Pious Obligation

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MANU/MH/0152/1937
Equivalent Citation: AIR1938Bom295, (1938)40BOMLR381, 175Ind. Cas.939
IN THE HIGH COURT OF BOMBAY
First Appeal No. 351 of 1934
Decided On: 18.10.1937
Gulamkhaja Mahamad Ibrahim
Vs.
Shivlal Hiralal
Hon'ble Judges:
Divatia and Sen, JJ.
Subject: Family
Subject: Property
Case Note:
Hindu law-Debts-Father's debts-Son's liability to pay-Mortgage debt of father
consisting of antecedent debts and cash advance-Antecedent debts could be enforced
against whole property-Cash advance not enforceable under mortgage against sons
who were minors at the date of mortgage-Money decree for cash advance against
minors-Minors' interest in joint family property liable under the claim-Period of
limitation for such liability of sons-Indian Limitation Act (IX of 1908), Article 116.
Under Hindu law the interest of sons in joint family property is liable to be
proceeded against for the liabilities incurred in a new business started by the father,
on the ground of the pious obligation of the sons to pay their father's debts.
Under Hindu law, the pious obligation of the sons to pay their father's debts under a
mortgage, part of which consists of antecedent debts and part of which consists of
cash advance, is divisible into two parts. The mortgage with regard to the
antecedent debts operates on the minor sons' interest in the property ; as regards
the cash advance the minor sons are not bound by the debt as a mortgage debt but
their interest in the property is liable for that debt by virtue of the fact that it is a
debt of the father and the sons' liability is not as a mortgage liability but as one to
have their interest in the property proceeded against in execution of a money decree
against the father. The liability of the sons may fall under three heads : first, where
the suit is brought to enforce the mortgage against the father and the sons; secondly,
where the suit is brought against the father alone; and thirdly, where the suit is
brought against the sons after the father's death.
Manupatra Information Solutions Pvt. Ltd.
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Jagadishprasad v. Ambashankar (1933) 36 Bom. L. R. 625 followed.

