(Petition (disposed of on 18-8-1942) under S. 25 of Act IX of 1887 praying the High Court to revise the decree of the Court of the District Munsif of Palni dated 7-9-1940 and passed in S.C.S. No. 114 of 1940.)

The plaintiff is an indorsee from the widow and the two sons of the payee, while the defendants are the widow and son of the maker of the promissory note. The suit was dismissed by the District Munsif of Palni on two grounds. The first was that the plaintiff could not succeed without a succession certificate and the second was that the members of the family of the deceased maker of the note could not be made liable for an obligation of the deceased under a promissory note. He relied on the Full Bench decision reported in Maruthamuthu Naicker v. Kadir Badsha Rowther (I.L.R. 1938 Mad. 568 [LQ/MadHC/1937/403] = 47 L.W. 309 (F.B.).

The first point turns on the effect of S. 3 of the Hindu Womens Rights to Property Act, 1937, which says that:

When a Hindu governed by any school of Hindu Law other than the Dayabhaga school or by customary law dies intestate, having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-S. 3 have in the property, the same interest as he himself had.

and it adds in Sub-S. 3 that:

any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Womans estate, provided however that she shall have the same right of claiming partition as a male owner.

I agree with the learned Advocate for the respondents that the widow does not obtain the right given under this section by survivorship. She was not a co-parcenor before her husbands death and she was not one afterwards. I do not however think that it follows that because the widow does not obtain her right by survivorship that she must obtain it by inheritance. The effect of S. 3 Cls. (2) and (3) may be regarded as a survival of the husbands persona in the wife, giving her the same rights as her husband had except that she can alienate the property only under certain circumstances. As the widow did not inherit her right, no succession certificate is necessary.

It is conceded that the indorsement in the plaintiffs favour is an indorsement of the rights under the promissory note and not of the debt on which the promissory note was based. It would, therefore follow that the rights which the plaintiff had against the defendants would be only those which arise under the obligations of the defendants to discharge the makers obligation under the promissory note. It is not denied that in so far as the estate of the maker of the promissory note comes into the hands of the defendants, they are liable to discharge his debt. That is the ordinary obligation of legal representatives under the mercantile law, but the question is whether the sons are liable under the pious obligation theory to discharge their fathers obligations under the promissory note. It was pointed out by Varadachariar, J. in Narayana Rao v. Venkatappayya (I.L.R. 1937 Mad. 299 = 44 L.W. 784) that it is impossible to reconcile obligations that arise in mercantile law with the principles of ancient Hindu Law and that the provisions of the Negotiable Instruments Act ought not to be extended to make persons liable who would be liable only for debts under the ordinary Hindu Law. So that the sons, who would be liable for their fathers debts cannot be held by analogy to be also liable for the obligations of their father which arise out of his execution of the promissory note. Although this particular question did not directly arise in Maruthamuthu Naicker v. Kadir Badsha Rowther (I.L.R. 1938 Mad. 568 [LQ/MadHC/1937/403] = 47 L.W. 309 (F.B.) the learned Judges there pointed out that the indorsee cannot sue a non-executant co-parcener on the ground of his liability for a debt under the Hindu Law. So the sons are liable only to the extent of the fathers separate property that comes into their hands and not to the extent of his share of the joint family property.

If in passing a decree in the plaintiffs favour it were merely said that the property of the deceased in the hands of the defendants would be liable for the debt, then the plaintiff would probably be able to invoke S. 53 of the Code of Civil Procedure when he came to execute his decree; but as I am satisfied that the obligation of defendants is limited to the separate estate of the deceased in their hands the proper decree to pass would be one against that separate estate of the maker in their hands.

The petition is allowed and a decree passed in favour of the plaintiff for the suit amount against the separate estate of the deceased maker in the defendants hands together with future interest. As this is not what the plaintiff asked for in his plaint, I think no interference with the order of the lower Court as to costs is called for. In this Court the petitioner has substantially failed and has succeeded only with regard to a relief which he did not ask for in his plaint. In this Court the petitioner will therefore pay the respondents costs.