ANTHONYSWAMY versus M. R. CHINNASWAMY KOUNDAN (DIED) BY L. RS. & ORS.

ANTBONYSWAMY

M. R. CHINNASWAMY KOUNDAN (DIBD) BY L. RS. & ORS.

October 6, 1969

[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)

Hindu U.w-Christians governed by Hindu Mitakshara law-Whether doctrine of pious ob/igallion applicable.

Pro1nissocy·note-When erulorsee could sue non-executant coparcener.r on the debt.

The appellant filed suit for declaring that certain execution procee<l-ins resulting in the sale of the suit properties were invalid, and for parti-tion of his share therein. The claim was based inter a/it; on : (I) that the appellant's family were Tamil Vannian Christians governed in the matter of inheritance and succession by the Hindu Mitakshara law includ-ing the doctrine of right by birth, but not by that of pious obligation; and (2) that the debt was incurred on promissory note and that the en-dorsee of the note was not entitled to obtain decree against the non-executant cor>arceners for sale of the family propcrtie.s. HELD: (I) The doctrine of pious obligation is not merely 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 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 wllo were governed by the Mitakshara law in matters of inheritance and succession. [653 G-H; 654 G-Hl

Girdharee Lall v. Kantoo Le// (1874) 1 I.A. 321, Suraj Bansi K'<r v. Sheo Prasad, (1880) 6 I.A. 88, Muttayan v. Zamindar of Sivagirl (1883) 9. L\. 128, Abraham v. Abraham, 9 M.I.A. 199, 243, Brij Narain v. Mangal Prasad 51 I.A. 129 and Ba/akrishnan v. Chittoor Bank A.LR. 1936 Mad. 9137, referred to.

(2) The endorsement in the present case was not mere endorsement but it has been so worded as to transfer the debt also. Therefore, the en-dorsee v,.·as entitled to bring suit against the non-executant coparceners on the ground of their liability under Hindu Law. [655 G-H; 656 B.C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2020 of 1966.

Appeal from the Judgment and decree dated July 13, 1960 of the Kerala High Cottrt in Appeal Suit No. 251 of 1956(E).

V. S. Desai and R. Gopa/akrishnan, for the appellant.

S. T. Desai, C. H. Subramanya Iyer and S. Balakrishnan, for

re!pondent No. 5.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought by certificate from the judj!rncnt of the High Court of Kerala dated July 13, 1960

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 decree for payment of Rs. 30,000/- as damages sustained by him on account of fraud and collusion in the execution proceedings. Th~ plaintiff is the son of the 8th defendant and the 9th defendant is the brother of the 8th defendant. The plaintiff and deiendants 8 and 9 are Tamil Vannian Christians of Chittur Taluk who are govem.~d in the matter of inheritance and succes-sion by Hindu Mithakshara law. The plaintiff has acquired right by birth in the ancestral properties and during the life-time of his father the son has 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. 1,500/-. 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 hypo-thecated the family properties to the 5th defendant and obtained money. The 5th defend~nt sued upon the mortgage bond in O.S. No. 75 of 1107 (M.E.) of the Trichur District Court and im-peaching the validity of the debts, the 9th defendant who was minor at that time filed 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 appoint-ment of r.~ceiver and the Court appointed the 7th defendant, friend of the 5th defendant, as receiver with 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 execu-G tion 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 promissory note on i 1.10.1105 (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 Iyer on 24th Thulam 1107 (equivalent to November, 1932). Ramachandra Iyer file? suit on this note, O.S. 213 of 1107 on. 6.5.1107 (1931) agamst