Benares Bank Ltd. v. Hari Narain (1932) I.L.R. 54 All. 564 : s.c. 34 Bom. L.R. 1079,
P.C explained.
The father of defendants, some of whom were minors and all of whom lived jointly
with their father, passed on January 28, 1926, a mortgage deed of the joint family
property in favour of plaintiff for a consideration part of which consisted of
antecedent debts of the father and another part of it consisted of cash advance. The
debt was contracted to start a new business consisting of a liquor shop. The plaintiff
having sued on the mortgage in 1932, after the death of the father, the defendants
contended that they were not liable to pay the debt :Held:
(1) That the interest of defendant No, 1, who was a major at the date of the mortgage, in
the joint family property was answerable to the claim under the mortgage ;
(2) That so far as the interest of defendants Nos. 2 to 4, who were minors, was concerned,
the plaintiff was entitled to obtain a mortgage decree for antecedent debts contracted by
the father to start a new business and also to a money decree for the cash advance against
them which could be enforced by sale of the entire joint family property, unless the suit
against the sons for a money decree was barred by limitation :
Jagadish prasad v. Ambashankar (1933) 36 Bom. L. R. 625 followed :
(3) That the deed of mortgage being registered, the period of limitation for the personal
liability of the father under the mortgage was six years as provided by Article 116 of the
Indian Limitation Act, 1908, and that the period of limitation against the sons was also
six years from the date of the mortgage deed :
Periasami Mudaiiar v. Seetharama Chetliar (1903) I.L.R. 27 Mad. 243, F.B. Narsingh
Misra v. Lalji Misra (1901) I.L.R. 23 All. 206 and Brijnandan Singh v. Bidya Prasad
Singh (1915) I.L.R. 42 Cal. 1068 referred to.
JUDGMENT
Divatia, J.
1. This is a plaintiff's appeal in a suit to recover Rs. 7,600 with costs and future interest
from the defendants who are all brothers. The lower Court has passed a decree against
defendant No. 1 but it has dismissed the suit against defendants Nos. 2 to 4 on the ground
that those defendants were minors at the date when the transaction in suit took place
between the plaintiff and the defendants' father and therefore cannot be bound by that
transaction, and in this appeal we are concerned with the rejection of the plaintiff's claim
against them.
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2. The facts shortly are that the defendants' father Hiralal passed a registered mortgagedeed in the plaintiff's favour on January 28, 1926. The consideration for that mortgage
consisted of two parts. The first part consisted of Rs. 1,309-12-0 which were due as
principal and interest on a promissory note dated January 13, 1926, passed by Hiralal in
the plaintiff's favour. The second part consisted of Rs. 2,490-4-0 which were paid in cash
before the Sub-Registrar at the time when the mortgage-deed was presented for
registration. In all, the consideration for the mortgage-deed was Rs. 3,800 and the suit has
been brought to recover that amount with interest at one and a half per cent, per mensem
which was limited on the principle of damduppat to the same amount as principal, and the
total amount sued for was, therefore, Rs. 7,600.
3. Now, so far as the case against defendant No. 1 is concerned, there is no difficulty
because there is no appeal before us against the decree passed against him. With regard to
defendants Nos. 2 to 4, the lower Court has dismissed the suit against them on the ground
that the debts for which the mortgage-deed was passed by Hiralal were the debts of a new
business consisting of a liquor shop started by Hiralal for the first time, and that although
he and his sons were members of a joint family, the minor sons, viz. defendants Nos. 2 to
4, would not be bound by those debts concerning the new business started by him. For
that view the lower Court relied on the decision of the Privy Council in the case of
Benares Bank, Ltd. v. Hati Narain I.L.R. (1932) All. 564 : 34 Bom. L.R. 1079 According
to the lower Court, the previous decision of the Bombay High Court in the case of
Annabhat Shankarbhat v. Skivappa Dundappa I.L.R. (1928) Bom. 376 : 30 Bom. L.R.
539. wherein it was laid down that it was the pious duty of a son to pay the trade debts of
his father out of ancestral property even though the trade was started by the father, had
been overruled by the abovementioned Privy Council decision, which laid down that the
manager of a joint Hindu family had no authority to impose upon the minor members the
risk and liability of a new business started by him and that it did not make any difference
whether the manager was the father.
4. Now, in this appeal it has been contended on behalf of the appellant that the lower
Court was wrong in dismissing the suit against defendants Nos. 2 to 4 and in taking the
Privy Council decision to mean that in no case can a decree be passed against the sons for
the debt of their father concerning a new business started by him. It is contended that the
Privy Council did not mean to lay down that the sons would not be liable; in the case of a
new business even on the ground of their pious obligation to pay their father's debts if
they were neither illegal nor immoral. We think there is force in this contention. The
decision of the Privy Council in Benares Bank, Ltd. v. Hari Narain I.L.R. (1932) All.
564 : 34 Bom. L. R. 1079. expressly proceeds on the principle that the minor members of
a joint family would not be bound by the new business started by the manager or the
father, because the new business would mean a sort of partnership to which all the
members must be partners and that implies a contractual obligation which a minor cannot
incur. It appears that an argument had been urged before their Lordships that the minor
sons would be bound in execution on the principle enunciated in the second of the five
propositions laid down by the Board in Brij Narain v. Mangla Prasad
MANU/PR/0020/1923 viz. that there was a pious obligation of the sons to pay their
father's debt, but their Lordships observed that that point was not taken in the Courts
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below, and as it might involve questions of fact, it was not open to the bank to raise it at
that stage. In our opinion, this case, therefore, cannot be taken to decide that in the case
of a new business started by the father, a minor son would not be liable in execution even
on the ground of the pious obligation of a Hindu son to pay his father's debts. After this
Privy Council case, there has been a recent decision of our Court in the case of
Jagadishprasad v. Ambashankar (1933) 36 Bom. L. R. 625. Therein the effect of the
Benares Bank case has been discussed, and it is laid down that the minor sons' interest
would be bound even in the case of a new business provided the debts were antecedent to
the date of the mortgage executed by the father and sought to be enforced against the
minor sons. We agree with this decision inasmuch as it lays down that the Privy Council
decision in the Benares Bank case cannot be said to have overruled the argument that the
sons' interest would be bound even in the case of a new business started by the father on
the ground of the pious obligation of the sons to pay their father's debts. A, decree was
passed in Jagadishprasad's case in the creditor's favour as against the minor's interest in
the property in so far as the debts under the mortgage-deed executed by his father were
antecedent. It is contended on behalf of the respondents in the present appeal that in that
case a decree was passed against the son only for antecedent debts and that in any case
the sons would be liable for such debts only relating to a new business and not for any
cash advance at the date of the mortgage.
5. The pious obligation of the sons to pay the father's debts under a mortgage, part of
which consisted of antecedent debts and part of which consisted of cash advance, can be
divided into two parts. With regard to the antecedent debts the mortgage would have
effect on the minor sons' interest in the property, but with regard to the; cash advance,
they would not be bound by the debt as a mortgage debt, but their interest in the property
would be liable for that debt by virtue of the fact that it is a debt of the father, and the
sons' liability would not, therefore, be regarded as a mortgage liability but as one to have
their interest in the property proceeded against in execution of a money decree against the
father. Now, this liability of the sons may fall under three classes : firstly, where the suit
is brought to enforce the mortgage against the father and the sons; secondly, where the
suit is brought against the father alone ; and thirdly, where the suit is brought against the
sons after the father's death. The present case falls under the third category. In this case it
appears to us that the mortgagee can obtain a mortgage decree for antecedent debts and a
money decree for the cash advance against the sons which may be enforced by sale of the
entire joint family property, unless the suit against the sons for a money decree is barred
by limitation.
6. It is contended on behalf of the respondents that in the present case even though the
personal liability of the father did exist under the mortgage-deed at the time when the
present suit was brought, the sons' liability did not exist because the suit was brought
more than three years after the debt. In our opinion this argument is not correct. It has
been conceded and rightly conceded that the period of limitation for the personal liability
of the father under the mortgage-deed in this case is six years, and according to the
principle of decided cases, the period of limitation against the father as well as the sons
would be the same. There is some difference of opinion between the High Courts on this
point. According to the Madras High Court, in such cases the contract of the father should
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be regarded as the contract of the sons, and therefore the period of limitation against the
sons would be the same as the period of limitation against the father [Periasami Mudaliar
v. Seetharama Chettiar I.L.R. (1903) Mad. 243], whereas, according to the Calcutta and
Allahabad rulings, whatever may be the period of limitation against the father, the period
of limitation against the sons would be six years under the residuary Article 120 of the
Indian Limitation Act [Narsingh Misra v. Lalji Misra I.L.R. (1901) AIL 206 Brijnandan
Singh v. Bidya Prasad Singh. I.L.R. (1915) Cal. 1068] But that difference of the opinion
does not affect the present cage, because it is rightly conceded that the period of
limitation in the present case far the personal liability of the father under the registered
mortgage-deed is six years under Article 116 of the Indian Limitation Act. Therefore, in
any case, the period of limitation against the sons would also be six years from the date of
the mortgage-deed. It is thus clear that the suit against the sons, treating this suit as a suit
for money against the sons, is within limitation.
7. That being so, we think that according to the principle of decided cases the liability of
the defendants would stand on this footing : So far as defendant No. 1 who was a major is
concerned, a mortgage-decree can be passed against him, but so far as defendants Nos. 2
to 4 are concerned, a money decree for the cash advance could be passed against them
which could be enforced by sale of the entire joint family property. With regard to the
antecedent debts under the mortgage-deed amounting to Rs. 1,309-12-0, under the
principle of the ruling in Jagdishprasad v. Ambashmkar, the sons' interest in the property
would be liable to be sold under the mortgage decree for this amount. But with regard to
the cash advance of Rs. 2,490-4-0 no mortgage-decree can be passed against them, but
the mortgagee would be at liberty to proceed against them by way of execution of a
money decree if the sale proceeds after the mortgaged property is sold do not satisfy the
mortgagee's claim. It is contended on behalf of the respondents that such money decree
cannot be passed against these defendants because the plaintiff has asked for only a
mortgage-decree against the defendants, and in Jagadishprasad v. Ambashankar no decree
was passed for the cash advance. I is true that in that case no decree had been passed for
the cash advance, but there does not appear to be any argument on that point, and we see
no reason why the sons' interest in the property is not liable to be proceeded against in
execution by way of a money decree for the cash advance on the principle of the pious
obligation of the son to pay the father's debts. With regard to the pleadings the plaintiff
has stated in the relief Clause (c) that if it appeared that the proceeds of the sale were
insufficient to satisfy the plaintiff's dues, leave may be reserved to the plaintiff to apply
for a decree for the balance. This would include a relief against these defendants for a
money decree, and although it is true that for this money claim for the cash advance no
decree can be passed as a mortgage-decree for sale of the property, leave could be
reserved to the plaintiff to proceed against the interest of these defendants in execution if
the sale proceeds under the mortgage-decree prove insufficient to satisfy the mortgagee's
claim.
8. The result therefore, is that the decree of the lower Court in so far as defendants Nos. 2
to 4 are concerned is set aside, and it is directed that the interest of all defendants in the
suit property is liable to be sold in execution of the money decree for the amount of Rs.
1,309-12-0 with interest at the rate of twelve per cent, after the mortgage and eighteen per
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cent, before the mortgage from the date of the promissory note. With regard to the cash
advance, the interest of defendant No. 1 in the property should be sold in execution of the
mortgage decree, but the interest of the ether defendants cannot be sold at present, but
leave is reserved to the plaintiff to apply for execution against them in respect of this
claim if the sale proceeds prove insufficient to satisfy the mortgagee's claim. The right of
the mortgagee to proceed against the son's interest in the property in respect of the cash
advance, with respect to which liberty is reserved, applies not simply to the mortgaged
property but to any property which these defendants have got from their father, but it
does not apply to their self-acquired or separate property.
9. We think the plaintiff-mortgagee is entitled to have costs of the appeal as well as costs
in the lower Court.
Sen, J.
10. I agree.
MANU/GJ/0248/1985
Equivalent Citation: (1986)2GLR1019
IN THE HIGH COURT OF GUJARAT
Himatlal Jivabhai Patel and Ors.
Vs.
Food Corporation of India and Ors.
Hon'ble Judges:
M.B. Shah, J.
Subject: Family
JUDGMENT
M.B. Shah, J.
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1. Being aggrieved and dissatisfied by the judgment and order dated January 16, 1982
passed by the Civil Judge, Senior Division, Narol in Civil Miscellaneous Application No.
292 of 1977, the original applicants have filed this appeal. Applicant No. 1 is the son of
Respondents No. 2 and brother of Respondent No. 3. Applicants Nos. 2 and 4 to 6 are the
wife, sons and daughter of applicant No. 1. Applicant No. 3 is the other son of respondent
No. 2. Applicants No. 7 to 10 are the sons and daughter of respondent No. 3. Applicant
No. 11 is the mother of applicant No. 1 and respondent No. 2 and wife of respondent No.
2.
2. Respondent No. 1, Food Corporation of India had kept on rent a property belonging to
respondents Nos. 2 and 3 for storing food-grains and particularly wheat. A criminal
complaint was filed by the Food Corporation against respondents Nos. 2 and 3 for theft of
the wheat on large scale. It was their contention that after committing theft the wheat
bags were sold by respondents Nos. 2 and 3. In the criminal case respondents Nos. 2 and
3 were convicted and their conviction was upheld finally by the Supreme Court.
Thereafter respondent No. 1 filed Special Civil Suit No. 33 of 1970 for recovering
damages against respondents Nos. 2 and 3 for wrongful conversion of the wheat
belonging to the Food Corporation of India.
3. In the suit, decree for Rs. 2,07,000/- with costs and interest was passed on March 22,
1977. Against the said decree, First Appeal No. 1224 of 1977 is filed by respondents Nos.
2 and 3 and Cross First Appeal No. 924 of 1977 is filed by the Food Corporation of India.
Both the appeals are pending before this Court. It is an admitted fact that the Court has
not stayed execution of the decree.
4. Respondent No. 1, Food Corporation had, therefore, filed Execution Application No.
20 of 1977 on August 1, 1977. In the Execution Application, an application for
attachment of the agricultural lands belonging to respondents Nos. 2 and 3 was filed. The
Joint Civil Judge, Senior Division Narol, by his order dated August 19, 1977 had passed
an order of attachment of the agricultural lands. Thereafter the applicants had filed the
aforesaid Miscellaneous Civil Application No. 292 of 1977 under Order 21, Rule 58 of
the Civil Procedure Code for raising attachment on the ground that the attached
properties were undivided Hindu joint family properties and, therefore, they were not
liable to be attached. It was further contended that applicants 2, 7 and 11 were entitled to
have a right of maintenance out of the said properties and, therefore, the said properties
were not liable to be attached.
5. The learned Judge, after recording evidence, dismissed the said objection application
by holding that under Hindu Law it is the pious obligation of the sons to pay the debt of
their father unless it is contracted for an immoral or an illegal purpose and, therefore, the
entire joint Hindu family property can be attached and sold for the debt of their father. He
further held that as the decree was passed against respondents Nos. 2 and 3 for the civil
wrong committed by them, it cannot be said that the debt of respondents 2 and 3 was for
any illegal or immoral purpose. With regard to block No. 179 he held that there was no
evidence on record to show that it was joint family property.
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6. At the time of hearing of this appeal, learned advocate for the appellant submitted that
the finding of the learned Judge that the debt contracted by respondent No. 2 was not for
illegal or immoral purpose is on the face of it illegal and that there is no pious obligation
of the applicant No. 1 to pay the said debt and, therefore, joint Hindu family properties
cannot be attached. He further submitted that the learned Judge materially erred in
holding that block No. 179 was not the property of appellant No. 1 Himatlal Jivabhai.
According to his submission all the other properties were joint Hindu family properties
and there was no evidence on record to the contrary to show that the property standing in
the name of respondent No. 2 Jivabhai Madhabhai was his self-acquired property.
7. At the outset it must be stated that the finding of the learned Judge that the debt
contracted by respondents Nos. 2 and 3 cannot be said to be for immoral or illegal
purpose is erroneous and it cannot be sustained. Admittedly the Food Corporation of
India has filed suit for recovering money from respondents Nos. 2 and 3 on the ground
that they have committed criminal offence of theft of wheat bags stored in the godown of
rice mill and thereby for wrongful conversion of the goods belonging to the Food
Corporation of India they were liable to pay the price of 2326 bags of wheat. In a
civilised society, by any moral standard, commission of theft cannot be considered as
lawful and a debt arising out of it as Vyavaharika debt. This debt, therefore, cannot be
said to be for legal purpose.
8. In the case of S.M. Jakati v. S.M. Borkar MANU/SC/0148/1958 : [1959]1SCR1384 the
Supreme Court has considered the concept of Avyavaharika debt and the pious obligation
of the son with regard to the other debts of the father. In paragraphs 9 and 10 the Court
has relied upon the decision of the Privy Council and has held that if the debt is not
lawful or just or what is not admissible under law or under normal conditions it would be
Avyavaharika debt. It would be worthwhile to reproduce paragraphs 9 and 10 of the said
Judgment.
(9) The first question for decisions whether the debt of the father was Avyavaharika. This
term has been variously translated as being that which is not lawful' or what is not just or
what is not admissible under the law or under normal conditions. Colebrooke translated it
as "a debt for a cause repugnant to good morals".There is another track of decision which
has translated it as meaning "a debt which is not supported as valid by legal arguments".
The Judicial Committee of the Privy Council in Hem Raj v. Khem Chand
MANU/PR/0016/1943 held that the translation of the term as given by Colebrooke makes
the nearest approach to the true conception of the term used in the 'Smrithis' texts and
may well be taken to represent its correct meaning and that it did not admit of a more
precise definition.
(10) In Toshanpal Singh v. District Judge Agra MANU/PR/0046/1934 the Judicial
Committee held that drawings of monies for unauthorised purposes, which amounted to
criminal breach of trust under Section 405 of the Indian Penal Code, were not binding on
the sons, but a civil debt arising on account of the receipt of monies by the father which
were not accounted for could not be termed 'Avyavaharika'.
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9. As early as in 1897 the Calcutta High Court, in the case of Pariman Das v. Bhattu
Mahton reported in XXIV I.L.R. (1897) Cal 672, where a money decree was passed for
damages for theft or misappropriation of paddy, had held that the debt was tainted with
illegality or immorality and the sons were not under a pious duty to pay the debt. The
Division Bench of the Bombay High Court, in the case of Bai Mani v. Usafali reported in
XXXIII B.L.R. 130, has held that the son is not liable to pay the debt of his father when
such debt consists of money misappropriated by the father. It has further been held that if
the liability arises directly from a criminal act, i. e. an act for which the father may or
may not have been successfully prosecuted but which can be presumed or proved to be
criminal on the evidence on the record, the son would not be bound to pay the father's
debt. A son, though under a pious obligation to pay the lawful debts of his father, is not
bound to pay debts due to certain specific causes specified in the texts, and in particular is
not bound to pay such debts as are termed Avyavaharika. An Avyavaharika debt is
considered to be equivalent to "such debt as his father as a decent and respectable man
ought not to have incurred". In the case of Widya Wanti v. Jai Dayal A.I.R. 1932 Lah 541,
the Division Bench of the Lahore High Court has held that the sons of a Hindu father are
not liable to pay his debts which are the result of a criminal act viz. criminal breach of
trust, because such debts are Avyavaharika debts.
10. In this view of the matter, the finding of the learned Judge that the appellant No. 1
who is the son of respondent No. 2 is liable to pay the decretal amount cannot be
sustained as the\ said debt arises out of a criminal act of theft committed by respondents 2
and 3. By no standard such debt can be said to be a debt incurred by a decent and
respectable man.
11. However, the learned advocate for respondent No. 1, Food Corporation of India,
submitted that there is no evidence to show that the attached properties were properties
belonging to a joint Hindu family of respondent No. 2 and that the appellants have not led
necessary evidence on record to prove that the properties which stand in the name of
respondent No. 1 are joint Hindu family properties. He submitted that presuming that
appellants and respondent Nos. 2 and 3 constituted joint Hindu family, yet no
presumption can be raised that the joint family is possessed of joint properties or that any
property is joint family property. Mr. Vin, learned advocate appearing on behalf of the
appellants also agrees that no such presumption can be raised that a particular property is
joint Hindu family property. But according to his submission, the evidence of appellant
No. 1 clearly established that the attached properties are joint Hindu family properties
and there is no evidence on record to falsify this say of appellant No. 1.
12. Now in this case the evidence which has been led on behalf of the appellants is that of
appellant No. 1 Himatlal Jivabhai and respondent No. 2, father of appellant No. 1. In his
deposition Himatlal has stated that Jivabhai was managing the properties of the family
and the attached properties were of Joint Hindu family. It was his say that block No. 179
belongs to him as he had purchased it by paying Rs. 3500/- to respondent No. 2 in 1965.
In his cross-examination in paragraphs 8 and 9 he admits that Jivabhai, respondent No. 2
got the said property under the Tenancy Act and that he had never filed any application
for mutating the said block No. 179 in his name. He was serving as a teacher at
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Ahmedabad. In paragraph 10 of the deposition he says that he was not knowing what
were the properties of deceased Madhabhai (his grandfather) when he expired. Jivabhai
Madhabhai in his deposition states that the disputed properties are not of his ownership
but he is the co-owner (Sahiyari). It is his say that block No. 44 of village Laxmipura is
owned by Babarbhai Jivanlal Khamar and other persons; Block No. 50 of Laxmipura
belongs to Shankerbhai Nathabhai and himself as co-owners; other lands mentioned in
the application were not of his sole ownership. It is his say that the applicants were not
residing with him. In the cross-examination he admits that block No. 44 of Laxmipura
belongs to him and other two persons. With regard to Block No. 179 also he admits that
he got it under the Tenancy Act. In his evidence Jivabhai has nowhere stated that
appellants and respondents 2 and 3 are the members of the joint Hindu family and that the
properties mentioned in the application are joint Hindu family properties. He has merely
stated that the properties are of co-ownership. Therefore, from this evidence by no stretch
of imagination it can be said that respondent No. 2 is the manager of the joint Hindu
family properties and that the properties are joint Hindu family properties. With regard to
the evidence of Himatlal also the same is the position because Himatlal has admitted that
he was not knowing how much properties were left by Madhabhai that is, his grandfather
when he expired. He has not pointed out any nucleus to prove that his father had acquired
property from the joint Hindu family funds. The appellants or respondents 2 and 3 have
not led evidence to prove that the family was possessed of some property with the income
of which other properties were acquired by respondent No. 2. There is no evidence to
show that there was some ancestral property and by the sale proceeds of the said property
respondent No. 2 had acquired any of the properties. In this view of the matter it can be
said that there is no evidence on record to show that the attached properties are joint
Hindu family properties.
13. With regard to Block No. 179, it is an admitted fact that respondent No. 2 got it under
the provisions of the Tenancy Act. Therefore, by no stretch of imagination it can be said
that it was joint Hindu family property. On the contrary, it is the contention of appellant
No. 1 that the said block belongs to him exclusively because he had paid Rs. 3500/- to
respondent No. 2 to purchase the said property. In this set of circumstances it is not the
case of the appellants or respondents 2 and 3 that the said block belongs to joint Hindu
family of respondent No. 2. With regard to block Nos. 44 and 50 of village Laxmipura,
the same is the position. Respondent No. 2, Jivabhai, in his deposition admits that block
No. 44 is of the co-ownership of himself and Babubhai Jivanlal Khamar and other
persons while block No. 50 is of his co-ownership along with Shankarbhai Nathabhai.
Jivabhai was not cross-examined by the appellants. Appellants never suggested to him
that the said lands are of joint Hindu family.
14. However, the learned advocate for the appellants submitted that in the crossexamination of Himatlal it is suggested by the learned advocate for respondent No. 1 that
the rice mill wherein the Food Corporation has stored the wheat was of joint Hindu
family and, therefore, there is implied admission on the part of the Food Corporation of
India that all the properties are of joint Hindu family. In my view this contention of the
learned advocate deserves no further discussion. It is totally misconceived and requires to
be rejected. As such no such inference can be drawn from cross-examination by the
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learned advocate for respondent No. 1. In the cross-examination in paragraph 6 it is the

say of appellant No. 1 that as a member of the joint Hindu family he was having share in
the rice mill wherein the Food Corporation had stored the wheat. In paragraph 7 it is his
say that in the village the joint Hindu family was having houses and agricultural lands.
From this it cannot be held that the attached properties are joint Hindu family properties.
There is nothing on record to show that the attached properties were either ancestral
properties or were acquired out of joint Hindu family property fund.
15. In the above view of the matter, the learned judge has rightly rejected the application
filed by the appellants.
In the result, the appeal is dismissed with costs.
Equivalent Citation: AIR1954Kant93, AIR1954Mys93, ILR1954KAR70,
(1954)32MysLJ33
IN THE HIGH COURT OF MYSORE
FULL BENCH
Appeal No. 36/1949-50
Hutcha Thimmegowda and Anr.
Vs.
Dyavamma and Ors.
Hon'ble Judges:
Medapa, C.J., Venkata Ramaiya and Vasudevamurthy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: V. Krishna Murthy, Adv.
For Respondents/Defendant: R.V. Sreenivasaiya, Adv.
Subject: Family
Acts/Rules/Orders:
Hindu Law; Constitution of India - Articles 141 and 261(3); Code of Civil Procedure,
1908; Hindu Law Women's Rights Act, 1933; Transfer of Property Act - Section 53A;
Mysore High Court (Amendment) Act
Page 12
Cases Referred:
Pannalal v. Naraini, AIR 1952 SC 170, 1952 SCR 544; Sahu Ram Chandra v. Bhup
Singh, AIR 1917 PC 61, 44 Ind App 126 (PC); Brij Narain v. Mangal Prasad, AIR 1924
PC 50, 51 Ind App 129 (PC); Sidheshwar v. Bhubneshwar, AIR 1953 SC 487, 1953 SCJ
700; Shanmukam v. Nachu Ammal, AIR 1937 Mad 140, 169 Ind Cas 26; Urugejjegowda
v. Central Co-operative Bank Ltd., 15 Mys LJ 230; Narayana Rao v. Karibasappa, AIR
1951 Mys 126, ILR (1951) Mys 414; Masit Ullah v. Damudor Prasad, AIR 1926 PC 105,
53 Ind App 204 (PC); Girdharee Lall v. Kantoo Lall, 1 Ind App 321, 14 Beng LR 187
(PC); Suraj Bunsi Koer v. Sheo Persad Singh, 6 Ind App 88, 5 Cal 148 (PC); Periasami
Mudaliar v. Seetharama Chettiar, 27 Mad 243, 14 Mad LJ 84; Ponnappa Pillai v.
Pappuvayyangar, 4 Mad 1; Channabasavegowda v. Rangegowda, AIR 1951 Mys 38, ILR
(1951) Mys 259; Hiralal v. Puran Chand, AIR 1949 All 685, ILR (1951) 1 All 62;
Arumugam Chetty v. Muthu Koundan, AIR 1919 Mad 75, 42 Mad 711; Venkanna v.
Sreenivasa, AIR 1919 Mad 1175, 41 Mad 136; Mathura Misra v. Rajkumar Misra, AIR
1921 Pat 447, 62 Ind Cas 132; Hari Prasad Singha v. Sourendra Mohan, AIR 1922 Pat
450, 1 Pat 506; Nanjaiya v. Chowdegowda, 14 Mys LJ 510; Bank of Mysore Ltd.,
Bangalore City v. Mayakonda Veerappa, 18 Mys LJ 113; Rudrappa Setty v. Rangojee
Rao, 18 mys LJ 133
Case Note:
Family - Obligation of Son - Five Plaintiffs who were mother, two minor daughters
and two minor sons respectively of Defendant 6 brought a suit for a declaration that
certain sales effected by Defendant 6 in favour of other Defendants were not binding
on their shares in joint family properties - Subordinate Judge granted a decree in
favour of Plaintiffs - Hence, this Appeal - Whether, pious obligation of a son to
discharge his father's debt arose during lifetime of his father - Held, Defendant 3
had let in no evidence to show that prior debts received by Defendant 6 were
incurred or utilised for any purposes of necessity or benefit of family - Further,
properties in question were ancestral and there was no proof of necessity or benefit
for either sale - It was also observed that said consideration had been applied for
discharge of prior debts of Defendant 6 - Moreover, there was no proof of balance of
amount having been required or utilised for any purpose binding on family - Thus,
an alienation of family property by way of mortgage or sale by father was valid if it
be for legal necessity or for discharge of an antecedent debt and liability of sons was
subject to law of limitation and debt not being shown to be illegal or immoral Hence, Plaintiffs could not be given a share in item 2 and Defendant 3 was directed
to pay them a part of purchase money which was not for purposes binding on minor
Plaintiffs 4 and 5 - Appeal disposed of.
Ratio Decidendi
"A son shall be bound to answer call to repay debts incurred by his father, if such
liability arose to mitigate obligation of family."
JUDGMENT
Page 13
Medapa, C.J.
1. The facts of the case which led up to
this appeal have been set out in full in
the judgment of the trial court as also in
the judgment of my learned brother
Justice Sri B. Vasudevamurthy which I
have had the advantage of perusing; they
need not therefore be reiterated. This
appeal was directed to be placed before a
Pull Bench as its disposal involved a
consideration, rather a reconsideration of
the views of this High Court on a very
important point of Hindu Law, regarding
which a definite view had been taken
from a long time. The necessity for the
reconsideration arose on account of the
decision of the Supreme Court reported
in -- 'pannalal v. Mt. Narainl'
MANU/SC/0075/1952 : [1952]1SCR544
(A). The important point of Hindu Law
referred to above is whether the pious
obligation of a son to discharge his
father's debt arises during the lifetime of
his father. The point, as al-ready stated,
was well settled in Mysore. The views of
the High Courts outside the State were
also equally definite and well settled and
the importance which this matter has
now assumed, is due to the fact that the
view of our High Court is diametrically
opposed to the view held in the other
High Courts.
2. A marked and distinctive feature of
Hindu Law is that a son acquires by birth
a right in the joint family property. That
right is not affected by any transfer
effected by any other member of the
joint family including the manager, even
though the manager happens to be a
father unless the transfer is for family
benefit or necessity when the son is a
minor and, if a major, unless he consents
to the said transfer. Another distinctive
feature of Hindu Law is that a son is
under a pious - obligation to discharge

the debts of his father, not incurred for
illegal or immoral purposes. This
obligation on the son to discharge the
debt of his father arose, according to
orthodox Hindu Law, only after the
death of the father or where the father
was as good as dead on account of the
circumstances which will be referred to
later. This was also the view taken in the
early decisions of the High Courts, in
what was prior to the Constitution
known as British India, and also of the
Privy Council, till the latter changed its
view and the High Courts in British
India had to follow and did follow the
lead so given. It will be sufficient to give
the following extract from the
commentary in Mulla's Hindu Law,
10th-Edition, at P. 349 to show the trend
of the view Of these Courts :
"There arose recently a conflict of
opinion whether there was any pious
obligation on the part of the sons to pay
the father's debts in the lifetime of the
father, or whether the obligation arose
for the first time after the father's death.
The conflict arose out of some
observations of the Judicial Committee
in -- 'Sahu Ram Chandra v. Bhup Singh'
AIR 1917 PC 61 (B). Following those
observations, the Allahabad High Court
held that the obligation did not arise
until after the father's death. On the other
hand the Madras and Bombay High
Courts held that the liability arose even
in the father's lifetime, and that the
observations in -- 'Sahu Ram's case, (B)',
were mere obiter dicta and they did not
affect the law as laid down by the
Judicial Committee itself in a long line
of decisions.
Page 14
In a later case, that of -- 'Brij Narain v.

Mangal Prasad' AIR 1924 PC 50 (C),
their Lordships of the Privy Council held
that the observations in -- 'Sahu Ram's
case', referred to above were not
necessary for the decision of the case,
and that the sons were liable for the
father's debts whether the father was
alive or dead when the liability
attached."
father, who contracted the debt or

burdens the estate, is alive or dead."
(4) Antecedent debt means antecedent in

fact as well as in time, that is to say that
the debt must be fully independent and
not part of the transaction impeached;
and
4. The result is that according to the

view of the High Courts outside Mysore,
the interest of a son cannot be proceeded
against, when the father without any
legal necessity or unless in discharge of
an antecedent debt sells a joint family
property or borrows money under a
mortgage deed while the entire interest
of the father as well as that of his son
can be proceeded against in execution of
a decree obtained against the father for
the recovery of an unsecured debt unless
the debt was contracted for illegal or
immoral purposes. This position of the
law gives an unsecured creditor greater
advantage than that given to a secured,
creditor. Conversely it follows that while
the father cannot borrow money
straightway on the security of the
interest of his son except for legal
necessity, he can nevertheless borrow
money without security and later on
effectively mortgage or sell the interest
of his son, on the ground that he is doing
so for discharging an antecedent debt.
(5) The High Court of Mysore has on the
other hand consistently held from 1893,
that is to say for over half a century, that
there is no obligation on the part of the
son to discharge the debts of his father
during the latter's lifetime unless the
debt had been incurred for family benefit
or with the son's consent. This was the
view of the majority of the Judges in the
case reported in -- '10 MysLJ 116 (PB)
(D)'. This view was confirmed by an
unanimous decision of a later Pull Bench
reported in -- '15 Mys CCR 233 (E)'. It
was there held that:
(5) There is no rule that this result is

affected by the question whether the
"It was open to the son to plead that in

the absence of proof that the debt was
3. As pointed out in Mayne's Hindu Law

and Usage, Eleventh Edition, p. 417 :
"On account of conflicting decisions, a
Full Board of the Judicial Committee
examined the whole-subject in -- 'Brij
Narain v. Mangala Prasad, (C)' and Lord
Dunedin laid down the following five
propositions :
(1) The managing member of a joint
undivided estate cannot alienate or
burden the estate qua manager except for
purposes of necessity; but
(2) if he is the father and the other
members are the sons, he may, by
incurring debt, so Zing as it is not for an
immoral purpose, lay the estate open to
be taken in execution proceeding upon a
decree for payment of that debt;
(3) if he purports to burden the estate by
mortgage, then unless that mortgage is to
discharge an antecedent debt, it would
not bind the estate;
Page 15
incurred for the sake of the family, his

interest were not affected by the" sale."
managing the estate and affairs of the

family and the sons are.
There is hardly any doubt that the

ancient texts of 'Hindu Law support the
view taken by our High Court. A fuller
but needlessly lengthy discussion may
conveniently be avoided by inviting a
reference to the judgment of Setlur J. in
the above Full Bench case. The
following extract from west and Buhler's
criticism -on the Privy Council decisions
is apposite :
It is impossible that of the numerous

texts treating of debts contracted for the
family and of the sons' liability as
survivors of their father all should have
omitted to mention their liability during
the father's life, had the liability been
recognized. But the father is regarded as
alone responsible, and alone having
administrative control as the head of an
undivided family ...... The Vyavahara
Mayukha, the chief local authority of
Bombay dwells elaborately on the
debtor's obligations, but says nothing
about any obligation of the sons except
on their father's death or prolonged
absence. The Mitakshara itself in
commenting
on
the
texts
of
Yajnavalkya ....construes them as
imposing a duty only on the father's
death, his absence for twenty years-or on
his imbecility."
"None of the texts...... nor any of the

commentators on them say that a son's
liability for his father's debts arises
during the father's life ...... There are
many texts which imply the contrary.
Vishnu says the sons and grandsons must
pay when the debtor is dead or has been
absent twenty years, that is, when he
may be presumed to be dead, not before.
Manu says simply when the father is
dead. Brihaspati says the sons must pay
even in the father's life but only in cases
in which he is incapable of acquiring
property or retaining it. The exception
here is conclusive as to the rule, at least
as it was understood by the school that
produced this Smriti, which is sacred
everywhere. The same observation
occurs as to Katyayana's text ....... so as
to Narada's text on the subject.
The whole series quoted by Jagannatha
imply a liability only after the father's
natural or civil death or its equivalent,
and so they have invariably understood
by native lawyers reading them with the
context. The case may be stated even
more strongly. There is no text imposing
on sons a liability during their father's
life for debts incurred even for the
benefit of the family except in cases in
which the father is not capable of
6. Mulla's commentary on the point at p.

349 (10th edition) is succinct and
deserves reference:
"It may here be observed that under the
old Hindu Law the liability of the son to
pay the father's debt did not arise until
after the father's-death. Under Hindu
Law as interpreted by the British Courts
the liability exists even in the lifetime of
the father. To this extent the British
Courts have extended the liability of the
son."
7. It will thus be noticed that the view of
our High Court prevailing for over 60
years fortified as it has been by two Full
Bench decisions, is in consonance with
the texts of Hindu Law and that the view
of their Lordships of the Privy Council
has brought about a change in this
Page 16
branch of the law in the rest of India.

