Blair and Aikmam, JJ.:— This is an appeal against an order of remand under section 562 of the Code of Civil Procedure, based upon a finding that the Munsif, as Court of first instance, had wrongly dismissed the suit of the plaintiff as barred by limitation.
The facts are:— One Kauleshar, father of the present defendants, executed a bond upon the 23rd June, 1893, for a sum of money borrowed from the plaintiff, which, under the said bond, become payable on the 18th June, 1894. The bond was a simple unregistered money bond. It was not paid on the due date, and upon the 17th June, 1897, the present plaintiff sued Kauleshar alone upon the bond, and obtained a decree against him on the 12th July, 1897. Kauleshar and his sons, the present defendants, constituted a joint Hindu family. Kauleshar died in 1899, and after his death the plaintiff attached certain property which was the property of the joint Hindu family. The present defendants objected to the attachment on the ground that it was ancestral property which had devolved on them by right, of survivorship, and was not an asset of the deceased father in their hands. This objection was sustained. The property was released from attachment on the 20th January, 1900. On the 22nd January the plaintiff brought the suit, out of which this appeal arises, upon the allegations that the defendants were sons of the judgment-debtor, and were bound as such under the Hindu Law to pay their father's debts. The Munsif, in what can scarcely be called a judgment, dismissed the plaintiff's suit as barred by limitation. Upon appeal the Subordinate Judge held that the suit was not time-barred, and remanded the case for trial on the merits. The grounds of appeal here are—
1. Because the suit is barred by limitation.
2. Because the Court below has erred in holding that the cause of action arises on the death of the father.
The decision upon which the Subordinate Judge based his finding is that of Natawyyan v. Ponnmami ; and there is no doubt that decision fully bears out the conclusion at which the Subordinate Judge arrived. It was there held in a suit similar to the present that the right to sue a son only accrues on the death of the father. With all deference to the Judges who decided that case we are compelled to differ from them. There is express authority in our own Court in the Full Bench decision in the case of Badri Prasad v. Madan Lal that the pious duty of Hindu sons to pay their father's debts out of the ancestral estate arises even in the father's lifetime. The propriety of the decision of the Madras Court cited above was called in question in later rulings of the same Court. Amongst others we may refer to the case of Mallesam Naidu v. Jugala Panda . We entertain no doubt that upon the rulings in this Court the liability of the Hindu son to pay the debt of his father arises from the moment the father has failed to discharge his obligation. In this case the sons' liability arose on the 18th June, 1894, when the father failed to satisfy the bond which had then become due. But this finding is not enough to dispose of this appeal. It becomes necessary for us to decide what article of the Limitation Act is applicable to a suit like the present. If there be no specific article applicable to this case, we are compelled to have recourse to article 120 of schedule ii of the Limitation Act, which provides a period of six years as the period of limitation from the date when the right to sue accrued. We wish first to point out that the suit against the sons of the deceased debtor is not based upon any contractual relation between them and the plaintiff, but is an obligation imposed upon them by virtue of their status as sons of a Hindu father. It has been contended by Munshi Gobind Prasad for the defendants that as the original debt of the father to the plaintiff was time barred on the date of the institution of this suit, the secondary obligation of the sons must also be barred. In our opinion the liability of the sons depends upon the question whether there would still be an existing liability on the part of the father were he alive. There is no doubt that if an obligation has ceased to be enforceable against the father it has ceased to be enforceable against the sons; but in this case the plaintiff in showing that at the date of the suit there was an obligation which he could have enforced against the father had he been alive has not to rely only on the original bond, inasmuch as within the period of limitation allowed he had put the bond in suit and had obtained a decree upon it, which might have been enforced against the father when the plaintiff brought his suit against the sons. This, we think, is the answer to the pleas urged on behalf of the appellants. We have asked the learned pleader for the appellants to refer us to any article in the second Schedule to the Limitation Act which expressly provides a period of limitation for a suit like the present: he has failed to point out any article within which a suit of this nature would, in our opinion, properly fall. We concur in what the learned Chief Justice said in the case of Natasayyan v. Ponnmami :—“In short it is a suit sui generis, to which no article of the Limitation Act is specially applicable, but comes under article 120 of the schedule.” This article allows a period of six years from the date when the right to sue accrues. That date we held above to have been the 18th June, 1894. As the suit was instituted on the 22nd January, 1900, it follows that, in the view we take, it was within time, and although we cannot concur shall, the learned Subordinate Judge says in his judgment, we think the conclusion at which he arrived is right. We therefore dismiss the appeal with costs.
Appeal dismissed.