{"id":154940,"date":"1969-10-06T00:00:00","date_gmt":"1969-10-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anthonyswamy-vs-m-r-chinnaswamy-koundan-deed-on-6-october-1969"},"modified":"2017-05-04T01:31:12","modified_gmt":"2017-05-03T20:01:12","slug":"anthonyswamy-vs-m-r-chinnaswamy-koundan-deed-on-6-october-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anthonyswamy-vs-m-r-chinnaswamy-koundan-deed-on-6-october-1969","title":{"rendered":"Anthonyswamy vs M. R. Chinnaswamy Koundan (Deed) … on 6 October, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Anthonyswamy vs M. R. Chinnaswamy Koundan (Deed) … on 6 October, 1969<\/div>\n
Equivalent citations: 1970 AIR 223, \t\t 1970 SCR (2) 648<\/div>\n
Author: V Ramaswami<\/div>\n
Bench: Ramaswami, V.<\/div>\n
           PETITIONER:\nANTHONYSWAMY\n\n\tVs.\n\nRESPONDENT:\nM.   R. CHINNASWAMY KOUNDAN (DEED) BY L. RS. & ORS.\n\nDATE OF JUDGMENT:\n06\/10\/1969\n\nBENCH:\nRAMASWAMI, V.\nBENCH:\nRAMASWAMI, V.\nSHAH, J.C.\nGROVER, A.N.\n\nCITATION:\n 1970 AIR  223\t\t  1970 SCR  (2) 648\n 1969 SCC  (3)\t15\n CITATOR INFO :\n R\t    1978 SC1791\t (14A,25)\n\n\nACT:\nHindu  Law-Christians  governed\t by  Hindu  Mitakshara\tlaw-\nWhether doctrine of pious obligation applicable.\nPromissory-note-When   endorsee\t could\t sue   non-executant\ncoparceners on the debt.\n\n\n\nHEADNOTE:\nThe  appellant\tfiled  a suit  for  declaring  that  certain\nexecution  proceedins  resulting  in the sale  of  the\tsuit\nproperties  were  invalid, and for partition  of  his  share\ntherein.   The claim was based inter alia on : (1) that\t the\nappellant's family were Tamil Vannian Christians governed in\nthe  matter  of\t inheritance and  succession  by  the  Hindu\nMitakshara law including the doctrine of right by birth, but\nnot  by that of pious obligation; and (2) that the debt\t was\nincurred  on a promissory note and that the endorsee of\t the\nnote  was not entitled to obtain a decree against  the\tnon-\nexecutant coparceners for sale of the family properties.\nHELD:\t  (1) The doctrine of pious obligation is not merely\na  religous doctrine but has passed into the realm  of\tlaw.\nIt is an integral part of the Mitakshara school of the Hindu\nlaw.  wherein,\tthe  sons, from the moment  of\ttheir  birth\nacquire\t along\twith their father an interest in  the  joint\nfamily Property.  It is a necessary and logical corollary to\nthe  doctrine of right by birth and the two conceptions\t are\ncorrelated.   The  doctrine is in consonance  with  justice,\nequity\tand  good  conscience  and is  not  opposed  to\t any\nprinciple of Christianity.  Therefore, the doctrine of pious\nobligation is applicable to the Tamil Vannian Christians who\nwere   governed\t by  the  Mitakshara  law  in\tmatters\t  of\ninheritance and succession. [653 G-H; 654 G-H]\nGirdharee Lall v. Kantoo Lall (1874) 1 I.A. 321 Suraj  Bansi\nKoer  v.Sheo prasad, (1980) 6 I.A.88, Muttayan v.  Zamindari\nof  Sivagiri (1883) 9 I.A. 128, Abraham, 9 M.I.A. 199,\t243,\nBrij Narain v. Mangal Prasad 51 I.A. 129 and Balakrishnan v.\nChittoor Bank A.I.R. 1936 Mad. 9137, referred to.\n(2)  The  endorsement  in the present case was\tnot  a\tmere\nendorsement  but it has been so worded as to  transfer\tthe,\ndebt also.  Therefore, the endorsee was entitled to bring  a\nsuit against the non-executant coparceners on the ground  of\ntheir liability under Hindu Law. [655 G-H; 656 B-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2020  of
\n1966.\n<\/p>\n
Appeal\tfrom the Judgment and decree dated July 13, 1960  of
\nthe Kerala High Court in Appeal Suit No. 251 of 1956(E).
