RAMCHANDRA RANGO KULKARNI Vs. ANNAJI VENKATESH MANNUR

JUDGEMENT

(1.) The facts out of which this appeal arises are simple and undisputed. The plaintiff's father Venkatesh had a cloth shop at Bijapur. The defendant's father Rango owed Rs. 968-4-0 to that shop for cloth purchased by him when he and the defendant were joint. The plaintiff obtained a personal decree for that amount against Rango alone in suit No. 220 of 1933 on February 6, 1934. Before that suit was filed, the defendant and his father Rango had separated by an award decree dated February 9, 1932. Under that decree the burden of paying off half the family debts was thrown on the defendant. But the defendant was not made a party to the plaintiff's suit, suit No. 220 of 1933. Hence when the plaintiff sought to execute the decree against the defendant also in darkhast No. 244 of 1937, the defendant contended that he was not bound by the decree which had been passed against his father alone after he was separated from him. That contention was upheld on the strength of the ruling in Surajmal Deoram V/s. Motiram Kalu and the darkhast was dismissed. Hence on September 3, 1938, the plaintiff filed this suit against the defendant to recover from him Rs. 600 with costs and future interest. On that day the amount due under the decree against his father in suit No. 220 of 1933 was nearly Rs. 1,200, including Rs. 103-12-8 for the costs awarded in the decree and future interest. But the plaintiff claimed only Rs. 600 as the defendant had undertaken to pay only half the family debts under the terms of the award decree for partition. The defendant contended that, the plaintiff having already obtained a decree against his father, a second suit to recover the same debt was not maintainable and that the plaintiff's claim was time-barred. The trial Court held that such a suit based on the decree against the father was maintainable, that the period of limitation was six years under Art. 120 of the first schedule to the Indian Limitation Act, 1908, and that the suit was in time. The plaintiff's claim was, therefore, decreed, and the decree was confirmed in appeal by the learned District Judge.

(2.) The plaintiff's claim in the trial Court that as the defendant had undertaken to pay half the family debt by the partition decree, he was liable to the plaintiff for the amount claimed in this suit is not now pressed, since the plaintiff is not entitled to get the benefit of a decree to which he was not a party.

(3.) It is not disputed that the debt which the defendant's father owed to the plaintiff's father's shop was not tainted with immorality or illegality and was incurred when the defendant was joint with his father, Hence the defendant was under a pious obligation to pay it, and that obligation continued even after he separated from his father, though his liability was limited to his share in the joint family property. But the procedure to be adopted for enforcing that liability is not free from doubt. I have considered this question at some length in Surajmal Deoram V/s. Motiram Kalu, and discussing the law on the subject, I have deduced six propositions. The sixth proposition which is relevant for the purpose of this appeal is :- A decree passed after partition against the father alone for his pre-partition debts (not immoral or illegal) is not binding on the separated son, After partition, a decree must be obtained against the son, if his separated share is to be held liable.