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Madras High Court
Kandasami Goundan vs Marudachala Goundan And Ors. on 26 April, 1927
Equivalent citations: AIR 1928 Mad 105


1. The only point for consideration in second appeal is whether the direction as regards the mortgage evidenced by Ex. A is a proper direction. The contention of Mr. Muthiah Mudaliar is that after partition, a decree against the father cannot be executed against the son’s share, and he relies on Krishnaswami Konan v. Ramaswami Ayyar [1899] 22 Mad. 519 and D. Kameswaramma v. Venkata Subba Rao [1915] 38 Mad. 1120. Those cases have no application to the present. The present is one for partition. In the partition suit the plaintiff asks for a declaration that certain debts incurred by the father are not binding upon him. It is for him to show that those debts were incurred for illegal or immoral purposes’ and if he is able to show that, then he could get relief. Otherwise the debts would be binding upon him. There is a distinct finding by the learned Subordinate Judge that the debts were not incurred for illegal or immoral purposes and are binding on the son. The debt secured by the mortgage is also one incurred not for illegal or immoral purposes and is binding upon the son. That being so, we fail to see how the plaintiff could escape liability for the debt by the mere fact that he has filed the plaint asking for a declaration that the debts incurred by the father are not binding upon him. If the mortgagee is able to obtain a personal decree against the father exhausting his remedy against the father’s share, then he would be en-titled to go against the plaintiff’s share of the family property to the extent of, the balance remaining due after executing the decree against the father’s share. The direction of the lower Court is correct. We, therefore, dismiss the second appeal with costs.

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