POLAVARAPU LINGAYYA (DIED) Vs. VUPUTURI PUNNAYYA

JUDGEMENT

(1.) The rule of Hindu law which makes a son, liable for his father's debts, provided they ".have not been incurred for illegal or immoral purposes has been discussed in innumerable cases in the Courts of India and many of the cases have been carried to the Privy Council This appeal calls for a further discussion of the rule in order to settle a conflict of opinion in this Court with regard to its application.

(2.) In 1917 the first and second respondents with their father Lingayya constituted an undivided Hindu family. On the 22nd June, 1917, Lingayya purporting to act for his sons as well as himself, sold to the appellant for Rs. 1,350 land belonging to the family. The area covered by the deed was 6.34 acres. On the 19 July, 1917, the father died. On the 1 December, 1924, the first and second respondents filed in the District Munsif's Court a suit for a decree setting aside the sale to the appellant. They pleaded that their father was insane at the time of the transaction, that no consideration had passed and that there was no necessity for the sale. The District Munsif held that the father was sane and that consideration had passed, but that there was no necessity for the sale so far as the family was concerned. Consequently he declared the transfer to be invalid to the extent of two-thirds. On appeal the Subordinate Judge of Bapatla concurred in the decision of the District Munsif and the land was then partitioned between the first and second respondents,and the appellant under the decree of the Subordinate Court. On the 5 December, 1934, the appellant filed the present suit to recover a proportionate part of the purchase price. He claimed that he was entitled to a decree for Rs. 1,478, being two-thirds of the Rs. 1,350 with interest, on the ground that the pious obligation rule applied and that the vendor's sons were liable to the extent of the family property which had come into their hands. He also claimed that the first and second respondents were in possession, of properties belonging to their father personally and were liable as the representatives of his estate. The District Munsif considered that the pious obligation rule did not apply in such circumstances and dismissed the suit. The Subordinate Judge was of the same opinion and the present appeal is from the decree of the Subordinate Judge dismissing the appeal from the decision of the District Munsif.

(3.) The appeal has been placed before a Full Bench because of the conflict of opinion to be found in the judgments of this Court in Raman Panditham V/s. Satha Cudumban and Srinivasa Aiyangar V/s. Kuppuswami Aiyangar (1920) I.L.R. 44 Mad. 801. In the first of these two cases the facts were very similar to the facts in the case now before the Court In 1894, the father of the defendants sold certain family properties to the plaintiff. The father died in 1904 and in the following year his sons sued the plaintiff for possession of their shares on the ground that the sale was not binding on them. It was held that the sale was unlawful so far as they were concerned and as their shares amounted to live-sixths of the whole ft was set aside to this extent. The vendee then, sued the sons to recover five-sixths of the purchase consideration, basing his claim on the pious obligation rule, and Seshagiri Aiyar and Napier, JJ., held that the claim was well founded. In the second of the two cases a sen during the lifetime of his father sued for partition of the family estate and also asked that certain alienations of family property which his father had made should be set aside. The Court was called upon to decide merely whether the son was entitled to a decree for his share in the family properties without being required to refund the consideration paid to his father by the alienees. It was held by Wallis, C.J., and Seshagiri Aiyar, J., that the son was entitled to recover his share without any obligation to refund being imposed upon him. If the judgments had stopped there the present controversy would probably have not arisen, but both Wallis, C.J., and Seshagiri Aiyar, J., went beyond the immediate question and the Court has now to consider whether their further observations can be accepted. There exists an important distinction between that case and the present one. There the question was whether the sons were entitled in a suit for partition filed by them against their father to have unlawful alienations made by him set aside unconditionally. Here the question is whether the sons can in a suit by the vendee be compelled by reason of their personal law to discharge a liability incurred by their father, namely a liability to refund a proportionate share of the purchase consideration. The liability to the vendee is the father's liability and until the transaction has been set aside the vendee is not in a position to invoke the pious obligation rule and if the father meets the vendee's claim the question of the application of the rule can, never arise.