KUMARAPPA CHETTIAR Vs. RAMANA GOUNDAR

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the appellant for-recovery of a sum of Rs. 6,200 with interest on the foot of a promissory note executed by the first defendant in favour of the appellant herein. The first defendant is the father. Defendants 2 and 3 are his sons. Defendants 2 and 3 and their father were members of a joint Hindu family. On 7th February, 1952 the first defendant executed a promissory note for Rs. 3,650 in favour of the plaintiff. On 1st July, 1953, the first defendant executed a settlement deed in favour of his minor sons of the entire estate. He did not provide any property or make any arrangement to discharge-the promissory note debt. Subsequent to the execution of the settlement, on 14th June, 1954, the father executed another promissory note for a sum of Rs. 6,200 which, according to him, was made up of Rs. 2,036 received in cash and Rs. 4,615 due on earlier promissory note. The plaintiff gave a notice on 15th June, 1955 calling upon the first defendant to pay the amount due and payable in respect of the promissory note for Rs. 6,200. Subsequently the first defendant filed an insolvency petition I.P. No. 60 of 1956 on the file of the Sub-Court, Coimbatore. In the schedule to his application he showed his assets as nil. In this I.P. No. 60 of 1956 the present plaintiff was a party. He contested the application that he should not be adjudicated insolvent but in spite of the objection the first defendant was adjudicated insolvent. Then the first defendant filed an application for discharge. Here again the plaintiff was given notice and he contested the same. But nonetheless the first defendant was given a discharge on nth September, 1957.

(2.) Even before the discharge of the first defendant in the insolvency proceedings the plaintiff has filed the present suit against both the father and the defendants 2 and 3, his sons on the foot of the promissory note executed by the father, the first defendant' for a sum of Rs. 6,200. The plaintiff's case is that even though the father is discharged, defendants 2 and 3, the sons of the first defendant, being members of the Hindu joint family are liable to pay this debt. The defence to the suit by the sens, that is defendants 2 and 3, is that once the liability due and payable by their father to the plaintiff was discharged in the insolvency proceedings they are not bound in law by the debt of their father. It is on these proceedings that the parties went to trial. The Courts below dismissed the suit, so far as defendants 2 and 3 are concerned, since it was found that they were not bound in law to pay the debt due and payable by their father, the first defendant. It is against this judgment and decree the plaintiff has preferred this Second Appeal.

(3.) In this appeal the learned Counsel for the appellant contended before me that mere discharge in insolvency proceedings would not save defendants 2 and 3 from the liability of their father. He cited S. Subbarao v. Narasimka Rao, 1965 AIR(AP) 285 , which is more or less similar to the facts of the present case. In that case the father executed a promissory note in favour of the plaintiff and obtained a decree against him. Subsequent to the filing of the suit the father was adjudicated insolvent and a composition in the insolvency proceedings was passed wherein it was declared that 3 annas in the rupee should be paid to the creditors. When the plaintiff, who instituted the suit before the insolvency proceedings and obtained a decree against the father only, was taking execution proceedings against the sons, it was contended by the sons that since they had become divided from their father, they were not in law liable to pay the decree amount. But when the matter came finally to the High Court, it was held that the composition or scheme which had been arrived at in insolvency proceedings of the father did not reduce the debt or extinguish it in so far as the sons were concerned and that the sons were liable to pay the entire debt. There is some force in the contention urged by the learned Counsel for the appellant in view of the above decision.. But my attention has been invited to the decision in Narayana v. Veerappa,1917 31 MadLJ 386where it was observed at page 584, as follows: