Patna High Court
Prasanjit Mahtha vs The United Commercial Bank Ltd. on 4 September, 1978
Equivalent citations: AIR1979PAT151, AIR 1979 PATNA 151, 1979 BLJR 185, 1979 BBCJ 140, (1979) BLJ 309
JUDGMENT Hari Lal Agrawal, J.
1. This is a plaintiff's appeal arising out of a suit for declaration that the decree passed against his father (Pashupati Nath Mahtha) in Money Suit No. 17-B of 1958 by the 5th Additional District Judge, Nagpur, was not binding on him and could not be enforced against the properties falling to his share on partition, as the debt in question for which the decree was passed was Avyavaharika. The plaintiff being a minor, instituted the suit in question through his maternal uncle. In order to appreciate the question falling for our consideration, I may state the relevant facts in brief.
2. In the town of Muzaffarpur, lived one Shri S. N. Mahtha. He had two sons, namely, Rabindra Nath Mahtha and Pashupati Nath Mahtha, the father of the plaintiff. Undisputedly, a private limited company, namely, the Central Hindusthan Industrial Corporation (Private) Ltd. was started at Nagpur, in which the plaintiff's father was one of the directors. On 17th February, 1955, the aforesaid company opened a cash credit account with the defendant Bank at Nagpur. The original limit was only rupees five lacs, but this was raised from time to time. In September, 1955, it was first raised to Rs. 7.5 lakhs and on 25th February 1956, was further raised to rupees ten lakhs. According to the practice prevalent with the Bank, the defendant Bank in order to secure the loan under the above cash credit account, took a Demand Promissory Note for rupees five lakhs from the Company carrying interest at the rate of 6 per cent per annum with quarterly rests in its favour, besides (i) a Letter of Hypothecation and (ii) a Letter of Continuity on the same date. The Bank also took a Letter of Guarantee in its favour by the Directors and Principal Officer of the Company which was also executed by Shri Sri Narain Mahtha, guaranteeing the payment of the loan advanced to the defendant company. When the limits were raised, the aforesaid security documents were also suitably renewed from time to time in favour of the Bank. The Letter of Guarantee in question has been filed in this case and is Ext. C. It may be mentioned at this very place that the ancestors of the plaintiff were cloth importers when it was a controlled item. It also established a Cold Storage, namely, Himalaya Ice Cold Storage Company. Shri S. N. Mahtha was the Treasurer and Guarantee Broker of the Central Bank of India. This company, however, was floated for doing business in manganese, of course, a new venture for the family.
3. Shri S. N. Mahtha died on 16-10-1956. The remaining guarantors mentioned above, however, continued to be the guarantors of the defendant Bank in respect of the cash credit account in question, so much so that on the 1st July 1957, the Company executed fresh documents in respect of their liability in the cash credit account namely, a Demand Promissory Note for rupees ten lakhs to which all the Directors and principal officer mentioned above (impleaded as defendants 2 to 7 in the Bank's money suit in question) also joined along with the company. On that very day various security papers, namely, Letter of Continuity and Letter of Hypothecation, etc., were also executed in favour of the Bank whereby the defendants of the Bank's money suit undertook joint and several responsibility and liability for payment of any balance that might at any time be found due from them in the aforesaid cash credit account,
4. Ultimately, the Bank had to institute the aforesaid Money Suit No. 17-B of 1958 in the Court of the 5th Additional District Judge, Nagpur, for recovery of a sum of Rs. 6,40,445.40. This suit was not contested and a petition of compromise was filed, whereby the defendants undertook to pay the entire claim of the Bank with costs in six monthly instalments, there being, also a default clause in the compromise petition. No payment was made towards the dues and the Bank got the decree transferred for execution to Muzaffarpur and put into execution in Execution Case No. 78 of 1959 in the Court of the First Subordinate Judge. The decree-holder also proceeded against the various properties which are claimed by the plaintiff to have fallen to his exclusive share on partition in his family. The present suit was instituted on 21st December, 1961, in the Court of the Second Subordinate Judge at Muzaffarpur.
