Sons are liable for the father's debts incurred before partition, and the bona fide nature of the partition determines the extent of their liability.

Ramesam, J.

1. Suit by the plaintiff to recover (1) a sum of Rs. 2,500 deposited with 1st defendant on 6th July 1917 and (2) a sum of Rs. 350 payable to plaintiff for money paid for 1st defendant. The defendants 2 to 5 are the sons of 1st defendant who formed with him, members of a joint family up to 1918. In that year a suit was filed by the present 2nd defendant against his father and brothers for partition. No written statement was filed and the suit was compromised and a decree was passed in terms of the compromise on 23-1-1920. Under the compromise, provision was made for paying off most of the debts contracted by the 1st defendant but not the suit debt. No specific properties were allotted to the 1st defendant and it was arranged that a maintenance of Rs. 30 should be paid to him every month. The present suit was filed on 6-7-1920 and the defendants 2 to 5 are sought to be made liable with reference to the shares in their hands of what had been prior to 1920, joint family properly. The defendants denied the genuineness of the debts. The District Judge found that the debts were true. He had doubts about the bona fides of the partition, but on the ground that under the compromise it was agreed that all the debts of the 1st defendant were agreed to be paid by all the defendants, decreed the suit. All the defendants appealed. The 1st defendant died during the pendency of the appeal. With the construction of the terms of the compromise by the District Judge, we are not able to agree.

2. The other appellants do not question the correctness of the finding that the debts are true. Nor do they say that the debts are illegal or immoral. They contend that the sons are not liable for the fathers debt (not charged on the property) after partition and rely on Karri Venkatareddi v. Chelluri Satyanarayanamurthi (1920) 40 MLJ 473 following Peda Venkanna v. Sreeneevasa Dikshathulu (1917) ILR 41 M 136 : 33 MLJ 519. The respondent replies that the partition is not bona fide within the meaning of the exception recognised in these cases and if the partition is held bona fide, he contends that Karri Venkata Reddi v. Chelluri Satyanarayanamurthi (1920) 40 MLJ 473 is incorrectly decided and as to Peda Venkanna v. Sreeneevasa Dikshathulu (1917) ILR 41 M 136 : 33 MLJ 519 while conceding that the actual decision is correct, in so far as it rests on any ground other than the ground that the pronote in that case was renewed by the father after partition, such ground is not correctly decided.

3. We are of opinion that the partition by the decree of 1920 was bona fide in the sense that the intention was to really divide the status of the parties; it is probably also bona fide though the matter has not been fully gone into, in the sense that there has been no unequal allotment of properties if we regard all the debts as debts of 1st defendants only i. e., that his share, minus all the debts would have been much less than what he actually got viz., an annuity of Rs. 360 and we come to this conclusion in spite of the fact that there has been no division by metes and bounds and the decision in Appa v. Ranga (1882) ILR 6 Mad 71 is doubtful, if it meant to decide that the family continues joint in cases where there is a relinquishment by the father subject to a maintenance. It is not bona fide only in the sense, that provision was not made for all the debts of 1st defendant not illegal and immoral (Ghoses Hindu Law Vol. 1 page 438) out of the whole joint family properties from which they would have been recoverable if there had been no partition and debts like the plaintiffs will be defeated if it is held that the defendants 2 to 5 are not liable. As it is doubtful whether the exception mentioned in the cases uses the expression bona fide in this sense, we had to consider the question of the correctness of the decisions relied on.

4. It may be that, under the primitive Hindu Law, a son is under a pious duty to discharge his fathers debts irrespective o