\nV.   S. Desai and R. Gopalakrishnan, for the appellant.
\nS.   T.\t Desai, C. H. Subramanya Iyer and  S.  Balakrishnan,
\nfor respondent No. 5.\n<\/p>\n
The Judgment of the Court was delivered by
\nRamaswami, J. This appeal is brought by certificate from the
\njudgment of the High Court of Kerala dated July 13, 1960
\n649<\/span>
\nin  Appeal Suit No. 251 of 1956.  By its judgment  the\tHigh
\nCourt  allowed the appeal of the deceased M. R.\t Chinnaswamy
\nGoundan, 1st defendant, reversing the judgment and decree of
\nthe  Subordinate  Judge of Chittur in O.S. No. 131  of\t1950
\nwhich  the  appellant had filed on March 31, 1949  in  forma
\npauperis  for declaring that certain  execution\t proceedings
\nresulting  in the sale of suit properties were\tinvalid\t and
\nfor  partition of one-fourth share therein.   The  appellant
\nalso claimed in the alternative a decree for payment of\t Rs.
\n30,000\/- as damages sustained by him on account of fraud and
\ncollusion in the execution proceedings.\n<\/p>\n
The  plaintiff is the son of the 8th defendant and  the\t 9th
\ndefendant  is  the  brother  of\t the  8th  defendant.\t The
\nplaintiff   and\t defendants  8\tand  9\tare  Tamil   Vannian
\nChristians  of Chittur Taluk who are governed in the  matter
\nof inheritance and succession by Hindu Mithakshara law.\t The
\nplaintiff  has\tacquired a right by birth in  the  ancestral
\nproperties  and during the life-time of his father  the\t son
\nhas  a\tright  to claim partition.   The  plaint  properties
\nbelonged  to the family of plaintiff and defendants 8 and  9
\nwhich yield an annual profits of 4000 paras of paddy and Rs.
\n1,5001-.   After the death of his father Kanakappa  Koundan,
\nthe 8th defendant became the manager of the family.  He\t led
\nan immoral life and incurred debts for immoral purposes.  He
\nhypothecated the family properties to the 5th defendant\t and
\nobtained  money.  The 5th defendant sued upon  the  mortgage
\nbond  in O.S. No. 75 of 1107 (M.E.) of the Trichur  District
\nCourt  and  impeaching the validity of the  debts,  the\t 9th
\ndefendant  who\twas a minor at that time filed\ta  suit\t for
\npartition of his half share in O.S. 65 of 1107 (M.E.) in the
\nsame  District Court.  During the pendency of the two  suits
\nthe 5th defendant applied for the appointment of a  receiver
\nand  the Court appointed the 7th defendant, a friend of\t the
\n5th defendant, as receiver with a direction to pay Rs.\t40\/-
\nper  mensem  to the 9th defendant as  maintenance  till\t the
\ndisposal of the suit.  The plaint properties were  committed
\nto the possession of the 7th defendant as receiver in  those
\nsuits.\n<\/p>\n
The suit for partition was dismissed on November 14, 1933 as
\nby  this  date\tthe equity of redemption had  been  sold  in
\nexecution of simple money decree against defendants 8 and  9
\nin O.S. 203 of 1107 (M.E). The 8th defendant for himself and
\nas  guardian  of his younger brother executed  a  promissory
\nnote   on  11.10.1105  (equivalent  to\tMay  1930)  to\t one
\nSomasundara  Swamiyar  for Rs. 1,500 the  consideration\t for
\nwhich was paid partly in cash and partly in discharge of  an
\nearlier\t promissory  note dated 11th  Vaisakhi\t1104  (June,
\n1929).\t The promisee endorsed the note to Ramachandra\tlyer
\non   24th  Thulam  1107\t (equivalent  to  November,   1932).
