Ramayya and Another vs Venkataratnam

Appellants father, Moddi Chidambarayyar, was judgment-debtor and respondent Venkataratnam was execution-creditor in Original Suit No. 5

of 1877 on the file of the District Court of Kistna. Besides the minor appellants, who are twins, Chidambarayyar had two other sons, named

Veerayya and Rama Murti, and subsequent to the decree in the above suit, the former died in coparcenary without issue and the latter died leaving

him surviving two minor sons, the third and fourth defendants in the present suit. Prior to 1873, Chidambarayyar had dealings with Venkataratnam

for several years, and on the 19th March of that year the former executed in favour of the latter the mortgage Exhibit A as security for the sum of

Rs. 8,000 then found due by the one to the other. It was upon this mortgage, Original Suit No. 5 of 1877 was brought against Chidambarayyar

and his two elder sons Veerayya and Rama Murti, but only a money decree was obtained against them. The decree directed them to pay

respondent Rs. 9,677-2-5 with interest at 6 per cent, per annum from date of suit to date of decree, Rs. 6,000 odd in three specified instalments in

1877 and 1878 and the balance Rs. 4,250 by yearly instalments of Rs. 250 commencing with the 1st May, 1879. The decree was passed on the

19th October 1877 and Chidambarayyar died on the 28th December, 1883, after having paid part of the debt. On the 19th April, 1888,

respondent applied for execution against Chidambarayyar''s four sons, viz., Veerayya and Rama Murti, who were parties to the decree, and

against appellants who, as alleged by respondent, are twins born subsequent to the suit, and in pursuance of this application he attached some of

the property belonging to Chidambarayyar''s family. On appellants objecting to the attachment so far as it affected their shares, the District Court

raised it on the ground that the younger sons were not parties to the decree under execution and that a fresh decree should be obtained against

them before the property which passed to them by survivorship could be proceeded against in execution. The District Court made its order on the

18th September, 1889, and on appeal preferred from that order u/s 244, Civil Procedure Code, the High Court confirmed it on the 21st October

1890. Hence this suit.

In his plaint, respondent prayed for a decree declaring that defendants are bound to pay at once on the liability of the entire family property

including their interest and already caused to be attached Rs. 1,792, the amount of six past instalments from 1st. May, 1885 to 1st May, 1890 and

Rs. 1,250, the amount of five future instalments when they become due with the condition of paying interest in default of payment on the due date

as per terms of the decree in Original Suit No. 5 of 1877. The plaint prayed also for an injunction, for costs of the suit and for such other reliefs as

the Court may deem it proper to grant.

Respondent''s case was that, as sons taking ancestral property by survivorship on the death of their father, appellants were liable for the debt

sued for. The sons resisted the claim on the following grounds, viz., (1) that the suit is bad for non-joinder of respondent''s brother, (2) that at the

date of the former suit, appellants were alive and the suit is therefore barred by Section 43, Civil Procedure Code, (3) that the claim is time-

barred, and (4) that the debt in question is not binding upon them. The District Judge gave judgment for respondent with costs and directed that

defendants Nos. 1, 2, 3 and 4 do pay plaintiff Rs. 1,792 (the six past instalments and interest thereon), together with interest at 6 per cent, per

annum from date of plaint to date of payment from the property of the family in the hands of the defendants and ordered further that the defendants

do pay the five future instalments on the respective dates on which they fell duo with interest at 6 per cent, from those dates from the property in

their hands, Against this decree, first and second defendants have appealed and they roiterate the grounds of defence in support of their appeal and

also urge that the suit is either not maintainable at all or at least in its present form. On the merits, there can be no doubt, that appellants are liable to

pay their father''s debt. Respondent deposed that the debt in dispute was contracted on account of the trade which Chidambarayyar carried, on

and of the cultivation of his lands. Appellants offered no evidence to show that the debt was either illegal or immoral, nor did they allege either that

no ancestral property came to them by survivorship or that such property as so came was not sufficient to satisfy respondent''s claim. The contest

in appeal has reference in the main to several preliminary objections urged against the claim and the first of them is the non-joinder of respondent''s

undivided brother as a co-plaintiff. This formed the subject of the fifth issue, and the Judge determined it in respondent''s favour observing that no

evidence need be brought on that issue. It appears that appellants and respondent''s undivided brother asked that the latter should be included in

the suit, but chat their application was refused on the ground that he was not a necessary party. The procedure followed by the Judge cannot be

reconciled with the policy of Section 32, Civil Procedure Code, as explained in Vydianadayyan v. Sitaramayyan ILR 5 Mad. 52 and with the

principle that, when the debt sued for is due to a joint Hindu. family, the debtor is entitled to insist that all the joint creditors, from whom he can

claim a discharge, ought to be parties to the suit in order that the decree, which may be passed therein may effectually discharge him as against all.

