LINGBHAT TIPPANBHAT JOSHI Vs. PARAPPA MALLAPPA GANIGER

JUDGEMENT

(1.) AN interesting question of Hindu law arises in these two appeals, whether the sons are liable by reason of their pious obligation to pay the father's debt incurred as a surety for payment o? money, out of their interest in the joint family properties.

(2.) DEFENDANT 4 is the father of plaintiffs 1 and 2. He had stood surety for the repayment of the debt due by defendant 3, the debtor, to defendant 2, the creditor. He had executed a surety bond for repayment of the debt due by defendant 3 to defendant 2. Defendant 3 failed and neglected to pay the debt due by him to defendant 2 and defendant 2 filed a suit, being suit No. 223 of 1938 against defendant 3, the principal debtor, and defendant 4, the surety. A decree was obtained by defendant 2 in that suit and he applied for execution of the decree against defendant 4 by darkhast No. 383 of 1941. In execution of that decree, the suit lands being the joint family properties belonging to the joint Hindu family constituted by plaintiffs 1 and 2 and defendant 4 were attached. The auction sale was held on 19-2-1943, and defendant 2 purchased the suit lands. Defendant 2 obtained possession of the suit lands on 31-3-1945. Two suits were filed by the parties, each against the other. Suit No. 244 of 1945 was filed by defendant 2 and his tenant to obtain a perpetual injunction restraining plaintiffs 1 and 2 from interfering with their possession and enjoyment of the suit lands. Suit No. 309 of 1945 was filed by plaintiffs 1 and 2 against defendant 2 and his tenant, their father defendant 4, and the debtor defendant 3, for a perpetual injunction restraining defendants l and 2 from interfering with their possession and enjoyment of the suit lands. Both these suits were tried together, a common question of law and fact arising therein, and the trial Court came to the conclusion that the auction sale was not binding on plaintiffs 1 and 2, that plaintiffs 1 and 2 were in possession of the suit lands and granted an injunction against defendants 1 and 2. The appeal Court reversed this decision holding that the auction sale was binding on plaintiffs 1 and 2 and that they were not in possession of the suit lands. The appeal Court thus dismissed the suit of plaintiffs 1 and 2. An appeal was filed by plaintiffs 1 and 2 against this decision of the appeal Court. The appeal which was filed from the decision of the appeal Court in suit No. 309 of 1945 was S. A. No. 776 of 1948 and the appeal which was filed from the decision of the appeal Court in Suit No. 244 of 1945 was S. A. No. 847 of 1948. Both these second appeals were heard together again for the same reason that a common question of law and fact arose in both of them.

(3.) THESE second appeals came on for hearing before Dixit J. sitting singly and in so far as he thought that certain observations of their Lordships of the Privy Council in Kesar Chand v. Uttamchand, 72 I. A. 165 at pp. 173, 174 : (A. I. R. (32) 1945 P. C. 91) were too wide and were calculated to effect a departure from what had thitherto been known to be the true position in law, he referred these appeals to a Division Bench. These appeals have now come on for hearing before us. 3a. Up to the time that the decision in Kesar Chand v. Uttam Chand, 72 I. A. 165 : (A. I. R. (32) 1945 P. C. 91) was pronounced by their Lordships of the Privy Council the law in regard to the surety's debts due by the father had been well settled. The position in law has been summarised in Sir Dinshah Mulla's Hindu Law, 10th Edn. , p. 382, S. 298. It was laid down that :