1. This appeal under the Letters Paten against the judgment of Raghava Rao J. in S. A. No. 1851 of 1947, arises out of a suit brought by the province of Madras in the Court of the District Munsif of Chingleput to set aside an order passed by the Court of the Subordinate Judge of Chingleput on a claim petition in the following circumstances: Certain minors represented by their mother as next friend brought a suit 'in forma pauperfs' in the Court of the Subordinate Judge of Chinglepul for the partition of alleged family properties against the father and grandfather of the minors and others. (The statement in the judgment of the learned Judge that the suit was brought by defendant 2 as the next friend is not accurate).

Pending the suit, the mother died, and defendant 2 in the present suit was appointed next friend in her place. The suit (O. S. No. 72 of 1940), was not heard and disposed of. On 9-8-1940, when the case was called, defendant 2, the next friend was not present, and the pleader appearing for the plaintiffs in that suit reported no instructions, and the suit was dismissed. The learn ed Subordinate Judge, after directing the plain tiffs to pay the costs of the defendants, ordered the next friend i.e., defendant 2, to pay Government Rs. 1792-7-0 being the court-fee payable on the plaint, as the suit had been instituted 'in forma pauperis.' In execution of the decree for payment of the court-fee the Government attached the family properties of defendants 1 and 2, defendant 1 being the son of defendant 2. Defendant 1 preferred a claim under Order 21, Rule 58, C. P. C., by an application, E. A. No. 148 of 1943, alleging that the defendants had become divided by a deed of partition dated 20-10-1941 at which certain properties were allotted to the shares of the two defendants severally and that the properties which had been attached were not liable to be proceeded against for the realisation of the court-fee. Defendant 1 also alleged that he was not liable for the debt of the lather, as it was not binding on him in law.

The learned Subordinate Judge of Chingleput overruled the contention of defendant 1 that the debt was not binding on him but allowed the claim petition on the ground that there had been a partition between defendant 1 and his father. It is to set aside this order of the learned Subordinate Judge that the Government filed the present suit.

The Government alleged that the partition relied upon by defendant 1 was a sham and colourable transaction not intended to be acted upon and was a mere blind to screen the properties, if possible, from the creditors of defendant 2. Defendant 2 remained 'ex parte'. Defendant 1 pleaded that the partition was 'bona fide' and denied that it was fraudulent as alleged by the Government, and further stated that the court-fee due to the Government was not a debt valid and binding on him, under Hindu law. Defendant 3, who had purchased the suit properties from defendant 1, adopted the written statement by defendant 1.

2. The learned District Munsif who tried the suit held that the partition was sham and nominal, but held that defendant 1 was not bound to pay the court-fee ordered to be paid by defendant 2, as it was in the nature of a fine, to which the doctrine of pious obligation did not extend. He, however, rejected the contention on behalf of defendant 1 that the debt was 'Avyavaharika', In the result he passed a decree setting aside the order on the claim petition as regards the properties set out in Schedule B to the plaint, which defendant I had claimed as having been allotted to his share at the partition and declared that the plaintiff's right to proceed against the undivided share of the father, defendant 2 in all the joint family properties shall remain unaffected and that defendant Is undivided share shall not be liable to be proceeded against in execution of the decree for payment of the court-fee due to the Government.

There were two appeals against this decree, one by defendant 3, and the other by the province of Madras. The learned Subordinate Judge also held that the partition was sham and nominal and that the obligation arising out of the decree in O. S. No. 72 of 1940, was in the nature of the fine or penalty and the son's share could not be proceeded against in enforcement of the same. He substantially confirmed the decree of the lower Court, except for a slight modification consequent on the fact that properties in Schedule A had already been sold away.