\nRamachandra lyer filed a suit on this note, O.S. 213 of 1107
\non 6.5.1107 (1931) against
\n650<\/span>
\nthe  8th and 9th defendants.  The suit was decreed  and\t the
\ndecreeholder  executed the decree.  The disputed  properties
\nwere  attached.\t  The properties at that time  were  in\t the
\npossession of the 9th defendant for sometime as receiver and
\nthen  in the hands of a vakil appointed by the Court in\t his
\nplace.\tIn execution, one Harihara Subramania lyer purchased
\nthe  equity  of redemption on 31st Karkata  in\t1108  (July-
\nAugust,\t 1933).\t  The  auctionpurchaser\t was  duly  put\t  in
\npossession  on\t22.3.1109 (1933).  The,\t mortgagee  Sadasiva
\nlyer  who had obtained a decree on one of the  mortgages  on
\n29-3-1109  (M.E),  purchased the property from\tthe  auction
\npurchaser  on  5-5-1109 (1934).\t As possession\thad  already
\nbeen  taken  by the auction purchaser in  execution  of\t the
\ndecree passed against them, the 9th defendant did not  press
\nthe  partition suit O.S. 65 of 1107.  In 1938 Sadasiva\tlyer
\nwas  adjudged  insolvent  and  the  official  receiver\ttook
\npossession.   He  sold\tthe  property  in  auction  and\t the
\ndeceased 1st defendant became the purchaser for Rs.  24,000.
\nExhibit\t XIV  is  the sale deed\t executed  by  the  Official
\nReceiver  on  13-7-1116 (1941).\t  The  appellant  thereafter
\nbrought\t the present suit for partition.  The claim  of\t the
\nappellant  was\tbased on the allegation\t that  Vannia  Tamil
\nChristians living in Chittur Taluk were governed as a matter
\nof  custom  by the Mitakshara School of Hindu law.   It\t was
\nsaid  that  joint family relationship subsisted\t as  between
\nfather\t and  sons  and\t where\tthe  father  has   inherited
\nproperties from his father, they became ancestral properties
\nin  his\t hands and so his sons acquired a right\t therein  by
\nbirth\tincluding  the\tright  to  claim  the  property\t  by
\nsurvivorship.  It was also said that the decree debt in O.S.
\nNo. 213 of 1107 ME was not incurred for legal necessity\t but
\nwas incurred for immoral purposes and so the mortgage  debts
\nwere  not  binding  on the appellant.\tThe  appellant\twas,
\ntherefore,  entitled to one-fourth share in  the  properties
\nand to partition of his one-fourth share.  The deceased, 1st
\ndefendant, contested the suit.\tHe claimed to be a bona fide
\npurchaser  for value of the entire interest in the  property
\nfrom the Official Receiver in whom the properties had vested
\non the insolvency of Sadasiva lyer.  It was said that he had
\nno notice of any vgitiating circumstance affecting the title
\nat public auction conducted by the Official Receiver.  After
\nthe  sale, defendant no. 1 became the absolute owner of\t the
\nproperties  and was in full possession and enjoyment of\t the
\nsame.\tIt was also contended that the plaintiff  could\t not
\nclaim any interest in the properties during the life-time of
\nhis  father.  There was no customary right of birth  in\t the
\ncommunity  to which the plaintiff belonged and even if\tsuch
\nright  existed\tthe  plaintiff\twas bound  to  pay  off\t his
\nfather’s  debts on the doctrine of pious  obligation  before
\nclaiming any partition in respect of the properties.  It was
\nalso said that the debt which Was the basis of the decree in
\nO.S.  213  of  1107  ME was not\t tainted  by  illegality  or
\nimmorality.\n<\/p>\n
651<\/span><\/p>\n
The  Subordinate Judge came to the following findings :\t The
\nplaintiff  has\testablished the custom\tthat  Vanniya  Tamil
\n,Christians of Chittur Taluk were governed in the matter  of
\ninheritance  and  succession by Hindu Mitakshara  law.\t The
\nplaintiff  has\tacquired  right by birth  in  the  ancestral
\nproperties and was entitled to claim a share therein and the
