JUDGMENT
John Beaumont, C.J.
1. This is a reference under Section 25 of the Provincial Small Causes Courts Act from the Small Causes Court at B, and the question raised is an interesting point of law arising under the Indian Limitation Act. The suit is against the sons of the original debtor, the liability sought to be imposed being in respect of the pious obligation of a Hindu son to pay his father’s debts, The question which arises is from what period the Indian Limitation Act runs as against the son, and which Article of the Act applies.
2. Now the facts are that on June 13, 1923, the father gave a promissory note for Rs. 130 odd with interest, On June 1, 1926, the father repaid part of the money owing and acknowledged that on that date Rs. 100 was owing on the promissory note. The effect of that acknowledgment was, at any rate as against the father, to start a fresh period of limitation running from June 1, 1926. The father died in June 1928, and on June 1, 1929, the last date on which a suit could be brought against the father, the plaintiff sued the father on the promissory note in the Small Causes Court, presumably in ignorance of the fact that the father was dead. That suit failed because the father was dead and therefore there was no defendant. On August 14, 1929, this suit was commenced by the plaintiff against the defendants as the sons of the maker of the promissory note and it is sought to make them liable to the extent to which they have inherited joint family property. The way in which the case is put by Mr. Murdeshwar for the petitioner is this. He says that originally under the promissory note there would be a period of limitation of three years against the father under Article 73; but that inasmuch as the liability of the sons does not arise under the promissory note, there is no Article of the Indian Limitation Act directly applying to the sons, and therefore the case falls under Article 120 and the period against the sons is six years. And then he says that the effect of the acknowledgment by the father on June 1, 1926, was to extend the period against the father for another three years, and to extend the period against the sons for another six years.
3. The first point to notice is that as against the father the claim on the promissory note was barred at the date of commencement of this suit, because under Article 73 of the Indian Limitation Act the period is three years, and three years had expired from the date of the acknowledgment. There are decisions of three High
4. Courts to the effect that if the debt cannot be enforced against the father then the son under the Hindu law is not bound. Those cases are in Subramania Aiyar v. Gopala Aiyar (1909) I.L.R. 33 Mad. 308, Achutanand Jha v. Surjanarain Jha (1926) I.L.R. 5 Pat. 746, and Narsingh Misra v. Lalji Misra (1901) I.L.R 23 All. 206. It would really be enough for the decision of this case to say that I think those rulings are right and that we should follow them. But Mr. Murdeshwar for the petitioner has pointed out that in none of those cases were reasons given for the rule, and he is not prepared to accept the rule as accurate. The point of principle which really arises is whether the period of limitation against the sons under their pious obligation to pay their father’s debts is the same as the period against the father. On that point there is the ruling of the High Court of Madras in Mallesam Naidu v. Jugala Panda (1899) I.L.R. 23 Mad. 392 to the effect that there is only one cause of action against both the father and the sons, although in that case it was not necessary to consider this particular point. In the case of Narsingh Misra v, Lalji Misra (1901) I.L.R 23 All. 206 before the High Court of Allahabad the Judges did consider this point, and although they accepted the view that the son was not liable under the Hindu law for a debt which was time-barred against the father, nevertheless, as in that case the debt was not time-barred against the father, they held that the Article applicable to the case as against the sons was Article 120, so that the period of limitation against the sona was six yeara. In order to determine the question which Article of the Indian Limitation Act applies, it is necessary to see what the cause of action against the Hindu sons really is, and that is not an easy question. The pious obligation of a Hindu son to pay his father’s debt, based as it was originally largely upon religious considerations, creates a position which is not completely analogous to any legal relationship in English law. It has been held that the son is not jointly and severally liable with the father. The liability is in some respects analogous to that of a surety, but so far as relates to the Indian Limitation Act the case of Subramania Aiyar v. Copala Aiyar (1926) I.L.R. 5 Pat. 746 shows that the son is not in the same position as a surety, because in that case it was held that the son was not liable because the debt was time-barred against the father, but that nevertheless sureties were liable, In my judgment the foundation of the cause of action against the sons is the contract by the father to pay, and, however the case is put, the obligation of the sons really arises on the father’s contract. This view is strengthened by the fact that it would be a good defence for the sons to show that the contract was of a particular kind, e. g., a contract to borrow money for immoral purposes. It is do doubt true that the sons are not parties to the contract, but the law operates upon the contract so as to make the sons liable for the amount due by the father to the extent of the property which the sons inherit. If I am right in thinking that the cause of action against the father and the sons is really the same and is the contract by the father to pay, then it seems to me that the Article of the Indian Limitation Act which applies must also be the same, and I am not prepared to follow the ruling in Narsingh Misra v. Lalji Misra. In this case the Article is Article 73 which gives the period as three years in respect of an action on a bill of exchange or promissory note payable on demand. I think, therefore, that this action is time-barred. That being so, it is unnecessary for me to consider the question whether the effect of an acknowledgment by the father could have been to extend the period against him for three years and against the sons for six years. I agree with the view expressed by the learned Small Cause Court Judge. The rule is discharged with costs.
Murphy, J.
1. One Dodda Bhat executed a promissory note for Rs. 180 odd on June 13, 1923. On June 1, 1926, he made a part payment and noted the fact of his payment at the back of the note in his own hand acknowledging that Rs. 100 were still due. By so doing he enabled a fresh period of limitation to be computed under Section 20 of the Indian Limitation Act. On the corresponding date three years later, plaintiff filed a suit against Dodda Bhat–though in ignorance of the fact that he had died–and on August 14 in the same year, 1929, he filed the present suit in the Small Cause Court at Honavar against Dodda Bhat’s sons. The learned Subordinate Judge has held that the claim is time-barred. By the Hindu law the son of a Hindu is under a pious obligation to pay his father’s debts, at any rate to the extent of the family property, and the question is whether, on these facts, the suit has correctly been held to be time-barred. There is no direct ruling to cover the facts involved here. It has been argued by the learned pleader for the petitioner that though in August 1929 the suit was barred against the father the period of limitation against the sons is not the same as that against the father. One of his arguments is that the starting point of limitation against the son since the date of the promissory note and the acknowledgment is the date of the father’s death, which will enable the suit to be commenced. Sat for this statement there is little, if any, direct authority. There are, however, cases in which it has been held that the period of limitation against different defendants arising out of the same cause of action may not be the same, as in the case of a surety. One of them is Narayanan v. Veerappa (1916) I.L.R. 40 Mad. 581, and there is also the case of Hajarimal v. Krishnarav (1881) I.L.R. 5 Bom. 647, where the difference in the period of limitation was due to the fact that the principal debtor was not an agriculturist, but the surety was one. Here the argument is that on the execution of the promissory note, the sons being by the authorities liable during the father’s lifetime, the limitation against the father was three years, and against the sons six years under Article 120 of the Indian Limitation Act, there being no special Article applicable to the sons, and on the acknowledgment being executed the period was extended by three and six years respectively under Section 20 of the Indian Limitation Act. The consequence would be that the suit would be within time. It has, however, been held by no less than three High Courts, in Subramania Aiyar v. Gopala Aiyar (1909) I.L.R. 33 Mad. 308, Achutanand Jha v. Surjanarain Jha (1926) I.L.R. 5 Pat. 746, and Narsingh Misra v. Lalji Misra (1901) I.L.R. 23 All. 206, that the sons cannot be held liable for a debt which, at the time is time-barred against the father, and this being so, I think we must hold that the period of limitation cannot be extended as has been suggested by the learned pleader for the petitioner, and that the learned Subordinate Judge’s decision is correct and that the suit in this case was time-barred.
