RAMCHANDRA RANGO KULKARNI Vs. ANNAJI VENKATESH MANNUR

JUDGEMENT

(1.) THE facts out of which this appeal arises are simple and undisputed. THE plaintiff's father Venkatesh had a cloth shop at Bijapur. THE defendant's father Rango owed Rs. 968-4-0 to that shop for cloth purchased by him when he and the defendant were joint. THE plaintiff obtained a personal decree for that amount against Rango alone in suit No.220 of 1933 on February 6, 1934. Before that suit was filed, the defendant and his father Rango had separated by an award decree dated February 9, 1932. Under that decree the burden of paying off half the family debts was thrown on the defendant. But the defendant was not made a party to the plaintiff's suit, suit No.220 of 1933. Hence when the plaintiff sought to execute the decree against the defendant also in darkhast No.244 of 1937, the defendant contended that he was not bound by the decree which had been passed against his father alone after he was separated from him. That contention was upheld on the strength of the ruling in Surajmal Deoram v. Motiram Kalu (1939) 41 Bom. L.R. 1177 and the darkhast was dismissed. Hence on September 3, 1938, the plaintiff filed this suit against the defendant to recover from him Rs. 600 with costs and future interest. On that day the amount due under the decree against his father in suit No.220 of 1933 was nearly Rs. 1,200, including Rs. 103-12-8 for the costs awarded in the decree and future interest. But the plaintiff claimed only Rs. 600 as the defendant had undertaken to pay only half the family debts under the terms of the award decree for partition. THE defendant contended that, the plaintiff having already obtained a decree against his father, a second suit to recover the same debt was not maintainable and that the plaintiff's claim was time-barred. THE trial Court held that such a suit based on the decree against the father was maintainable, that the period of limitation was six years under Article 120 of the first schedule to the Indian Limitation Act, 1908, and that the suit was in time. THE plaintiff's claim was, therefore, decreed, and the decree was confirmed in appeal by the learned District Judge.

(2.) THE plaintiff's claim in the trial Court that as the defendant had undertaken to pay half the family debt by the partition decree, he was liable to the plaintiff for the amount claimed in this suit is not now pressed, since the plaintiff is not entitled to get the benefit of a decree to which he was not a party.

(3.) IN other words, as the son's obligation to pay his father's debt is not an obligation incurred jointly with his father, the creditor's cause of action is not a single cause of action which is exhausted upon the decree being obtained against one of them only. Hence, although the creditor may implead the son in the suit against the father and get one decree against both of them, his omitting to do so does not deprive him of his subsequent remedy against the son. This case was cited with approval by, B.J. Wadia J. in Mulchand v. Jairamdas (1934) 37 Bom. L.R. 288, 297. He further observed on the same page (p. 297) : The liability of the son is, however, not a personal liability. It is limited to sons who are joint with their father, and it is limited only to their interests in the coparcenary property. It subsists so long us the liability of the father subsists. It would cease on the debt becoming time-barred against the father. It is not a joint or a joint and several liability in the sense in which those terms are understood in English law. At the same, time, a suit cannot be filed against the son alone. (The italics are mine)