5. The case of the plaintiff, as set out in the plaint, is that the decree passed against the plaintiff's father being in consequences of his being a surety for the defendant Bank in respect of the debt of the Company in question, which being without coasideration, "The debt which thus came upon him was obviously 'Avyawaharika' in nature and for payment of a decree passed against the plaintiff's father on account of such an Avyavaharika debt, the plaintiff can in no manner be held liable." By an amendment in the year 1967, a further averment was added as paragraph No. 5 (a) to the plaint, and it was stated therein that "the plaintiff's father indulged in speculative and new business solely on his own personal risk and responsibility and in such conduct of his, the plaintiffs father had little or no regard to the interest of the members of his family. In this view of the matter also the debt coming upon the plaintiffs father was 'Avyavaharika' and as such the same cannot be binding upon the plaintiff. In execution of a decree passed for such 'Avyavaharika' debt incurred by the plaintiffs father, the plaintiff or his property cannot be proceeded against." The plaintiff, however, has taken also a stand that the main stake of the plaintiffs family was agriculture, besides a little money lending business, and it had never done any business, particularly the manganese business was entirely new. The plaintiff's father having neither any knowledge nor any experience of the said business, he, therefore, started as entirely risky and speculative business which was "wholly 'Avyavaharika' and as such immoral and impious and the plaintiff is not bound to pay such a debt."
6. The stand taken in the written statement of the defendant Bank (the only defendant impleaded in this action) in short was that the business in question was not speculative and the debts incurred by the plaintiff's father were not 'Avyavaharika', rather the debt in question was taken for sound investment in a prosperous business from which the family derived sufficient profits. The defendant further asserted that the plaintiff's father and grandfather were great business magnates and had sufficient experience of investments in business and were directors of a number of mercantile institutions and, therefore, the plaintiff was fully liable to repay the debt under the decree and the suit was filed at the instance of his father simply to delay realisation of the decretal dues. The defendant also controverted the story of partition in the family of the plaintiff.
7. The learned Additional Subordinate Judge to whom the suit was ultimately transferred, dismissed the same by the impugned judgment, inter alia holding that the debt incurred by the plaintiff's father was not an 'Avyavaharika' debt as such the plaintiff was not entitled to the declaration sought for. He also disbelieved the plaintiff's case of partition in the family. He further held that the decree in question being in respect of a pre-partition debt contracted by the plaintiffs father, the alleged partition between S. N. Mahtha and his two sons would have little importance so far this suit was concerned, The plaintiff has, accordingly, filed the present appeal,
8. Mr. Balbhadra Pd. Singh appearing in support of his appeal contended that (i) the Letter of Guarantee, the basis of the decree in question, was without any consideration so much so that there was no evidence that the plaintiff's father acted on the request of the debtor company, and as such the contract of guarantee itself was not binding and, therefore, the decree was inoperative; (ii) the doctrine of pious obligation would not apply to this case as the money advanced by the Bank never came in the hands of the plaintiff's father and he cannot be said to have retained the moneys; and (iii) in any view of the matter, the decree in question was for a debt which was not incurred by the plaintiff's father for any legal necessity and being Avyavaharika' in nature, no liability attached thereunder to the plaintiff.
9. I shall take up the first two contentions together as the second contention is really a subsidiary of the first inasmuch as from the very nature of the transaction, namely, of 'cash credit', the plaintiff's father who acted as one of the sureties for the loan advanced to the Company by the Bank was not to receive the amount personally.
Section 126 of the Indian Contract Act defines "Contract of Guarantee". Under this kind of contract, the person standing as a 'surety' contracts to perform the promise or discharge the liability of a third person, namely, "the principal debtor" in case of his default. A contract of guarantee, therefore, implies the existence of the liability, actual or prospective, of a third party. Such a contract, therefore, is a collateral undertaking given by way of additional security to the creditor by the surety.
