The main legal point established in the judgment is that the recent decision did not overrule the settled law of this and other High Courts, and the son cannot be made liable during his fathers life-time on a promissory note executed by his father after partition in renewal of a note executed by the father before partition.

Wallis, C.J.

1. The question in this Second Appeal is whether a son can be made liable, during his fathers life-time, as held by the District Judge, on a promissory note executed by his father after partition in renewal of a note executed by the father before partition. One of the contentions raised by Mr. Parthasarathy for the appellant is that since the recent decision of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh (1917) L.R. 441 I.A. 126 payment of the fathers debts cannot be enforced by suit against the sons during the fathers life-time. This is a most important question because, if the contention is right, the recent decision involves the overruling of what has long been treated in this and other High Courts as a settled rule of every day application, and it is therefore incumbent upon us to satisfy ourselves that this result is really involved in the recent decision.

2. Now there are two distinct and closely connected things, one, the fathers power to bind the sons shares by alienations during his life-time for debts not incurred for necessary purposes and not tainted with immorality, and the other, the creditors remedies by suit in respect of such debts against the sons shares; and this distinction is observed in the well-known passage of Lord Hobhouses judgment in Mussamut Nanomi Babufasin v. Modun Mohun (1985) L.R. 13 I.A. 1 : I.L.R. 13 C. 21, which is quoted in the recent decision. That decision relates to the first question, viz., whether the fathers power of alienation to satisfy the class of debts already mentioned could only be exercised where the debt was antecedent or extended to alienations for present debts as well, and does not of itself affect the other question as to the extent of the creditors remedies by suit against the sons shares. It is said however that the reasoning of the judgment is inconsistent with the Indian rulings as to the creditors remedies against the son during the fathers life-time, and the passage on which most reliance is placed is as follows: "While the father, however, remains in life, the attempt to affect the sons and grandsons shares in the property in respect merely of their pious obligation to pay off their fathers debts, and not in respect of the debt having been truly incurred for the interest of the estate itself, which they with their father jointly own, must fail; and the simplest of all reasons may be assigned for this, namely, that before the fathers death he may pay off the debt, or after his death there may be ample personal estate belonging to the father himself out of which the debt may be discharged. In short, responsibility to meet the fathers debts is one thing, and the validity of a mortgage over the joint estate is quite another thing." Now it may be said that the reasoning in this passage applies equally whether the debt for which the alienation is made by the father is an antecedent debt or a present debt and that it involves a departure from the decisions in Girdharee Lall v. Kantoo hall (1874) L.R. 1 I.A. 321. Suraj Bunsi Koer v. Sheo Proshad Singh (1879)L.R. 6,I.A. 88 : I.L.R. 5 C. 148, Mussamat Nanomi Babufasin v. Modun Mohun (1985) L.R. 13 I.A. 1 : I.L.R. 13 C. 21 and other decisions of their Lordships in which the fathers right to alienate for antecedent debts was rested on the pious obligations of the sons to pay them. Their Lordships, however, considered that the rule as to alienations for an antecedent debt was too firmly established to be disturbed, and treated it as an exception from a general and sound principle not to be extended and to be very carefully guarded. They proceeded to say that much, if not all, the law upon the subject had arisen from the necessity of protecting the rights of third persons, say the purchasers of the property who have taken their title for onerous consideration and in good faith, and quoted with approval a passage from the judgment of Sir John Stanley, C.J. which thus interpreted the observations in