VAITHILINGA NAICKER Vs. VIVEKANANDA REDDIAR

JUDGEMENT

(1.) 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 under the mortgage. Defendants 2 and 3 contended that the mortgage was not binding on them as it was tainted with illegality and immorality and 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.

(2.) THE learned counsel for the plaintiff-appellant contended that even if 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 v. Bhubneshwar Prasad Narain Singh and others 1and Polavarapu Lingayya and others v. Vuppitturi Punnaya and others 2 .

(3.) 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 benefits, 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 hind 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 will certainly bind the son's interest in 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.