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Madras High CourtCRP(MD)/575/2018dismissed

Solairaj v. Smt. Vijayarani

2018-07-19Honourable Mr Justice M.V. Muralidaran4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.07.2018

CORAM

THE HONOURABLE MR. JUSTICE M.V.MURALIDARAN C.R.P.(PD)(MD) Nos.575 and 576 of 2018 C.R.P.(PD)(MD) No.575 of 2018 Sri. Solairaj ... Petitioner/Plaintiff -vs1. Smt.Vijayarani

2. Sri.Sivasankar

3. Sri.Balaji ... Respondents/Defendants PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India praying to set aside the impugned order dated 21.02.2018 of return passed by the learned Sub Judge, Theni and consequently to direct the learned Judge to number the original suit filed by the petitioner and take on file.

For Petitioner : Mr.B.Jeyakumar For Respondents : No Appearance C.R.P.(PD)(MD) No.576 of 2018 K.S.Muthukumar ... Petitioner/Plaintiff -vs1. Kavitha

2. Arunkumar

3. Kayathiri ... Respondents/Defendants PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India praying to set aside the impugned order dated 21.02.2018 of return passed by the learned Sub Judge, Theni and consequently to direct the learned Judge to number the original suit filed by the petitioner and take on file.

For Petitioner : Mr.B.Jeyakumar For R1 & R3 : Mr.G.Karuppasamy Pandian For R2 : No Appearance C O M M O N O R D E R Since the issue involved in both these petitions is one and the same, they are taken up together for disposal.

2. The plaintiffs / revision petitioners herein sought to file suits before the learned Sub Judge, Theni in O.S.No. of 2017 for recovery of money from the legalheirs of the original borrowers and since the Trial Court refused to number the suits on the ground of its maintainability, the plaintiffs / revision petitioners herein

are before this Court.

Brief Facts:

3. In C.R.P.(PD)(MD) No.575 of 2018, it is the case of the revision petitioner that one Madheswaran, who is the husband of the 1st defendant and father of the defendants 2 & 3, had borrowed a sum of Rs.1,00,000/- from the plaintiff / petitioner herein on duly executing a promissory note. Subsequently, he passed away on 22.01.2015 and when the petitioner demanded the return of the amount of Rs.1,69,742/- (including interest) from the defendants, who are the legalheirs of Madheswaran, they had not taken any steps to settle the amount.

4. Insofar as C.R.P.(PD)(MD) No.576 of 2018 is concerned, the plaintiff/petitioner has stated that his friend, namely, Sekar, had borrowed Rs.2,00,000/- from him on 15.02.2016 and in turn, agreed to pay the entire 36 monthly installments for the loan amount obtained from HDFC Bank, Theni Branch towards purchase of a Car against his borrowal of the amount. Thereafter, he met with his demise on 28.12.2016, pursuant to which, the monthly installment was not paid and the petitioner was compelled the loan amount and when the petitioner demanded the return of the amount of Rs.1,59,703/- (paid to the Bank) from the defendants, who are the legalheirs of Sekar, they had not taken any steps to settle the amount.

5. Learned counsel for the revision petitioners state that despite casting legal notice on the defendants, they did not come forward to remit the amount and when the legalheirs were entitled to receive the death benefits of the respective deceased, it is incumbent upon them to pay the debts also. It is further stated that the Trial Court, under the wrong notion that personal decree was sought by the petitioners, declined to number the suits, whereas the plaintiffs sought for a decree against the joint family of the defendants. Still, the Trial Court did not entertain the suits, having no other means to receive the amount from the defendants, the petitioners are before this Court against such return.

6. Learned counsel for the respondents 1 & 2 in C.R.P.(PD) (MD) No.576 of 2018 would vehemently contend that the plaints sought to be filed are prima facie not maintainable, inasmuch as rightly pointed out by the Trial Court, as per the amendment to Section 6 of Hindu Succession (Amendment) Act, 2005, no personal decree can be filed against the legalheirs of the deceased and therefore, the return made by the Trial Court is perfectly valid and does not call for any interference by this Court.

7. Heard the learned counsel for the petitioners and the learned counsel for the respondents 1 & 2 in C.R.P.(PD)(MD) No.576 of 2018 and also perused the material documents available on record. There is no representation for the respondents in C.R.P.(PD)(MD) No.575 of 2018 and for R3 in C.R.P.(PD)(MD) No.576 of 2018.

8. The plaintiffs / revision petitioners sought to file suits

for recovery of money from the legal heirs of the deceased and on a bare reading of Section 6, especially sub-section 4 of the Hindu Succession (Amendment) Act, 2005 would amply prove the fact that the liability to pay the debt borrowed by his/her father cannot be fastened on a son, grandson or great-grandson on the ground of the pious obligation under the Hindu law. For the sake of brevity, the said Section is extracted as under:

"Section 6(4) of the Hindu Succession (Amendment) Act, 2005

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. -For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

9. In the present case on hand, the original borrowers, who had received monies on 22.01.2015 and 15.02.2016, died on 22.01.2015 and 28.12.2016 respectively and as per the said Section after 09.09.2005, when the Amendment Act of 2005 came into force, no court shall recognize the right of a creditor to proceed against the son, grandson or great grandson of a debtor for debts contracted by the father, grandfather or great grandfather solely on the ground of pious obligation. The doctrine of pious obligation thus stands abrogated by the insertion of Section 6 (4) of Hindu Succession Act w.e.f. 09.09.2005. Under the old Hindu Law, where the sons are joint with their father and debts have been contracted by the father in his capacity of manager and head of the family for family purpose, the sons, as members of the joint family, are bound to pay the debts to the extent of their interest in the coparcenary property and under the Mitakshra Law, the liability to pay the debts contracted by the father, though for his own benefits, arise from an obligation

for religious and piety (pious obligation), where the debts are not tainted with immorality. It may be noted that even under the old law the liability of an heir of deceased Hindu to pay the debts of the deceased, is limited to the extent of the assets inherited by him from the deceased. However, the said doctrine of pious obligation under the old Hindu Law has been abrogated by the Amendment Act of 2005 w.e.f. 09.09.2005.

10. From the above, it is clear that for any loan which is advanced after 09.09.2005, the sons of the borrower are not liable to pay the same on the ground of pious obligation under the Hindu Law and therefore, this Court is of the view that the return made by the Trial Court holds good and the said return does not call for any interference by this Court.

11. In the result, a) these Civil Revision Petitions are dismissed, confirming the impugned orders dated 21.02.2018 of return passed by the learned Sub Judge, Theni;

b) the petitioners/plaintiffs are at liberty to file suits in respect of any property standing in the name of the deceased persons, before the appropriate forum.

No costs.

Sd/- Assistant Registrar(AS) /True Copy/ Sub Assistant Registrar(CS-II) ar To:

1. The Sub Judge, Theni .

2. The Section Officer,(To return the original papers) V.R.Section, (2 copies) Madurai Bench of Madras High Court, Madurai.

+1cc to Mr.B.Jeya Kumar, Advocate in SR No.74240 & 74261 +1cc to Mr.G.Karuppasamy Pandian, Advocate in SR No.74198 C.R.P.(PD)(MD) Nos.575 and 576 of 2018 NM/RSK/SAR 2/09.10.18/4P/6C