PETITIONER: ANTHONYSWAMY Vs. RESPONDENT: M. R. CHINNASWAMY KOUNDAN (DEED) BY L. RS. & ORS. DATE OF JUDGMENT: 06/10/1969 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N. CITATION: 1970 AIR 223 1970 SCR (2) 648 1969 SCC (3) 15 CITATOR INFO : R 1978 SC1791 (14A,25) ACT: Hindu Law-Christians governed by Hindu Mitakshara law- Whether doctrine of pious obligation applicable. Promissory-note-When endorsee could sue non-executant coparceners on the debt. HEADNOTE: The appellant filed a suit for declaring that certain execution proceedins resulting in the sale of the suit properties were invalid, and for partition of his share therein. The claim was based inter alia on : (1) that the appellant's family were Tamil Vannian Christians governed in the matter of inheritance and succession by the Hindu Mitakshara law including the doctrine of right by birth, but not by that of pious obligation; and (2) that the debt was incurred on a promissory note and that the endorsee of the note was not entitled to obtain a decree against the non- executant coparceners for sale of the family properties. HELD: (1) The doctrine of pious obligation is not merely a religous doctrine but has passed into the realm of law. It is an integral part of the Mitakshara school of the Hindu law. wherein, the sons, from the moment of their birth acquire along with their father an interest in the joint family Property. It is a necessary and logical corollary to the doctrine of right by birth and the two conceptions are correlated. The doctrine is in consonance with justice, equity and good conscience and is not opposed to any principle of Christianity. Therefore, the doctrine of pious obligation is applicable to the Tamil Vannian Christians who were governed by the Mitakshara law in matters of inheritance and succession. [653 G-H; 654 G-H] Girdharee Lall v. Kantoo Lall (1874) 1 I.A. 321 Suraj Bansi Koer v.Sheo prasad, (1980) 6 I.A.88, Muttayan v. Zamindari of Sivagiri (1883) 9 I.A. 128, Abraham, 9 M.I.A. 199, 243, Brij Narain v. Mangal Prasad 51 I.A. 129 and Balakrishnan v. Chittoor Bank A.I.R. 1936 Mad. 9137, referred to. (2) The endorsement in the present case was not a mere endorsement but it has been so worded as to transfer the, debt also. Therefore, the endorsee was entitled to bring a suit against the non-executant coparceners on the ground of their liability under Hindu Law. [655 G-H; 656 B-C] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2020 of
1966.
Appeal from the Judgment and decree dated July 13, 1960 of
the Kerala High Court in Appeal Suit No. 251 of 1956(E).
V. S. Desai and R. Gopalakrishnan, for the appellant.
S. T. Desai, C. H. Subramanya Iyer and S. Balakrishnan,
for respondent No. 5.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by certificate from the
judgment of the High Court of Kerala dated July 13, 1960
649
in Appeal Suit No. 251 of 1956. By its judgment the High
Court allowed the appeal of the deceased M. R. Chinnaswamy
Goundan, 1st defendant, reversing the judgment and decree of
the Subordinate Judge of Chittur in O.S. No. 131 of 1950
which the appellant had filed on March 31, 1949 in forma
pauperis for declaring that certain execution proceedings
resulting in the sale of suit properties were invalid and
for partition of one-fourth share therein. The appellant
also claimed in the alternative a decree for payment of Rs.
30,000/- as damages sustained by him on account of fraud and
collusion in the execution proceedings.
The plaintiff is the son of the 8th defendant and the 9th
defendant is the brother of the 8th defendant. The
plaintiff and defendants 8 and 9 are Tamil Vannian
Christians of Chittur Taluk who are governed in the matter
of inheritance and succession by Hindu Mithakshara law. The
plaintiff has acquired a right by birth in the ancestral
properties and during the life-time of his father the son
has a right to claim partition. The plaint properties
belonged to the family of plaintiff and defendants 8 and 9
which yield an annual profits of 4000 paras of paddy and Rs.