The change however cannot be said to
be advantageous as it brings about a
distinction between a secured creditor
and an unsecured creditor, the latter
being placed in a more advantageous
position than the former. The father is
allowed to alienate the property of his
son by merely borrowing money before
alienating, the property of the joint
family. It enables, in a way not
contemplated by Hindu Law, a father to
defeat the rights that a son gets by birth
by intentionally borrowing money and
by that device to ultimately alienate his
son's interest without, the son's consent
even though there was no legal necessity
for the loan.
necessary to reconsider the position in

view of the strong and pertinent
criticisms such as those of West and
Buhler, the long existing view in this
State enunciated in the two Full Bench
decisions of this Court referred to above
has to yield ground to the view
expressed by the Supreme Court based
on what must be taken as well
established law in all the Courts outside
Mysore and which was also the view of
their Lordships of the Privy Council.
9. The decree of the lower Court is
accordingly modified in the manner
indicated by my learned brothers in their
judgments.
Venkata Ramaiya, J.
8. It has been observed in -MANU/SC/0075/1952 : [1952]1SCR544

(A)', that:
"It can now be taken to be fairly well
settled that the pious liability of the son
to pay the debts of his father exists
whether the father is alive or dead."
The law as laid down in this decision
and in -- 'Sidheshwar v. Bhubneshwar'
MANU/SC/0089/1953 : [1954]1SCR177
(F), by their Lordships of the Supreme
Court is binding on us. Article 141 of the
Constitution makes this position doubly
clear. It is besides desirable that the law
applicable to all parts of India is made
uniform as far as possible for more
reasons than one and in Mysore this
need for uniformity has now become
more imperative than even before, as
some parts of what was known as British
India, have as a result of integration of
the States and the creation of new
Provinces, come under the jurisdiction of
this High Court. It follows that unless
and until the Supreme Court thinks it
10. The facts relating to the appeal are

fully stated in the judgment of my
learned brother Vasudevamurthy J. The
controversy is of the familiar type
between purchasers of joint Hindu
family property and the members of the
family about the validity of the sales as
regards those who were not parties to the
sales with the additional feature of the
mother and unmarried daughters of the
vendor having joined his sons in
attacking the sales and claiming shares
in the properties. The claim of the
mothers and daughters rests on the
provisions of Hindu Law Women's
Rights Act (No. 10 of 1933) and that of
the sons of the Law of Mitakshara.
Adopting the considerations applied
hitherto in such cases the learned SubJudge held that the Appellants have
acquired only the intereest of the vendor
in the properties conveyed to them and
granted a decree for partition of the
properties and possession of the shares
due to the mother, daughters and sons
according to law. It is contended for the
Page 17
appellants who are two of the purchasers

that the decision is erroneous as the
principles laid down in former decisions
of this Court on which it is based need
reconsideration and revision. The
contention
raises
questions
of
importance and I shall briefly state my
views about it.
11. The powers of a Hindu father under
the law of Mitakshara to alienate family
property and contract debts binding on
the sons and other members of the
family are discussed in a number of
cases with special reference to the
ancient texts. While it is agreed that
discharge of debt is enjoined as a sacred
duty and that the obligation is cast not
merely on the father but also on the sons
there is divergence of opinion about the
duty of the son concerning this when the
father is alive. The view which has
prevailed in Mysore so far is that:
"the liability of the Hindu son for the
debts of his father (Joes not arise as long
as the debtor himself is alive and is not
so disabled by disease or other physical
disability as not to be able to discharge it
himself or has been absent so long as to
raise a presumption of death."
This was laid down so far back as 1909
by a Full Bench in -- '15 Mys OCR 233
(E)', where the question was whether a
son who was not a party to the suit for
enforcement of a mortgage effected by
the father with respect to ancestral
property can resist the claim of the
purchaser in execution of the decree, for
possession of the property, on the ground
that his interest in the property is not
affected by the sale in the absence of
proof that the debt was incurred for the
sake of the family. That was a case in
which the father was alive when the
liability of the son's share in the property

for recovery of the mortgage debt was
disputed.
For payment of unsecured debts of the
father the accepted rule is that the pious
duty of the sons does not arise when the
father is alive but does arise when he Js
dead, unless the debts are proved to he
illegal or immoral and that family
properties in the possession of the sons
may be proceeded against for recovery
thereof. The obligation extends to the
grandsons for the payment of such debts
of the grand-father and family properties
are similarly liable. See -- '36 Mys HCR
416 (G)'.
There is a qualification of the rule for
payment of debts contracted by the
father mortgaging family property as it is
considered that the liability of the sons
for mortgage debts does not arise by
reason of the death of the father and that
their interest in the property mortgaged
would be liable under the mortgage
whether the father is alive or dead, only
if the debt was incurred for the necessity
or benefit of the family that in the
absence of such necessity or benefit, the
sons' liability arises if the father is dead
and the creditor obtains a personal
decree. It is enough to refer to three
cases concerning this -- each of a separate Division Bench -- '41 Mys HCR 382
(H)' and -- '45 Mys HCR 26 (I)' and -'45 Mys HCR 83 (J)'. In each of these
the mortgagee sought payment of the
money due under a mortgage by the
father of the family properties, and the
sons who were not parties to the
mortgage denied liability of their shares
in the family property for the debt. In the
last case the father was dead when the
suit was filed and in the first two cases
he died after the institution of the suit.
Page 18
As legal necessity or family benefit for

the mortgage or for the prior debts which
it purported to discharge was found to be
wanting, it was held in all the cases that
the shares of the sons in the properties
were exempt from liability under the
mortgage.
As regards pious liability of the sons to
discharge the debt after the father's death
Chad J. in --41 Mys HCR 382 (H)', at p.
389, expressed:
"....a mortgage is an alienation of interest
possessed in the mortgaged property and
as such the doctrine of pious obligation
is not applicable to it; in other words
even if the father is dead it would still be
the duty of the creditor to prove that the
debt was borrowed for legal necessity or
for the benefit of the family."
This view was affirmed in the two later
cases, 'at pp. 26 (I) and 83 (J), of 45 Mys
HCR. But in -- '45 Mys HCR 83 at p. 87
(J)', Reilly C. J. added:
"....If there were a balance left to be
recovered from the father's estate as a
personal debt after his death then no
doubt the pious obligation of his son
would apply to that balance and it could
be recovered from the son's interest in
what had been the joint family property
of himself and his father if the remedy
against him is not time barred."
Another point to be noticed in these and
other cases where family property was
alienated by the father for discharging
debts previously incurred by him is the
emphasis placed on the ascertainment of
the need for such debts.
12. The effect of the decisions of this
Court is:
1. The pious duty of the sons for

payment or the father's debts does not
arise during the lifetime of the father;
2. After death of the father the pious
obligation of the sons arises with respect
to
simple
money
debts
(not
avyavaharika) and not mortgage debts.
3. Interest of the sons in family property
mortgaged by the father for a debt
contracted by him are not liable for
payment of the debt in enforcement of
the mortgage unless the mortgage is
shown to be for legal necessity and for
this it makes no difference whether the
father is dead or alive. But family
properties in the possession of the sons
may be proceeded against, if the father is
dead, in execution of a personal decree
obtained by the mortgagee.
4. Discharge of an antecedent debt by
means of an alienation of family
property effected by the father is not
sufficient by itself to render the
alienation valid. It must be proved that
the prior debts were incurred for the
necessity or benefit of the family or that
the creditor made reasonable inquiry to
be satisfied about the need for the debts.
13. In this case as in others where the
validity of alienations by a Hindu father
of family properties for discharging
debts contracted by him is to be
determined, the decision of the Supreme
Court in -- MANU/SC/0075/1952 :
[1952]1SCR544 (A)', is referred to as
laying down principles at variance with
those summarised above. As Article 141,
Constitution of India states that the law
declared by the Supreme Court shall be
binding on all Courts within the territory
of India, it is necessary to see if the law
applicable to the matters in issue here is
Page 19
enunciated in the case mentioned. The

decision of the Supreme Court relates to
a case in which the suit was filed for
enforcement or a mortgage hut the claim
to a mortgage decree was given up and a
decree was passed by consent for
payment of money by the defendant.
Later on, the defendant died and his sons
who were impleaded as legal
representatives objected to the execution
of the decree against the properties in
their possession on the ground that these
belonged to them absolutely as a result
of the partition between them and their
father. It was held that the amount
payable under the decree was a prepartition debt which the sons were liable
to pay provided it was not illegal or
immoral and no arrangement was made
at the partition for payment of the debt.
In the course of the judgment it is
observed :
statements and which is also relied upon

in -- '41 Mys HCR 382 (H)', the sons
impeached a decree obtained by a
creditor of the father on the foot of a
mortgage. A Full Board of the Privy
Council after reviewing the cases
bearing on the question declared that the
mortgage was binding on the sons as it
was effected in order to pay antecedent
debts due under two older mortgages.
"It can now be taken to be fairly well

whether the father is alive or dead. Thus
it is open to the lather during his lifetime
to effect a transfer of -my joint family
property including the interest of his
sons in the same to pay off an antecedent
debt not incurred for family necessity or
benefit provided it is not tainted with
immorality. According to the strict
Hindu theory the obligation of the sons
to pay the father's debts normally arises
when the father is dead, disabled or
unheard of for a long time. No question
of alienation of the family property by
the father arises in these events although
it is precisely under these circumstances
that the son is obliged to discharge the
debts of his father."
"On the one hand there is the general

rule of the Mitakshara Law that the
manager cannot burden the estate for his
own purposes........ on the other hand
there is the obligation of the son to
discharge his father's debts, based on the
doctrine of pious duty...... It is enough to
say that both principles are firmly
established by long trains of decisions
and it certainly occurs to the view that
the term "antecedent" debt represents a
more or less desperate attempt to
reconcile the conflicting principles."
14. In -- 'AIR 1924 PC 50 (C)', referred

to as supporting some of the above
15. There is provision in the texts for

alienations only in case of distress,
benefit or good of the family,
(Apathkale, Kutumbarthe, Dharmarthe)
and the theory that discharge of
antecedent debts is a justification for the
alienation of family property by the
father seems to have developed as a
corollary to the doctrine of pious
obligation of the sons. As stated in -'AIR 1924 TC 50 (C)':
It is mentioned as an exception to the

general rule, in -- 'AIR 1917 PC 61 (B)'
thus:
"Although the correct and general
principle is that if the debt was not for
the benefit of an estate then the manager
should have no power either of mortgage
or sale of that estate in order to meet
Page 20
such a debt, yet an exception has been

made to cover the case of mortgage or
sale by the father in consideration of an
antecedent debt"; and that it is intended
to protect alienees for onerous
consideration and in good faith."
It is unnecessary to pursue the inquiry as
the point is concluded by the explicit
statement in the judgment of the
Supreme Court that
"There is no question that so long as the
family remains undivided the father is
entitled to alienate for satisfying his own
personal debts not tainted with
immorality the whole of the ancestral
estate."
In -- 'Shanmukam v. Nachu Ammal' AIR
1937 Mad 140 (K) a mortgage of family
property by a junior member of the
family whose father was alive was
challenged by the sons. Varadachariar J.
who delivered the judgment of the
Bench held that the mortgage was
binding on the son's share in the
hypothecated properties to the extent to
which the debts referred to in the
mortgage deed were antecedent debts
although the father was not the manager
and in respect of the balance of the
mortgage amount the plaintiff was
entitled to relief as on a money claim.
The judgment directed that if after the
sale of the father's share in the
hypothecated properties for the full
amount and of the son's share in the
properties for the amount held binding,
the decree amount is not fully realised
the plaintiff was entitled to proceed
against the son's interest in the joint
family properties for the recovery of the
balance.
16. Whether the mortgage is treated as a