Thereupon, the Government preferred a second appeal to this Court, which came up before Raghava Rao J. The learned judge allowed the appeal and dismissed the cross-objection which tad been preferred by defendant 3. Before the learned Judge, very properly, the concurrent finding of the Courts below that the partition was sham and nominal was accepted. But the learned judge, differing from the Courts below, held that the obligation to pay court-fees under the decree in O. S. No. 72 of 1940 was not in the nature of a fine, nor was it an 'avyavaharika' debt and defendant Is share was also liable to be proceeded against. The learned Judge, however, granted leave to appeal and defendant 3 is the appellant before us.

3. Two questions of law were raised before us by Mr. Venkatasubramania Aiyar, learned counsel for the appellant, viz., (1) that the liability of defendant 2 to pay the court-fee under the decree in O. S. No. 72 of 1940 was in the nature of a 'danda', which the son was not liable to pay under Hindu law, and (2) that in any event the liability would fall within the category of 'avyavabarika' debts, which also the son was not bound to pay.

4. On the above two questions the relevant texts are:

"A son has not to pay in this world his father's debt incurred for spirituous liquor, for gratification of lust or in gambling, nor a fine (danda) or what remains unpaid of a toll, nor shall he make good idle gifts"

(Yagnavalkya, 11, 47).

A son shall not be made to pay a debt incurred for spirituous liquor, for idle gifts, for promise made under the influence of love or wrath or for suretyship, nor balance of fine (danda or toll). Brihaspati XI, 39).

The son has not to pay a fine, 'danda' or balance of a fine or a tax (or toll) or its balance, nor a debt which is not 'vyavaharika' ('Usanas' as cited by Mitakshara).

5. On the first question there is only one decided authority of this Court in -- 'Ramiengar v. Secy. of State', 20 Mad LJ 89 (A). But before we refer to this decision, we may deal briefly with the general contention of learned counsel for the appellant that court-fee payable by a party to the Government is in the nature of a 'danda'. In sup-port of this contention, learned counsel relied upon passages from the Smritis and the Commentaries thereon, which referred to the imposition of 'danda' on parties to litigation and sought to equate such exactions or impositions to the levy of court-fee. We have carefully gone through the texts and we have no hesitation in saying that the conception of court-fees at the present day is radically different from the danda which was imposed on parties, to a litigation in the days of the Smritis. Court-fee now is levied under the provisions of a statute which is primarily fiscal in its nature. Court-fee is payable at the time of the institution of the suit by the plaintiff. Under the law at present, the primary liability to pay court-fee is always on the plaintiff. Whatever the theory underlying the levy of court-fee may be, one thing appears to us to be quite clear, namely, that it is not in the nature of a punishment. The court-fee is levied from the plaintiff long before the claim is adjudicated. It is levied on plaintiffs who succeed eventually and who fail. An exception is made to the rule that court-fee should be paid simultaneously with the filing of the plaint in the case of a plaintiff who is a pauper. Even in this case, the liability is there; but the collection of the fee is postponed till the final disposal of the suit.

6. The system of levy of court-fee as it now obtains did not certainly prevail in the days of the Smritis. No fee was insisted upon at the time of the filing of the plaint. After the final disposal of the case, a successful plaintiff was liable to pay five per cent on his claim to the King as 'Bhriti' or compensation. This payment does resemble court-fees to a certain extent. But surely this is not in the nature of 'danda'. There are numerous other provisions for collection of varying amounts from the plaintiff and the defendant which are called 'danda' and are undoubtedly in the nature of fines or penalties. We shall give a few instances.

When the debtor denied the fact of the debt altogether, and the creditor succeeded in establishing it, the debtor had to pay the amount decreed to the creditor, and an equal amount to the King as "danda' fine. If the plaintiff turned out to be a false claimant, he had to pay to the King a fine 'danda' twice as much as the amount claimed by him. (Yagnavalkya, II, 11). Manu mentions a milder penalty. (Manu VIII, 139). The imposition of 'danda' seems to have extended even to the conduct of the parties before the final adjudication. Kautilya says that if the defendant is not ready with his defence within the time allowed by Court, he may be punished with fine ('danda' ranging from 3 to 12 'panas' (Kautilya III, 1) Vide Kane's History of Dharma Sastras, Vol. III, pp. 294-6 and S. Varadachariar's Hindu Judicial System, p. 140 et. seq.).