1,5001-. After the death of his father Kanakappa Koundan,
the 8th defendant became the manager of the family. He led
an immoral life and incurred debts for immoral purposes. He
hypothecated the family properties to the 5th defendant and
obtained money. The 5th defendant sued upon the mortgage
bond in O.S. No. 75 of 1107 (M.E.) of the Trichur District
Court and impeaching the validity of the debts, the 9th
defendant who was a minor at that time filed a suit for
partition of his half share in O.S. 65 of 1107 (M.E.) in the
same District Court. During the pendency of the two suits
the 5th defendant applied for the appointment of a receiver
and the Court appointed the 7th defendant, a friend of the
5th defendant, as receiver with a direction to pay Rs. 40/-
per mensem to the 9th defendant as maintenance till the
disposal of the suit. The plaint properties were committed
to the possession of the 7th defendant as receiver in those
suits.
The suit for partition was dismissed on November 14, 1933 as
by this date the equity of redemption had been sold in
execution of simple money decree against defendants 8 and 9
in O.S. 203 of 1107 (M.E). The 8th defendant for himself and
as guardian of his younger brother executed a promissory
note on 11.10.1105 (equivalent to May 1930) to one
Somasundara Swamiyar for Rs. 1,500 the consideration for
which was paid partly in cash and partly in discharge of an
earlier promissory note dated 11th Vaisakhi 1104 (June,
1929). The promisee endorsed the note to Ramachandra lyer
on 24th Thulam 1107 (equivalent to November, 1932).
Ramachandra lyer filed a suit on this note, O.S. 213 of 1107
on 6.5.1107 (1931) against
650
the 8th and 9th defendants. The suit was decreed and the
decreeholder executed the decree. The disputed properties
were attached. The properties at that time were in the
possession of the 9th defendant for sometime as receiver and
then in the hands of a vakil appointed by the Court in his
place. In execution, one Harihara Subramania lyer purchased
the equity of redemption on 31st Karkata in 1108 (July-
August, 1933). The auctionpurchaser was duly put in
possession on 22.3.1109 (1933). The, mortgagee Sadasiva
lyer who had obtained a decree on one of the mortgages on
29-3-1109 (M.E), purchased the property from the auction
purchaser on 5-5-1109 (1934). As possession had already
been taken by the auction purchaser in execution of the
decree passed against them, the 9th defendant did not press
the partition suit O.S. 65 of 1107. In 1938 Sadasiva lyer
was adjudged insolvent and the official receiver took
possession. He sold the property in auction and the
deceased 1st defendant became the purchaser for Rs. 24,000.
Exhibit XIV is the sale deed executed by the Official
Receiver on 13-7-1116 (1941). The appellant thereafter
brought the present suit for partition. The claim of the
appellant was based on the allegation that Vannia Tamil
Christians living in Chittur Taluk were governed as a matter
of custom by the Mitakshara School of Hindu law. It was
said that joint family relationship subsisted as between
father and sons and where the father has inherited
properties from his father, they became ancestral properties
in his hands and so his sons acquired a right therein by
birth including the right to claim the property by
survivorship. It was also said that the decree debt in O.S.
No. 213 of 1107 ME was not incurred for legal necessity but
was incurred for immoral purposes and so the mortgage debts
were not binding on the appellant. The appellant was,
therefore, entitled to one-fourth share in the properties
and to partition of his one-fourth share. The deceased, 1st
defendant, contested the suit. He claimed to be a bona fide
purchaser for value of the entire interest in the property
from the Official Receiver in whom the properties had vested
on the insolvency of Sadasiva lyer. It was said that he had
no notice of any vgitiating circumstance affecting the title
at public auction conducted by the Official Receiver. After
the sale, defendant no. 1 became the absolute owner of the
properties and was in full possession and enjoyment of the
same. It was also contended that the plaintiff could not
claim any interest in the properties during the life-time of
his father. There was no customary right of birth in the
community to which the plaintiff belonged and even if such
right existed the plaintiff was bound to pay off his
father’s debts on the doctrine of pious obligation before
claiming any partition in respect of the properties. It was
also said that the debt which Was the basis of the decree in
O.S. 213 of 1107 ME was not tainted by illegality or
immorality.