transaction of debt as in -- '15 Mys OCR
233 (PB) (E)' or as an alienation as in -'41 Mys HCR 382 (H)' or of both, it is
evident that legal necessity or family
benefit cannot be the sole criterion for
the intersest of the sons in the mortgaged
properties being affected by a
transaction of the father according to
these decisions. Although there was no
question regarding sale in the case
before the Supreme Court the decision
postulates
principles
vital
for
ascertaining the extent and scope of the
authority under the Mitakshara Law of a
Hindu father to deal with family
property and declares that there are no
such limits as are prescribed in the cases
of this Court. In spite of the strict Hindu
theory that the pious duty to discharge
the father's debts springs up after, his
death existence of the duty in the father's
lifetime is stated to be well settled. Cases
in which there are statements to the
contrary cannot be of assistance or be
cited as precedents now whatever may
have been their value in the past and
principles of stare decisis can have no
application to these. The change wrought
by the Constitution in regard to the
finality of the decisions of this Court, the
expansion of jurisdiction of this Court
over areas in which people are
accustomed to the application of
Mitakshara
Law
as
interpreted
differently and need for avoiding
confusion and conflict make it
impossible now for this Court to steer a
lonely course and adhere to opinions
expressed in its former decisions.
The liability of the shares of the sons in
family properties for recovery of the
debt due by the father has been
considered also in a case recently
reported in -- MANU/SC/0089/1953 :
Page 21
[1954]1SCR177 (P)'. The debt in that

case was incurred by the father under a
pronote executed by him and the creditor
in execution of a decree obtained against
the father alone, got the family property
including the intersest of the sons sold.
The question was whether the sale was
effective in conveying the shares ol the
sons to the purchaser when the sons
were not parties to the proceedings. On
the view that the father was a junior
member of the family and as such had no
right of disposition over the intersest of
the sons and could not represent them In
the proceedings the High Court held that
the purchaser in the execution sale was
entitled only to the share of the father.
The Supreme Court declared that this
was not correct and that the purchaser
acquired the intersest in family property
of not merely the father but also of his
sons as it was found from the execution
proceedings that the creditor intended to
attach and sell the interest of the sons as
well and the debt was not shown to be
such as the sons were not liable to pay
under Hindu law. It is stated in the
course of the judgment, as regards the
liability of the sons' share in the property
to be proceeded against for recovery of
the decree debt
"The obligation exists whether the sons
are major or minor or whether the father
is alive or dead. If the debts have been
contracted by the father and they are not
immoral or irreligious the interest of the
sons in the coparcenary property can
always be made liable for such debt.."
It is a special liability created on purely
religious grounds and can only be
enforced against the sons of the father
and no other coparcener. The liability
has therefore its basis entirely on the
relationship between the father and the

son .......
So far as the legal liability of the sons is
concerned as the debts incurred by the
father are not shown to be illegal or
irreligious it must be held under the rule
of Hindu law there is a legal liability on
the part of the sons to discharge their
debts and the creditor can enforce this
liability by attachment and sale of the
sons' interest in the same manner as it
was a personal debt due by them. The
fact that the father was not the karta or
manager of the joint family or that the
family did consist of other coparceners
besides the father and sons does not
affect the liability of the sons in any
way......
Without being a karta he could as a
father completely represent his branch of
the coparcenary consisting of himself
and his sons....''
17. Having regard, to the views
expressed by the Supreme Court and the
approving reference therein to -- 'AIR
1924 PC 50 (C)' and other cases, the
rules governing liability of sons for debts
of the father and alienations of joint
family properties by the father may be
stated as follows:
1. The sons have a pious duty to
discharge the father's debt whether the
father is dead or alive.
2. An alienation of family property by
way ol mortgage or sale by the father is
valid if it be for legal necessity or for
discharge of an ante-cedent debt:
3. If the debt due under a mortgage by
the father is not realised by Kale of the
mortgaged property, the amount left due
Page 22
may be recovered from the shares of the

sons in the family properties:
4. The liability of the sons is however
subject to the law of limitation and the
debt not being shown to be illegal or
immoral.
18. In applying these rules. It is
necessary to bear in mind the importance
of examining whenever discharge of a
debt is relied upon to justify the
alienation, without proof of necessity or
benefit for the family, whether the debt
is really "antecedent" or only set up as a
cover to defraud the family. To constitute
'antecedent debt' according to -- 'Brij
Narain's case (C)' "the debt must be truly
independent and not part of the
transaction Impeached" and as required
in -- 'Sahuram's case (B)' "there must, to
give true effect to the doctrine of
antecedency in time, be also real
dissociation in fact". It may be that in
some cases the family I properties are
subject to the risk of being alienated) by
the father for discharging debts
imprudently contracted by him earlier.
Such instances must, if at all, be as rare
in the case of a father "his natural
relation to his children entitles him to
more than ordinary confidence: his
transactions may be strongly presumed
to be intended for the good of the
family." (Bee pp. 595 and 596 of West
and Euhler's Hindu Law).
19. The result of applying these'
principles to the two sales under Exhibits
III and V in favour of the Appellants
may now be considered. The executant
of both documents is defendant 6, the
son of the 1st plaintiff and father of the
other plaintiffs, and the purpose
mentioned in each is discharge of prior
debts. Admittedly the properties are
ancestral and there is no proof of

necessity or benefit for either sale. The
intersest of the sons can be affected, if at
all, to the extent the purpose mentioned
in the deeds is made out. This is lacking
in the case of Ex. III as there is nothing
more than a bare reference in the deed to
a previous debt. The bulk of the
consideration for Ex. V is however
shown to have been applied for
discharge of prior debts of defendant 6
though there is no proof of the balance
of the amount having been required or
utilised for any purpose binding on the
family. I agree that the decree of the
lower Court is to be modified as stated
by my learned brother.
Vasudevamurthy, J.
20. The five plaintiffs who are the
mother, two minor daughters and two
minor sons respectively of defendant 6
brought a suit for a declaration that
certain sales effected by defendant 6 in
favour of the other defendants are not
binding on their shares in the joint
family properties described in the plaint
schedule and for their shares Being
divided off and delivered to them and for
mesne profits. They pleaded that
defendant 6 had been, extravagant and
had incurred debts and effected
alienations which were neither for legal
necessity nor benefit to the family.
Defendant 5 is the mother of plaintiffs 2
to 5 and defendants 1 and 4 are also
closely related to the family. They were
ex parte and though the alienations in
their favour have been set aside by the
Court below they have not appealed and
their cases do not arise for consideration.
Defendants 2 and 3 contested the
plaintiffs' suit. They pleaded that they
were purchasers from defendant 6 of
Page 23
item 4 and item 2 respectively and that

those alienations v/ere binding on the
plaintiffs as they were made for
discharging earlier debts which had been
incurved by defendant 6 for family
necessity and benefit and for other
similar beneficial purposes. They also
pleaded that neither plaintiff 1, the
mother, nor plaintiffs 2 and 3, the
daughters, were entitled to claim shares
and that as neither of the plaintiffs 4 and
5 were born on the date of the
alienations, they could not question
them. The Subordinate Judge who tried
the suit has held that the sales in favour
of defendants 2 and 3 are not binding on
the plaintiffs find has granted a decree in
favour of the plaintiffs; and defendants 2
and 3 have appealed.
21. The learned Subordinate Judge has
held that plaintiffs 2 and 3 who are
daughters of defendant 6 cannot question
the alienations and that plaintiffs 4 and 5
had been born on 2-11-43 and 28-11-45
and could therefore question the sales in
favour of defendants 2 and 3. These
findings are not seriously questioned
before us. So that we are only concerned
with whether these two sales a;e binding
on the plaintiffs. The sale in favour of
defendant 2 is under Ex. III, a sale-deed
dated 6-12-1944 for Rs. 275/- and is in
respect of item 4. The reason for the
sale, as recited in the sale-deed, was in
order to discharge a prior hypothecation
debt of Rs. 3007- due to one Koppal
Boregowda under the original of Ex. XI.
The original of Ex. XI has not been
produced with an endorsement of
discharge and Koppal Boregowda has
not been examined. In fact defendant 2
examined as D. W. 7 admits that that
debt has not been discharged and that
defendant 6 received the purchase
money himself saying he would
discharge the earlier debt. In these

circumstances the lower Court has
rightly held that that sale has not been
shown as having been made for any
benefit or necessity.
It was urged for the appellants that the
purchaser was not bound to see to the
application to the purchase money but
seeing that the sale was expressly for
discharging an earlier debt and that debt
has admittedly not been discharged it is
difficult to accept that contention which
seems rather extreme on the facts and in
the circumstances of this case. If such an
argument is accepted in this case, the
minors and their other properties may
run the risk of being still subject to the
debt, while the item of property
alienated would have passed out of the
possession of the family. The finding of
the Subordinate Judge regarding the sale
in favour of defendant 2 under Ex. 3
must be affirmed; and the appeal so far
as it concerns him is dismissed.
22. Defendant 6 has sold item 2, a
garden, to defendant 3 by the sale-deed
Ex. 5, dated 9-3-1945. The sale is for Rs.
25007- and the purpose of the sale as
recited in the sale-deed, is in order to
discharge three prior debts due by him,
via., of Rs. 900/- due to defendant 3
himself under Ex. 4, a hypothecation
deed dated 20-11-44, Rs. 300/- due to
defendant 3 on an on demand pronote
Ex. XII, dated 22-11-44 and Rs. 650/due on an on demand pronote Ex. 6,
executed by defendant 6 in favour of one
Channegowda, and for the balance to be
utilised for buying bullocks and carts for
agricultural purposes, to repair the
family dwelling, which is described as
being in a dilapidated condition, and to
meet the expenses of planting cocoanut
trees. Rs. 9007- and Rs. 200/- were io be
Page 24
adjusted out of the purchase money. Rs.

