Under Hindu law, a creditor can proceed against the interest of the sons in the ancestral property for the debts of their father, provided the debts were not contracted for illegal or immoral purposes. Additionally, a personal decree against the father and the sons' shares in the family property is permissible.

Spencer, J.

1. These are two suits upon mortgage documents executed by 1st defendant, whose sons are defendants 2 to 5. The appellant is a transferee from the 1st mortgagee, the plaintiff in O.S. No. 40 of 1918 and the 6th defendant in O.S. No. 43 of 1915, which is the 2nd mortgagees suit. The 3rd mortgigee is the 7th defendant in both suits.

2. The District judge dismissed O.S. No. 40 of 1918, holding that the mortgage deeds were not properly attested and therefore invalid I think he was right in preferring the evidence of the two witnesses whose names appear on the documents as attestors when they say that the executant did not sign in their presence to the evidence of the executant and the sister and the daughter of one mortgagee, the daughter being herself a mortgagee under one of the deeds, as the latter are likely to be interested in keeping the property in the hands of relations rather than allowing it to pass into the possession of the 2nd and 3rd mortgagees who are strangers.

3. No doubt the 5th plaintiffs witness who is a pleader practising at Bellary is related to the executant and Parikshita Rao the other signatory who is now dead was a friend of the executant and lived in his village, but they seem nevertheless to have spoken the truth on a matter which was necessarily within their knowledge, and the appearance of document suggests that their signatures were affixed at a different time, as indeed they say they were.

4. Though the suit documents are not valid as mortgages they can be enforced as bonds against the 1st defendant personally and the family property in the hands of defendants 1 to 5.

5. It is argued by the vakil for respondents 2 to 5 that their shares should not be made liable during the life time of their father the 1st respondent, for the reason that sons are not bound by any pious obligation to pay off their fathers debts so long as he is alive. He relies on the Privy Council decisions in Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437 : 33 M.L.J. and Chet Ram v. Ram Singh (1922) 43 M.L.J. 98 as establishing this principle.

6. I do not think it is necessary for the plaintiff to invoke the doctrine of "pious obligation" here. It has always been held in this presidency since the Full Bench decision of Ponnappa Pillai v. Pappuvayyangar (1881) I.L.R. 4 Mad. P. 1 (F.B.) in which Girdharee Lalls case was considered, that so long as a Hindu family remains undivided a creditor can proceed against the interest of the sons in the ancestral property for the debts of their father which have not been contracted for illegal or immoral purposes as has been pointed out by the learned Chief justice in Peda venkanna v. Sreenivasa Deekshalulu (1917) I.L.R. 41 Mad. 136 at p. 140 : 33 M.L.J. 579 the prevailing judgment of Sir Charles Turner, C.J., in this Full Bench case received the approval of the Privy Council in Muttayan v. Zamindar of Sivagiri (1882) I.L.R. 6 Mad. 1. This principle was again confirmed by another Full Bench of this Court in Ramasami Nadan v. Ulaganalha Gonndan (1898) I.L.R. 22 Mad. P. 49 : 8 M.L.J. 312 (F.B.) and two Benches of this Court have taken the same view in Snbramania Aiyar v. Shaw Wallace & Co., Madras (1920) 38 M.L.J. p. 402, and Kandasami Goundou v. Kuppa Moopan (1919) I.L.R. 43 Mad. 421 at 422 : 38 M.L.J. 203, after considering Sahu Ram Chandra v. Bhup Singh (1917) I.L.R. 39 All. 437 and deciding that the Privy Council did not intend to alter the existing law in this respect. The Bombay High Court has come to the same conclusion in Hanmant Kashinath v. Ganesh Annaji (1919) I.L.R. 43 Bom. 612. In Maynes Hindu law in paragraph 307 the passage occurs:

This limitation of the sons liability (the learned author in referring to a sons want of obligation to liquidate his fathers debts during the fathers life time) has however ceased to be of any importance in view of the recent decisions which enable a creditor during the life of the father to enforce his claims by decree and executio