GANAPATHY IYER Vs. SREENIVASA IYER

JUDGEMENT

(1.) This second appeal arises in a final decree for partition of a joint Hindu family which consisted of the plaintiff and his son, the first defendant. The suit was filed on the 5 th February, 1952. Earlier, on the 31st March, 1949, the first defendant had mortgaged his undivided share of the family properties to the 3rd defendant appellant in this second appeal. The second defendant had purchased the first defendant's undivided share subject to the mortgage, at an execution sale which took place on the 26th May, 1951. The preliminary decree provided that in making the partition, the debts of the family also be taken into consideration, having regard to their reality and their binding character. In due course the plaintiff filed a petition for passing the final decree, on impleading the creditors. Defendants 2 and 3 contended that the debts were not real and were not binding on the joint family; this contention has been negatived by the two courts below. The District Judge has found, that the debts amounted to Rs. 7,675/- and that they are binding on the joint family and has decreed, that the plaintiff and the second defendant in whom the share of the first defendant is vested by purchase, do bear them. This appeal was pressed for the 3rd defendant only with respect to those debts which were renewed or might be held to have been contracted after the date of the mortgage, for according to him, his mortgage cannot be affected by debts which came into existence or were kept alive afterwards.

(2.) The particulars of the debts with respect to which the second appeal was pressed may be stated as briefly as possible. By way of preface it may be observed, that the findings of the two courts that the debts were real and binding on the joint family were not disputed. The debts which are the subject of controversy are items 2, 3, 6, 7 and 10 in schedule B of the plaint. Item 2 has reference to a promissory note Ext. A 39 for Rs. 2,000/- exeouted on 30th April, 1946, by the plaintiff and the first defendant in favour of one Seshadri Iyer, the balance under which, amounting to Rs. 300/-, was discharged by payment by the plaintiff, on his borrowing afresh on a promissory note Ext. A 43 on the 10th September, 1952, in favour of one P. Subramonia Iyer. Item 3 is the debt under Ext. A 26 promissory note executed on the 1st May, 1946 by the plaintiff in favour of the 5th respondent, R. W. 2. There have been four endorsements on it, of payment of interest in the handwriting of the plaintiff, which have served to keep it alive on the date of suit. Item 6 relates to a promissory note Ext. A 29 dated the 27th October. 1947, executed by the plaintiff and the first defendant in favour of one Ambi Iyer and renewed afterwards as found by the two courts, in favour of the 8th respondent, R. W. 4 by Ext. A 30 dated the 15th December, 1951. Item 7 has reference to two promissory notes Ext. A 31 dated the 8th October, 1946, and Ext. A 32 dated the 5th March, 1947, for the balance under which a promissory note Ext. A 33 dated the 14th November, 1950, was executed, all by the plaintiff in favour of one Venkitachala Iyer. The balance outstanding, amounting to Rs. 210/- was paid by the plaintiff, by his borrowing under a promissory note Ext. A 44 dated the 23rd March, 1953, from the 4th respondent. Item 10 relates to a promissory note Ext. A 36 dated the 20th October, 1949, executed by the plaintiff in favour of one Seetharama Vadhyar, the 11th respondent, for Rs. 500/- the amount under which was utilised for payment under a previous promissory note Ext. A 27 dated the 28th December, 1946.

(3.) Thus it will be seen, that items 3 and 10 were kept alive by acknowledgments made by the plaintiff before the suit was filed, items 2 and 7 debts were discharged by the plaintiff by raising funds by way of loan to him subsequent to the institution of the suit, and item 6 was renewed before the date of the suit. Learned counsel relied for his contention, that the undivided share of the first defendant must be ascertained as on the date of the mortgage, on Chinnu Pillai v. Kalimuthu Chetti (21 MLJ 246), by which a full bench of the Madras High Court held that the alienee of the interest of an undivided coparcener in a joint Hindu family takes the coparcener's interest as it stood on the date of the alienation. The decision was on the question whether the undivided share mortgaged was affected by a subsequent birth in their family. On this point, there is no need to go behind the law which is summarised thus by Mulla on Hindu Law, 12th edition, page 395, Para.261(5):