পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/৬৫৯

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VYAVASTHA'-IDARPANA. 537 Authorities — The text of NAVADA cited in the Daga? haga, See ante, p. 619. The necessity of liquidating the debt is recognised by the text of GouTAMA cited in the Mitaokahara —“He who takes the assets of a man leaving no male issue, must pay the sum due by him; ” and by the text of VRIHASPATI laid down in the Viva'dachintasmani :-" A father being dead, his sons, whether after partition or before it, shall dicharge his debt, in proportion to their shares; or that son alone, who has taken the burthen upon himself.” In the Dipakalika MANU –“If the debtor be dead, and if the money borrowed was expended for the use of his family, it must be paid by the family, divided or undivided, out of their own estate.” By the term “father,” mentioned in all the texts, must be understood the father and others. 態 The debts which are not chargeable are noticed in the Pira'dachintasmani —“A son need not pay in this world money due by his father for spirituous liquors, for lustful pleasures, for loss at play; nor what remains unpaid of a fine or toll; nor anything idly promised.” Dacca Court of Appeal. May 29th, 1830. Maen. II. L. vol. II. Ch. 10, ease 7 (pp. 283–285). - Q. A Sodra became surety for a person of his own class, to whom a sum of money had been leut, and died previously to the liquidation of the debt. In this case, is the creditor entitled to realize the debt out of the deceased surety's property? R. The creditor cannot realize his debt out of the deceased surety’s property, even though payment should not have been made by the debtor. This is the received opinion.* Zillalı Chittagong, Scptember 25th 1820. H. L. vol. II. Ch. 10, case S (p. 285 ). Q. A person having borrowed a sum of money, established a shop with the said money, and then died : subsequently to his death, his father and brothers appropriated all the goods that were in the shop. In this case, is the satisfaction of the debt, contracted by the deceased, incumbent on his father and brothers, or not ? and supposing the debtor to b:ve left a widow, who took no part of the property left in the shop, is she nevertheless responsible for his debt, or otherwise ? R. Under the circumsatnces stated, the debtor's father and brothers are bound to liquidate his debt, but his widow cannot be held liable for it.

  • This is not the text of Vrihaspati but of Narada, in Digest vol. I. page 275. s f It is not distinctly stated what deseription of surety was meant, though from the terms of the question it may be apprehended that security for the loan was intended. Supposing this to be the case, the heirs are answerable, and the reply to the question is erroneous. According to the Hindu law, there are three sorts of accessary obligations, the PRATYA PRATInitus, DA’s A ionatortu', and Dunsh ANA PRATIblius. The first signifies a security for the purpose of confidence, and his undertaking is that which has been described by Mr. Colebrooke as a “mandate, or precedent undertaking of a mandate, for another's benefit, bidding one trust another, lend him money, allow him credit, manage business for him, or beeomo answerable for his default.” The second is that which he terms “ constitute, or subsequent undertaking of a person, who engages to pay a subsisting debt, or fulfils an existing obligation of a third party.”—Colebrooke Obl. and Cont. Chap X. Section 282. It signifies a surety for payment. The third signifies a surety for appearance, and answers to the Persian term Házirzinin, the obligor undertaking to produce the person of the principal, in the event of his not being fortheoning. In the first and last mentioned sorts of engagement, the death of the contracted party extinguishes the obligation; but in the second case, the obligation devolves on the representatives of the deceased surety. See Colcbrooke, cited in Elem. Hindu Law. Appendix X. pp. 463,464.

The estate of a deceased surety is not liable for the debts of his principal : but quere ? Those who take the property of the decensed are bonud to liquidate his debts.