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Judgment
Sadasiva Ayyar, J.—As we understand the judgments of the two Lower Courts their concurrent finding on the facts is that no portion of the
debt of Rs. 4,000 which Kesavan Nambudri, the father of the fifth defendant, incurred, was used for the benefit of Kesavan Nambudri''s Illom,
and that money was used and intended by Kesavan Nambudri to be used, for the personal expenses of himself and his deceased son. This
personal debt of Kesavan Nambudri, though it is not proved to be an illegal or immoral debt, cannot be binding on his Illom, which now consists of
defendants Nos. 5 to 13, unless the ordinary Hindu Law which makes sons liable for their father''s personal debts be applied, the defendants Nos.
5 to 7, 11 and 12 being the sons of Kesavan Nambudri while the thirteenth defendant is Kesavan Nambudri''s grandson by his deceased son
(defendants Nos. 8 to 10 are widows of the Illom).
The Lower Appellate Court held that the obligation of the sons in an ordinary Mitakahara Hindu family to pay their father''s personal debts (not
illegal or immoral) does not attach to the sons of a Nambudri father. The ground of the decision is that a joint family consisting of father and his
sons in an ordinary Hindu family differs in many respects from a Nambudri illom, though the latter might consist only of a father and his sons. The
learned District Judge relied upon the decisions in Nilakandan v. Madhavan I.L.R., (1887) Mad., 9, and Govinda v. Krishnan I.L.R., (1892)
Mad., 333. It has been contended before us that the obligation of the sons to pay their father''s personal debts attaches also to the sons of a
Nambudri father, and that the Illom property is assets of the father in the hands of his Nambudri sons so as to be liable for the father''s debts. In a
very learned editorial article found in pages 171 to 184, twelfth volume of the Madras Law Journal, there are no doubt certain observations
supporting the appellant''s contention. The opinion of Brandt and Parker, JJ., in Nilakandan v. Madhavan I.L.R., (1887) Mad., 9, viz., that the rule
of Hindu Law according to which the son is bound to pay the debts of the father is not applicable to the Nambudris is treated as obiter dictum in
that Article (see page 183). But Govinda v. Krishnan I.L.R., (1892) Mad., 333 decided by Subramania Ayyar and Best, JJ., approves of the
decision in Nilakandan v. Madhavan I.L.R., (1887) Mad., 9 and adopts the principle enunciated therein that the rule of Hindu Law which imposes
the duty on a son to pay his father''s debt contracted for purposes neither illegal nor immoral is not applicable to Nambudris. The reason for such
non-applicability is stated thus: ""As the property is joint and impartible and belongs to the whole family and the father has got no definite share that
could be made available for his individual debt or which devolves on his death to the son to the exclusion of the other joint members of the family,
there is no room for the application of the pious duty of the son to pay the father''s debts."" The writer of the learned article in the Madras Law
Journal to which I have already referred (it seems to be an open secret that the writer is now one of the learned Judges of this Court) admits that,
where the Nambudri family consists both of the deceased''s debtor''s sons and of other members ""the rule of the son''s liability to pay the father''s
debts would be absolutely inapplicable."" The sons not being entitled to partition have no saleable interest in the property and the other members
not being bound to pay the debt, according to the rule in question, the whole of the properties is unavailable for the debt in question. ""The learned
writer however adds"" But the question might be different where the family consists only of the father and the sons and their issue."" With the greatest
respect I do not think that the mere fact that, besides the sons and grandsons of the debtor, there were no other members in the Illom could affect
the principle by reason of which the applicability of the ordinary Hindu Law rule was negatived in Nilakandan v. Madhavan I.L.R., (1887) Mad., 9
and Govinda v. Krishnan I.L.R., (1892) Mad., 333. As I understand the principle, it is that a Nambudri illom though governed by the ordinary
rules of Hindu Law is also governed by the rules relating to a Marumakkattayam Nair tarwad in some respects. Those matters in which the illom
and the tarwad agree are: (a) that the head of the illom though the father of the other members of the illom has only the same rights in the properties
of the family as the karnavan of a Nair tarwad has though the other members of the tarwad might happen to be only the karnavan''s nephews and
grand-nephews. (b) Just as the personal debts of a karnavan are not binding on his nephews, the personal debts of a Nambudri father are not
binding upon his Nambudri sons, (c) A Nambudri father cannot enforce partition among his sons just as a karnavan cannot, upon his nephews, nor
can a co-parcener in a Nambudri illom enforce compulsory partition by suit, (d). The alleged share of a Nambudri father or a Nambudri son
cannot be attached and brought to sale by a creditor for the personal debt of the debtor just as the alleged share of the karnavan or of an
anandravan cannot be attached and brought to sale for the debt due to a creditor by such karnavan. (e) The alleged share of a Nambudri father or
son belonging to an illom cannot be alienated by him so as to give a right to the alienee to bring a suit for enforcement of partition among all the
members of the illom any more than a member of a Malabar tarwad can alienate his alleged share so as to give such a right to the alienee.
I am prepared to follow the principle enunciated in the decisions of this Court in Nilakandan v. Madhavan I.L.R., (1887) Mad., 9, and Govinda
v. Krishnan I.L.R., (1892) Mad., 333. The appellants'' learned vakil argued that Kunhichekkan v. Lydia Arucanden (1912) M.W.N., 386, has
destroyed most of the above incidents even of the Marumakkattayam law in the case of Nair families. In that case, it was held that the conversion
of even one of the members of a Marumakkattayam tarwad dissolved the co-parcenary completely (with the incident of survivorship). Without
offering any opinion as to the correctness of the decision in that particular case, I am not prepared to hold that all the differences which I pointed
out above between an ordinary Hindu joint family on the one side and a Marumakkattayam joint family tarwad or a Nambudri illom on the other
side have been obliterated by the above decision, even if by a process of logic, such a result could be deduced from some observations in that
case. Muttayan v. Zamindar of Sivagiri I.L.R., (1883) Mad., 1, was relied upon by the appellants'' vakil for the proposition that the fact that the
incidents of impartibility and inalienability attach to the property of a joint Hindu family will not prevent the operation of the rule of Hindu Law
which makes the sons liable for a father''s personal debts to the extent of an ancestral property. But that case has no relevancy because the non-
liability of a Nambudri son is not based upon the absence of the incidence of partibility and alienability alone but upon the illom and its members
partaking of the nature of a Marumakkattayam tarwad as regards the rights of its members in the property. In the result, the Second Appeal must
be dismissed with costs.
Miller, J.
I agree.