In this connection it was further contended that the creditor Bank has not proved that the contract of guarantee was created at the request of the principal debtor, namely, the private company which might have been a consideration for the contract. This argument is erroneous and must be rejected for various reasons. Firstly, the question was not raised in the trial court and, therefore, no evidence was led on this question by the defendant. In the plaint, the plaintiff did not challenge the legality of the contract of guarantee or of the compromise decree in any manner. He simply sought for a declaration that the said decree could not be enforced against him as it was with respect to an Avyavaharika debt; the debt has been said to be 'Avyavaharika' not for the reason that it was repugnant to good morals but because (i) the business for which it was incurred was a new and speculative business, and (ii) his father had not received any consideration thereunder.
We have already seen that the money suit instituted by the Bank was not contested and all the defendants entered into a compromise (vide Ext. E) immediately on the institution of the suit.
10. The position of a surety under the English Law as well as under the Indian Law appears to be almost the same, Chitty on 'The Law of Contract" 23rd Edition, deals with this subject under Chapter XIII and I feel tempted to extract a small paragraph No. 1652 from page 16'42 of the Book, where the law on this subject has been very succinctly enunciated:
"Parties to the contract. In Duncan Pox & Co. v. North & Souht Wales Bank [(1880) 6 AC 1, 11-12], it was pointed out by Lord Selborne that there are three possible variations in the parties to contract of suretyship. The first and simplest case is that in which all the three parties concerned are parties to the contract in the sense that both the principal debtor and the creditor agree that the surety's liability is a secondary liability only, and that the principal debtor is primarily liable for the obligations guaranteed. But it also is possi-ble that the contract of suretyship may be recognised only as between the principal debtor and the surety, or as between the creditor and the surety, in which event the rights and duties arising out of the contract of suretyship only affect those parties."
It is, no doubt, true that for a contract of suretyship there should be the concurrence of the principal debtor, the creditor and the surety, but this does not mean that there must be evidence show-l ing that the surety undertook his obli-gation at the express request of the prin-cipal debtor; an implied request will also be quite sufficient. The argument that the debtor company was not a party to the contract of guarantee nor there was any evidence that the sureties acted on the request of the debtor company, must be held to be misconceived. All these questions could be raised by the defendants in the money suit of the Bank itself. But the defendants in the said suit, who were all directors, sureties and principal officers of the company, never disputed the claim of the Bank, which clearly would also prove the implied concurrence of the principal debtor as well as a request. But as already said earlier, the plea not having been set up before the trial court, the plaintiff cannot make out any point on the absence of any evidence on this score.
11. In this connection I may usefully refer to the plaint of the money suit filed by the Bank. In that suit, the Bank had impleaded all the directors and principal officers of the debtor company, besides the company and the sureties, as defendants. The letter of guarantee was also executed by all of them, including the plaintiff's father and grandfather, Sri S. N. Mahtha. In my opinion, these 'facts are more than sufficient to establish the concurrence of the principal debtor, namely, the private limited company which, no doubt was a body corporate, but was to act only through its directors and officers.
A learned single Judge of the Madhya Bharat High Court considered the question of the consideration under a suretyship debt in some detail in the case of Sarwan v. Kunni Lal (AIR 1951 Madh B 49). On reference to Section 127 of the Indian Contract Act as well as the original texts, he held that anything done or any promise made for the benefit of the principal debtor was a sufficient consideration to the surety for giving the guarantee. As already said earlier, the very nature of a contract of guarantee does not stipulate for the surety to receive or, for that matter, retain the money or advantage himself as the actual beneficiary is the principal debtor. Mr. Singh, therefore, is not right in this contention that inasmuch as the father of the plaintiff did not receive the debt himself and the money for which the decree was passed was not retained by him, the decree is not binding on the plaintiff.
