JUDGMENT
Govardhan, J.
1. Plaintiff is the appellant.
2. The averments in the plaint are as follows: The plaintiff is the son of the first defendant. The plaintiff has got half share in the suit schedule properties which are the ancestral properties. The first defendant has fallen into evil ways discarded his responsibility to maintain his family since 1965. He has neglected to take care of his children and wife. He is a spend thrift indulging in all sorts of bad ways and he is leading an immoral and illegal life. It seems he has mortgaged the family properties for debts borrowed by third parties by standing as a surety. The second defendant has obtained a decree against the first defendant and two others in O.S. No. 877 of 1971 and has brought the property for sale. The first defendant is handing love with the second defendant. The upset price fixed for the property worth more than Rs. 50,000- is far low. The first defendant’s mother Manguthayammal filed an application in the execution petition claiming maintenance charge over the properties and it was allowed. In spite of repeated requests made by the plaintiff, the first defendant has not divided the property. Hence, the suit for partition and separate possession of one half of the suit properties in favour of the plaintiff and for mesne profits.
3. The first defendant has remained ex parte.
4. The second defendant in their written statement contends as follows: The second defendant has filed a suit against Sri Varadaraja Foundary, one K. Srinivasan and the first defendant for recovery of Rs. 5,977.17 with subsequent interest and had obtained a decree. The defendants 1 and 2 in the said suit have obtained grant of facilities for documentary bills purchasing and the first defendant stood surety for them. He has also joined the execution of the promissory note along with others and had created an equitable mortgage in respect of the suit property in favour of the second defendant by depositing the title deeds with the second defendant. A sum of Rs. 5,700 has become due with interest. O.S. No. 877 of 1971 was filed for recovery of the said sum. The second defendant had levied execution of the decree by bringing the mortgaged property for sale and the upset price was also reduced then and there since there was no bid. The first defendant’s mother filed an Execution Application claiming charge for the maintenance on the mortgaged properties. The mortgaging of the properties by the first defendant was not to meet his alleged illegal and immoral purposes. The first defendant was only a surety for the liability of the defendants 1 and 2. The plaintiff, as the son of the first defendant has to discharge the debt of the first defendant under the theory of pious obligation. The transaction which the first defendant had with the second defendant is not an Avyavharika transaction. The first defendant is living with his wife and son and is taking good and proper care of his family. He is leading a respectable life and has got his daughter also married. It is false to state that the defendants 1 and 2 are hand in glove with each other. The second defendant is a decree-holder entitled to proceed against the whole joint family properties including plaintiff’s share. The suit is therefore, liable to be dismissed.
5. On the above pleadings, the learned Subordinate Judge, after trial, has held that the mortgage created by the first defendant in favour of the second defendant is binding on the plaintiff and the plaintiff is not entitled to partition and separate possession and dismissed the suit.
6. Aggrieved over the same, the plaintiff has come forward with this appeal.
7. The point for consideration is: Whether the plaintiff is entitled to partition and separate possession of half share in the suit properties?
8. Point: According to the plaintiff, the suit properties belonged to the joint family of himself and his father the first defendant and his father has fallen into evil ways and began to squander the wealth of the family and has become a spend thrift and he is leading an immoral and illegal life with had association and had mortgaged the properties for debts borrowed by third parties by standing as their surety. It is also the case of the plaintiff that the debt due to the second defendant was not borrowed for the family necessity or advantage and it is not valid and binding upon the plaintiff and therefore, he has come forward with this suit for partition and separate possession of his one half share on account of the fact that the second defendant has filed an execution petition for bringing the property for sale towards their debt. According to the second defendant, the claim of the plaintiff that the first defendant had fallen to evil habits is not correct and that he had mortgaged on account of his bad association for the debts borrowed by third parties by standing as surety, is also not correct. According to second defendant, who is a Bank, the first defendant had only stood as a surety for the proper repayment of amounts that may become payable by one Srinivasan and his Proprietary Concern “Sri Varadaraja Foundary” for whom they have provided facilities for documentary bills purchasing and that the first defendant, apart from executing a promissory note along with the other defendants in the suit filed by them, had also created an equitable mortgage by deposit of title deeds and therefore, it cannot be stated that the debt due to the second defendant is for any illegal or immoral purposes and not binding on the plaintiff. The plaintiff does