651
The Subordinate Judge came to the following findings : The
plaintiff has established the custom that Vanniya Tamil
,Christians of Chittur Taluk were governed in the matter of
inheritance and succession by Hindu Mitakshara law. The
plaintiff has acquired right by birth in the ancestral
properties and was entitled to claim a share therein and the
properties acquired with the aid of income from ancestral
properties also became joint family properties. The Manager
of the family for the time being cannot alienate the
properties except for legal necessity but the doctrine of
pious obligation imposing a liability on the son to
discharge his father’s debts not incurred either for illegal
or immoral purposes did not apply to the community to which
the plaintiff belonged. The decree made on the promissory
note by defendant no. 8 could not be executed against the
plaintiff’s share because the right of an endorsee of a
promissory note executed by the managing member of a joint
Hindu family was limited to the note unless the endorsement
was so worded as to transfer the debt as well. In the
present case there was an ordinary endorsement and there was
no transfer of the debt and, therefore, the endorsee cannot
sue the non-executingcoparcener on the ground of his
liability under the Hindu law.Exhibit F on which the
decree was obtained was for immoralpurposes and
thedecree cannot bind the plaintiff and his share in the
disputed properties cannot pass in execution sale. The
mortgage decreeholder contrived to get the assignment of the
promissory note debt and had a suit brought on it, brought
the properties to sale and got the properties purchased for
his own benefit. The execution. proceedings were collusive
and fraudulent and not binding on the plaintiff. On these
findings the Subordinate Judge granted a decree for
partition and recovery of possession in favour of the
plaintiff subject to the mortgages on the property created
before his birth. Aggrieved by the decree of the
Subordinate Judge the 1st defendant preferred an appeal to
the High Court of Kerala which allowed the appeal and
dismissed the suit. The High Court held that the Vanniva
Tamil Christians of Chittur Taluk are governed by the
Mitakshara School of Hindu law in regard to inheritance and
succession. The son of a member of auch community gets by
birth an interest in ancestral property owned by the father.
The doctrine of pious obligation applies and the son is
bound to discharge his father’s debts not tainted by
illegality or immorality. The debt which resulted in the
execution sale was not so tainted. The question whether the
debt was incurred for legal necessity was not decided. The
High Court held that the execution proceedings and the sale
in auction are not vitiated by fraud or collusion.
The first question to be considered in this appeal is
whether the doctrine of pious obligation according to the
Mitakshara school of Hindu law is applicable to Vanniya
Tamil Christians Sup CI-11
652
of Chittur Taluk. In para I of the plaint the law
applicable to the community is stated as follows :
“The plaintiff and defendants 8 and 9 are
Tamil Christians residing in Chittur Taluk,
the plaintiff being the son of the 8th
defendant and defendant 9 being the younger
brother of the 8th defendant. The plaintiff
and defendants 8 and 9 are of the Vanniya
Caste and in the matter of property r
ights of
inheritance and succession alone they are
governed by the Hindu Mitakshara Law. (The
plaintiff by birth is entitled to a share in
the ancestral property and that even during
the lifetime of his father the son has every
right to demand his share in the ancestral
property and recover the same even by a suit.
In the community to which the plaintiff
belongs the properties of a man became on his
death ancestral properties in the hands of the
sons and thereafter it continues for ever to
be family ancestral property and therein the
son has by his birth a right to a share, even
during the life time of the father. This
custom is a very ancient one and is adopted as
the law from time immemorial, and governs the
community. The above is the customary law of
the plaintiff’s community accepted and
followed by them from ancient times.”
In 4 Select Decisions 485 the Chief Court of Cochin held
that the Tamil Vanniya Christians of Chittur Taluk were
govemed by the rules of Hindu law in matters of inheritance
and succession. The decision was followed some 35 years
later in 34 Cochin 881. The report of the Cochin Christian
Succession Bill Committee stated that “as to the Tamil
Christians of the Chittur Taluk, the evidence shows that
they follow the Hindu law of succession and inheritance” and
recommended that they should be excluded from the proposed
legislation. The recommendation was accepted by the
Maharajah of Cochin. Section 2(2) of the Cochin Christian
Succession Act (VI of 1097) provided that nothing therein
contained shall be deemed to affect succession to the
property of “the Tamil Christians of Chittur Taluk who
follow the Hindu Law.” In this state of facts it was not
contended on behalf of the appellant that the Tamil Vannia
Christians of the Chitture Taluk were not governed by the
Mitakishra law in matter of inheritance and succession. But
it was argued that the doctrine of pious obligation
originated in Hindu religious belief and was opposed to the
tenets of Christianity. It was said that the doctrine was
not applicable to Tamil Vannia Christians of Chittur Taluk.