In a Full Bench decision of the An-dhra Pradesh High Court in Kanisetti Audilaxamana Rao v. Attipalli Raghu-rami Reddi (AIR 1970 Andh Pra 158), forbearance to sue the debtor by the creditor on execution of a Letter of Guarantee and promissory note was held to be a valid consideration in terms of Section 127 of the Contract Act. It is also held that when a Hindu father stands as a surety for debt incurred by a stranger, the surety is not personal and his sons are bound to make good that surety. In this case also a decree was obtained against the father on the basis of the suretyship debt and the son had brought a suit for a decision that the said decree did not impose any binding obligation upon him and his brothers.
12. Some argument was also advanced on the basis of the contract of guarantee (Ext. C). It is an "Agreement between the United Commercial Bank Ltd. and S. N. Mahtha and others". The principal debtor namely, the private limited company, is not a party to this document. Mr. Balbhadra Pd. Singh, therefore, contended that inasmuch as all the three parties to the contract, namely, the debtor, the surety and the creditor were not there, Ext. C could not be said to be a contract of guarantee and, accordingly, no liability could be fastened on the plaintiff on its basis. Reliance was placed on the case of Ramchandra B. Loyalka v. Shapurji N. Bhownagree (AIR 1940 Bom 315) where it was observed that a contract of guarantee involves three parties; the creditor, the surety and the principal debtor to which those parties are privies. The contract between the principal debtor and the creditor lays the foundation for the whole transaction. Then there must be a contract between the surety and the creditor, by which the surety guarantees the debt. The argument, although attractive, is misconceived and must be rejected. This decision does not lay down as a proposition of law that there must be a tripartite contract be-tween all the three parties simultane-ously and recognises that once the foundation is laid, that is, a contract between the principal debtor and the creditor is formed, a contract between the surety and the creditor by which the surety guarantees the debt, can also take place, the consideration for which however, may move either from the creditor or from the principal debtor or both.
13. The document of guarantee in this case (Ext. C) further stipulates inter alia that "in the event of all or any of us dying or being under legal disability, the liability of the survivors or survivor of us and of the estate(s) and executors, administrators or legal representatives of the deceased guarantor shall continue until the expiration of three calendar months notice in writing is given to you by such survivors or survivor...... or legal representatives of such deceased guarantor........" Mr. R. S. Chatterji, learned counsel for the defendant Bank, on the other hand, contended that in view of the fact that now the Bank has obtained a decree for money, the question regarding defect or infirmity, if any, in the letter of guarantee would have no bearing. In reply to this argument Mr. Balbhadra Frasad Singh placed reliance on a decision of this court in Janki Nath Paul v. Dhokar Mall Kedar Bux (AIR 1935 Pat 376) and contended that notwithstanding the contract of guarantee, having been followed by the compromise decree, it was still open to the son to show that the basis of the decree, namely, the debt and the guarantee were themselves illegal and without consideration. That may be so, but from the above discussions, it is manifestly clear that the plaintiff has categorically failed to prove any circumstance or fact which would render the contract of guarantee as invalid. The other question on which the effect of the liability on the plaintiff is contested, namely, that it was not for any legal necessity or, for that, was Avyavaharika, will be dealt by me a little later.
14. Now I take up for consideration the main contention of Mr. Singh which raises an interesting question of the Hindu Law, namely whether the plaintiff (son) is liable by reason of his pious obligation to pay his father's debt incurred as a surety for payment of money out of his interest in the joint family property. At the outset I may indicate that once this question is answered against the plaintiff, then the fact as to whether there was partition in his family before attachment of the plaintiff's properties in execution of the decree in question loses all importance because if the doctrine of pious obligation applies to this case, then the fact that the plaintiff had already separated from his father and the joint family properties were allotted to his exclusive share would not defeat the obligation and render it ineffective. It was held in the case of Virdhachalam Pillai v. Chaldean Syrian Bank Ltd. (AIR 1964 SC 1425) that if the antecedent debt was binding on the son, subsequent partition between the father and the son was of no avail to the son and a creditor has a right to proceed against the entirety of the joint family estate, including the share of the son, who was under a pious obligation to discharge it out of the family properties. The Supreme Court in the case of S. M. Jakati v. S. M. Bor-kar (AIR 1959 SC 282) also observed that the result of the partition in a joint family pending the execution proceeding is nothing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and, therefore, the attachment of the whole coparcenary estate would not be affected by the change in the mode of enjoyment because the liability of the shares which the sons got on partition remains unaffected as also the attachment itself which is not ended by partition.