6507-was left with the purchaser for
payment to Channegowda and Rs. 750/was received by defendant 6 before the
Sub-Registrar.
23. It is not disputed before us, and it
cannot be disputed, that defendant 6
owed the two amounts of Rs. 9007- and
Rs. 200/- respectively to defendant 3 and
Rs. 650/- to Channegowda. They are
evidenced by Exs. 4, 12 and 6.
Channegowda has been examined as D.
W. 3 and he has deposed that the debt
due to him under Ex. 6 was paid off as
per Ex. 6 (b) his endorsement of
discharge dated 10-3-45. The learned
Subordinate Judge has held that these 3
prior or antecedent debts have not been
shown to have been incurred by
defendant 6 for purposes of legal
necessity or benefit and that there is no
evidence that the balance of Rs. 7507was utilised for any of the purposes
mentioned in Ex. 5 and that according to
the rulings of this Court, beginning with
-- 15 Mys CCR 233 (PB) (E)' and which
has been followed in numerous later
decisions viz., -- "27 Mys CCR. 155
(L)'; -- '42 Mys HCR 163 (M)'; --'49
Mys HCR 530 (N)'; -- '51 Mys HCR 112
(O)'; -- Urugejjegowda v. Central Cooperative Bant Ltd.' 15 Mys LJ 230 (P),
the sale under Ex, 5 cannot bind the
shares of the minor sons of defendant 6.
These findings are not challenged before
us. Defendant 3 has let in no evidence
worth the name to show that the prior
debts or the sum of Rs. 7507- received
by defendant 6 were incurred or utilised
for any purposes of necessity or benefit.
24. As against this, it is contended by
Mr. V. Krishnamurthi learned Counsel
for the appellants, that the law as laid
down in those cases with regard to the
liability of Hindu sons for the debts of

their father and during the latter's life
time has to be reconsidered by this Court
in view of a decision of the Supreme
Court in --MANU/SC/0075/1952 :
[1952]1SCR544 (A)'. He urges that
under Article 141, Constitution of India
the law declared by the Supreme Court
is binding on all the Courts within the
territory of India and must now be
followed in preference to any other view
which might have been taken by this
Court. There is no doubt about the
soundness of this contention, and we
have had occasion to make a reference to
it in -- 'Narayana Rao v. Karibasappa'
AIR 1951 Mys 126 (Pl), while dealing
with a case of the application of S. 53A,
T. P. Act relating to the doctrine of 'part
performance'.
In
-MANU/SC/0075/1952
:
[1952]1SCR544 (A)' their Lordships
Sayid Fazl Ali, Mukherjee and Vivian
Bose JJ. held that a son is liable even
after partition for the pre-partition debts
of his father, which are not immoral or
illegal and for the payment of which no
arrangement was made at the time of the
partition. The judgment of the Court was
delivered by Mukherjea J. and in the
course of his judgment at p. 174 of the
reports he observes as follows:
"We now come to the other two points
raised by Mr. Kunzru and as they are
inter-connected they can conveniently be
taken up together. These points involve
consideration of the somewhat vexed
question relating to the liability of a son
under the Hindu Law other than that of
the Dayabhag School to pay the debts of
his father, provided they are not tainted
with immorality. In the opinion of the
Hindu Smriti writers, debt is not merely
a legal obligation, but non-payment of
Page 25
debt is a sin, the consequences of which

follow the debtor even after his death. A
text, which is attributed to Brihas-pathi,
lays down:
'He who having received a sum lent or
the like does not repay it to the owner,
will be born hereafter in the creditor's
house a slave, a servant, a woman or a
quadruped.'
There are other texts which say that a
person in debt goes to hell. Hindu Lawgivers therefore imposed a pious duty on
the descendants of a man including his
son, grandson and great grandson to pay
off the debts of their ancestor and relieve
him of the after death torments
consequent on non-payment. In the
original texts a difference has been made
in regard to the obligation resting upon
sons, grandsons and great grandsons in
this respect. The son is bound to
discharge the ancestral debt as if it was
his own, together with interest and
irrespective of any assets that he might
have received. The liability of the
grandson is much the same except that
he has not to pay any interest; but in
regard to the great grandson the liability
arises only if he received assets from his
ancestor. It is now settled by judicial
decisions that there is no difference as
between son, grandson and great
grandson so far as the obligation to pay
the debt of the ancestor is concerned; but
none of them has any personal liability
in the matter irrespective of receiving
any assets.
The position, therefore, is that the son is
not personally liable for the debt of his
father even if the debt was not incurred
for an immoral purpose and the
obligation is limited to the assets
received by him in his share of the joint
family property or to his interest in such

property and it does not attach to his
self-acquisitions. The duty being
religious or moral, it ceases to exist if
the debt is tainted with immorality or
vice. According to the text writers, this
obligation arises normally on the death
of the father; but even during the father's
life-time the son is obliged to pay his
father's debts in certain exceptional
circumstances, e.g., when the father is
afflicted with disease or has become
insane or too old or has been away from
his country for a long time or has
suffered civil death by becoming an
anchorite.
'It can now be taken to be fairly well
whether the father is alive or dead. Thus
it is open to the father during his
lifetime, to effect a transfer of any joint
family property including the intersest of
his son in the same to pay off an
antecedent debt not incurred for family
necessity or benefit, provided it is not
tainted with immorality.'
It is equally open to the creditor to
obtain a decree against the father and in
execution of the same put up to sale not
merely the father's but also the son's
interest in the joint- estate. The creditor
can make the sons parties to such suit
and obtain an adjudication from the
Court that debt was a proper debt
payable by the sons. But even if the sons
are not made parties, they cannot resist
the sale unless they succeed in
establishing that the debts were
contracted for immoral purposes. These
propositions can be said to be well
recognized and reasonably beyond the
region of controversy."
Page 26
In support of his observations, he has

referred to Colebrooke's Digest I, 228. -'Masit Ullah v. Damudor Prasad' AIR
1926 PC 105 (Q), Mayne's Hindu Law.
11th Edition, p. 108, where it is stated
"The law is now well established that
under the Hindu Law, the pious
obligation of a son to pay his father's
debts exists whether the lather is alive or
dead." 'AIR 1924 PC 50 (C) - 'Girdharee Lall v, Kantoo Lair 1 Ind App
321 (PC) (R) and -- 'Suraj Bunsi Koer v.
Sheo Persad Singh' 6 Ind App 88 (PC)
(S). See also Mulla's Hindu Law (10th
Edn.), p, 343, para. 290 (4), where he
refers to -- 'AIR 1924 PC 50 (C)' and
other cases and says "The liability of the
sons to pay the father's debts exists
whether the father is alive or dead" and
his note at p. 349.
25. The question of the sons' liability for
the debts of their father came up for
consideration again before the Supreme
Court in -- MANU/SC/0089/1953 :
[1954]1SCR177 (F)' and it was held by
the Supreme Court that the question
whether the sons of a judgment-debtor
who was a junior member of a
coparcenary are liable in law to
discharge the decretal debt due by their
father could be answered only with
reference to the doctrine of Mitakshara
Law which imposes a duty upon the
descendants of a person to pay the debts
of their ancestor provided they are not
tainted with immorality. Mukherjea J.,
with whom the other two Judges agreed,
observes at p. 489 of the report:
"This doctrine, as is well known, has its
origin in the conception of Smriti writers
who regard non-payment of debt as a
positive sin, the evil consequences of
which follow the undischarged debtor
even in the after-world. It is for the
purpose of rescuing the father from his

torments in the next world that an
obligation is imposed upon the sons to
pay their father's debts. The doctrine as
formulated in the original texts, has
indeed been modified in some respects
by judicial decisions. Under the law, as it
now stands, the obligation of the sons is
not a personal obligation existing
irrespective of the receipt of any assets;
it is a liability confined to the assets
received by him in his share of the joint
family property or to his interest in the
same. The obligation exists whether the
sons are major or minor or whether the
father is alive or dead. If the debts have
been contracted by the father and they
are not immoral or irreligious the interest
of the sons in the coparcenary property
can always be made liable for such
debts."
26. In -- '15 Mys CCR 233 (PB) (E)'
which has laid down the law now
prevailing in Mysore that a Hindu son is
not liable for the debts of his father so
long as the father is alive unless it is
shown that they were incurred for
purposes of legal necessity or benefit to
the family. Setlur J., who wrote the
leading judgment considered the original
texts,
including
Vijnaneswara's
commentary on Yajnavalkya and
referred to the rule in Mitakshara which
is to the effect that when a father without
discharging a debt owed by him dies or
has gone to a distant country or is
stricken by an incurable disease or the
like, then the debt incurred by him when
notified shall, by reason of their being
his son and grandson, be paid by the son
and grandson, even when he has left no
paternal estate. He referred to the case
reported In -- 'Periasami Mudaliar v.
Seetharama Chettiar' 27 Mad 243 (PB)
(T) and to -- '1 Ind App 321 (PC) (R)'
Page 27
and the uniformity of the course of

decisions of the High Courts in India
thereafter. He however preferred to
follow the views expressed in -- '16 Mys
LR 116 (FB) (D)' and of Muthuswamy
Iyer J, expressed in -- 'Ponnappa Pillai v.
Pappuvayyangar' 4 Mad 1 (15, 40) (FB)
(U) though that view was opposed to the
decision of the Privy Council in -- '1 Ind
App 321 (R)'. The necessity to refer the
matter to the Full Bench then arose as
even in Mysore it had been held or
assumed in some earlier cases, viz., -- '4
Mys CCR 26 (V)'; -- '5 Mys CCR 69
(W)'; -- '7 Mys OCR 15 (X)' and -- '10
Mys OCR 71 (Y)' that the sons were
bound by an alienation which was
effected to discharge an earlier debt
irrespective of whether the earlier debt
was incurred for family bonnet or
necessity.
The law laid down in -- '15 Mys CCR
233 (PB) (E)' has been followed in
Mysore in later cases and it is
unnecessary to refer to all of them. I
might, however, refer to a case decided
more recently and reported In -- '15 Mys
LJ 230 (P)'. In that case the plaintiff,
which was a co-operative bank,
advanced certain sums of money to a
defendant, the father of a joint Hindu
family. A portion of the money advanced
was used to pay off previous mortgages,
Reilly C. J. and Sreenivasa RBO J. held
that the plaintiff though one stage
removed from the debts under the
original mortgages cannot be let off
more lightly in the matter of showing
necessity or benefit for the money
advanced so as to make payments under
the deed binding upon the junior
members of the defendant's family and
that the plaintiff must show that those
previous debts so paid off were binding
on the junior members of the defendants'
family before he can make his own

