9911796707
TMI Blog1932 (12) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of the plaintiff-respondent. The plaintiff originally filed a suit against Raj Kumar Lal alone but, on an application dated 19th December 1927, being made by the plaintiff, the present defendant-appellant and Debi Prasad and Chandi Prasad the nephew and grandnephew respectively of Raj Kumar Lal, were also impleaded as defendants to the suit. 2. The bond in suit was for a sum of ₹ 11,000 out of which a sum of ₹ 1,272 was advanced in cash by the plaintiff to Raj Kumar Lal and the balance of ₹ 9,728 was acknowledged by Raj Kumar Lal to be due to the plaintiff on five earlier bonds and promissory notes, three of which were executed by Raj Kumar Lal and two by Lalta Prasad, one of the sons of Raj Kumar Lal, and one of the appellants before us. The plaintiff alleged that the debt evidenced by the bond had been incurred by Raj Kumar Lal as the head and karta of the family to meet family necessities and that all the defendants were liable to pay the same. Debi Prasad and Chandi Prasad contested the suit on the ground that they were separate from Raj Kumar Lal, who had nothing to do with their branch of the family, and that Raj Kumar Lal was not the karta or the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that they accepted the accuracy of those findings. In other words, the learned Counsel for the appellants refused to place any reliance on the partition decree referred to above and stated that he accepted the position that the defendant-appellants, Debi Prasad and Chandi Prasad were the members of a joint Hindu family with Raj Kumar Lal, and that Raj Kumar Lal was the manager of the family. and that the debt in suit was not tainted with immorality. On the other hand, the counsel for the respondent stated that he does not challenge the finding that the debt in suit was not proved to have been incurred for family necessity and that no bona fide inquiries were made by the plaintiff as to the existence of such necessity. 5. The question for consideration in the present appeal therefore is whether, having regard to the constitution of the family of which Raj Kumar Lal was the manager, the defendants-appellants were under a pious obligation to pay the debt incurred by Raj Kumar Lal, when the debt was raised neither for family necessity nor was tainted with immorality. It is not disputed that the sons are under a pious obligation to pay the pre-partition debts of the father, provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al v. Durga Prasad AIR1931All512 . He has further in justification of his contentions noted above, drawn our attention to the observations of Coutts-Trotter, C.J., in the Full Bench decision of the Madras High Court in Subramania Ayyar v. Sabapathy Ayyar that the doctrine of pious obligation is an illogical relic of antiquity unsuited to any but a primitive and patriarchal society and that it is not to be extended beyond the limits made binding by decisions of unquestionable authority. I am unable to agree with the contentions of the learned Counsel for the appellants. I am not aware of any Hindu law text that circumscribes the pious obligation of a son within the limits contended for by the learned Counsel for the appellants. Indeed the pious obligation of the sons, as recognized by original texts, was irrespective of any assets being received by them. No doubt judicial decisions have, in various respects, modified the obligation of the sons with respect to the payments of debts of their father as recognized by original texts but, it is manifest that the obligation rests on the religious duty of the son to discharge the father's debts and, I can discover no justification for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irth the newly born son acquires an interest in the joint family property, and thus automatically reduces the extent of this father's interest in the same, it is but fair and just that he should shoulder along with the father the liabilities of the father. To make provision for the payment of debts due to a creditor far from being "unsuited to any but a primitive and patriarchal society" is in consonance with common honesty and is, I should think, the recognized practice of the civilized world. The liability imposed on a son, to pay the just debts of his father is not a gratuitous obligation thrust on him by Hindu law but is a necessary corollary if not a salutary counter-balancing proviso, to the principle that the son from the moment of his birth acquires, along with the father, an interest in joint family property. In Brij Narain's case AIR 1924 P.C. 50 the proposition as to the pious obligation of the son was formulated by their Lordships of the Judicial Committee in the following words: If he is the father and the other members are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the father to dispose of the family property in order to liquidate his debts and that, where the father is not competent to utilize the family property for the payment of his debts the alienating the same, there is no pious obligation on the sons. It is said that as in the case before us there was no obligation on Debi Prasad and Chandi Prasad to pay the debts of Rai Kumar Lal, Raj Kumar Lal could not alienate the family property for the discharge of his debts, and therefore there was no obligation on the defendants-appellants to pay the debts of Raj Kumar Lal, nor could such obligation be enforced by sale of their interest in the joint family property. 11. If the learned Judges who decided Bind a Prasad's case AIR1926All220 , had affirmed the propositions advanced by the learned Counsel for the appellants, I would not have taken the contrary view without considerable hesitation, but the learned Judges in that case had to deal with a different set of affairs and there was no pronouncement in that case on the questions before us. In that case the family consisted of one Bihari Lal, his son Tapeshwari Dayal and of the sons of Tapeshwari Dayal. During the lifetime of Bihari Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chaser can, after purchasing the same, have that interest defined and separated by a suit for partition. That being so, I fail to see why a creditor of a father cannot similarly enforce the pious obligation of the sons by attachment and sale of their interest in the family property, even though the father had no right to alienate the same. In my judgment, the measure of the creditor's right, to recover the father's debt by attachment and sale of the interest of the sons in the family properties, is not the father's right to sell that interest for the payment of his debt, but is the pious obligation of the sons, which is controlled, not by the father's power to alienate that interest, but only by the conditions that the debt should not be tainted with immorality and that it can be realized only from the joint ancestral property in the hands of the son and not from his separate property. 13. I therefore cannot agree with the argument that, when a creditor wants to sell the interest of the sons in the family property in execution of a decree for the debt of the father, he exercises the right of the father to alienate the interest of the sons. I do not find any observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with the Full Bench decision of the Madras High Court in Subramania Ayyar v. Sabapathy Ayyar his Lordships observed that on the other hand, Ayyar, J. proceeded on the supposition that it was not a pious obligation of the Hindu son to pay his father's debt, but rather the power of the father to sell the family property in payment of his debts, which should be made the basis of the liability. The learned Judge concluded, though the father's power of alienation and the creditor's right to proceed against the son's share are both based on the pious obligation of the son, still on a partition, what is put an end to is only the right of the father to alienate and not the right of the creditor. The reply may be that the Hindu law texts based the liability on the pious obligation itself and not on the father's power to tell the sons' share, and that their Lordships of the Privy Council also in all their pronouncements have put the liability on the same basis. 15. I similarly find nothing in the judgment delivered by Mukerji, J., in the Full Bench case to lead me to hold that the contentions advanced by the learned Counsel for the appellants are well found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... went on to provide that if I fail to pay the interest in six months the said amount of interest shall be treated as principal and I shall continue to pay interest thereon at the rate aforesaid and in case of default in payment of interest of any six monthly period or the amount of principal, the creditor aforesaid, has power to realize in any way he like, his entire amount.... 17. It is common ground that the default was made in the payment of interest from the very outset and it is therefore argued that the time for the recovery of the debt began to run from the date of the first default and, on the date that the bond in suit was executed, the debt evidenced by the bond dated 17th August 1919, was barred by limitation, and that any acknowledgment of that debt by Raj Kumar Lal is not binding on the defendant-appellants. The learned judge of the Court below, on the authority of the Full Bench decision of this Court in Gajadhar v. Jagunnath overruled this contention on the ground that the sons are under a pious obligation to pay the time-barred debts acknowledged by their father. Apart from the reason assigned by the learned Judge of the Court below, there is another reason for not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
