MARIA PILLAI Vs. MUTHUKUMARAN

JUDGEMENT

(1.) The appellants in this second appeal are the sons of one Kumaraswami Pillai and are aggrieved at the joint family properties in their hands being proceeded against for recovering the decree amount in O. S. No. 60 of 1932 on the file of the District Munsif's Court, Kallakurichi. That suit was filed against Kumaraswami Pillai, the father of the appellants, by one Ayya Pillai, an immediate endorsee of a promissory note executed in favour of Kumaraswami Pillai by some person and endorsed by him for valuable consideration. The trial Court dismissed that suit; but, on appeal, a decree was passed, in 1937, in favour of the plaintiff. By that time, Kumaraswami had died. So the decree was passed against the assets of the deceased Kumaraswami Pillai in the hands of Page 1 of 3 Maria Pillai and Anr. vs. Muthukumaran and Ors. (01.04.1949 - MADHC) his sons and grandsons, defendants 2 to 6 in the suit. The decree was sought to be executed by attaching and bringing to sale the joint family properties in the hands of those defendants. The appellants, the two sons of Kumaraswami Pillai, felt aggrieved by this. They filed an objection against such execution. The District Munsif of Kallakurichi dismissed the petition and held that the properties were liable to be proceeded against, They went in appeal to the District Judge of South Arcot who too held that the properties were liable to be proceeded against and that in fact the decision in prior proceedings would operate as res judicata. He dismissed the appeal with costs. Hence this second appeal.

(2.) The learned advocate for the appellants has urged three main contentions before me. I may add that none of these contentions seems to have been urged before the lower appellate Court; but, as they are pure arguments in law, I have heard and decided them. The first point urged was that the debt in question was an Avyavaharika one, being in the nature of a surety debt, and that under the Privy Council ruling in Kesarchand v. Uttamchand, 1945-2 M. L. J. 160 : (A. I. R. (32) 1945 P. C. 91), the theory of pious obligation would not apply to this case. I have looked into that ruling; that has no application to the facts of this case. Their Lordships have remarked that, to make the ancestral property liable, there must, in reality, be a debt due by the father, and that, unless the security bond was executed by a surety for a debt due by himself, the doctrine of pious obligation of the sons to pay their father's debts cannot make the transaction binding on ancestral property. That is undoubtedly so, and has long been the law. But, here, there is no question of any security bond or surety debt, Kumaraswami Pillai endorsed a promissory note executed in his favour in favour of Ayya Pillai, the plaintiff in O. S. No. 60 of 1932, after receiving valuable consideration from him. As regards Ayya Pillai, he was not a mere surety, but a person obliged to make good the amount in case the title he warranted by endorsing the promissory note proved to be a broken reed, as in this case, where the promissory note was held to be unsupported by consideration.

(3.) The second contention was that the decree, as it stood, had only been granted against the assets of Kumaraswami Pillai in the hands of the appellants and others, and that, as Kumaraswami Pillai, had no self-acquired properties of his own, but only ancestral properties, which descended by survivorship to these appellants and others, both the lower Courts went wrong in allowing execution to proceed against such ancestral properties. The argument is untenable. It has been held by a Bench of this Court, in Venkatasami v. Tatareddi, 1946-2 M. L. J. 361: (A. I. R. (34) 1947 Mad. 162) that, in cases like these, where there is a pious obligation on the part of sons and grandsons, a decree can be passed against them and can be executed not only against the father's separate property but also against the joint family properties of his in their hands. Indeed, it was remarked there :