\nproperties  acquired with the aid of income  from  ancestral
\nproperties also became joint family properties.\t The Manager
\nof  the\t family\t for  the time\tbeing  cannot  alienate\t the
\nproperties  except for legal necessity but the\tdoctrine  of
\npious  obligation  imposing  a\tliability  on  the  son\t  to
\ndischarge his father’s debts not incurred either for illegal
\nor immoral purposes did not apply to the community to  which
\nthe  plaintiff belonged.  The decree made on the  promissory
\nnote  by defendant no. 8 could not be executed\tagainst\t the
\nplaintiff’s  share  because the right of an  endorsee  of  a
\npromissory  note executed by the managing member of a  joint
\nHindu family was limited to the note unless the\t endorsement
\nwas  so\t worded\t as to transfer the debt as  well.   In\t the
\npresent case there was an ordinary endorsement and there was
\nno transfer of the debt and, therefore, the endorsee  cannot
\nsue the non-executingcoparcener\t on  the ground\t of  his
\nliability under the Hindu law.Exhibit  F on  which  the
\ndecree was obtained was for immoralpurposes\t    and
\nthedecree  cannot  bind the plaintiff and his share  in\t the
\ndisputed  properties  cannot pass in  execution\t sale.\t The
\nmortgage decreeholder contrived to get the assignment of the
\npromissory  note debt and had a suit brought on it,  brought
\nthe properties to sale and got the properties purchased\t for
\nhis own benefit.  The execution. proceedings were  collusive
\nand  fraudulent and not binding on the plaintiff.  On  these
\nfindings   the\tSubordinate  Judge  granted  a\tdecree\t for
\npartition  and\trecovery  of possession\t in  favour  of\t the
\nplaintiff  subject to the mortgages on the property  created
\nbefore\t his  birth.   Aggrieved  by  the  decree   of\t the
\nSubordinate  Judge the 1st defendant preferred an appeal  to
\nthe  High  Court  of Kerala which  allowed  the\t appeal\t and
\ndismissed  the suit.  The High Court held that\tthe  Vanniva
\nTamil  Christians  of  Chittur Taluk  are  governed  by\t the
\nMitakshara School of Hindu law in regard to inheritance\t and
\nsuccession.   The son of a member of auch community gets  by
\nbirth an interest in ancestral property owned by the father.
\nThe  doctrine  of pious obligation applies and\tthe  son  is
\nbound  to  discharge  his  father’s  debts  not\t tainted  by
\nillegality  or immorality.  The debt which resulted  in\t the
\nexecution sale was not so tainted.  The question whether the
\ndebt was incurred for legal necessity was not decided.\t The
\nHigh Court held that the execution proceedings and the\tsale
\nin auction are not vitiated by fraud or collusion.
\nThe  first  question  to be considered\tin  this  appeal  is
\nwhether\t the doctrine of pious obligation according  to\t the
\nMitakshara  school  of Hindu law is  applicable\t to  Vanniya
\nTamil Christians Sup CI-11
\n652<\/span>
\nof  Chittur  Taluk.   In  para\tI  of  the  plaint  the\t law
\napplicable to the community is stated as follows :\n<\/p>\n
\t      “The  plaintiff  and defendants 8\t and  9\t are
\n\t      Tamil  Christians residing in  Chittur  Taluk,
\n\t      the  plaintiff  being  the  son  of  the\t 8th
\n\t      defendant\t and defendant 9 being\tthe  younger
\n\t      brother  of the 8th defendant.  The  plaintiff
\n\t      and  defendants  8 and 9 are  of\tthe  Vanniya
\n\t\t\t    Caste  and in the matter of property r
\nights  of
\n\t      inheritance  and\tsuccession  alone  they\t are
\n\t      governed\tby  the Hindu Mitakshara  Law.\t(The
\n\t      plaintiff\t by birth is entitled to a share  in
\n\t      the  ancestral property and that\teven  during
\n\t      the  lifetime of his father the son has  every
\n\t      right  to\t demand his share in  the  ancestral
\n\t      property and recover the same even by a  suit.
