HUTCHA THIMMEGOWDA AND Vs. DYAVAMMA

JUDGEMENT

(1.) The facts of the case which led up to this appeal have been set out in full in the judgment of the trial court as also in the judgment of my learned brother Justice Sri B. Vasudevamurthy which I have had the advantage of perusing; they need not therefore be reiterated. This appeal was directed to be placed before a Pull Bench as its disposal involved a consideration, rather a reconsideration of the views of this High Court on a very important point of Hindu Law, regarding which a definite view had been taken from a long time. The necessity for the reconsideration arose on account of the decision of the Supreme Court reported in -- 'pannalal v. Mt. Narainl', AIR1952 SC 170 , [1952 ]1 SCR544 (A). The important point of Hindu Law referred to above is whether the pious obligation of a son to discharge his father's debt arises during the lifetime of his father. The point, as al-ready stated, was well settled in Mysore. The views of the High Courts outside the State were also equally definite and well settled and the importance which this matter has now assumed, is due to the fact that the view of our High Court is diametrically opposed to the view held in the other High Courts.

(2.) A marked and distinctive feature of Hindu Law is that a son acquires by birth a right in the joint family property. That right is not affected by any transfer effected by any other member of the joint family including the manager, even though the manager happens to be a father unless the transfer is for family benefit or necessity when the son is a minor and, if a major, unless he consents to the said transfer. Another distinctive feature of Hindu Law is that a son is under a pious - obligation to discharge the debts of his father, not incurred for illegal or immoral purposes. This obligation on the son to discharge the debt of his father arose, according to orthodox Hindu Law, only after the death of the father or where the father was as good as dead on account of the circumstances which will be referred to later. This was also the view taken in the early decisions of the High Courts, in what was prior to the Constitution known as British India, and also of the Privy Council, till the latter changed its view and the High Courts in British India had to follow and did follow the lead so given. It will be sufficient to give the following extract from the commentary in Mulla's Hindu Law, 10th-Edition, at P. 349 to show the trend of the view Of these Courts :

(3.) As pointed out in Mayne's Hindu Law and Usage, Eleventh Edition, p. 417 : "On account of conflicting decisions, a Full Board of the Judicial Committee examined the whole-subject in -' Brij Narain v. Mangala Prasad, (C)' and Lord Dunedin laid down the following five propositions :