K R SUBRAMANIA AIYAR Vs. SABAPATHI AIYAR

JUDGEMENT

(1.) My general views on the subject of the pious obligation of the son to pay such debts of his father as are vyavaharika are to be found in several reported cases. So 1 content myself on this occasion with a summary statement of those propositions which I conceive to be established law and which lead up to the exact point which we are called upon to decide.

(2.) So far as I am aware, the obligation is a peculiar feature of Hindu law, and is not to be found in any other organized system of jurisprudence in the world. The obligation is based on a religious doctrine which I should imagine not to be regarded as tenable now-a-days by educated Hindus, even the most orthodox. Under the old Hindu law, the liability was a personal one resting on the son and doubtless did not operate upon him until after the father's death. A series of Privy Council decisions culminating in Brij Narain V/s. Matigal Prasad (1923) LR 51 IA 129 ; ILR 46 A 95 : 46 MLJ 23 (PC) have both extended and limited the old law. It has been extended in that the son's share of the undivided family property is made liable in execution of a decree given against the father during the latter's lifetime; and also in that the son can be impleaded jointly with the father in order that the question whether the debt was or was not vyavaharika may be settled in the suit and not left for discussion in the execution proceedings. It has been limited in that the son's liability has for many years been confined to his share of the joint family property.

(3.) So far I think we are in the domain of reasonably settled law. But the question was bound to arise and did arise : What is to be the application of these principles to a case where a partition is effected between father and son after the father has contracted the suit debt, and the property consequently is divested of its character of joint family property and becomes the individual property of the father and son respectively, but where no provision is made in the partition for the discharge of the father's debt? It is said in several of the Madras cases that if the partition was a sham, a mere device to defeat those creditors who would otherwise be entitled to satisfy themselves out of the joint family property, the creditors rights are not affected when the appropriate steps have been taken to set the partition aside. We have not been referred to any actual decision on the point, but I think we may assume that the view expressed is right for the simple reason that the effect of a determination that the act purporting to divest the property of its character as joint family property is to be set aside as a sham transaction is to declare that the property has never in truth lost its original character of joint family property. But what is to happen if, as in this case, the partition was honest in the sense defined by Ramesam, J., in Jagannatha Rao V/s. Viswesam (1924) ILR 47 M 621 at 626 : 46 MLJ 590, viz., that enough property was assigned to the father to satisfy the claims of his personal creditors? The point first came to a head in Krishnasami Konan V/s. Ramaswami Aiyar (1899) ILR 22 M 519 : 9 ML J 197, where it was held that a decree obtained against the father alone could not be executed against the share of the son which had come to him in a subsequent partition. That decision has not been questioned so far as I know and it has stood for nearly 30 years and doubtless many titles to property are now founded upon it, so that even if I thought it wrongly decided I should not venture to disturb it. Next in order of date came the decision in Ramachandra Padayachi V/s. Kondayya Chetti (1901) ILR 24 M 555. At first sight it appears to be a direct authority in favour of the respondent, but it clearly is not, because the debt there was not a personal debt of the father, but a debt incurred by him as manager of a Hindu joint family and obviously binding on the joint family property as it stood at the date of the debt, whatever subsequent dispositions of it were made. No question of the pious obligation of the son did or could arise. But the case is undoubtedly significant for a further reason, viz., that the ground of distinction from Krishnasami Konan V/s. Ramaswami Aiyar (1899) ILR 22 M 519 : 9 MLJ 197 was taken that whereas in Krishnasami Konan v. Ramaswami Aiyar (1899) ILR 22 M 519 : 9 MLJ 197 the father alone was made a party to the suit, in Ramachandra Padayachi V/s. Kondayya Chetti (1901) ILR 24 M 555 the son had also been impleaded and judgment had gone against him.