15. According to Yagnavalkya, there are three classes of sureties, namely, sureties (1) for appearance, (2) for confidence, and (3) for payment. Brihaspati adds a fourth class which is very much similar to the third and differs from it in this respect that whereas a surety for payment binds himself personally to pay the loan, in the other form he undertakes to produce the property of the debtor, out of which the creditor may obtain satisfaction. There are high authorities which I would discuss hereinafter which lay down that in the first two classes, the liability of the surety is purely personal and does not extend to sons except where the surety obtains a pledge from the debtor to ensure his safety. On the other hand, there are equally very high authorities from a long past that in the other two classes, viz., when the surety undertakes to pay off the debts or to produce the goods of the debtor, the sons are liable to discharge the obligation incurred by the father. This subject is dealt with at length by the Mitakshara in its commentary on Chapter 2 of Yajnavalkya Smriti. Verse 54 of the said Smriti deals with the liability of the son of a surety and lays down that the sons are liable to pay the debt of their father incurred as surety for payment only. Mitakshara commenting on this verse quotes Vyasa as saying:
_.ka iSrkega ikS=k% izfr HkkX;xra lqr% le nn~;kRrRlqrkS rq u n/|kfnfr fu'p;% AA "A grandson should pay the debt of the grandfather; a son should also pay that debt which is incurred as surety, equal in amount to the principal only; their sons, moreover, should not pay; this is the fixed rule."
16. The above position of law has also been very clearly summarised in Mulla's Hindu Law, Fourteenth Edition, at page 886, where a paragraph in small type under the heading 'Surety' appears. In this connection Mr. Balbhadra Pd. Singh placed reliance upon a quotation from the case of Natasayyan v. Ponnusami ((1893) ILR 16 Mad 99) referred to with approval by the Judicial Committee in the case of Hemraj v. Khem Chand (AIR 1943 PC 142). I would do better to quote it here:
"Upon any intelligible principles of morality a debt due by the father by reason of his having retained for himself money which he was bound to pay to another would be a debt of the most sacred obligation, and for the non-discharge of which punishment in a future state might be expected to be inflicted, if in any. The son is not bound to do anything to relieve his father from the consequences of his own vicious indulgences, but he is surely bound to do that which his father himself would do were it possible, viz., to restore to those lawfully entitled money he has unlawfully retained."
It was perhaps on the above observations in Natassayyan's case that Mr. Singh contended that inasmuch as the plaintiff's father had not personally received the money, therefore, had not retained it for himself, there was no pious obligation for the plaintiff to discharge the said liability. The question of the liability of a Hindu son for payment of debt incurred by a father as a surety did not fail for consideration in the above case and, therefore, the exposition of the principles of morality in the above case will have no application and it cannot be argued on the basis of the above authority that there would be no obligation for a Hindu son to pay a debt due by a father unless the father had retained the same for himself as this would be quite contrary to the notion and principles of liability under a contract of guarantee. Our own High Court as early as in the year 1918 in the case of Mahabir Pd. v. Siri Narayan (AIR 1918 Pat 345) held that it was not necessary that the money should have been actually received by the father in order to create the debt which it would be the pious duty of the son to pay.