advances binding upon those junior
members.
The principle laid down in this decision
has been applied quite strictly in later
cases by some of the Judges who have
called upon a creditor to prove that the
earlier debts which might have been
incurred long before the alienation were
also for legal necessity or benefit. They
have also often expressed in those cases
that the recitals in the document
regarding the purposes for which the
loans were borrowed may not be of
much use and cannot be strongly relied
upon by the creditor though of course in
other cases it has been laid down that
such recitals, particularly in old
documents, must be given due weight.
The strict application of this rule has, it
must be admitted, led to considerable
collusive litigation by junior members
either during their minority or just after
their attaining majority and often times
after quite a long time had elapsed after
the alienations to bring suits to question
them.
27. This hardship to the alienees was
recognized and led to the view which
has been taken in some cases, e.g., -- '21
Mys
COR
145
(Z)'
and
-'Channabasavegowda v. Rangegowda'
AIR 1951 Mys 38 (FB) (Z1) that if all
the adult male members of a family join
in making an alienation it may bs
presumed that it was for family benefit
or necessity thereby attempting to
somewhat lighten the burden on the
alienee to prove that each one of the
previous debts or (he purposes
mentioned in the documents were trite.
The father in such cases' is usually ex
parte and not examined as a witness for
the plaintiffs and it has been found that
Page 28
the creditor or the alienee finds it

extremely difficult to prove such legal
necessity or benefit though the
alienations have gone to discharge old,
real and bona fide debts which there was
little reason to suspect were incurred by
the father imprudently or otherwise than
in the usual course of family
management. The question now arises
whether we should still consider
ourselves bound by the decisions of this
Court or are bound to apply the law
which the Supreme Court have now
declared as the law of the country. I am
of opinion that the interpretation of the
Hindu Law texts and law as laid down
by the Supreme Court (I have extracted
above) is fully binding on us according
to the Constitution and must be followed
in Mysore also.
28. There are also other circumstances
which render such a course both
necessary and desirable. The area now
known as the Civil Station in Bangalore
District and which was formerly known
as C. and M. Station had been acceded to
British India under a treaty by the
Maharaja of Mysore. The Hindu Law
which was being applied in that area was
the law as laid down by the Privy
Council and which was current in
Madras which of course is the same as
now stated by Mukherjea J. After the
British left, that area is now ceded to
Mysore. The Mysore High Court has
now jurisdiction over Coorg under the
Mysore High Court Amendment Act and
in Coorg which was a Chief
Commissioner's province before the
Constitution, the law, as laid down by
the Privy Council, was of course the
prevailing law. Recently a large part of
the Bellary District, which was a part of
the Madras State has been ceded to
Mysore and the law prevailing there also
was the law laid down by the Privy

Council.
It would be very difficult and anomalous
end lead to great confusion in mercantile
transactions and in respect of titles to
property if the inter-, petition of
Mitakshara law relating to debts and
alienations is to be applied differently in
different parts of Mysore. It is necessary
that as far as possible there should be
uniform law in these vital matters in the
whole of India. Debts may be incurred or
alienations made of properties situate
say in Madras and in Mysore, the
consideration being the discharge either
partially or wholly of an antecedent debt,
and in a suit arising for recovery of
monies charged on such property or for
declaration of rights in respect of such
property it can easily be imagined what
difficulties would arise if suits or other
proceedings which may come to be filed
either in Madras or in Mysore, different
interpretations of the same Hindu Law
texts are to be applied.
29. Under Art. 261(3) of the Constitution
of India:
"Final judgments or orders delivered or
passed by civil Courts in any part of the
territory Of India shall be capable of
execution anywhere within that territory
according to law."
The rapid advancement of trade and
commerce throughout the country
requires a common rule in respect of
such vital matters of every day interest.
It may be argued that the rights of minor
sons in a joint Hindu family might
thereby be jeopardised; but if that is the
law that is prevailing all over India and
has been accepted from the date of 1 Ind
App 321 (PC) (R) as proper and binding,
Page 29
it is difficult to see any reason why we

should not also come into line with that
law and why it should be thought or
considered that only a Hindu father in
Mysore cannot be trusted to be either
prudent or capable of looking after his
own intersest and those of his sons
during the course of the management or
the family property. We felt that as the
law as laid down in 15 Mys CCR 233
(FB) (E) had been in force for such a
long time in Mysore, it was desirable
that the question which has now arisen
should be considered by a Full Bench
and accordingly the matter has been
heard by the Full Bench.
means of recovery, and if the payment of

a debt is obligatory on the debtor, and
therefore on his sons, the payment of a
mort-gage debt is also morally and
religiously obligatory."
30. Another point which was raised

before us for the respondents was that
the debt due under Ex. 6 was a mortgage
debt and not a simple debt and that it has
been laid down in some cases of this
court that a mortgage is an alienation
and not a debt, and that the mortgagee
must establish the legal necessity or
benefit if the mortgage is to be upheld.
Sitting as a single Judge I had occasion
to consider this matter recently in S. A.
No. 499 of 1851-52 (Mys) (Z2) then
came to the conclusion that a debt must
be held to include both simple and
mortgage debts and have referred to a
case reported in -- 'Hiralal v. Puran
Chand'
MANU/UP/0056/1949
:
AIR1949All685 where Misra J. observes
at p. 687 :
This view is also supported by -'Arumugam Chetty v. Muthu Koundan'

AIR 1919 Mad 75 (FB) (Z4); -'Venkanna v. Sreenivasa' AIR 1919 Mad
1175 (Z5); -- 'Mathura Misra v.
Rajkumar Misra' AIR 1921 Pat 417 (FB)
(Z6); -- 'Hari Prasad Singha v. Sourendra
Mohan' AIR 1922 Pat 450 (Z7) and 'AIR
1924 P.C. 50 (C)'. The cases of this
Court reported in -- 'Nanjaiya v.
Chowde-gowda' 14 Mys LJ 510 (Z8); &
-- 'Bank of Mysore Ltd., Banglore City
v. Mayakonda Veerappa' 18 Mys LJ 113
(Z9) and -- 'Rudrappa Setty v. Rangojee
Rao' 18 mys LJ 133 (Z10), which have
followed that decision are all cases
where a Mortgagee sued and sought to
obtain a mortgage decree against
specific property mortgaged to him. But
those cases do not lay down that a
mortgage debt is not an antecedent debt
which can support later alienations and
have no bearing on the question now
before us. In this view of the law it must
be held that the alienation under Ex. 5 is
binding on the shares of plaintiffs 4 and
5 in the joint family property to the
extent of Rs. 1,750/- as it has gone to
discharge the antecedent debts of the
father though he is still alive.
"A debt secured by a mortgage, it seems

almost axiomatic, is as much a debt of
the father as an unsecured debt and
considered in the light of the spiritual
need which the doctrine of pious
obligation was designed to meet, there
would in principle, be scarcely any
difference between the two transactions.
The security would merely provide a
31. The next question that arises for

consideration is what is the relief which
should be granted to the plaintiffs. The
sale was for Rs. 2,500/- and a major part
of the consideration has been held to be
for purposes binding on the minors. The
property sold is a cocoanut garden.
Defendant 3 claims to have improved the
property and though the learned
Page 30
Subordinate Judge has not accepted his

evidence in this matter I think there
might be some truth in that statement
because defendant 6 was running into
debts and could not have looked after the
cocoanut garden efficiently and it is
quite likely that he had allowed it to
deteriorate for want of proper attention.
The 1st plaintiff never appears to have
claimed any interest in this property. It
also appears from her conduct as if she
had waived her rights to this item and
allowed defendant G to deal with it as ho
pleased. From the evidence it is not also
clear that defendant 6 was the sole
surviving coparcener of the joint family
when her husband died. The plaintiff's
have nowhere suggested that the price of
Rs. 2,500/-was not the proper market
value at the time.
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Ltd.
In these circumstances I think the

plaintiffs ought not to be given a share in
item 2 and that defendant 3 should be
directed to pay them a part of the
purchase money which, it has been held,
was not for purposes binding on minor
plaintiffs 4 and 5. The counsel for
defendant 3 has agreed before us that
defendant 3 will pay Rs. 1,000/- instead
of Rs. 750/- to plaintiffs 4 and 5 which
may be taken to cover Rs. 750/- plus
interest and costs of this litigation.
Accordingly I direct that defendant 3
should pay this amount into Court within
six months from this date. There will be
a charge for this sum on item 2.
32. The parties will bear their own costs
both here and in the Court below. The
Court-fee payable to Government by the
plaintiffs will be recoverable from them
and will be a charge on the property
which has been decreed in their favour.
33. Order accordingly.

Pious Obligation

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Page 1

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Jagadishprasad v. Ambashankar (1933) 36 Bom. L. R. 625 followed.

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learned advocate for respondent No. 1. In the cross-examination in paragraph 6 it is the

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under a pious - obligation to discharge

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In a later case, that of -- 'Brij Narain v.

father, who contracted the debt or

(4) Antecedent debt means antecedent in

4. The result is that according to the

(5) There is no rule that this result is

"It was open to the son to plead that in

3. As pointed out in Mayne's Hindu Law

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incurred for the sake of the family, his

managing the estate and affairs of the

There is hardly any doubt that the

It is impossible that of the numerous

"None of the texts...... nor any of the

6. Mulla's commentary on the point at p.

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branch of the law in the rest of India.

necessary to reconsider the position in

8. It has been observed in -MANU/SC/0075/1952 : [1952]1SCR544

10. The facts relating to the appeal are

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appellants who are two of the purchasers

liability of the son's share in the property

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As legal necessity or family benefit for

1. The pious duty of the sons for

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enunciated in the case mentioned. The

statements and which is also relied upon

"It can now be taken to be fairly well

"On the one hand there is the general

14. In -- 'AIR 1924 PC 50 (C)', referred

15. There is provision in the texts for

It is mentioned as an exception to the

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such a debt, yet an exception has been

16. Whether the mortgage is treated as a

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[1954]1SCR177 (P)'. The debt in that

relationship between the father and the

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may be recovered from the shares of the

ancestral and there is no proof of

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item 4 and item 2 respectively and that

discharge the earlier debt. In these

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adjusted out of the purchase money. Rs.

liability of Hindu sons for the debts of

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debt is a sin, the consequences of which

family property or to his interest in such