\n\t      In  the  community  to  which  the   plaintiff
\n\t      belongs the properties of a man became on\t his
\n\t      death ancestral properties in the hands of the
\n\t      sons  and thereafter it continues for ever  to
\n\t      be  family ancestral property and therein\t the
\n\t      son has by his birth a right to a share,\teven
\n\t      during  the  life time of\t the  father.\tThis
\n\t      custom is a very ancient one and is adopted as
\n\t      the law from time immemorial, and governs\t the
\n\t      community.  The above is the customary law  of
\n\t      the   plaintiff’s\t  community   accepted\t and
\n\t      followed by them from ancient times.”\n<\/p><\/blockquote>\n
In  4  Select Decisions 485 the Chief Court of\tCochin\theld
\nthat  the  Tamil Vanniya Christians of\tChittur\t Taluk\twere
\ngovemed by the rules of Hindu law in matters of\t inheritance
\nand  succession.   The decision was followed some  35  years
\nlater in 34 Cochin 881.\t The report of the Cochin  Christian
\nSuccession  Bill  Committee  stated that “as  to  the  Tamil
\nChristians  of\tthe Chittur Taluk, the evidence\t shows\tthat
\nthey follow the Hindu law of succession and inheritance” and
\nrecommended  that they should be excluded from the  proposed
\nlegislation.\tThe  recommendation  was  accepted  by\t the
\nMaharajah  of Cochin.  Section 2(2) of the Cochin  Christian
\nSuccession  Act (VI of 1097) provided that  nothing  therein
\ncontained  shall  be  deemed to\t affect\t succession  to\t the
\nproperty  of  “the  Tamil Christians of\t Chittur  Taluk\t who
\nfollow\tthe  Hindu Law.” In this state of facts it  was\t not
\ncontended  on behalf of the appellant that the Tamil  Vannia
\nChristians  of the Chitture Taluk were not governed  by\t the
\nMitakishra law in matter of inheritance and succession.\t But
\nit  was\t argued\t that  the  doctrine  of  pious\t  obligation
\noriginated in Hindu religious belief and was opposed to\t the
\ntenets\tof Christianity.  It was said that the doctrine\t was
\nnot applicable to Tamil Vannia Christians of Chittur  Taluk.
\nWe are unable to accept\t this argument.\t It is not a correct
\nproposition to state  that the doctrine of pious  obligation
\nis of religious character or is inextricably connected\twith
\nHindu religious belief.\t It is true that
\n653<\/span>
\naccording to Smriti writers the non-payment of a debt was  a
\nsin  the consequences of which will follow the\tdebtor\tinto
\nthe  next  world.   But the doctrine  as  developed  by\t the
\nJudicial  Committee in Girdharilal’s  case(1);\tSurajbansi’s
\ncase  (2) and Brij Narain v. Mangal Prasad(3) was  different
\nin several important respects.\n<\/p>\n
Under the Smiriti texts there was only a religious and not a
\nlegal  obligation imposed upon the sons to pay the  debt  of
\ntheir  father.\t Also the obligation of the son to  pay\t the
\ndebt arose not in the father’s lifetime but after his death.