We are unable to accept this argument. It is not a correct
proposition to state that the doctrine of pious obligation
is of religious character or is inextricably connected with
Hindu religious belief. It is true that
653
according to Smriti writers the non-payment of a debt was a
sin the consequences of which will follow the debtor into
the next world. But the doctrine as developed by the
Judicial Committee in Girdharilal’s case(1); Surajbansi’s
case (2) and Brij Narain v. Mangal Prasad(3) was different
in several important respects.
Under the Smiriti texts there was only a religious and not a
legal obligation imposed upon the sons to pay the debt of
their father. Also the obligation of the son to pay the
debt arose not in the father’s lifetime but after his death.
The text of Narada says that fathers desire male offspring
for their own sake reflecting “this son will redeem me from
every debt due to superior and inferior beings”. Therefore,
a son begotten by him should relinquish his own property and
assiduously redeem his father from debt lest he fall into a
region of torment. If a devout man or one who maintained a
sacrificial fire die a debtor, all the merit of his devout
austerities or of his perpetual fire shall belong to his
creditors. (I Dig. Higg. Edition 202.) The text of Vishnu
states : “If he who contracted the debt should die, or
become a religious anchoret, or remain abroad for twenty
years, that debt shall be discharged by his sons or
grandsons but not by remoter descendants against their will”
(I Dig. Higg. Edition 185). Brihaspati also states “the
sons must pay the debt of their father, when proved, as if
it were their own, or with interest. the son’s son must pay
the debt of his grandfather but without interest and his son
or the great grandson shall not be compelled to discharge it
unless he be heir and have assets. But the Judicial
Committee held in the Sivagiri case (4) that the obligation
of the son was not a religious but a legal obligation and
the rule would operate not only after the father’s death but
even in the father’s lifetime. Under the old texts of Hindu
law only the son and grandson are liable to pay the
ancestor’s debt but the obligation is personal and
independent of any assets derived from the joint family.
The Judicial Committee, however, extended the doctrine to
the great grandson but confined the liability to the extent
of coparcenary property. From the son’s duty to pay his
father’s untainted debt the Judicial Committee deduced the
proposition that the father had the right to alienate his
son’s interest to pay such a debt and this right was also
made available to the creditor of the father.
It is evident therefore that the doctrine of pious
obligation is not merely a religious doctrine but has passed
into the realm of law. The doctrine is a necessary and
logical corollary to the doctrine of the right of the son by
birth to a share of the ancestral property and both these
conceptions are correlated. The liability imposed on the
son to pay the debt of his father is not a Gratuitous
(1) 1. A. 321.
(3) 51 I. A. 129.
(2) 61. A. 88.
(4) 91. A. 128.
654
obligation thrust on him by Hindu law but is a salutary
counterbalance to the principle that the son from the moment
of his birth acquires along with his father an interest in
joint family property. It is, therefore, not possible to
accept the argument addressed on behalf of the appellant
that though the community is governed as a matter of custom
by the Mitakshara School of Hindu law the doctrine of pious
obligation was not applicable. In Balkrishnan V. Chittoor
Bank(1) the question arose whether among the Ezhava
community of Palghat though they follow Makatayam Law and
not Marumakatayam Law, the sons are liable for the debts of
their father not incurred for illegal or immoral purposes
irrespective of any question of family necessity. It was
held by Varadachariar J., that the sons were so liable and
it was observed that there was no warrant for introducing
one portion of the Hindu law in governing a certain
community without taking along with it the other portions
which form an integral part of the whole system. In this
connection reference may be made to the following passage
the _judgment of the Judicial Committee in Abraham v.
Abraham(1) :
The profession of Christianity releases the
convert from the trammels of the Hindoo law,
but it does not ,of necessity involve any
change of the rights or relations of the
convert in matters with which Christianity has
no concern, such as his rights and interests
in, and his powers over, property. The
convert though not bound as to such matters,
either by the Hindu law or by any other
positive law, may by his course of conduct
after his conversion have shown by what law he
intended to be governed as to these matters.
He may have done so either by attaching
himself to a class which as to these matters
had adopted and acted upon some particular
law, or by having himself observed some family
usage or custom; and nothing can surely be
more just than that the rights and interests
in his property, and his powers over it,
should be governed by the law which lie has
adopted, or the rules which he has observed.”