It appears, however, that respondent amended the plaint by describing himself as managing co-parcener and representative of the joint family. The

omission, therefore, to make respondent''s brother a party to the suit is by reason of the amendment a mere formal error by which appellants

cannot be prejudiced. As regards the second preliminary objection that this suit does not lie, the Judge very properly disallowed it for the reasons

mentioned in paragraph 14 of his judgment. The right which respondent seeks to enforce is that of the creditor to recover the debt of a deceased

Hindu father from his sons to the extent they take ancestral property by survivorship, and the ground of action is that by Hindu law it is the pious

obligation of the latter to discharge, so far as ancestral property permits, the debt which the former died without paying. The present suit is not a

suit to enforce the original mortgage because it has merged in the money decree in Original Suit No. 5 of 1877. Nor is it a suit to enforce the

decree in that suit which can only operate inter partes. It is a suit to enforce an obligation imposed by Hindu law on the son to pay upon his father''s

death his debt in certain contingencies, an obligation which was not adjudicated upon in the previous suit and which can only be enforced by a

fresh suit. In Arunachala v. The Zamindar of Sivagiri ILR 7 Mad. 328 and Natasayyan v. Ponnusami ILR 16 Mad. 99 this Court allowed such

obligation to be enforced by a new suit. In Hanumantha v. Hanumayya ILR 5 Mad. 232 the Full Bench observed that, to enforce the liability of

ancestral property in the hands of sons to satisfy their father''s debt, the holder of a money decree must have recourse to a separate suit! The third

preliminary objection is that the question whether ancestral property is liable or not for the father''s debt in the present suit is one which relates to

execution of the decree in Original Suit No. 5 of 1877, and that the order whereby this attachment was raised was an order made u/s 241, Civil

Procedure Code, and that no fresh suit can be brought. This contention is however at variance with the order of this Court passed in an appeal

preferred u/s 244 on the 21st October, 1890. It must also be observed that this order is in. accordance with the principle laid down by the Full

Bench in Hanumantha v. Hanumayya ILR 5 Mad. 232 It may also be noted here that, u/s 234, CPC an execution-creditor can only proceed

against the property of a deceased debtor in the hands, of his representatives and not against the property of the representative. It is loosely said at

times that joint ancestral property in the hands of a son is under the Mitakshara law assets for the payment of the father''s debt, but it is not so per

se, but assets only when the debt is either admitted to be binding or when in case of a bona fide dispute, it is finally adjudicated in afresh suit to be

neither illegal nor immoral.

Another preliminary objection is that the order passed by the Judge on the 18th September, 1889 and confirmed by the High Court on the 21st

October, 1890 was an order made u/s 280 of the CPC and that a declaratory suit is the only one which can be maintained u/s 283 for the purpose

of rendering that order inoperative. That was clearly not an order made u/s 280. It purported to be made u/s 244, and there was an appeal to the

High Court and the final adjudication there was to the effect that the matter then in controversy was one which ought to be dealt with not in

execution, but in a regular suit.

The fifth preliminary objection is that appellants were in existence before the date of Suit No. 5 of 1877, and that the present suit against them is

consequently barred by Section 43 of the Civil Procedure Code. We are not prepared to attach weight to this objection for two reasons, viz., (1)

because the cause of action in the present suit is not the same as in the previous suit and (2) because we concur in the Judge''s finding that

appellants were born subsequent to the former suit. We adopt the reasons mentioned in paragraph 8 of the lower Court''s judgment.

Two more objections are argued in support of this appeal It is urged that the plaint asked only for a declaratory decree and that the Judge

passed a decree for payment not only of instalments which had accrued due prior to suit but also those which had not then become due. So far as

it relates to future instalments, the decree should have been merely declaratory, and it was not competent to the Judge to direct payment of a debt

in respect of which the cause of action had not arisen at the date of suit. The clause in the plaint which prays for a decree declaring that defendants

are bound at once to pay Rs. 1,792, the amount of the past six instalments, is ambiguous, but it prays also for such relief as the Court may deem

proper and a direction that the instalments which had become due be paid awards only such as are properly claimable on the facts of the case.

