KILARU KOTAYYA Vs. POLAVARAPU DURGAYYA

JUDGEMENT

(1.) The 2nd defendant purchased certain property from the 1st defendant, the father of the plaintiffs, the father and sons belonging to a joint Hindu family. The 1st defendant had instituted a suit previously by which he sought to set aside the alienation on the ground of fraud, undue influence and want of consideration. This Court held that the alienation could not be set aside, but though the consideration of Rs. 800 had not been originally paid by the purchaser, yet in as much as he undertook to pay that amount the previous suit was dismissed. The plaintiffs were not parties to that suit and no question of necessity was considered or decided by this Court. In fact that was not a question seriously pressed at the trial in that suit. The present suit has been brought by the sons in order to set aside that very sale and the plaintiffs have obtained a decree to that effect.

(2.) It has not been proved that the sale was made for purposes binding on the family. The question that is now raised before us by Mr. Prakasam appearing on behalf of the purchaser is that the plaintiffs should not be allowed to have a decree so far as their 2/3rds share is concerned without being directed to pay a like proportion of the amount which has been paid as consideration for the sale, that is to say, he asks us to treat the consideration which he ought to get refunded to him, as a debt of the 1st defendant which it is the pious obligation of the plaintiffs to repay. He drew our attention in support of this contention to a passage in the judgment of Spencer, J., in (S.A. No. 602 of 1912) Subbayya Mudaliar v. Thulasi Mndaliar (1914) M.W.N.16. But no authorities are cited there in support of such a proposition. On the other hand it is clear from the judgment of Sadasiva Iyer, J., in the same case that in his opinion a purchaser in similar circumstances was not entitled to any charge for the consideration or any portion of it, that is, In a case where the sale was held not to be binding on the share of the son. In so holding he followed a ruling of a division bench of this Court in Virabhadra Gowdu v. Guruvenkata Charlu (1898) I.L.R. 22 Mad. 312 which again seems to be in accord with other decisions. I am inclined to follow the ruling in Virabhadra Gowd v. Guru Venkatacharlu (1899) I.L.R. 22 M. 312 and the view of the law laid down by Sadasiva Iyer, J. in Sub-bayya Mudaliar v. Thulasi Mudaliar (1914) M.W.N 16, The consideration of Rs. 800 was paid for the sale of the property and no question of debt could arise until at least the sale is set aside. Whether it could even then be said to be a debt which the son would be under an obligation to pay within the meaning of Hindu Law may be open to question. In any case the 2nd defendant is not entitled to any charge on the sons share for any portion of the consideration of a sale which was not for purposes binding on the family. The learned Vakil for the respondent has drawn our attention to a passage in a recent ruling of the Privy Council in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 89 All. 437 : 33 M.L.J 14 where it is stated that the question of pious obligation of a son to pay his father s debt does not arise until after the father s life time. This passage was considered in a decision of a Bench of this Court in Peda Venkan-na v. Sreenivasa Deekshatalu (1917) I.L.R. 41 Mad. 138 : 33 M.L.J. 519 and there it is stated that their Lordships of the Privy Council could not, by this statement, have intended to modify the law as laid down in a long series of decisions as regards the right of a creditor to enforce a debt borrowed by the father both against the father and the son. It is not necessary, however, to discuss this point any further in this case as I think that the ruling in Virabhadra Gowd v. Guru Venkata charlu (1899) I.L.R. 22 M. 312 is decisive of the question raised by the appellant. Whether the 2nd defendant will be entitled to sue the father and the sons for the consideration which has failed in a separate suit afterwards is not a question on which we need express any opinion at present.

(3.) The second point urged by Mr. Prakasam is that the decree in the previous suit to which I have already alluded operates as resjudicata. I think it is rightly pointed out by Mr. Venkatrama Iyer that the father could not as plaintiff in that suit get the sale set aside on the ground that there was no necessity for his own act. I think that that is a sufficient answer to this argument.