of keeping the debt alive. In Subramania Ayyar

v. Sabapathy Ayyar 110 Ind. Cas. 141 : 51 M 361 : (1928) MWN 346 : 27 LW 688 : AIR 1928 Mad. 657 : 54 MLJ 726 , it is quite clear that

Anantakrishna Ayyar, J., was referring to a suit not on the original debt but a suit based on a renewed promissory npte and in Peda Venkanna v.

Sreenivasa Deekshatula 43 Ind. Cas 225 : 41 M 136 : 22 MLT 334 : 33 MLJ 519 : 6 LW 649 : (1918) MWN 55 also that was the position. The

two positions, in my opinion, are quite distinct. If as Subramania Ayyar v. Sabapathy Ayyar 110 Ind. Cas. 141 : 51 M 361 : (1928) MWN 346 :

27 LW 688 : AIR 1928 Mad. 657 : 54 MLJ 726 decides, sons are-.liable after partition for the original debt of the father incurred before

partition, then the fact that the debt has been acknowledged by the father,, in my view, does not alter the position. The suit in such a case is on the

original debt for which the sons are liable. Bat in the case of a renewed, promissory note the suit is not upon the original debt at all but upon the

renewed promissory note and I can see nothing - which can take away from a father his authority from his sons to make a payment during the

period of limitation in respect of a debt incurred by him. It is another matter altogether to wipe out the original debt and (substitute therefor another

debt. Therefore, upon this point, in my opinion, the learned District Munsif was wrong but it is only fair to say that when he gave a judgment he had

not before him the judgment in Subramania Ayyar v. Sabapathy Aiyar 110 Ind. Cas. 141 : 51 M 361 : (1928) MWN 346 : 27 LW 688 : AIR

1928 Mad. 657 : 54 MLJ 726 which was delivered in the same month and which of course not being then reported was not referred to in the

arguments of Counsel. For these reasons, in my opinion, this petition must be allowed with costs.

Bardswell, J.

Iagree.