RAMASWAMI SASTRIGAL Vs. RSUBRAMANIA AYYAR

JUDGEMENT

(1.) The lower Courts have taken the view that an application by the father for conciliation of his debt under the Madras Debt Conciliation Act is a bar to the suit not only as regards the father who is the applicant but also his sons who did not go before the Board with any such application for conciliation. This view is based upon Section 19 of the Debt Conciliation Act.

(2.) Much could be said in its favour if the debt was a debt of the father alone for which the sons were also liable under the Hindu law theory of pious obligation as then their liability would be entirely dependent and derivative. But where as in this case the debt was borrowed for family necessity by the father in his capacity as managing member of the family, the sons are liable equally with the father for the debt not because there is any pious obligation on their part to discharge the debt borrowed by the father but because as members of the joint family the debt borrowed for necessity is as much binding against them as against the borrower. It is true that the liability of the sons is limited to the joint family assets in their hands and they are not personally liable as the father is. But it is equally true that the debt is as much theirs as that of the father, and it is so because in the eye of the law a debt borrowed for family necessity is binding against them of its own force apart from the fact that the father created the debt. To such a case, the principle that the son alone cannot be sued during the father's lifetime will not in my opinion apply. Further, there has been a partition in the family since the debt was created and the father and sons are now divided members as stated by the District Munsiff.

(3.) I am not able to see any reason why when the facts are as stated, the mere circumstance that the father has applied to the Board for a conciliation of this particular debt should be regarded as a bar to the entertainment of the present suit. " The matter pending before the Board "--to use the language of Section 19--is the matter of the debt due by father. It does not relate to the liability of the sons for the debt, though the debt may be one and the same for which the father and the sons are all equally liable. It is not pretended that if three independent persons unrelated to each other as members of a joint Hindu family borrowed a debt and one of them alone went before the Board with a conciliation application a suit could not be filed by the creditor against the other two. There is no distinction between such a case and the present one because, as pointed out already, the obligation of the sons arose by reason of the fact that the debt was contracted for family necessity and not merely because they are under a pious duty to discharge their father's debt.