Vaithilinga Naicker vs Vivekananda Reddiar and Others

Venugopal, J.—The plaintiff is the appellant before this Court and the defendants are the respondents. The first defendant for himself, and as

guardian of his minor sons, defendants 2 and 3, executed a mortgage deed, dated 9th February, 1954 for a sum of Rs. 2,000 in favour of one

Venkatachalam Pillai. The said Venkatachalam Pillai assigned the mortgage deed in favour of the plaintiff. Defendants 4 to 9 are the subsequent

alienees of the hypotheca. The plaintiff, as assignee of the mortgage, filed a suit for recovery of the money due the mortgage. On defendants 2 and

3 contended that the mortgage was not binding on them and it was tainted with illegality and immorality as the first defendant was leading an

immoral life and the alienations made by him were set aside on that ground in an earlier suit in O.S. No. 25 of 1959 on the file of the Sub Court,

Cuddalore. The trial Court held that the mortgage debt was not tainted with illegality or immorality and passed a preliminary decree as prayed for

with costs. On appeal, the lower appellate Court held that out of the sum of Rs. 2,000 borrowed under the mortgage, Rs. 500 went towards

discharge of a prior mortgage and a further sum of Rs. 500 went towards discharge of a debt due to a Co-operative Society and the remaining

sum of Rs. 1,000 was not spent by the first defendant towards the purchase of an oil engine as alleged in the mortgage deed, and as the mortgage

debt to the extent of Rs. 1,000 was not for any legal necessity or benefit, it was not binding on defendants 2 and 3. Against the decree and

judgment of the lower appellate court the plaintiff has preferred the present second appeal. The learned counsel for the plaintiff-appellant

contended that even when the mortgage debt incurred by the first defendant was not for any justifiable family necessity, so long as the debt was not

tainted with illegality or immorality, defendants 2 and 3 are bound to pay the mortgage debt under the rule of pious obligation, and the pious

obligation of defendants 2 and 3 to discharge their father''s debt is not affected by the fact that the debt was not incurred for family benefit or

necessity. In support of this contention, the learned counsel relied on the decision of the Supreme Court reported in Sidheshwar Mukherjee Vs.

Bhubneshwar Prasad Narain Singh and Others, and Polavarapu Lingayya (died) and Others Vs. Vuputuri Punnayya and Others, .

Relying on the decision of the Privy Council in Raja Brij Narain Rai v. Mangla Prasad Rai1924 P.C. 50 = 19 L.W. 72 (P.C.), and also the

decision of the Bombay High Court in Asman Vaman v. Ganpat Tukaram 38 Bom. 443, learned counsel for the respondents contended that

where the father had incurred a debt which is not for family benefit or necessity, the sons can be compelled to pay the debt by invoking the rule of

pious obligation only when the debt was not contracted for an illegal or immoral purpose and the debt incurred by the father was to discharge an

antecedent debt, antecedent in fact as well as in time. Learned counsel for the respondents further contended that there was no family benefit or

necessity with regard to the borrowing of Rs. 1,000 alleged to have been utilised by the first defendant for the purpose of acquisition of an oil

engine and as the sum of Rs. 1,000 out of the sum of Rs. 2,000 borrowed under Ex.A1 was not for any family benefit or necessity or to discharge

any antecedent debt, the liability of the defendants 2 and 3 under Ex.A1 should be limited to the extent of Rs. 1,000.

Where the sons are joint with their father and debts have been contracted by the father for his personal benefit, the sons are liable to pay the

debt on the principle of pious obligation, if the father''s debts are not tainted with illegality or immorality. The liability of the son to pay the debts

contracted by the father for his own benefit arises out of an obligation of religion and piety which is placed on the son under the Mitakshara Law to

discharge the father''s debts which are not tainted with illegality or immorality. The liability imposed on the son to pay the debt of his father is not a

gratuitous obligation, but a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property. So,

even in a case where the debt incurred by the father was not for family benefit or necessity, the doctrine of pious obligation of the son to pay the

father''s debt would entitle the creditor to bring the whole joint family property to sale for recovery of the debt, provided it is not tainted with

illegality or immorality. While considering the power of the father of a joint Hindu family to bind the son''s share in respect of a debt incurred for his

own personal benefit, courts have pointed out that the father may mortgage the joint family properties including the son''s interest therein to

discharge an antecedent debt. The father''s power of borrowing so as to bind the son''s interest in the joint family property in respect of a debt

incurred by him for his personal benefit has no relevance while considering the doctrine of pious obligation of the son to pay the father''s debt not

tainted with illegality or immorality. The son''s duty to discharge his father''s debt not tainted with illegality or immorality cannot be governed or

controlled by the father''s power to incur debts so as to bind the son''s interest in the joint family properties. If the father executes a mortgage to

discharge an antecedent debt, it wilt certainly bind the son''s interest in the joint family property and there is hardly any need or scope for invoking

the rule of pious obligation in such cases. The doctrine of pious obligation is invoked only where the father executes a mortgage to discharge his

own personal debts, not tainted with illegality or immorality. The contention of the learned counsel for the respondents that the sons can be

compelled to pay the debts of their father, by invoking the rule of pious obligation, only when the debt incurred by the father was to discharge an

antecedent debt not tainted with illegality or immorality cannot be accepted.

Learned counsel for the respondents next contended that the debt contracted by the first defendant is secured by a simple mortgage of joint

family property and under the rule of pious obligation, the sons not being a party to the mortgage are not bound by the mortgage and they are liable

only for the debt evidenced under Ex.A1, and the plaintiff''s suit against the defendants 2 and 3 is barred by limitation since the suit has not been

filed within three years from the date of accrual of the cause of action. The first defendant for himself and as guardian of his minor sons, defendants

2 and 3 has executed the mortgage Ex.A1 and it cannot, therefore, be stated that defendants 2 and 3 are not parties to the mortgage. As the suit

has been instituted against the father, the first defendant and his sons, defendants 2 and 3, to enforce the mortgage under Ex.A1, which is one and

indivisible, the relevant Article of Limitation Act applicable is Art. 62 which prescribed a period of 12 years from the date when the money sued

becomes payable in the instant case, the money under Ex.A1, became payable on 9th February, 1957 and the suit having been filed within twelve

years from 9th February, 1957 it is not barred by limitation. In the result, the second appeal is allowed and the judgment and decree of the lower

appellate court are set aside and that of the trial court restored. Parties do bear their own costs.