It is obvious that there is no similarity between the different kinds of 'danda' imposed on the parties in the days of the Smritis and the court-fee at present levied on a plaint. The learned Judges of the Calcutta High Court took a view similar to what we are now taking in -- Trayag Sahu v. Kasi Sahu', 11 Cal LJ 599 (B). It was contended in that case that the costs directed to he paid by a Mitakshara father who had failed to substantiate a claim made to some property was in the nature of a 'danda'. After referring to some of the provisions in the Smritis to which we have referred above, the learned Judges hold that costs awarded against a defeated litigant could not be 'danda' or fine within the meaning of the texts.

7. Mr. Venkatasubramania Aiyar next contended that whatever may be the nature of the court-fee leviable by the Government from the plaintiff in ordinary cases, in special cases where a person other than the plaintiff is made liable to pay the court-fee because of his misconduct, the liability is penal in nature, and therefore, would fall within the category of 'danda' mentioned by the next writers. According to him, the direction by the Court that defendant 2 as next friend should pay the court-fee was by way of punishment He referred us in this connection to the following part of Order 33, Rule II:

Where the Court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plantiff on a cause of action which accrued during the minority of such plaintiff, the Court may order the next friend to personally pay the court-fee.

In the first place, In this case we are not in a position to know why exactly the Court directed the "next friend to pay the court-fee personally. The only material document on this point is the decree in O. S. No. 72 of 1940 which is of no assistance as it merely orders the next friend to pay the court-fee. As the suit was dismissed for default, it is extravagant to presume that the Court found that the suit had been instituted unreasonably or improperly. Indeed, the Court had no Opportunity of going into the merits at all.

In the second place, the provision would not strictly apply to defendant 2. The suit had not been instituted by defendant 2, it had been instituted by the mother of the minors, and it was only on her death that defendant 2 was appointed by the Court to act as the next friend, and all that he did was to continue to be on record as next friend. He appears to have applied for leave to withdraw the suit, but he was not permitted to do so. On the day when the suit was called, he was not present and he had not instructed his pleader. On these facts, it is impossible to bring the case within the provision contained in Order 33, Rule 11 of the Code, Whether the Court, apart from this provision could or could not have directed the next friend to personally pay the court-fee is not for us to determine in this case. All that we can say is that it is not evident that the Court directed defendant 2 as next friend to personally pay the court-fee because in the opinion of the Court, the suit had been instituted unreasonably or improperly by him.

8. In this view, the decision in 20 Mad LJ 89 (A) can have no application. There a Hindu father brought a suit 'in forma pauperis' as next friend of one of his sons to establish an alleged adoption of that son into another family and to recover possession of properly on that footing. The alleged adoption was found to be false. The suit was dismissed, and the father was directed to pay the costs due to Government. The reason why he was made liable was that he had been guilty of "what was certainly an immoral act in bringing a suit which he must have known to be false." The learned Judges observed;

"The liability to pay the costs was clearly imposed as a penalty for his misconduct and the debt thus incurred is tainted with immorality and the sons are not bound to pay. Again under Hindu law, among debts which sons are not bound to pay are fines (see Mayne's Hindu law, Edn. 7, p. 389) and in this case the liability imposed upon the appellants, father may also be regarded as in the nature of a fine."

9. It is clear that in that case the father as next friend was made liable for the court-fee because he had set up a false case, a case false to his knowledge, as no adoption could have taken place without his knowledge and concurrence. In the case before us, it cannot be said that defendant 2, had been directed to personally pay the court-fee on a similar ground. We agree with the learned judge, Raghava Rao J. that the obligation of defendant 2 to pay the court-fee was not an obligation to pay a fine, within the meaning of the Smriti texts.

