illegal, and to which the obligation of a Hindu son would have extended.' The Father' was competent to sell ancestral property, to discharge the debts, and the ancestral estate was a fund' for the satisfaction of the decrees against him. But if the sales were made in execution of orders for the enforcement of the mortgages, they cannot bind the son. It was the duty of the mortgagees to make him a party to the suits on the mortgages and afford him an opportunity of redemption.' Nevertheless, if the sales are set aside, the appellant cannot claim to be placed in a better position than he would have occupied had the sales not taken place. His interest was bound by the mortgages, and if the sales are set aside, he will hold his interest subject to proportionate parts of the mortgage debts.'

6

Accordingly, the suits were remanded to the Court below for decision of the question whether the lands were sold in execution of so much of the decrees as was personal, or in execution of orders for the enforcement of the mortgages. What ultimately was done in the matter of these suits, or what was intended to be done, at the time of remanding them, does not appear.

SUMMARY. After repeated perusals of the judg ments of the Chief Justice and the two Judges who agreed (in part) with him, I find it exceedingly difficult to set out the actual definitive results of them-other than that the suits were remanded for further inquiry.

It is sufficiently clear, I imagine, that the majority

of the Court agreed in thinking, in opposition to the minority, that the law declared by the Privy Council in Kantu Lul and other cases must be accepted by the Madras High Court; that the son must needs pay the ordinary debts of the Father; and that the son's obligation to do this arises, and may in certain circumstances be made effectual against the son, during the lifetime of the Father.

But, the Chief Justice applies the law of the Privy Council only as he understands it.' And he appears to understand it not as Kernan and Kindersley, JJ., understand it; whilst Mr. Justice Kindersley appears to differ from Mr. Justice Kernan in his understanding of the same.

And whilst the Chief Justice appears heartily to approve the law of the Privy Council, as he understands it, Mr. Justice Kindersley appears as heartily to disapprove it, and to be unwilling to apply it any farther than he may be actually compelled. Mr. Justice Kernan seems to be indifferent about the matter.

As regards the character of the debt that the son must needs pay, whilst the Chief Justice usually speaks of the liability to pay debts other than debts. contracted for immoral purposes, towards the end of his judgment he speaks of debts being contracted for these purposes, or for purposes that would excuse a son from his obligation,' and in one place cites with approval a decision that the liability attaches 'subject to certain limited exceptions, as, for instance, debts contracted for illegal or immoral purposes.' As a

whole, the Chief Justice's judgment certainly leaves in doubt the exceptionally important question, what are the debts of the Father that the son may refuse to pay? Upon this point the Sanskrit treatises, e.g. Nārada (Chap. III.) and the Gentoo Code (Chap. I.), contain sufficiently precise directions.

Mr. Justice Kernan's judgment speaks only of debts incurred by the Father not for an immoral consideration, binding the son. Mr. Justice Kindersley, after declaring that properly the Father may not aliene or charge that portion of the ancestral immovable property which on partition would fall to the son's share,' except for legitimate family purposes,' admits nevertheless (a thing to me inexplicable) that, as regards debts of the Father not 'contracted for an illegal or immoral purpose,' the son is bound to discharge them. In other words, the Father may not incur debts-if he does the son must pay them!

The majority of the Court differ equally amongst themselves as to the time when the son's obligation arises. Mr. Justice Kindersley holds the true doctrine of Hindu law to be that it arises only upon the Father's death.

And yet Narada (Chap. III.) distinctly compels the son to pay the Father's debts during the Father's lifetime, if necessary. As also does the Gentoo Code.

There can be but little doubt, I think, that the judgments of the majority, as a whole, definitively sweep away (as bad law) the Madras doctrine that a coparcener may aliene ancestral property to the extent of his own unascertained share; as also the sugges

tion that cases like the case under notice should be dealt with as appertaining to the law of contract, not to the law of inheritance.

And they must be taken (indirectly) to disestablish the proposition that the son may enforce partition as against the Father. For, if the Father is at liberty to incur debts, and mortgage the property of the Joint Undivided Family' to its full value, how can the son be allowed to deprive him of 'independence' and his resulting right, by breaking up the Family?

6

It is to be regretted that the Chief Justice should have felt himself to be unable, owing to the opposition and reluctance of his colleagues, to give full effect to his views, and to have marred by ambiguous distinctions and limitations the force of his initial deductions.

If it is right to follow Narada, the Gentoo Code, and the Sanskrit treatises generally, in allowing the Father to contract debts almost as he pleases, why should we limit his power in any degree in consideration of the (supposed) theoretic developments' of Vijñāneçvara and his tail? Expediency and rational consistency seem alike to forbid us so to act.

CHAPTER IV.

RETROGRESSION IN 1882.

Armugam Piller's case, I. L. R., 5 Mad., 12, was one in which an undivided brother sued to recover his 'share' of joint property, that had been hypothecated as a whole by his eldest brother, and sold by order of the Court in execution of a decree for payment of money made against the eldest brother alone, but which declared the joint property to be liable. The District Court declined to hear the judgmentcreditor upon the question whether the obligation contracted by the debtor was not 'for the benefit of, and binding on, the other coparceners,' and declared that in virtue of his purchase at Court's auction, the defendant in this case became possessed only of such interest in the property sold as his decree-debtor had therein, and that he is to that extent co-owner and coparcener with the plaintiff's in these suits, and that if he wishes for partition of that share, he must bring a suit for that purpose.'

The judgment-creditor appealed on the following ground, amongst others: It was wrong to refuse to allow the defendant to prove that the eldest brother contracted the debt for which the land was sold as Manager of the Family for proper purposes.