\nThe  text of Narada says that fathers desire male  offspring
\nfor their own sake reflecting “this son will redeem me\tfrom
\nevery debt due to superior and inferior beings”.  Therefore,
\na son begotten by him should relinquish his own property and
\nassiduously redeem his father from debt lest he fall into  a
\nregion of torment.  If a devout man or one who maintained  a
\nsacrificial  fire die a debtor, all the merit of his  devout
\nausterities  or\t of his perpetual fire shall belong  to\t his
\ncreditors. (I Dig.  Higg.  Edition 202.) The text of  Vishnu
\nstates\t:  “If\the who contracted the debt  should  die,  or
\nbecome\ta  religious anchoret, or remain abroad\t for  twenty
\nyears,\tthat  debt  shall  be  discharged  by  his  sons  or
\ngrandsons but not by remoter descendants against their will”
\n(I  Dig.  Higg.\t Edition 185).\tBrihaspati also states\t“the
\nsons  must pay the debt of their father, when proved, as  if
\nit were their own, or with interest. the son’s son must\t pay
\nthe debt of his grandfather but without interest and his son
\nor the great grandson shall not be compelled to discharge it
\nunless\the  be\their  and have\tassets.\t  But  the  Judicial
\nCommittee held in the Sivagiri case (4) that the  obligation
\nof  the son was not a religious but a legal  obligation\t and
\nthe rule would operate not only after the father’s death but
\neven in the father’s lifetime.\tUnder the old texts of Hindu
\nlaw  only  the\tson  and grandson  are\tliable\tto  pay\t the
\nancestor’s   debt  but\tthe  obligation\t is   personal\t and
\nindependent  of\t any assets derived from the  joint  family.
\nThe  Judicial Committee, however, extended the\tdoctrine  to
\nthe great grandson but confined the liability to the  extent
\nof  coparcenary\t property.  From the son’s duty to  pay\t his
\nfather’s  untainted debt the Judicial Committee deduced\t the
\nproposition  that the father had the right to  alienate\t his
\nson’s  interest to pay such a debt and this right  was\talso
\nmade available to the creditor of the father.
\nIt   is\t evident  therefore  that  the\tdoctrine  of   pious
\nobligation is not merely a religious doctrine but has passed
\ninto  the  realm of law.  The doctrine is  a  necessary\t and
\nlogical corollary to the doctrine of the right of the son by
\nbirth  to a share of the ancestral property and\t both  these
\nconceptions  are correlated.  The liability imposed  on\t the
\nson to pay the debt of his father is not a Gratuitous
\n(1)  1. A. 321.\n<\/p>\n
(3)  51 I.  A. 129.\n<\/p>\n
(2)  61. A. 88.\n<\/p>\n
(4)  91. A. 128.\n<\/p>\n
654<\/span><\/p>\n
obligation  thrust  on him by Hindu law but  is\t a  salutary
\ncounterbalance to the principle that the son from the moment
\nof  his birth acquires along with his father an interest  in
\njoint  family property.\t It is, therefore, not\tpossible  to
\naccept\tthe  argument addressed on behalf of  the  appellant
\nthat though the community is governed as a matter of  custom
\nby the Mitakshara School of Hindu law the doctrine of  pious
\nobligation  was not applicable.\t In Balkrishnan V.  Chittoor
\nBank(1)\t  the  question\t arose\twhether\t among\tthe   Ezhava
\ncommunity  of Palghat though they follow Makatayam  Law\t and
\nnot Marumakatayam Law, the sons are liable for the debts  of
\ntheir  father not incurred for illegal or  immoral  purposes
\nirrespective  of any question of family necessity.   It\t was
\nheld  by Varadachariar J., that the sons were so liable\t and
\nit  was observed that there was no warrant  for\t introducing
\none  portion  of  the  Hindu  law  in  governing  a  certain
\ncommunity  without taking along with it the  other  portions
\nwhich  form an integral part of the whole system.   In\tthis
\nconnection  reference may be made to the  following  passage
\nthe  _judgment\tof  the Judicial  Committee  in\t Abraham  v.
