Sunder Lal v. Raghunandan Prasad

Jwala Prasad, J.:— (After stating the facts, as set out above, proceeded as follows):—

The first question raised is as to the nature of this debt. The decree was passed in respect of damages for malicious prosecution. It was an illegal and immoral act on the part of the defendants to lodge a maliciously false criminal case against the decree-holder. It is also opposed to public policy. The course adopted by the defendants could not possibly be said to be for the benefit of the family and was fraught with great risk to the family status and reputation. It was a highly tortious act. The prosecution was held to be false, and Teju and Goberdhan were liable for criminal prosecution as well as for civil damages, and the damages awarded in the Civil Court were like a fine imposed upon them in a criminal case. A son is bound to pay his father's debt, except the debt incurred for immoral or illegal purposes. Manu in Chapter VIII, sloke 159, says that a son is not bound to discharge the gambling debt of his father or the unrecoverable balance of a fine imposed upon him, nor to pay off the money due from him for standing surety for another (money recognizance), or a gift made by him to an unworthy person. To the same effect is the view of Yajnavalkya in Chapter II, sloke 48, wherein he says that a son is not bound to pay the debt even though hereditary if it is contracted for the purpose of drinking, debauchery or gambling, or if it is the residue of a fine or duty unrequited, or anything idly promised. These have been amplified, and the classifications in Usan and Vyas follows:

“Debts duo for spirituous liquor, debts due for lust, debts due for gambling unpaid fines, unpaid tolls, useless gifts or promises without consideration or made under the influence of lust or wrath, suretyship debts, commercial debts, debts that are not Vyavaharika.”

The last word, ‘Vuavaharika’, has been rendered by Colebrooke as equivalent to a debt for a cause repugnant to good morals. The debt in question is undoubtedly not Vyavaharika. It would also come under the words in Manu and Yajnavalkya. All such debts mentioned in the Smrities which a son is not bound to pay are now comprehended in the words “illegal and immoral.” The latter would include in itself such debts as are opposed to public policy. In my opinion, the debt in question is illegal and immoral, and to hold it otherwise would be to make a son liable for debts incurred for such tortious and illegal acts of his father.

Mr. Manohar Lal contends that the debt in question must come in the category of debts incurred by the father to defend himself in a criminal case or in a suit for defamation, and cites authorities upon the point. The result of judicial decisions, no doubt, has been that a debt incurred by a father to defend himself in a criminal case may in certain circumstances be for the benefit of the family in order to save the father and consequenty the family from degradation in the eves of the public [Sumer Singh v. Liladhar Beni Ram v. Man Singh, Premsukh Dass v. Rambuihawan Mahton, Hanumat Mahton v. Sonadhari Singh.

The present is not a case where the father incurred the debt to defend himself in an action, civil or criminal, brought against himself. The debt was not incurred to defend himself against the suit for damages for malicious prosecution, but the decree was passed against the defendants in the present case for having done a tortious act, namely, the institution of false and malicious criminal proceedings against the decree-holders. It was a voluntary and aggressive act on the part of the defendants to bring the false criminal case and they were not at that time trying to save themselves against any action, civil or criminal, causing any danger to their person or property. Therefore I agree with the view taken by the learned Subordinate Judge that the debt in the present case was a personal and illegal debt and it was not required for the purpose of the joint family of which the defendants were members.

It is then said that the original suit brought to enforce the debt due under the hand-note was dismissed upon the defence taken by the defendants and thereby the family was benefited. The present debt has nothing to do with the cost incurred in defending that suit and the argument seems to be much beside the mark.

Then it is said that the debt incurred on the hand-note was for family necessity, namely, for certain marriages in the family as held by the Courts below, and therefore the decree for damages for malicious prosecution must be deemed to be for the benefit of the family. It is hard to understand this argument. The suit for damages was not to enforce the hand-note in question, and in fact the original suit to enforce the hand-note was dismissed. Here the cause of action was based upon the malicious prosecution launched by the defendants.

It is then said that the damages for malicious prosecution have now ripened into a decree and therefore the sons of Goberdhan are not entitled to question the legality of the debt. This view does not find favour with me. The sons were not made parties to the decree, and therefore this is the only stage when they can question the legality of the debt when they have been made parties in the execution proceedings under the new provision contained in section 53 of the Code of Civil Procedure. The decree was not executed in the lifetime of Teju Bhagat. The stage has not arrived to which Deendyal's case and Suraj Bunai's case can be applied [vide Banwari Lal v. Sheo Sankar Misser, Thadi Ramamurthi v. Moola Kamiah and Bunwari Lal v. Daya Sunker Misser].

Mr. Manohar Lal, however, says that the defendants' shares must be held liable, inasmuch as there was an attachment before judgment. The Court below has held that there was no proof of any such attachment. The learned Counsel has shown us the order-sheet of the case. It shows that there was an order for attachment before judgment under Order XXXVIII, rule 5; but the defendants objected to the order and offered to give security for the decree which might have been ultimately passed and the Court directed the attachment to be “recalled.” Again, the security was accepted and the Court under rule 6 of Order XXXVIII was bound to order the attachment to be withdrawn. The learned Counsel has not produced the order-sheet of the case at that stage and unless the contrary is shown it must be presumed that the imperative requirement of the law-conveyed in the word “shall” was complied with for what is required by the statute must be deemed to have been properly done. Therefore, agreeing with the view of the Court below, I hold that there is no evidence of any attachment before judgment. Teju Bhagat died just after the hearing of the suit and before the judgment and the decree were passed and his interest lapsed into the joint family. Goberdhan and his sons took the entire property by right of survivorship. An attachment before judgment does not rank in the same position as an attachment after judgment. Rule 10 of Order XXXVIII makes it clear, and therefore an attachment before judgment will not defeat the right of a co-parcener by survivorship. There is also authority to this effect: vide the cases of Subrao Mangesh, Chandavarkar v. Mahadeni kom Manjibhatta and Laxman Nilkant Pusalkar v. Vinayak Kesho Pusalkar. In the former case, the plaintiff obtained a money decree against a member of a joint family and had attached the family property before judgment. Subsequently the judgment-debtor died while joint with the other members. It was held that the attachment before judgment did not defeat the right of the other members by survivorship. Therefore Teju Bhagat, after his death, ceased to have any interest in the family property, and the decree-holder has no right to proceed in execution of the decree against his interest even if there was an attachment before judgment.

It is then said that two houses out of the properties in question were pledged as security for the satisfaction of the judgment debt during the pendency of the suit and therefore the said properties are liable to be sold as mortgaged properties to satisfy the decree in question. Assuming that the security bond was in the nature of a mortgage there was no antecedent debt to pay off which the bond was executed, nor was the debt for family necessity. The case of Sahu Ram Chandra v. Bhup Singh has now been considered recently by a Full Board of the Privy Council in the case of Raja Bahadur Raja Brij Narain Rai v. Mangla Prasad Rai, decided on the. 14th November, 1923, which lays down that if a father purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind more than his own interest, and an “antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached.” The debt in question has already been shown to be immoral and therefore there is no obligation on the sons to pay the same.

Goberdhan has, however, incurred the debts in question and the decree has been passed against him. His share in the family property can be sold in execution of the decree, and the purchaser can enforce the right purchased by partition.

The appeal is therefore dismissed with costs.

Foster, J.:— I agree.

Appeal dismissed.