SARWAN AND OTHERS Vs. KUNJI LAL

JUDGEMENT

(1.) LEARNED counsel for the appellants in this second appeal contends that unlike a son the grandsons of Khuman deceased, are not liable for a debt contracted by Khuman as surety unless it is proved that consideration was received by the grandfather for accepting, the suretyship. This distinction between the liability of a son and that of a grandson was made in Narayan v. Venkatacharya,, 28 Bom. 408 : (6 Bom L.R. 434). This decision is noted in Mulla's Hindu Law without any comment upon it. In Gour's Hindu Code (Edn. 4) an opinion is expressed at p. 515 that this decision is not correct. In view of the decision of the Privy Council in Masitulla v. Damodar Prasad,, 53 I.A. 204 : (A.I.R. 1926 P.C. 105) which lays down that under Mitakshara law the liability of the sons, grandsons and great grandsons is co -extensive, this Bombay Court decision to the extent that it lays down a different rule for the sons and grandsons is regarded by Mr. S.V. Gupta in his Hindu Law (1947 Edn.) at p. 738 to have been overruled.

(2.) IN Mahabirprasad v. Sri Narayan,, A.I.R. 1918 pat. 345 : (3 pat. L.J. 396) and in Balkriskna Sahai v. Syam Sunder Sahai, A.I.R. 1920 Pat. 201 : (56 I.C. 962), the Patna High Court expressed the opinion that a son and a grandson are equally liable for the payment of the surety debts. But in both the cases it was only the question of son's liability which was involved and the opinion about the law regarding the grandson's liability must be considered as obiter. In Lyallpur Bank Ltd. v. Mehr Chand,, A.I.R. 1934 pesh. 132 : (153 I.C. 78), Almond J.C. followed Narayan v. Venkatacharya,, 28 Bom. 408 :, (6 Bom. L.R. 434) and observed that in the Privy Council case Masitullah v. Damodar Prasad, A.I.R. 1926 P.C. 105 : (63 I.A. 204), the question was not one of surety debt, and so the general remarks of the Privy Council about the coextensive nature of the liability of the son and grandson cannot be applied to the case of surety debt. The position thus comes down to this : that there are only two reported cases bearing, directly on the point. The Pashawar decision only follows the reported ruling of the Bombay High Court, and with respect to the learned Judge, it is difficult to find any convincing reasoning in the observations of Chandavarkar J. who delivered the Divisional Bench judgment in Narayan v. Venkatacharya,, 28 Bom. 408 : (6 Bom. L.R. 434). He merely says at p. 411 that

(3.) AS remarked by Sulaiman C.J. and Rachhapal Singh J. in Dwarka Das v. Kishen Das, : 55 ALL. 675 : (A.I.R. 1933 ALL. 587),