the 8th and 9th defendants. The suit was decreed and the dccree-holder executed the decree. The disputed properties were at-tached. The properties at that time were in the possession of the 9th defendant for sometime as receiver and then in, the hands of vakil appointed by the Court in his place. In execution, one Haribara Subramania Iyer purchased the equity of redemp-tion on 31st Karkatam 1108 (July-August, 1933). The auction-purchaset was duly put in possession on 22.3.1109 (1933). Th!! mortgagee Sadasiva Iyer who had obtained 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 al-ready been taken by the auction purchaser in execution of the decree passed against them, the 9th defendant did not press the partition suit-0.S. 65 of 1107. In 1938 Sadasiva Iyer 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 V annia Tamil Christians living in Chittur Taluk were govern· ed as 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 hii sons acquired right therein by birth kcluding 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 Md so the mortgage &bts were not binding on the appellant. The appel• !ant was, ther~fore, entitled to one-fourth share in the properties and to partition of his one-fourth share. The d~ceased, 1st defendant, contested the suit. He claimed to be 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 Iyer. It was said that he had no notice cf any vgitiating circumstance affecting the title at public auction conducted by the Official Receiver. Afier 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 tile decree in 0.S. 213 of 1107 ME was not tainted by illegality or immorality.

The Subordinate Judge came to the following findings : The plaintiff has established the custom that VannfJ'a Tamil Christians of Chittur Taluk were governed in the matter of inheri-tance and succession by Hindu Mitakshara law. The plaintiff has acquired right by birth in the ancestral properties and was entitl-ed to claim share therein and the properties acquired with the aid of income from ancestrnl properties also became joint family properties. The Manager of the family for the time being cannot alienate the p10perties except for legal necessity but the doctrine of pious obligation imposin.2 liability on the son to di5chargc his father's debts not incurr,!!d 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 defen-c dant no. 8 could not be executed against the plaintiff's share because the right of an endorsee of promissory note executed by the managing member of joint Hindu family was limited to the note unless the endorsement was so worded as to ttansfer the debt as well. In the present case there was an ordinary endorse-ment and there was no transfer of the debt and, therefore. the endorsee cannot sue the non-executing coparcener on the ground of his liability under the Hindu law. Exhibit on which the decree was obtained was for immoral purposes and the decree cannot bind the plaintiff and his share in the di,puted properties cannot pass in execution sale. The mortgage decr~e­holder contrived to get the assignment of the p<omissory note debt and had suit brought on it, brought the properties to sale and got the properties purchased for his own benefit. The execu-tion proceedings were collusive and fraudulent and not binding on the plaintiff. On these findings the Subordinate Judge grant-ed decree for partition and recovery of possession in favour of the plaintiff subject fo the mortgages on the property created before his birth. Aggrieved by the decree of the Subordinate Judge the !st defendant preferred an appeal to the High Court of Kerala which allowed the appeal and dismissed the suit The High Court held that the Vanniya Tamil Christians of Chittur Taluk are governed by the Mitakshara School of Hindu law in regard to· inheritance and succession. The son of member of such community gets by birth an interest in ancestral proper!:< owned by the father. Tlie doctrine of pious obligation applies and the son is bound to discharge his father's debts not tainted hy illegality or immorality. The debt which resulted in the execu-tion sale was not so tainted. The question whether the debt w0s incurred for legal necessity was not decided. The High Court held that the execution oroceedings and the sale in auction are nN vitiated by fraud or collusion. The first question to be considered in this appeal is whether the doctrine of pious obligation 'lccordi!'g to the Mitakshara school of Hindu bw is applicable to Vanniya Tamil Christians L3 Sup Ci-11

of Chittur Taiuk. In para 1 of the pl~int the law applicable to the community is stated· as follows :

