R. KRISHNASWAMI IYENGAR Vs. THIAGARAJA PILLAI AND OTHERS

JUDGEMENT

(1.) THIS Second Appeal raises an interesting question of Hindu Law relating to the pious obligation of the son to discharge the debts of his father. One Balasubramania Pillai and his three brothers, defendants 7 to 9, in the suit of which this second appeal arises, formed members of a joint Hindu family. On 21 -10 -1921, under the original of Ex. A -2, there was partition among the four brothers by metes and bounds of all the family properties except an extent of 1 acre 82 cents of Nanja land bearing S. F. No. 580 situated in Vangal village, Karur Taluk, and separate possession was taken by the four brothers. The particular item of Nanja land was set apart for maintenance of their mother Meenakshi Ammal for her lifetime, and the partition deed provided that on the death of Meenakshi Ammal, the four brothers would take 1/4th share each in the property. In effect, the four branches had a vested remainder in this item of property as tenants -in -common, the item being subject to the life estate of Meenakshi Ammal.

(2.) IN this case, one thing is settled that the debt in question was one which the son was bound to discharge from out of his share in the joint family property, the decree in the suit having been obtained against the father and son. It is now well settled that the pious obligation of the son to pay the debts of his father exists, whether the father is alive or dead. It is open to the father during his lifetime, to convey joint family property including the interest of his son, to pay off antecedent debts not incurred for family necessity or benefit, provided the debts are not tainted with immorality. A creditor may institute a suit against the father, and, in execution of the decree, put up for sale the entire family property that is, the father's interest as well as the son's interest in the property. At his option, the creditor may make the sons parties to his suit on the debt due by the father and obtain adjudication from court that the debt would bind the sons also. In Sidheshwar v. Bhubaneshwar, : AIR 1953 SC 487 at p. 490, the Supreme Court observes:

(3.) LEARNED counsel refers to the observations of Bhashyam Ayyangar, J. in Periasami Mudaliar v. Seetha Rama Chettiar,, ILR (1904) Mad 243 (FB) that the whole of the joint family property in the hands of the son must be held liable to satisfy the debt imposed upon the father by the judgment, as a solemn debt of record, quite independently of the original cause of action or alleged debt on which the suit against the father had been brought. Counsel relied on Periaswami v. Vaidhilingam Pillai, ( : 47 Mad LW 60 = AIR 1937 Mad 718) where the binding character of the mortgage in suit, as against the interest of the sons in the mortgaged property arose for consideration. The major part of the consideration for the mortgage went in discharge of a decree obtained against the father, the mortgagee being directed to pay off the decree -holder. The decree -holder - had, in the first instance, impleaded the son also in the suit; but subsequently he withdrew his claim against the son before the decree.