VINJANAMPATI PEDA VENKANNA Vs. VADLAMANNATI SREENIVASA DEEKSHATULU

JUDGEMENT

(1.) The question in this Second Appeal is whether a son can be made liable, during his father s life-time, as held by the District Judge, on a promissory note executed by his father after partition in renewal of a note executed by the father before partition. One of the contentions raised by Mr. Parthasarathy for the appellant is that since the recent decision of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh (1917) L.R. 441 I.A. 126 payment of the father s debts cannot be enforced by suit against the sons during the father s life-time. This is a most important question because, if the contention is right, the recent decision involves the overruling of what has long been treated in this and other High Courts as a settled rule of every day application, and it is therefore incumbent upon us to satisfy ourselves that this result is really involved in the recent decision.

(2.) Now there are two distinct and closely connected things, one, the father s power to bind the sons shares by alienations during his life-time for debts not incurred for necessary purposes and not tainted with immorality, and the other, the creditor s remedies by suit in respect of such debts against the sons shares; and this distinction is observed in the well- known passage of Lord Hobhouse s judgment in Mussamut Nanomi Babufasin v. Modun Mohun (1985) L.R. 13 I.A. 1 : I.L.R. 13 C. 21, which is quoted in the recent decision. That decision relates to the first question, viz., whether the father s power of alienation to satisfy the class of debts already mentioned could only be exercised where the debt was antecedent or extended to alienations for present debts as well, and does not of itself affect the other question as to the extent of the creditor s remedies by suit against the sons shares. It is said however that the reasoning of the judgment is inconsistent with the Indian rulings as to the creditors remedies against the son during the father s life-time, and the passage on which most reliance is placed is as follows: "While the father, however, remains in life, the attempt to affect the sons and grandsons shares in the property in respect merely of their pious obligation to pay off their father s debts, and not in respect of the debt having been truly incurred for the interest of the estate itself, which they with their father jointly own, must fail; and the simplest of all reasons may be assigned for this, namely, that before the father s death he may pay off the debt, or after his death there may be ample personal estate belonging to the father himself out of which the debt may be discharged. In short, responsibility to meet the father s debts is one thing, and the validity of a mortgage over the joint estate is quite another thing." Now it may be said that the reasoning in this passage applies equally whether the debt for which the alienation is made by the father is an antecedent debt or a present debt and that it involves a departure from the decisions in Girdharee Lall v. Kantoo hall (1874) L.R. 1 I.A. 321. Suraj Bunsi Koer v. Sheo Proshad Singh (1879)L.R. 6,I.A. 88 : I.L.R. 5 C. 148, Mussamat Nanomi Babufasin v. Modun Mohun (1985) L.R. 13 I.A. 1 : I.L.R. 13 C. 21 and other decisions of their Lordships in which the father s right to alienate for antecedent debts was rested on the pious obligations of the sons to pay them. Their Lordships, however, considered that the rule as to alienations for an antecedent debt was too firmly established to be disturbed, and treated it as an exception from a general and sound principle not to be extended and to be very carefully guarded. They proceeded to say that much, if not all, the law upon the subject had arisen from the necessity of protecting the rights of third persons, say the purchasers of the property who have taken their title for onerous consideration and in good faith, and quoted with approval a passage from the judgment of Sir John Stanley, C.J. which thus interpreted the observations in Suraj Bunsi Koer v. Sheo Proshad Singh (1879) L.R 6 I.A. 88, page 101. They then set out the well-known passage from Lord Hobhouse s judgment in Mussammat Nanomi Babuasin v. Modun Mohun (1885) L.R.13 I.A. 1 which contains the express statement that the sons cannot set up their rights against the remedies of the creditors for debts not tainted with immorality and observed that it lent no countenance to the idea that the joint family estate could be effectively sold or charged except where the sale or charge has been made in order to discharge an obligation not only antecedently incurred, but Incurred wholly apart from the ownership of the joint estate or the security afforded or supposed to be available by such joint estate. It is important to note that their Lordships, perhaps advisedly, did not say here that the joint family estate can not be sold by the Court in satisfaction of an antecedent debt, or comment on the very general words as to the extent of the creditor s remedies to which so much importance has been attached by all the Courts in India. They then observed that they had set forth the limits to the exception because they formed a guide to the settlement of the conflict of authority in India on the subject of antecedent debt; and after mentioning the cases in which the conflict arose they again adopted as the true rule the statement of Sir John Stanley as to alienation by the father for an antecedent debt.

(3.) There is no reference to the subject of the creditor s right by suit to bring the son s interest to sale for an antecedent debt, or to the Indian decisions affirming that right; and the question is whether these decisions which proceed upon the authority of their Lordships earlier decisions should now be overruled because, it is said the reasoning in the recent judgment is in favour of allowing the sons to resist a sale of their shares. As to this, Lord Halsbury s well- known observations in Quinn v. Leathem (1901) A.C. 495, 506, that a case is only an authority for what it decides, and not for every proposition that may seem to follow logically from, it appears to me to apply with special force.... That the Indian Courts have interpreted the earlier decisions ending with Mussamat Nanomi Babufasin v. Modun Mohun (1885) L.R.13 I.A. 1, in which last case it is stated that the sons cannot set up their rights against his creditors remedies for their debts if not tainted with immorality, as authorising suits for such debts against the son as well as father may be seen, as regards Calcutta, from the Full Bench decision in Luchmun Dass v. Giridhur Chowdhry (1880) I.L.R. 5 C.855 and the judgment of Mookerjee and Holmwood, JJ., in Kishun Pershad Chowdhry v. Tipan Pershad Singh (1907) I.L.R. 34 Cal. 735 where the other decisions are dealt with. The point was expressly decided in Jagabhai Lalubhai v. Vijbhu-Kandas Jagjivandas (1896) I.L.R. 11 Bom. 37, after the decision in Mussamat Nanomi Babuasin v. Madun Mohun (1885) L.R. 13 I.A. I and that decision is followed in Umed Hathising v. Goman Bhaiji (1895)I.L.R.20 Bom. 385. In Allahabad there is an express decision of a Full Bench in Karan Singh v. Bhup Singh (1904) I.L.R. 27 All. 16 and.this decision to which Sir John Stanley, C.J., was a party was referred to by him in his judgment in Chandra Deo Singh v. Mata Prdsad (1909) I.L.R. 31 All. 176 which is repeatedly referred to with approval by their Lordships in the recent case.