Rangaswami Aiyangar vs Sivaprakasam Pillai and Others

Alfred Henry Lionel Leach, C.J.—The question which falls for decision in this appeal is whether a payment made after partition by a

member of a Hindu family of interest due on a promissory, note which was executed by the managing member when the family was joint starts a

fresh period of limitation against the other members of the family, the payment having been duly, acknowledged by the person who made it, There

are conflicting decisions of this Court and it is for this reason that this appeal has been placed before a Full Bench for decision.

The facts present no complication. On the 12th March, 1925, the appellant''s father, one Thiruvenkatachariar, and his youngest son

Srinivasachariar, executed a promissory note for Rs. 2,384 in favour of one Gnanatnbal Achi. Thiruvenkatachariar had three sons, and at the time

of the execution of the promissory note the family was joint. It is common ground that the debt was incurred for a family necessity. On the 25th

March, 1925, the father died. Payments towards interest were made subsequently by Srinivasachariar on behalf of himself and his brothers. On the

13th June, 1930, the brothers separated. It was then agreed between them that Srinivasachariar should be responsible for the repayment of the

debt due on this promissory note. In deciding what properties should be taken by Srinivasachariar as his share due allowance was made for his

obligation to discharge the debt. On the 10th June, 1933, Srinivasachariar paid a sum of Rs. 55 on account of interest due on the promissory note

and made an endorsement on it recording the fact that he had made the payment. On the 24th July, 1935, the first respondent, who has died during

the pendency of the appeal and is now represented by the second respondent, instituted in the Court of the District Munsif of Shiyali the present

suit to recover the balance due on the promissory note, it having been bequeathed to him by his mother in her will. All the sons of

Thiruvenkatachariar were made defendants. The District Munsif held that the payment made by Srinivasachariar operated to extend the period of

limitation against his brothers as well as against himself. Accordingly he granted a personal decree against Srinivasachariar as an executant of the

promissory note and a decree against his brothers, limited to their shares in the family properties. The appellant appealed to the Subordinate Judge

of Mayavaram, who concurred in the judgment of the District Munsif and consequently dismissed the appeal. The present appeal is from the

decree passed by the Subordinate Judge. The plaint has not been printed but it has been accepted for the purpose of the appeal that the plaintiff

sued on the debt as well as on the instrument.

A payment of interest made by the person liable to pay the debt, or by his agent duly authorised in this behalf extends the period of limitation,

provided that an acknowledgment of the payment appears in the handwriting of or in a writing signed by the person making it. This is one of the

provisions of Section 20 of the Limitation Act. Sub-section (2) of Section 21 however says that nothing in Section 20 renders one of several joint

contractors, partners, executors or mortgagees chargeable by a payment made by one of them or his agent, and Clause (b) of Sub-section 3 of

Section 21 makes it clear that where a liability is incurred by, or on behalf of, a Hindu undivided family, only the manager of the family or his duly

authorised agent can make a payment which will have the effect of extending the time against all the members of the family. This clause was

inserted by the Indian Limitation (Amendment) Act, 1927. As long ago as 1882 this Court held that the manager of a Hindu family had the same

authority to acknowledge as he had to create debts, but without special authority he could not revive a claim against the family already time-barred.

See Chinnaya v. Gurunatham I.L.R.(1882) Mad.169. Some other High Courts did not share the opinion that the manager could acknowledge

liability and the amendment was made in order to put an end to the controversy.

Now, it is manifest that in making the payment of Rs. 55 on the 10th June, 1933, Srinivasachariar was not acting as the agent of his brothers.

They had divided and, as already indicated, in allocating the shares of the three members in the assets and the liabilities of the family it was

stipulated that Srinivasachariar alone should be responsible for the payment of the debt in suit. The arrangement between the brothers could not, of

course, affect the rights of the holder of the promissory note, but it makes it impossible to contend that Srinivasachariar was acting as the agent of

his brothers when he paid the Rs. 55. Srinivasachariar was never the manager of the family, although until the partition took place it would be

legitimate to regard interest payments made by him as having been made under the authority of his eldest brother on whom devolved the

managership of the family on the death of the father. The provision of law embodied in Section 21 (3) (b) of the Limitation Act is an important

factor in this case. While the family remains united only the manager or his duly authorized agent can extend the period of limitation against the

family. After partition there is no manager and therefore no one who can extend the period of limitation in respect of a family debt so as to affect

the erstwhile members.

