Thiruvenkata Mudaliar vs Muthu Aiyar Alias Mahadeva Aiyar on 10 August, 1904

Madras High Court
Thiruvenkata Mudaliar vs Muthu Aiyar Alias Mahadeva Aiyar on 10 August, 1904
Equivalent citations: (1904) 14 MLJ 431


1. It is conceded by the pleader for the res-pondent that, under the Full Bench ruling in Periasami Mudaliar v. Seetharama Chettiar I.L.R. 27 M. 243 this action is maintainable and we must, therefore, reverse the decree of the Subordinate Judge and direct him to replace the appeal on his file and dispose of it according to law. It was contended that the 4th issue in the Munsif’s Court raising the question, whether there was any debt due by the defendants father, could not be raised by the son in this suit brought to recover the debt decreed in the judgment against the father, was much as that question was concluded by that judgment. Though no doubt, there are some observations in the judgments of the learned judges in the Full Bench case referred to above, which lend support to this contention, it did not form the subject of the Full Bench decision and we should be reluctant to hold that the son is no longer able to show that the debt which it is being sought to charge upon him is not existent. Their Lordships of the Privy Council fully recognize this right of the son in Mussamat Nanomi Babuasin v. Modun Mohun L.R. 13 I.A. 18 where they observe that sons ” ought not to be barred from trying the fact or the nature of the debt” in a suit. We cannot accept the contention that this right is curtailed by the observations of the judges of this Court above referred to.

2. Costs of this appeal will be provided for by the Subordinate Judge in his revised decree.

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