not dispute that the liability of the second defendant arose on account of his father standing as a surety for “Sri Varadaraja Foundary” and K. Srinivasan who are the actual persons who are under an obligation to pay a sum of Rs. 5,700 to the second defendant, in regard to their transaction with the second defendant viz., documentary bills purchasing facility. By no stretch of imagination. The liability which arose for the defendants 1 and 2 in O.S. No. 877 of 1971 is a liability which arose on account of their illegal or immoral activities. The liability of the plaintiff is only as a surety for these two defendants in O.S. No. 877 of 1971 and apart from his offering as surety for the repayment of the amount due to the second defendant, the first defendant had also created an equitable mortgage of the suit properties by depositing the title deeds of the same with the second defendant bank. The plaintiff who is the son of the first defendant, cannot challenge the antecedent debt of his father the first defendant under the Hindu Law, unless he establishes that the debt was incurred by his father on account of his immoral or illegal activities. In the present case, the plaintiff cannot contend and he cannot prove that the debt incurred by him to the second defendant is either an illegal one or an immoral one. Therefore, it is not even open for him to challenge the debt incurred by his father. The trial Court has extracted the observations of the learned Author in N.R. Raghavachariar’s Hindu Law (Sixth Edition) at page 334, regarding “pious obligation”. It has been observed in the above Text Book, that every son, grandson or great-grandson is under a pious duty to discharge the debts with interest of the father, grandfather, or great-grandfather provided he had not become divided from them at the time the debts were incurred and that they are neither immoral nor illegal. In the present case, the debt of the father was incurred at a time when the father and son are living as members of a joint family, the debt was not incurred for any immoral or illegal purpose and therefore under the doctrine of “pious obligation” a duty is cast on the plaintiff to discharge the debt incurred by his father to the second defendant. It is a case of surety of a debt incurred by the father for payment of money to the second defendant. Therefore, it is a debt, attracting the doctrine of “pious obligation”. The trial Court has referred to the decision reported in Faqir Chand v. Harnam Kaur A.I.R. 1967 S.C. 727 : (1967) 2 S.C.J. 811, in its judgment to come to the conclusion that the debt is binding on the plaintiff. In the above decision, it is held that where there is a mortgage of joint family property by father, as manager for discharging his debts, mortgagee in execution of a mortgage decree can sell the estate for realisation of debt without obtaining personal decree against him and that the son is liable even in respect of debts not incurred for legal necessity or for payment of antecedent debt and even after sale has taken place, unless he shows nonexistence or immoral character of debt. In the present case, there is no existence of any immoral or illegal character of the debt due to the second defendant. Therefore, even if the debt has not been incurred by the first defendant without any legal necessity or payment of an antecedent debt, as per the above decision, the son is liable and the property is also liable on account of the fact that the father had created an equitable mortgage by depositing the title deeds. In this connection, I also wish to refer to the decision reported in Chhabirani Bai v. Girdharilal , wherein it has been held that the sons are under a pious obligation to pay the debt of the father arising out a surety bond executed by him to pay a third person’s debt and that this liability is however only to the extent of their interest in the joint family property. The above ruling of Madhya Pradesh High Court applies in all force to the facts of the present case since the father had executed a mortgage and has incurred a debt to the second defendant by executing a bond of surety for the defendants 1 and 2 in the suit O.S. No. 877 of 1971 in favour of the second defendant. It cannot be stated that the father had stood surety for a debt of a stranger and therefore, it is not a debt binding on the plaintiff since it has been held in the decision reported in Audilaxamana v. Raghurami , that when a father is standing as a surety for a debt incurred by a stranger, the surety is not personal and the debt having been incurred by the father, his sons are bound to make good that surety. It thus seen that the claim of the appellant plaintiff that the father had incurred the debt, had fallen to evil habits and stood as surety even for strangers for their debts without any legal necessity and therefore, the second defendant cannot bring the property for sale, in which he has a share, and since the second defendant has filed an execution petition for bringing the properties to sale, the plaintiff has filed the suit for partition and separate possession of his half share, and therefore he is entitled to decree, is not a tenable one. The trial court has rightly held that the debt is binding on the plaintiff and the plaintiff is not entitled to partition and for mesne profits as claimed in the suit. I am of opinion that there is nothing to interfere with the judgment of the trial court.
9. In the result, the appeal is dismissed confirming the judgment and decree of the trial court in dismissing the suit. No costs.