Ram Ghulam Singh and Others vs Nand Kishore Prasad and Others

Ross, J.—The first contention raised by the learned Counsel for the appellants is that the learned District Judge was in error in holding:

that the sons cannot be made liable on the ground that it is their pious duty to pay off their father''s debt inasmuch as the father (defendant No. 1) is alive.

It is conceded by the learned vakil for the respondents that this is an error and that, so far as the pious obligation is concerned, it attaches during the lifetime of the father.

The second contention was that the enquiry was sufficient. The learned Counsel referred to the passage of the judgment of the Additional District Judge dealing with this point and observed that two cousins of the defendants had given information to the plaintiffs. He contends that this evidence ought to have been acted upon by the Additional District Judge. In my opinion, it is not open to this Court in second appeal to question the finding on this part of the case which is a finding of fact. On behalf of the respondents, while it is admitted that the pious duty attaches to the son even during the lifetime of the father, it is contended that as partition had taken place, and had taken place before the suit was brought, the property of the sons cannot be proceeded against in satisfaction of this simple money debt. This contention was supported by a reference to the decision in Vinjamampati Peda Venkanna v. Vadlamannati Sreenivasa Deekshatulu (1918) 41 Mad. 136 and specially to the judgment of Kumaraswami Sastriyar, J. (at page 142, 41 Mad.) It is clear that in any case only the assets of the father in the hands of the sons could be followed. But, after partition has taken place, there are no assets of the father in the hands of the sons and there is nothing to follow. This is not a case of mortgage where the security attaches to the property and clings to it even after partition. In the case of a simple money debt, where there are no assets of the father in the hands of the sons, there is nothing for the creditor to proceed against so far as the sons are concerned.

Finally, it was argued by the learned Counsel for the appellants that in equity defendants Nos. 2 to 4 are bound by this debt because they have obtained benefit from it. It is said that the money was borrowed in connection with the partition suit and that these defendants have obtained the benefit of this loan by the partition being effected. Now, this argument also is met by the findings of fact. The learned Additional District Judge has held:

that it has not been shown how much, if anything, the defendant No. 1 had to pay as commissioner''s fee ... and it has been stated above that no money was necessary to be borrowed to meet the family expenses. Necessity to borrow the money has not at all been proved.

It follows that if there was no necessity to borrow the money these defendants cannot be bound to make good the loan. The decision of the learned Additional District Judge is right and the appeal must therefore be dismissed with costs.

Kulwant Sahay, J.

I agree.