Mutyala Virayya vs Mahabub Sur Fraja Vantu Rajah Parthasarathi Appa Rao Savayi Aswara Rao Bahadur Zemindar Garu (dead) and Others

Curgenven, J.—The plaintiff, who appeals, sued upon a promissory note executed by one Narayya Appa Rao. Narayya Appa Rao died

and the suit was brought against his father, the 1st defendant, and his sons, the 2nd and 3rd defendants, these three defendants forming a Hindu

coparcenary. The question arose whether each and every one of these defendants could be made liable in respect of their shares of the family

property. The learned Subordinate Judge tried the question whether the debt was borrowed by Narayya Appa Rao in his capacity as family

manager and for family necessity, and answered it in the negative. He further came to the conclusion that the debt was not contracted for any illegal

or immoral purpose, and the findings upon these issues have not been controverted before us. Notwithstanding the finding upon the latter issue, the

learned Subordinate Judge has come to the conclusion that the shares of the 2nd and 3rd defendants, i.e., the sons of the executant of the note, are

not liable for the debt, and that is the question arising in this appeal. His view is that the pious obligation of a son to discharge his father''s debt does

not extend to a case where the family consists not merely of father and sons but of collaterals as well, though in the present instance the 1st

defendant can hardly be described as a collateral but as an ascendant. The principle contended for before us, which is virtually the same as that

adopted by the Subordinate Judge, is that only where the father happens to be the family manager, will the son''s share in the family property be

liable for the debt. The leading case dealing with the question of pious obligation is 28 CWN 253 (Privy Council) . At the close of the judgment,

the Privy Council have summarised their conclusions upon that and cognate points in five paragraphs. This case has been made the subject of

comment by Srinivasa Aiyangar, J. in Subramania Ayyar v. Sabapathy Aiyar ILR (1927) 51 Mad. 361 : 54 M.L.J. 726 . That was the Full Bench

case which decided that the pre-partition debts of the father are binding upon the sons'' shares after a bona fide partition. In delivering one of the

minority judgments the learned Judge took occasion to discuss the meaning of the Privy Council''s pronouncement in the case just cited and came

to the conclusion that it was to be read as meaning that only when the father is the managing coparcener can the creditor proceed against the son''s

share. The same view was at one time held by two learned Judges of the Allahabad High Court in Ajodhia Prasad Vs. Data Ram and Others, ,

that also being a case where the grandfather was still alive when the question of the liability of the sons for the personal debt of the father arose.

This case however was subsequently considered by a Full Bench decision reported in Bankey Lal and Others Vs. Durga Prasad and Others , of

which the two learned Judges, Sulaiman, Ag. C.J. and Young, J., who had decided the previous case, were members and occasion was taken to

reconsider the former decision and the Bench concluded that it had not been correctly decided. It is certainly difficult to understand upon what

logical basis the principle of a son''s pious obligation should be identified with the liability of a coparcener of a joint undivided estate for a family

debt contracted by the manager. Whatever connection may be discovered between the first two paragraphs of the Privy Council summary of their

principles, we think that a perusal of the text of the judgment will make it amply clear that the two doctrines with which they are dealing and which

they describe as "" seemingly conflicting principles"" are regarded as quite distinct and as based upon two entirely different foundations. A still more

recent case of the Allahabad High Court, Lalta Prasad and Others Vs. Gajadhar Shukul and Others , is a direct authority for the view that even

where the family consists of other members than the father and the sons the pious obligation still arises. Iqbal Ahmad, J. remarks:

I can discover no justification for holding that the sons of a father, who is not the manager of the joint family, are under no such religious obligation

or that, if the joint family consists of members over and above the father and the son, there is no such obligation on the sons. To put it in another

way, every Hindu son is under a religious obligation to discharge his father''s debts of the class mentioned above, irrespective of the fact whether

the father is or is not the manager of the joint family, or whether the joint family is or is not composed of persons other than the father and the sons.

It seems to us that this is the only reasonable principle to adopt upon this point and we agree with the view so expressed.

In the present case if the father had been alive there could be no doubt, we think, that his own and his sons'' shares would have been liable for

the debt, whatever other members the family might have consisted of, and it seems indisputable that the same liability must exist after the father''s

death, as the sons are in enjoyment of the whole of the property which they formerly shared with their father. That being so, we think that the

Lower Court was wrong in refusing to give the plaintiff a decree against the half share of the 2nd and 3rd defendants in the family property; and

allowing the appeal we amend the decree in the sense indicated, by declaring that the 2nd and 3rd defendants'' half share is liable for the suit debt.

As the appellant has not succeeded on the issue regarding family necessity, he will get the full Court-fee and half of the printing charges and vakil''s

fee from the respondents, who will bear their own costs. The costs decreed here and those decreed in the Lower Court will be recoverable from

the same share in the family property, as well as from any private property of Narayya Appa Rao in their hands.