SARWAN AND OTHERS Vs. KUNJI LAL
HIGH COURT OF MADHYA PRADESH
Sarwan And Others
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Chaturvedi, J. -
(1.)LEARNED counsel for the appellants in this second appeal contends that unlike a son the grandsons of Khuman deceased, are not liable for a debt contracted by Khuman as surety unless it is proved that consideration was received by the grandfather for accepting, the suretyship. This distinction between the liability of a son and that of a grandson was made in Narayan v. Venkatacharya,, 28 Bom. 408 : (6 Bom L.R. 434). This decision is noted in Mulla's Hindu Law without any comment upon it. In Gour's Hindu Code (Edn. 4) an opinion is expressed at p. 515 that this decision is not correct. In view of the decision of the Privy Council in Masitulla v. Damodar Prasad,, 53 I.A. 204 : (A.I.R. 1926 P.C. 105) which lays down that under Mitakshara law the liability of the sons, grandsons and great grandsons is co -extensive, this Bombay Court decision to the extent that it lays down a different rule for the sons and grandsons is regarded by Mr. S.V. Gupta in his Hindu Law (1947 Edn.) at p. 738 to have been overruled.
(2.)IN Mahabirprasad v. Sri Narayan,, A.I.R. 1918 pat. 345 : (3 pat. L.J. 396) and in Balkriskna Sahai v. Syam Sunder Sahai, A.I.R. 1920 Pat. 201 : (56 I.C. 962), the Patna High Court expressed the opinion that a son and a grandson are equally liable for the payment of the surety debts. But in both the cases it was only the question of son's liability which was involved and the opinion about the law regarding the grandson's liability must be considered as obiter. In Lyallpur Bank Ltd. v. Mehr Chand,, A.I.R. 1934 pesh. 132 : (153 I.C. 78), Almond J.C. followed Narayan v. Venkatacharya,, 28 Bom. 408 :, (6 Bom. L.R. 434) and observed that in the Privy Council case Masitullah v. Damodar Prasad, A.I.R. 1926 P.C. 105 : (63 I.A. 204), the question was not one of surety debt, and so the general remarks of the Privy Council about the coextensive nature of the liability of the son and grandson cannot be applied to the case of surety debt. The position thus comes down to this : that there are only two reported cases bearing, directly on the point. The Pashawar decision only follows the reported ruling of the Bombay High Court, and with respect to the learned Judge, it is difficult to find any convincing reasoning in the observations of Chandavarkar J. who delivered the Divisional Bench judgment in Narayan v. Venkatacharya,, 28 Bom. 408 : (6 Bom. L.R. 434). He merely says at p. 411 that
the law as laid down in the Mistakshara, by which She partite are governed, is that a grandson is not liable to pay a debt which his grandfather contracted as a surety unless the latter in accepting the liability of a surety received soma consideration for it.
(3.)AS remarked by Sulaiman C.J. and Rachhapal Singh J. in Dwarka Das v. Kishen Das, : 55 ALL. 675 : (A.I.R. 1933 ALL. 587),
with great respect to the learned Judge, there seems to have been some mistakes, in assuming that the law is laid down in these terms in the Mitakshara. As a matter of foot, we can find no passage therein wherein the liability of the grandson to pay the debt of a grandfather, contracted as a surety, is subject to the receipt of consideration.
The learned Judges in this case after citing many extracts from Manu, Yagnavalkya, Mitakshara. Mayukha, Vishnu and others, were of opinion that the liability of the son exists in the case of surety for payment, but the liability of the grandsons for the payment of the debt incurred as surety does not exist at all. The case before the learned Judges was that of the liability of the son of the surety and cot of his grandson and the remarks mentioned above should be taken to be obiter, though it must be conceded that the conclusions, about the grand -son's liability appear to be fully supported by the extracts quoted from the various Smritis in this ruling.
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