Paryag Sahu v. Kasi Sahu

Chatterjee, J.:— The main question of law raised in this case is whether a decree for costs passed against a Mitakshara father who has failed to substantiate a claim made to some property is binding on his sons who have succeeded by right of survivorship on his death. It is contended that the debt in this case comes within the word danda or fine in the text of Yajnavalkya quoted in the Mitakshara, Chap. VI, sec. 3, verse 47, Tarkalankar's Edition, “nor is he bound to pay any unpaid fines or tolls dr idle gifts,” or within the meaning of “not vyavaharika” in the text of Ushanas which has been translated variously as “necessary (for life)” by Pundit Giris Chandra Tarkalankar, as “unusual or not sanctioned by law” by the learned Judges of the Bombay High Court, Durbar Khachar v. Khachar Harsur, as “improper” by Shyama Churn in Vyabastha Darpan, 3rd Ed., p. 129.

Words used by Hindu Law givers must be understood in the sense in which the authors may be supposed to have used them. Hindu Courts of justice did not allow costs to successful litigants but imposed upon the party who took a false plea a fine payable to the king, equal to the claim, see Yajnavalkya, Chap. II, verse 11.

“If the Defendant denies the claim of the Plaintiff and the latter prove his claim by witnesses then the Defendant will pay the Plaintiff's claim and an equal penalty to the king.” Manu, Chap. VIII, verse 59.

“In the double of that sum, which the Defendant falsely denies, or on which the complainant falsely declares, shall those two men wilfully offending against justice, be fined by the king.” So that costs awarded against a defeated litigant could not be danda or fine within the meaning of the text. Interpreting the word vyavaharika in the same way the costs could not come within the exception as the venerable Rishi could not have meant to exclude a thing which had no existence in his time.

There is some diversity of opinion as to what liabilities or debts are excepted from the pious duty of the son to pay the debts of his father. The Madras High Court has held that when the liability originates in a breach of cavil duty and not in a criminal offence the son is liable, see McDowell v. Ragava(2), Kanemar Venkapaya v. Krishnachariya(3), Erasala Gurunathan v. Addepally(4). The Bombay High Court has in a recent case held that a decree for damages against the father for obstruction of water passage is not binding on the son as the verdict of the Court in decreeing damages shews that the act of obstruction was wrongful. See Durbur Khachar v. Khachar Harsur. In the case of Mahabir Prasad v. Basdeo Singh(5), the, Allahabad High Court held that a decree against a father for money embezzled by him is not binding. In our own Court in the case of Khalilur Rahman v. Gobind Pershad, Pigot and Rampini, JJ., held that debts incurred for paying the costs of fruitless and imprudent litigation by the father were debts to which the pious duty of sons to pay their father's debts does attach, as such debts could not be said to be illegal or unusual in the sense in which the words had been used for a series of years. “The exception” say the learned Judges “has too long been limited to illegal and immoral purposes to justify us in introducing an extension of it, which would include transaction the character of which was no more than imprudent or unconscientiously imprudent or unreasonable.” In the case of Pareman v. Bhattu(7), a decree against the father for damages for crops stolen by him was held to be not binding on the sons.

In the present case the action of the father was successful in the certificate proceedings and was on the defensive in the civil suit. He may have been imprudent or ill-advised but it cannot be said that he was guilty of any criminal offence or even of a breach of civil duty. Even therefore if the Bombay case were rightly decided, it is distinguishable and there is no reason for following the same.

The appeal is therefore dismissed with costs.

Richardson, J.:— I agree. In my view it has not been shown that this debt is tainted with any illegality or immorality or (if the texts go further) with any such impropriety or infirmity as would remove it from the category of debts incurred by a Hindu father which a son is compelled to pay.

N.G

Appeal dismissed.