However imperfect the wording of the clause may be, there is reason to think that the intention was to claim consequential relief in respect of past

instalments. The payment of the full institution fee, the words '' are bound at once to pay and the prayer for such other relief as the Court may grant

show that a reasonable construction has been placed on the plaint and that the decree is substantially correct in so far as it relates to past

instalments.

The last preliminary objection is that the suit is time-barred. The Judge holds that time began to run from the date on which each instalment fell

due and that the period of limitation is twelve years under Article 122, schedule II of the Act of Limitations. But it is clear that Article 1221 is not

applicable, for this is not a suit upon a judgment, and under the CPC no second suit will lie upon a previous judgment, the remedy provided being

its execution in the manner therein prescribed. As was observed in Natasayyan v. Ponnusami ILR 16 Mad. 99 it is Article 1202 that governs the

suit and the statutory period is six and not twelve years as considered by the Judge. According-to Article 120, time begins to run from the date

when the right to sue accrues, and applying this principle to the case before us, we agree with the Judge that time begins to run from the date on

which each instalment becomes due. To this view, appellants'' pleader objects first on the ground that the son''s obligation to pay the father''s debts

arose immediately on the father''s death, which in this case occurred on the 28th December 1883, whereas the present suit was not brought till the

3rd February 1891. But this objection is not sound inasmuch as the father''s obligation was only inchoate at the date of his death and the words

right to sue'' presuppose the existence of an obligation which is no longer inchoate, but is perfected and clothed with a right of action. It is not

correct to say that the obligor''s death perfects all his inchoate obligations which devolve on his heir and renders them enforceable at once without

reference to the contract or rule of law which originated them. Suppose that the father executed an instalment bond for Rs. 10,000 payable in ten

yearly instalments, and died before the first instalment became due, leaving considerable separate property for his son to inherit, may the creditor

demand the whole debt saying that the father''s death perfected all his inchoate obligations as against the heir? The general principle is that the son

succeeds to the father''s assets and liabilities as they are at the death of the latter and that the father''s death does not alter either the nature or

extent of the rights or liabilities transmitted to the son. Why should the case then be otherwise where the obligation attaches to ancestral instead of

separate property in the hands of the son? The theory of the son''s pious obligation rests on this basis, that the non-payment of a debt is a sin and

that so long as it remains unpaid it is a source of torment to the manes of the father which it is the son''s duty to relieve him against. The object is to

afford relief to the father by discharging his debt when it becomes due, and not to benefit the creditor by making the debt more onerous against the

son than it was against the father. The answer to the question when an obligation ceases to be immature and becomes actionable must depend

upon the contract or the rule of law which is its cause, and not upon any new contract to be, made by the Court for the parties concerned. In the

case of a pious obligation devolving on the son under Hindu law when ancestral property survives, the obligation devolves on the son in the

condition in which it would be enforceable against the father if he had been still alive. It is no doubt correct to say that the father''s debt is binding

on the son when ancestral property survives to him upon the father''s death, but it is not correct to hold that the debt becomes always payable at

once on the father''s death. In most cases the debt may be, and is, one due at the date of the father''s death, but cases may arise in which it may fall

due some years after that event. It is, no doubt, stated in Natasayyan v. Ponnusami ILR 16 Mad. 99 that time runs from the date of the father''s,

death, but it should not be forgotten that in that case the debt was overdue wehn the father died. We are therefore of opinion that the suit is not

time-barred.

The result is that the decree of the Judge will be modified by omitting the direction about the payment of future instalments and by substituting for

it a declaration that appellants are liable to pay future instalments as they fall due, and the decree is confirmed in other respects. The appeal having

substantially failed, appellants will pay respondent''s coats.

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[Article 122:

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Description of suit | Period of | Time from which period begins

|Limitation. | to run.

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Upon a judgment obtained |Twelve years.... | The date of the judgment or re-

British India, or a recognizance.| | cognizance.]

[Article 120:

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Description of suit | Period of | Time from which period begins

|Limitation. | to run.

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Suit for which no period of limit| Six years.... | When the right to sue accrues.]

ation is provided elsewhere in | |

this schedule. | |

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