Before proceeding to examine the reported decisions of this Court which have bearing on the question to be decided it will be useful to inquire

into the nature of the liability of a Hindu son to pay his father''s debts and of a member of a joint family in respect of a family debt. In A.R.P.

Narayanan Chetti and Others Vs. Kana Pana Veeanna Rana Virappa Chetti and Others, , Ayling and Srinivasa Aiyangar, JJ., observed:

The liability of a Hindu son to pay the debts of his father not being illegal or immoral (Avyavaharika) has been developed by judicial decisions from

his pious obligation to save the father from sin, as laid down by the Hindu Law Texts. This liability as now developed is certainly not a joint liability,

nor a joint and several liability as ordinarily understood in English Law; in fact it is difficult to bring it under any particular legal category of the

English Law. In Ramasami Nadan v. Ulaganatha Goundan (1898) 8 M.L.J. 312: ILR Mad. 49 (F.B.) which for the first time settled that the son

could also be joined with the father in a suit to recover the father''s debt, Sir V. Bhashyam Aiyangar, in his interesting argument, repeatedly

admitted that the son was not jointly liable with the father. In his judgment in the Full Bench case, Periasami Mudaliar v. Seetharama Chettiar

(1903) 14 M.L.J. 84 : ILR Mad. 243 (F.B.) Bhashyam Aiyangar, J., treats it as settled law that the son could not be sued alone during his father''s

lifetime, for recovery of a debt due by the father, though the father can be sued alone without the son. It is also settled that after the father''s death a

suit can be instituted on the original cause of action though judgment had been recovered against the father. These positions show clearly that a

Hindu son is not jointly bound with his father.

With these observations we are in full agreement. The son''s liability under the pious obligation rule in no sense arises out of contract. His liability

arises solely from the fact that he is the son of his father and his personal law regards it as being right and proper that he should pay his father''s

debts. His liability is personal to himself. This does not mean that he is personally responsible in the ordinary acceptance of the expression of

personal liability but that the obligation devolves upon him by reason of his relationship. The position is no different when he has brothers. Each is

similarly, but separately liable. The position of a member of a joint family with regard to a debt binding on the family is very much the same. His

liability arises from the fact that he is a member of the family, and the fact that it is limited to his individual share in the family properties emphasizes

the personal nature of the liability. Therefore in deciding whether after partition one brother can extend the liability of his brothers in respect of a

debt incurred by the family before partition, the law of joint liability as understood in England is of no help. Regard can only be had to Hindu

conception of liability arising out of relationship.

Turning now to the reported decisions, the judgment on which the appellant most strongly relies is that delivered by Stodart, J., in Pangudaya

Pillai and Another Vs. Uthandiya Pillai and Others, , in which Madhavan Nair, J., concurred. There a joint Hindu family consisted of three brothers

the eldest of whom as the manager of the family executed in 1919 a promissory note in favour of the plaintiff. In the following year the brothers

separated. After the partition the eldest brother made four payments of interest the last of which was on the 5th March, 1930. All the payments

were endorsed on the promissory note. The suit was filed in 1931. The Court held that even if the loan was contracted for the benefit of the family,

the eldest brother could not after partition by making payments towards the loan and placing them on record as required by Section 20 of the

Indian Limitation Act keep the debt alive against his brothers. The learned Judges were of the opinion that the brothers were not co-debtors in the

sense that one member by making a part payment could keep the debt alive against the others. It was pointed out that if one brother could extend

the period of limitation against the others, there would have been no necessity for the Legislature to enact Section 21 (3) (6).