10. The next question which falls for decision is whether defendant 2's liability to pay the court-

fee is in the nature of a debt which is not 'vyavaharika'. What exactly that term connoted, it is difficult to say. We have our doubts if that term had a precise and definite meaning even in the days of the Smritis. It is like "just and convenient", "reasonable and prudent", "justice, equity and good conscience." To give the latest example, it is an expression as elastic and indefinite as the expression "reasonable restrictions" in Article 19 of our Constitution. Coleb'rooke translated the expression 'Avyavaharika' as "repugnant to good morals". There have been other translations, like "improper" and "not lawful, usual or customary." 'Vyavahara' is a word which has more than one meaning. But we agree with Mr. Venkatasubramania Aiyar that the word has a reference to the ideal of good conduct according to the notions prevailing at the material time. But we are unable to hold that any debt which the father ought not to have strictly contracted is necessarily a debt which is 'avyavaharika'. There should be an element of moral turpitude involved in the debt. It is only then that it could be called 'avyavaharika'.

The Privy Council in -- 'Hemraj v. Khem Chand', AIR 1943 PC 142 (C) have observed that "the translation of the term 'Avyavaharika' as given by Colebroke makes the nearest approach to the trite conception of the term as used in the Smriti text, and may well be taken to represent its correct meaning", and that the term does not admit of more precise definition." We have been referred by counsel to the decisions in -- 'Durbar Khachar Odha v. Khachar Harsur', 32 Bom 348 (D); --'Chakouri Mahton v. Ganga Prasad', 39 Cal 862 (E); -- 'Ramasuhramania Pillay v. Sivakami Am-mal', AIR 1925 Mad 841 (F); -- 'Govind Prasad v. Raghunath Prasad', AIR 1939 Bom 289 (FB) (G) and -- 'Toshanpal Singha v. District Judge, Agra', AIR 1934 PC 238 (H).

We do not think it necessary to discuss all these decisions, as we are clear that defendant 2's liability to pay the court-fee would not be an 'avyavaharika' debt, whatever meaning be given to that term and whatever test he employed to determine whether a debt falls within that class. On the meagre evidence in this case, it certainly cannot be said that defendant 2 was straying from the correct path of dharma in acting as next friend for the minor plaintiffs in O. S. No. 72 of 1940. It is too late in the day to apply the rule of Narada that a person who institutes a suit on behalf of a person who is not related to him as a son or a father or brother should be punished. It may be commendable in certain cases to act as the next friend of minors who may not have any assistance.

In the present case, defendant 2 himself did not institute the suit. All that he did was to step in as next friend when the original next friend, namely, the mother of the minors, died. For some reason or other which Is not known, he was evidently unable to prosecute the suit, and it was dismissed for default. The Court very likely did not wish to much the minors with the court-fee, inasmuch as the suit was not tried but was dismissed for default of appearance of the next friend. But we fail to see anything illegal or immoral or dishonest in the conduct of defendant 2 in having incurred this liability.

Mr. Venkatasubramania Aiyar conceded that the conception of 'Dharma' and 'Nyaya' changes, and the term 'Avyavaharika' has to be applied to a particular case from the standpoint of notions of 'Dharma' and 'Nyaya' prevailing at the time of the dispute. There can be no doubt that judged by present notions defendant 2's: liability was in no way inconsistent with right conduct. It suffices to refer once more to 20 Mad LJ 89 (A), where the learned Judges considered that the conduct of the father who incurred liability to pay court-fee to the Government was immoral (vide also --'Lakshminarasimhamurti v. Venkata Jogi Somayyajulu', AIR 1939 Mad 928 (I) where the father was made liable to pay the costs of the suit personally for having set up a forged will). We have nothing like that in the case before us. We agree with Raghava Rao J. that defendant 1 cannot on any ground escape liability to be proceeded against in respect of his share in the family property for the court-fee directed to be paid by his father, defendant 2.

11. The appeal fails and is dismissed with costs.