The judgment established the interpretation of the Hindu Law doctrine of pious obligation and the application of Section 17 of the Presidency Towns Insolvency Act.

Varadachariar, J.

1. This appeal arises out of a suit for recovery of money due under a promissory note (Ex. A) dated 18th November, 1926, executed by the 1st and 2nd defendants. As the 2nd defendant had been adjudicated an insolvent, the Official Assignee in whom the estate of the 2nd defendant had vested was impleaded as the 3rd defendant. Defendants 4 and 5 are the grandsons of the 1st defendant by a predeceased son of his. The 2nd defendant is the younger son of the 1st defendant.

2. The plaint prayed for a personal decree against defendants 1 and 2, for a decree directing recovery of the amount from the properties of the Mana to which the parties belong and also for recovery of the amount from the estate of the 2nd defendant in the hands of the 3rd defendant. As the 1st defendant died pending the suit, the lower Court gave a decree against the assets of the 1st defendant and against the assets of the 2nd defendant in the hands of the 3rd defendant, but it dismissed the suit so far as it sought a personal decree against the 2nd defendant and also to the extent of the prayer against the properties of the Mana. Plaintiff has filed this appeal claiming the two reliefs refused to him by the lower Court.

3. The earned Counsel for the appellant did not press the contention that a debt sought to be recovered was binding upon the Mana, it being clear from the evidence discussed in the judgment of the lower Court that that claim could not be substantiated. He however contended that as the Illom consisted only of the grandfather, his son and his grandson and there were no collaterals, there was no reason why the Illom properties should not be made liable for the 1st defendants debt by the application of the Hindu Law doctrine" of the pious obligation of the son and the grandson to pay the fathers and the grandfathers debt. He relied in this connection upon the statement of the law in Vishnu Nambudri v. Akkamma (1910)20MLJ938 , to the effect that Nambudris are ordinarily governed by the Hindu Law, except to the extent to which that law has been modified by custom, and be contended that the defendants have not pleaded or proved any custom in this case excluding the application of the rule of pious obligation to pay the debts of the ancestor. In view of the state of the authorities of this Court on this point, we do not think that the general observation in Vishnu Nambudri v. Akkamma (1910)20MLJ938 could reasonably be interpreted in the manner in which the earned Counsel for the appellant seeks to use them. As early as in Nilakandan v. Madhavan I.L.R.(1886) 10 Mad. 9 it was laid down that the rule of the Hindu Law as to the pious obligation of the descendants to pay their ancestors debt is not applicable to Nambudris. The learned Advocate for the appellant invited our attention to the comments on this case in Moores Malabar Law and by the late Mr. Sundara Aiyar, J., in an Article in Topics of Malabar Law (1902) 12 M.L.J. 173. Even assuming that there was no necessity to decide that point in Nilakandan v. Madhavan I.L.R. (1886) 10 Mad. 9 it cannot be denied that that view has been adopted and justified by later decisions of this Court - see Govinda v. Krishnan I.L.R.(1892) 15 Mad. 333 and Kunhu Kutti Amma v. Mallapratu I.L.R.(1913) 38 Mad. 527. We see no reason to differ from the view taken in these cases. We must accordingly hold that the lower Court was right in declining to grant a decree against the properties of the Mana.

4. As regards the claim for a personal decree against the 2nd defendant, the earned Counsel for the appellant raised two contentions. He first urged that under the terms of Section 17 of the Presidency Towns Insolvency Act, no leave of the Court was necessary for commencing a suit to enforce a personal remedy against an insolvent and that the section only applied to proceedings against the property of the insolvent. Alternatively, he contended, that the leave which has in fact been obtained from the Insolvency