Liability of son’s share for pre-partition debt of father.

This appeal has been placed before the Full Bench as Satyanarayana Rao, J., sitting alone, and Rajamannar, C.J. and Venkatarama Ayyar, J., constituting a Division Bench thought that the decisions in Doraiswami v. Nagaswami1, and Thangachami Chetti v. Kanakasabapathi2, require reconsideration. The facts may be briefly stated. China Ramayya, the third defendant, his son Nageswara Rao, the first defendant, and the first defendant’s son Anjaneyalu, the second defendant constituted members of a joint Hindu family. The first defendant executed a promissory note dated 5th June, 1946, in favour of the plaintiff, Venkamraju. On 6th November, 1946, Venkamraju instituted O.S. No.270 of 1946 on the file of the Court of the District Munsif, Tenali, for recovering the amount due on the said promissory note. To that suit, he impleaded the first defendant’s minor son Anjaneyalu as second defendant and the first defendant’s father China Ramayya as third defendant. Liability was sought to be fastened on to the second defendant on the ground that he was liable to discharge his father’s debt from and out of his share in the family properties. The third defendant was made a party on the ground that he was a universal donee from the first defendant. The District Munsif exonerated the third defendant with his costs but passed a decree for the suit amount against the first defendant, personally and against the Interests of the second defendant in joint family properties. The first defendant preferred an appeal against that decree. In the appeal the learned Subordinate Judge of Tenali held that as the suit was based only Upon the promissory note no decree could be passed even against the second defendant and on that finding he exonerated the second defendant also with costs. In the result, a decree was given only for the promissory note amount against the first defendant. Pending the suit, the decree-holder attached six items of property which were admittedly joint family properties.

But on 2nd October, 1946, the first defendant executed Exhibit A-3 relinquishing his interest in the joint family estate in favour of his father and minpr son. When the decree-holder, filed E.P. 270 of 1948 for bringing the said items to sale, the second and third defendants filed E.A. 29 of 1949 for raising the attachment on the ground that as they were exonerated from liability under the decree and as the first defendant against whom the decree had been passed had relinquished his share in the family properties in their favour prior to the institution of the suit, the decree-holder was not entitled to bring the properties to sale. The learned District Munsif raised the attachment on the third defendant’s half share in the attached properties; but the application was dismissed in so far as the interests of the second defendant were concerned. He held that though the second defendant had been exonerated in the suit, his share in the family properties was nevertheless liable for the debt of the father and could be proceeded against in execution. The second defendant preferred an appeal to the Court of the Subordinate Judge, Tenali, it being A.S. 99 of 1949. Pending the appeal he died and his grandfather China Ramayya the third defendant was brought on record as his legal representative by an order dated 12th December, 1949. The learned Subordinate Judge, relying upon the aforesaid two decisions held that though there was a partition on 2nd October, 1946, in the family, whereby the first defendant got separated from the joint family, the decree-holder was entitled to proceed against the properties in the hands of the son. In that view the appeal was dismissed. The third defendant preferred the above appeal.

These decisions on the basis of which the courts below have proceeded appear to be contrary to the principles established by other decisions of this Court and also inconsistent with the decisions of the Supreme Court in Pannalal v. Mst. Naraini1 where their L