"The plaintiff and defendants 8 and 9 are Tamil Christians residing in Chittur Taiuk, the plaintiff being the son of the 8th defendant and defendant 9 being the younger brother of the 8th defendant. The plaintiff and pefendants 8 and 9 are of the Vanniya Caste and in the matter of property rights of inheritance and suc-cession alone they are governed by th.e Hindu Mitak-shara Law. (The plaintiff by birth is entitled to share in the ancestral property and that even during the lifetime of his father the son has every right to de-mand his share in the ancestral property and recover the same even by suit. Tn the community to which the plaintiff belones the propertie:; of man became on his death ancestral properties in the hands of the sons and thereafter it continues for ever to be family ances-tral property and tl1erein the son has by his birth right to share even during the life time of the father. This custom is very ancient one and is adopted as the law from time immemorial, and governs the com-munity. The above is the customary law of '.he plaintiff's community accepted and followed by them from ancient times." In 4 Select Decisions 485 the Chief Court of Cochin held thai: !he Tamil Vanniya Christians of Chitrnr Taluk were governed by the rules of Hindu Jaw 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 thai "as to the Tamil ChrL1tians of the Chittur Taluk, the evidence shows that they follow the Hindu law of succession auci' inheritance" and recommended that they should be excluded from the proposed legislation. The reconunendation was accepted by the Maharajah of Cochin. Section 2(2) of the Cochin Christian Succession Act (VI of 1097) provided that nothing therein con· tained shall be deemed to affect succession to the property of "the Tamil Christians of Chittur Taiuk 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 Chittur Taluk were not governed by the Mitakishara law in matter of inheritance and suc-cession. 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 correct proposition to state that the doctrine of pious obligation is of religious character or is inex-tricably 1.·onnected with Hindu religious belief. It is true that

according to Srnriti wriiers the non-payment of debt was sin the c0nsequences of which will follow the debtor into the next world. But the doctrine as developed by the Judicial Committee in Girdharilal's case('); Surajbansi's case(')_ and Brij Narain v. Manga/ Prasad(') was different in several important respects. l'nder the. Sllliriti texts there was only religious and not legal obligatioll'imposed upon the.sons to pay the debt bf their (athef. 1-0 the-0bJ;gation of the son to pay the debt arose not in the father's lifetillle but after his death. The text of Narnd'a says that 'lathers desire lllale offspring for their own sake reflecting •·this son will rclleem _me from every c.lcbt due to superior and inferior be-e i~,:,··. Therefbre, son be~ottea by him shoulc.1 relinquish his own v01-erty and '"siduously redeem his fatber from debt lest he fall into region of torment. If devout'man or one who maintained ~a·~cificial fire die debtor. all the merit of his devout austerities or of his perpetual fire shall -belong to his credito~. ( 1 Dig. Higg. Edi,ion 202.J The text of Vishnu states·:· "IT1!e who contracted the debt should die, or become religious anchoret, or remain abroad for twenty years, that debt s)1all be discharged by hi$ son.< ,,,. grandsons but nor by remoter descendants against their will" : 1 i Dig. Higg. Edition 185). Brihaspati also states "the sons mu't pay the· debt of their father, when proved, as if it were their own. or with_ interest. the son's son must pay tbe debt of his grandfather but ivithout int.ores! and his son or the great grandson shall not be :E compelled to discharge it unl\!SS he be heir and have assets. But th~ ~udicial Committee held in the Sivagiri case (') that the obliga-ti)>n of ·the son was not religious but legal obligation and the rule would operate not only after the father's death but even in the father's lifetime. Und.er the old texts of Hindu law only the son :.nd p,:randson are liable to pay the ancestor"s debt but the ohliga-f tion is personal and independent of any assets derived from_ the joint family. The Judicial Conunittee, however, extended the llt1ci(ine ,to '!he great grandson but confined the liability to tbe ''xteut Qf coparcenary property. From the son's duty to pay his i'at!ie(s i\iritainted debt the Judicial Committee deduced the pro--no~ition th'at the father had the right to alienate his son's interest t•> pay such .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 roere]y religious doctrine but ':las passed into the realm of J'aw., The doctrine is necessary at!d logical corollary to the doc-trine 6f 'the righ~ of the son by birth to share of the ancestral property and both tbese cOne<;ptions are correlated. The liability· II imposed on the s_on to pay the debt cf his father is not gratuitous

(2) 6 [. A. 88.

(I) l. A. 321.