In the case of Sita Ram v. Radha Bai (AIR 1968 SC 534), it was observed by the Supreme Court that a Hindu son governed by the Mitakshara Law is liable to pay the debts of his father even if they are not incurred for purposes of legal necessity or for the benefit of the estate, provided they are not Avyavaharika or illegal, the burden of proving which, however, lies upon the son.
17. I, now take up the other ground of attack on the document that the loan was taken for a business which was speculative and new. Let us see the evidence adduced on this question. Seven witnesses were examined by the plaintiff in support of his case. Some of them were formal in nature and were examined only to prove some documents to show that the plaintiff's family carried agricultural operations. Hemnath Choubey (P.W. 1), an old employee in the plaintiff's estate, as also Kishori Lal Mahtha (P.W. 4) and Bindeshwari Pd. Mahtha (P.W. 3) were examined to depose that the business at Nagpur was a new business and there was risk of loss in this trade. It was admitted by Uchit Narain Das (P.W. 2) that Sri Narayan Mahtha and his brother Krishna Deo Narain Mahtha had business with headquarters at Muzaffarpur and that documents were maintained in respect of the business transactions. P.W. I has specifically admitted in his cross-examination that documents in respect of the business at Nag-pur were also maintained. Not a single paper was, however, filed on behalf of the plaintiff to show that any loss was suffered by his father, or, for that matter, the joint family in respect of the aforesaid business at Nag-pur. From the evidence of P.W. 1 it would appear that the grandfather of the plaintiff was a member of the council of State. The plaintiff's father also used to live with him at Delhi and there he came in contact with some other businessmen and he started a new business in the name of a private limited company. P.W. 5 has said that the plaintiff's father had no experience at all of the new manganese business which he had started. On the other hand, Raghubir Pd. Roy (D.W. 2), who was an Officer of the Bank at Muzaffarpur, stated that it was Pashu-pati Nath Mahtha who had started the manganese business by floating a private limited company which earned sufficient profit and the family of the plaintiff was, accordingly, benefited by that.
Out of the three witnesses examined on behalf of the defendant Bank, the other two witnesses (D.Ws. 1 and 3) are only formal witnesses.
18. The learned Additional Subordinate Judge has drawn adverse inference against the plaintiff for non-production of any document with respect . to the manganese business in question and has not accepted the plaintiff's case that the business suffered any loss. No argument has been advanced before us on this aspect of the matter, but nonetheless, this being a first appeal. I thought it proper to briefly notice the evidence on this aspect of the matter as well. On the basis of the decisions in Desu Rat-tamma v. Narayanarao (AIR 1947 Mad 252) and Angney Lal v. Angney Lal (AIR 1951 All 400), I would hold that if the family is a trading family and the extended business is not more hazardous or speculative than the one previously existing, it may not be regarded as a new business. However, as such argument was not advanced on this aspect of the matter, I need not enter into any further discussion on this question, particularly when the evidence is scanty.
19. Mr. R. S. Chatterjee, learned counsel appearing for the defendant Bank, cited no authority on any of the points falling for decision, although we find that the questions, although vexed, are not res integra and authorities of various High Courts are in abundance.
20. So far as our own High Court is concerned, I find decisions from as early as 1918. In Mahabir Prasad's case (supra) as well as in Balkrishna v. Sham Sundar (AIR 1920 Pat 201) this court clearly expressed the view that a son and a grandson are equally liable for the payment of the surety debts. However, there seems to be some diversity of judicial opinions as to the obligation of a grandson in the various High Courts in India. I need not advert to this question as the plaintiff of the case before us happened to be a son.