\nAbraham(1) :\n<\/p>\n
\t      The  profession of Christianity  releases\t the
\n\t      convert  from the trammels of the Hindoo\tlaw,
\n\t      but  it  does not ,of  necessity\tinvolve\t any
\n\t      change  of  the  rights or  relations  of\t the
\n\t      convert in matters with which Christianity has
\n\t      no  concern, such as his rights and  interests
\n\t      in,  and\this  powers  over,  property.\t The
\n\t      convert  though not bound as to such  matters,
\n\t      either  by  the  Hindu law  or  by  any  other
\n\t      positive\tlaw,  may by his course\t of  conduct
\n\t      after his conversion have shown by what law he
\n\t      intended\tto be governed as to these  matters.
\n\t      He  may  have  done  so  either  by  attaching
\n\t      himself  to a class which as to these  matters
\n\t      had  adopted  and acted upon  some  particular
\n\t      law, or by having himself observed some family
\n\t      usage  or\t custom; and nothing can  surely  be
\n\t      more  just than that the rights and  interests
\n\t      in  his  property,  and his  powers  over\t it,
\n\t      should  be governed by the law which  lie\t has
\n\t      adopted, or the rules which he has observed.”\n<\/p><\/blockquote>\n
For  the  reasons already given we are of opinion  that\t the
\ndoctrine  of  pious  obligation is not\tmerely\ta  religious
\ndoctrine  but  has passed into the realm of law.  It  is  an
\nintegral  part\tof  the Mitakshara  School  of\tHindi,.\t law
\nwherein\t the  sons from the moment of  their  birth  acquire
\nalong  with  their father an interest in  the  joint  family
\nproperty.   The\t doctrine  is in  consonance  with  justice,
\nequity\tand  good  conscience  and is  not  opposed  to\t any
\nprinciple of Christianity It follows that the High Court  is
\nright\tin  its\t conclusion  that  the\tdoctrine  of   pious
\nobligation  is applicable to the community of Tamil  Vanniya
\nChristians of Chittur Taluk.\n<\/p>\n
(1) A. I. R. 1936 Mad. 937.\n<\/p>\n
(2) 9 M. I. A. 199,
\n655<\/span>
\nThe next question to be considered is whether the  liability
\nof  the son was excluded because at its inception  the\tdebt
\nwas  tainted by immorality.  The evidence adduced on  behalf
\nof  the plaintiff to establish the immoral character of\t the
\ndebt  consists of the testimony of P.Ws 19 and 20.  P.W.  19
\ndeposed\t that the plaintiff ‘s father was keeping a  married
\nwoman  called  Thankammal.,  that  Thakammal  was   residing
\nopposite to his house at Alambadi with her husband, that  he
\nhad seen the plaintiff’s father frequenting her house,\tthat
\nplaintiff’s  father executed a promissory note in favour  of
\nSomasundara  Swamiyar,\tpayee under Ex.\t F and\tout  of\t the
\nconsideration  a sum of Rs. 1,000\/- was paid to\t Thankammal.
\nP.W. 20 gave evidence to a similar effect.  P.Ws. 19 and  20
\nare  not  ,he attesting witnesses of the  promissory  notes.