IJ) 51 l. A. 129.

(4) 9 I. A. 128.

obligation thrust on him by Hindu law but is salutary counter-balance 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. 3s 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 purJ><J.Ses 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 govern-ing certain community without taking along with it the other por-tions which form an integ:1! part of the whole system. In this connection reference may be made to the following passage from the judgment of the Judicial Committee in Abraham v. Abraham(') :

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 class which as to these matters had adopted and acted upon SOII\e 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, ar.<i his powers over it, should be governec! by the law which he has adopted, or the rules which he has observed." For the reasons already given we are of opinion that the do.:trine of pious obligation is not merely religious doctrine but has passed into the realm of law. It is an integral part of the Mitabhara School of Hindu law wherein the sons from the moment of their birth acquire along with their father an interest in the joint fom;h. property. The doctrine is in consonance with justice. equity and g!>od conscience and is not opposed to anv principle of Christianitv. Tt follows that the High Court is right in its conclusion that th doctrine of pious obligation is applicable to the community of Tamil Vanniya Christians of Chittur Taluk. ·

(I) A. I. R. 19)6 Mao. 937.

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 testi-mony of P.Ws 19 and 20. P.W. 19 deposed that the plaintiff's father was keeping 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 hcmse, that plaintiff's father executed promissory note in favour of Somasundara Swamiyar, payee under Ex. and out of the consideration sum of Rs. 1,000 /- was paid to Thankammal. P.W. 20 gave .evidence to similar effect. P.Ws. 19 and 20 are not the attesting witnesses of the promissory notes. They were mentioned by the plaintiff for the first time in the supplemental list of witnesses dated 12-11-1954. The High Court has dis-believed the evidence of P.Ws 19 and 20 and held that the allega-tion 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 thjs 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 decree against the defendants personally and for sale of the family properties upon the original debt. The contention of the appellant was ihat the 4th defendant was not the payee under Ex. but was an endorsee of the promi,sory note and was not hence entitled to obtain decree against the non-executant copar-ceners and to proceed against the joint family properties. In support of this proposition reliance was placed upon decision of the Full Bench of the Madras High Court in Maruthamuthu Naicker v. Kadir Badsha Rowther(') in which it was held that an indorsee of promissory note executed by the managing member of Hindu family was limited to his remedy on the promissory note, unless the endorsement was so worded as to transfer the debt a, well and the stan1p law was complied with and, therefore, in the case of an ordinary endorsement, the indorsee cannot sue the non-executant coparceners on the ground of their liability under the Hindu law. Where the indorsement is in blank it only ope-G rates to transfer the properly in the instrument and not as an nssignment 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 mer, endorsement but it has been so worded "' to transfer the debt also. The indorsement reads as follows :

"As the principal and interest as per this promis-- ~ory note __ i~!e~eived Ill_ cash today to (my) satisfac-(1 J A.l.R. 1938 Mad. 377.

tion from Ramchandra Iyer, son of Subbararoa Iyer, Thekkegraroanl, Chittur, the above principal and inte-rest together with the future interest thereon is to be paid to the above Ramchandra Iyer 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 Rarochamlra Iyer, defendant no. 4 was entitled to bring suit against the non-exccutant coparceners on the ground of their liability under the Hindu law. We accordingly reject the argument of th~ 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 tovk the view that defendants 4 to 7 had committed fraud 1nd the decree in execu-tion in O.S. ~ l I of 1107 ME was void and liable to be set aside. But the High Court has upon review of the facts found that: the 4th defendant and 6th defendant and P.W. 23 Srilala Iyer had active!\· assisted the 5th defendant to get possession of the properly as qtid;Jy as possible but there was no proof that defen-dants 4 to 7 either collectively or individually transgressed the limits of law or were guilty of fraud. Upon the evidence adduced in the case we are satistied that the finding of the High Court is correct.

For these rea;,ons \\·e hold that this appe::J fails and must be dismissed with costs.

Appeal dismissed.