21. In Allahabad High Court also, this question has fallen for consideration times without number. As early as in the year 1904 in the case of Maharaja of Banaras v. Ram Kumar Misir ((1904) ILR 26 All 611), the liability of the Hindu son for the debt due by the father as surety was accepted. I may, however, refer to only one case in Dwarka Das v. Kishan Das, ILR 55 All 675 : (AIR 1933 All 587), where Chief Justice Sir Sulaiman, on reference to the Laws of Manu (Colebrooke's Hindu Law) and a large number of authorities of the various High Courts on the subject, laid down that according to the texts of the Mitakshara, the liability of the son exists in the case of surety for payment and rejected the contention that no liability arose for payment of debt incurred by reason of suretyship when it is not shown that consideration had been received by the father,
22. Much argument was advanced in the trial court as well as before us that the debt in question was Avyavaharika, in nature. I have already discussed at some length the legal position where the father stands surety for payment of money, as in the case before us. 'Avyavaharika debt', when translated, would mean 'immoral debt', Article 298 of Mulla's Hindu Law deals with this kind of debt and they have been categorised as follows:--
(1) debts for spirituous liquors ;
(2) debts due for losses at play;
(3) debts due for promises made with-out consideration;
(4) debts contracted under the influence of lust or wrath;
(5) debt for being surety for the appearance or for the honesty of another;
(6) unpaid fines;
(7) unpaid tolls; and (8) any debt which is avyavaharika which is rendered by Colebrooke as equivalent to a debt for a cause repugnant to good morals. Out of the above categories, the plaintiff has attempted to bring his case within the third and the eighth categories. I have already answered the question of consideration and have held that the suretyship debt in question could not be said to be without consideration. Let us see as to whether it is immoral in the sense that it was incurred for cause 'repugnant to good morals'.
The Supreme Court in the case of S. M. Jakati v. S. M. Borkar (AIR 1959 SC 282) held that the liability of Hindu sons in Mitakshara coparcenary family to discharge the debts of the father, the karta, which are not tainted with immorality or illegality remains unaffect-ed and undiminished because of the pious obligation of the sons and the onus to prove that the debt was Avyavaharika lies on the sons. The principle of Hindi) Law is that in a coparcenary family a decree obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit. The sons are not necessary parties to a money suit against the father who is the karta. In this case, the father was a managing director of a Co-operative Bank drawing salary, and he incurred some debts as a result of negligence in discharge of his duties. It was held that the debt could not be termed as "repugnant to good morals".
This question has been considered at some greater length by a Full Bench of the -Punjab and Haryana High Court in Hindustan Commercial Bank Ltd. v. Sohanlal Gagu Mal (AIR 1970 Punj & Har 67). In that case, the father had stood surety for the appellant Bank for payment of all the moneys due from a firm, of which one of his sons was the sole proprietor. An equitable mortgage was also created by the father of his interest in the properties for securing the debt of the firm. The Bank obtained a mortgage decree on the basis of the equitable mortgage against the father. His another son then instituted a suit for a declaration that the mortgage decree was not binding on him and the properties which were joint family properties were not liable to sale in execution of that decree. It was held by the High Court that the mortgage decree was wrongly passed for the sale of the father's interests in the mortgaged property and the only decree that could be passed was a money decree against the father. It was further observed that the surety bond in question created a personal liability on the father to pay the third person's debt; and that debt being neither illegal nor immoral, the joint family estate in the hands of the sons was liable for the payment of the same in view of the pious obligation of the sons to pay their father's debts. In this case on reference to the original texts of Yajnavalkya, it was held that it was open to a Hindu father to con-tract a suretyship debt and this lay open the joint family estate liable for its payment in case the debt is neither illegal nor immoral. Proceeding further, it was further held that this rule would not be different where the father has stood surety for the payment of a third person's debt.
23. I have already referred to the relevant terms of the surety bond in question and alter considering the matter carefully, I am clear in my mind that the surety bond created a personal liability on the father of the plaintiff to pay the debt of the company which was formed at Nagpur and comes within the meaning of the term 'Vyava-harika' i.e. lawful, usual and customary and the joint family estate in the hands of the plaintiff-the son, is liable for the payment of the same in view of his pious obligation to pay his father's debt.
24. The result of the discussions made above is that there is no merit in this appeal which must fail. It is, accordingly, dismissed with costs.
P.S. Sahay, J.
25. I agree.