\nThey were mentioned the plaintiff for the first time in\t the
\nsupplemental  list of witnesses dated 12-11-1954.  The\tHigh
\nCourt  has  disbelieved the evidence of P.Ws 19 and  20\t and
\nheld that the allegation of the appellant that the debt\t was
\ntainted by immorality was not established.  We see no reason
\nto  differ  from the view taken by the High  Court  on\tthis
\npoint.\n<\/p>\n
We  proceed  to consider the next question arising  in\tthis
\nappeal, that is, whether the endorsee of the promissory note
\nis  entitled  to  obtain a  decree  against  the  defendants
\npersonally  and for sale of the family properties  upon\t the
\noriginal debt.\tThe contention of the appellant was that the
\n4th  defendant\twas  not the payee under Ex. F\tbut  was  an
\nendorsee  of the promissory note and was not hence  entitled
\nto obtain a decree against the non-executant coparceners and
\nto  proceed against the joint family properties. In  support
\nof  this proposition reliance was placed upon a decision  of
\nthe  Full Bench\t of the Madras High Court   in\tMaruthamuthu
\nNaicker\t v.  Kadir Badsha Rowther(1) in which  it  was\theld
\nthat  an  indorse  of  a promissory  note  executed  by\t the
\nmanaging member of a Hindu family was limited to his  remedy
\non the promissory note, unless the endorsement was so worded
\nas  to\ttransfer  the debt as well and\tthe  stamp  law\t was
\ncomplied  with and, therefoere in the  case of\tan  ordinary
\nendorsement  , the indorsee  cannot sue\t the   non-executant
\ncoparcerners   on the ground of their  liability  under\t the
\nHindu law.  Where the indorsement  is in blank it only\tope-
\nrates to transfer  the property\t in the instruement  and not
\nas   an\t assignment of debt.  It is not\t however   necessary
\nfor  us\t to examine this argument. The reason  is  that\t the
\nendorsement  in the present case made by the 8th   defendant
\nin  favour  of the 9th defendant is not a  mere\t endorsement
\nbut  it\t has been so worded as to transfer  the\t debt  also.
\nThe indorsement reads as follows :\n<\/p>\n
\t      “As  the\tprincipal and interest as  per\tthis
\n\t      proiiiissorv  note is, received in cash  todav
\n\t      to (my) satisfac-\n<\/p><\/blockquote>\n
\t      (1)   A.I.R. 1938, MaD. 377.\n<\/p><\/blockquote>\n
\t       656<\/span><\/p>\n
\t      tion  from,Ramchandra lyer, son  of  Subbarama
\n\t      lyer,   Thekkegramam,   Chittur,\t the   above
\n\t     principal and interest together with the future
\n\t      interest\tthereon is to be paid to  the  above
\n\t      Ramehandra lyer or to his Order.\n<\/p><\/blockquote>\n
\t      Dated 24th Thulam 1107 Somasundara Swamiyar.”\n<\/p><\/blockquote>\n
It  is\tapparent  that the endorsement is so  worded  as  to
\nconvey the transfer of the debt as well and it follows\tthat
\nRamchandra  lyer,  defendant no. 4 was entitled to  bring  a
\nsuit  against the non-executant coparceners on the round  of
\ntheir liability under the Hindu law.  We accordingly  reject
\nthe argument of the appellant on this aspect of the case.
\nFinally\t counsel on behalf of the appellant  contended\tthat
\nthe sale in execution proceedings in O.S. 213 of 1107 ME was
\nvitiated by fraud.  The Subordinate Judge took the view that
\ndefendants  4  to 7 had committed fraud and  the  decree  in
\nexecution in O.S. 21 1 of II 07 ME was void and liable to be
\nset  aside.   But the High Court has upon a  review  of\t the
\nfacts  found  that the 4th defendant and 6th  defendant\t and
\nP.W. 23 Srilala Iyer had actively assisted the 5th defendant
\nto get possession of the property as quickly as possible but
\nthere\twas  no\t proof\tthat  defendants  4  to\t  7   either
\ncollectively or individually transgressed the limits of\t law
\nor  were gulity of fraud.  Upon the evidence adduced in\t the
\ncase we are satisfied that the finding of the High Court  is
\ncorrect.\n<\/p>\n
For these reasons we hold that this appeal fails and must be
\ndismissed with costs.\n<\/p>\n
V.P.S.\t\t\t Appeal dismissed.\n657<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Anthonyswamy vs M. R. Chinnaswamy Koundan (Deed) … on 6 October, 1969 Equivalent citations: 1970 AIR 223, 1970 SCR (2) 648 Author: V Ramaswami Bench: Ramaswami, V. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-154940","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAnthonyswamy vs M. R. 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