For the reasons already given we are of opinion that the
doctrine of pious obligation is not merely a religious
doctrine but has passed into the realm of law. It is an
integral part of the Mitakshara School of Hindi,. law
wherein the sons from the moment of their birth acquire
along with their father an interest in the joint family
property. The doctrine is in consonance with justice,
equity and good conscience and is not opposed to any
principle of Christianity It follows that the High Court is
right in its conclusion that the doctrine of pious
obligation is applicable to the community of Tamil Vanniya
Christians of Chittur Taluk.
(1) A. I. R. 1936 Mad. 937.
(2) 9 M. I. A. 199,
655
The next question to be considered is whether the liability
of the son was excluded because at its inception the debt
was tainted by immorality. The evidence adduced on behalf
of the plaintiff to establish the immoral character of the
debt consists of the testimony of P.Ws 19 and 20. P.W. 19
deposed that the plaintiff ‘s father was keeping a married
woman called Thankammal., that Thakammal was residing
opposite to his house at Alambadi with her husband, that he
had seen the plaintiff’s father frequenting her house, that
plaintiff’s father executed a promissory note in favour of
Somasundara Swamiyar, payee under Ex. F and out of the
consideration a sum of Rs. 1,000/- was paid to Thankammal.
P.W. 20 gave evidence to a similar effect. P.Ws. 19 and 20
are not ,he attesting witnesses of the promissory notes.
They were mentioned the plaintiff for the first time in the
supplemental list of witnesses dated 12-11-1954. The High
Court has disbelieved the evidence of P.Ws 19 and 20 and
held that the allegation of the appellant that the debt was
tainted by immorality was not established. We see no reason
to differ from the view taken by the High Court on this
point.
We proceed to consider the next question arising in this
appeal, that is, whether the endorsee of the promissory note
is entitled to obtain a decree against the defendants
personally and for sale of the family properties upon the
original debt. The contention of the appellant was that the
4th defendant was not the payee under Ex. F but was an
endorsee of the promissory note and was not hence entitled
to obtain a decree against the non-executant coparceners and
to proceed against the joint family properties. In support
of this proposition reliance was placed upon a decision of
the Full Bench of the Madras High Court in Maruthamuthu
Naicker v. Kadir Badsha Rowther(1) in which it was held
that an indorse of a promissory note executed by the
managing member of a Hindu family was limited to his remedy
on the promissory note, unless the endorsement was so worded
as to transfer the debt as well and the stamp law was
complied with and, therefoere in the case of an ordinary
endorsement , the indorsee cannot sue the non-executant
coparcerners on the ground of their liability under the
Hindu law. Where the indorsement is in blank it only ope-
rates to transfer the property in the instruement and not
as an assignment of debt. It is not however necessary
for us to examine this argument. The reason is that the
endorsement in the present case made by the 8th defendant
in favour of the 9th defendant is not a mere endorsement
but it has been so worded as to transfer the debt also.
The indorsement reads as follows :
“As the principal and interest as per this
proiiiissorv note is, received in cash todav
to (my) satisfac-
(1) A.I.R. 1938, MaD. 377.
656
tion from,Ramchandra lyer, son of Subbarama
lyer, Thekkegramam, Chittur, the above
principal and interest together with the future
interest thereon is to be paid to the above
Ramehandra lyer or to his Order.
Dated 24th Thulam 1107 Somasundara Swamiyar.”
It is apparent that the endorsement is so worded as to
convey the transfer of the debt as well and it follows that
Ramchandra lyer, defendant no. 4 was entitled to bring a
suit against the non-executant coparceners on the round of
their liability under the Hindu law. We accordingly reject
the argument of the appellant on this aspect of the case.
Finally counsel on behalf of the appellant contended that
the sale in execution proceedings in O.S. 213 of 1107 ME was
vitiated by fraud. The Subordinate Judge took the view that
defendants 4 to 7 had committed fraud and the decree in
execution in O.S. 21 1 of II 07 ME was void and liable to be
set aside. But the High Court has upon a review of the
facts found that the 4th defendant and 6th defendant and
P.W. 23 Srilala Iyer had actively assisted the 5th defendant
to get possession of the property as quickly as possible but
there was no proof that defendants 4 to 7 either
collectively or individually transgressed the limits of law
or were gulity of fraud. Upon the evidence adduced in the
case we are satisfied that the finding of the High Court is
correct.
For these reasons we hold that this appeal fails and must be
dismissed with costs.
V.P.S. Appeal dismissed.
657
