1. The facts of this case are as follows: Defendant 2 is the father of plaintiffs 1, 2 and 3 and was the agent of defendant 1. A suit for accounts under the Orissa Tenancy Act was brought by defendant 1 against defendant 2, in which defendant 2 failed to put in an appearance. The suit was decreed for a sum of Rs. 5,000. The decree holder, defendant 1, thereupon took out execution for this sum against Othe father, and sold the property in suit and purchased it himself. The plaintiffs now coma forward in the present suit with a claim that what was sold was only the right, title and interest of their father and that their share in the ancestral property which is governed by the Mitakshara law was not affected by the sale. The learned District Judge has allowed their claim so far as the ancestral properties are concerned, and hence this second appeal by defendant 1. Now the law as regards the liability of the sons of a Mitakshara father in respect of a sale held in execution of a decree for their father's debt has been summarised in Suraj Bunsi Koer v. Sheo Persad Singh(1) by their Lordships of the Privy Council as follows:
“First, that where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay of an antecedent debt, or under a pale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted; and, secondly, that the purchasers at an execution sale, being strangers to the suit, if they had no notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings.”
2. These two propositions were considered by Sir John Stanley in Chandradeo Singh v. Mata Prasad(2) and the learned Chief Justice observes as follows;
“The first of these propositions, it will be observed, deals with cases where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt. It deals with ca?es in which ancestral property has passed out of the family and with no other cases, and the words antecedent debt seem to have been used advisedly. Likewise the second proposition deals with the case of a purchase at an execution sale. Neither proposition touches a case in which a mortgagee of a Hindu father seeks to enforce his mortgage as against the sons.”
3. Their Lordships of the Privy Council in Sahu Ram Chandra v. Bhup Singh(3) approved of this statement of the law as correct, and emphasized the distinction between a suit for recovery by the sons of their share of the ancestral property sold in execution of a decree for their father's debt and a suit upon a mortgage executed by the father charging the joint property and in which the plaintiff endeavours to obtain a personal decree against the sons by reason of the pious obligation attaching upon them to pay their father's debts. Their Lordships held that so long as the father was living, the effort to affect the sons' share in the property on the ground of pious obligation to pay off their father's debt in respect of a personal debt of the father, and not in respect of a debt incurred in the interest of the family, must fail. But their Lordships nowhere ruled that the liability which empowers a creditor to enforce the payment of a personal debt of a father, and to sell the entire estate of the family for the realization of the said debt, did not exist and that it was absolutely necessary that, the sons should be made parties to the suit or to the execution proceedings. To like effect is the judgment of their Lordships in Sripat Singh Dugar v. Prodyot Kumar(4), where their Lordships say that in cases of this kind the substance and not merely the technicalities must be looked at and it must be ascertained what it was that the parties intended to sell and the Court did in fact sell. It is a question of mixed law and fact and there is no provision of law to support the proposition which the learned vakil for the respondent has urged, namely that in no case can you sell the share of the sons for a debt incurred by the father and that the sale in the present case passed only the right, title and interest of the father himself.
4. Now, what is the position here? Here the decree-holder, defendant 1, brought to sale not the interest of defendant 2 alone, but that of the sons also and this is the interest which the Court sold at the execution sale. This is clear from the fact that the present plaintiffs were claimants at the execution proceeding, but were unsuccessful. There can be no doubt whatsoever that what the Court did in fact sell was not only the interest of the father, but that of the sons also. Regarded from this point of view the argument that the debt was not one for legal necessity is not relevant. The question of legal necessity does not affect this case. If there was legal necessity the sons would be obviously bound; but the law is that even if there was no legal necessity the sons would be bound by a sale of their property held in execution of a decree against the father. The only exception is if the plaintiffs succeed in proving that the debt was an immoral debt. This is the only point in the case, and the authorities which have been discussed in Chahouri Mahton v. Ganga Proshad(5) disclose much divergence of opinion regarding it. Mookerjee, J., in that case observed that this divergence may possibly be reconciled if we recognize the distinction between a criminal offence and a breach of civil duty.
5. Was the act of defendant 2 in the present case in relation to his master such that it constituted a criminal offence? Admittedly no prosecution was instituted. The suit was one for accounts in which he failed to deliver accounts and by reason of his failure a decree was made for a certain sum. The decree itself is consistent with the view that defendant 2 did not himself misappropriate any of the money and that he was made liable for sums which owing to his negligence or laches remained uncollected from the tenants.
6. It is impossible from the facts of this case to say that the circumstances disclose a criminal misappropriation on his part or that there was any dishonesty which could constitute an immoral act within the meaning of the Hindu law. Every civil debt does not necessarily involve a moral stigma, and in the present case in my opinion the plaintiffs have failed to show that the debt was immoral in law, from liability is respect of which they are exempted. Therefore the learned Judge's decree allowing the plaintiffs' claim in respect of the property in schedule K, was wrong and must be set aside. The appeal therefore succeeds and is decreed with costs.
V.S/R.K
7. Appeal allowed.