For the respondent equal stress is laid on the decision of Burn and Lakshmana Rao, JJ., in Somasundara Edangapurandar alias Somasundara

Eratha Bakish Packiri Sahib and Others Vs. K.P. Narasimhachariar, . In that case the facts were these. A Hindu father executed a promissory

note in 1918 which he kept alive by payments of interest. The last payment was made by him on the 6th August, 1921 and the fact of payment was

endorsed on the promissory note. The father died in 1922, being survived by three sons. In February, 1924 one of the sons, the first defendant in

the suit, was converted to Islam which meant the separation of the family. On the 5th August, 1924 one of his brothers, the second defendant, paid

Rs. 25 towards the debt and endorsed the fact of payment on the promissory note. On the 4th August, 1930 the suit was filed. The Court held that

the payment of the 5th August, 1924 kept the note alive as against all the brothers. The basis of the decision was that all the sons were liable under

the pious obligation rule. The Court distinguished the decision, Pangudaya Pillai and Another Vs. Uthandiya Pillai and Others, , on the ground that

in that case the pious obligation rule had no bearing, but the learned Judges overlooked the fact that the rule only creates a personal liability based

on sonship. Whether a co-heir can bind his co-heirs may be another matter but in the present case the Court is not concerned with the position of

coheirs. It is only concerned with the position of divided brothers in respect of a debt which was created for family purposes before partition.

The appellant also relies on Rama Vadhyar v. Manian Vadhyar (1937) 45 L.W. 767 and the respondent on Lokandha Naiko and Others Vs.

Lokhono Naiko and Others, . In the former case Beasley, C. J., sitting alone, held that where the manager of a joint Hindu family executes a

promissory note for money required for a family necessity, a payment by the son who becomes the manager on his death does not save limitation

against another son when the payment is made after partition. The learned Chief Justice pointed out that after a partition there is no undivided

family and therefore no managing member of it, and unless there is authority to acknowledge the debt or make a part-payment the other members

of the family will not be bound by the acknowledgment or part-payment of one member alone. In Lokandha Naiko and Others Vs. Lokhono

Naiko and Others, , Curgenven, J., also sitting alone, held that payment of interest made by some of the descendants of a deceased mortgagor

binds the other descendants even though they became divided from the family before the payment was made. The learned Judge considered that

Section 21 (2) could not save them because it did not relate to ""co-heirs"" and other persons who are liable by; reason of their personal law and not

from direct contract with the promisee. This view of Section 21 (2) is obviously right, but it does not follow from this that after partition one

member of a Hindu family can bind another member by what he does'' alone.

The learned advocate for the respondent also referred to the decision of Varadachariar and Burn, JJ., in Lakshmi Naidu v. Gunnamma (1934)

68 M.L.J. 470 : ILR Mad. 418 but that case has very little bearing here. The facts there were these. A joint family consisted of two brothers both

of whom were parties to a deed of mortgage of immovable property belonging to the family. A part-payment of interest due on the mortgage was

made by the brother who was the managing member of the family. The payment was acknowledged by an endorsement on the deed, but this was

only signed by the managing member,, The mortgagee brought a suit to enforce payment of the loan. The question was whether the part-payment

of interest by the managing member would save limitation against the other brother. It was held that on the evidence it could be inferred that in

making the payment the managing member was acting as the agent of his brother. The learned Judges did not consider it necessary in such

circumstances to adjudicate on the contention which was raised that in the case of joint mortgagors payment by one cannot save limitation as

against the co-mortgagors or their interests in the mortgaged property.

We consider that Pangudaya Pillai and Another Vs. Uthandiya Pillai and Others, , was rightly decided, and should be followed here. In the

present case the sons were not parties to the instrument and before the partition their liability in respect of the debt which it represented could only

be extended by the managing member. A fortiori after partition when there was no managing member, a part-payment of principal or interest by

one could not affect the others. From the beginning the liability of the sons was an individual liability, whether considered in connection with the

pious obligation rule or in connection with membership of the family. It is not suggested, that the plaintiff could call in aid the pious obligation rule in

order to make the appellant liable and partition prevented even the erstwhile managing member extending the period of limitation against his

brothers. In these circumstances the payment made by Srinivasachariar on the 10th June, 1933 could only bind his brothers if he was acting as

their authorised agent, which clearly he was not. Therefore his action left them unaffected.

For these reasons we allow the appeal with costs throughout.