A. Pasayat, J.:— In this appeal under the Letters Patent, judgment of learned Single Judge of this Court in First Appeal No. 86 of 1978 affirming the judgment and decree passed in Title Suit No. 151 of 1972 by the learned Subordinate Judge, Athgarh (hereinafter referred to as the ‘trial Judge’) is under challenge.
2. The facts leading to filing of the appeal essentially are as follows:
Plaintiffs-respondents in this appeal filed a suit for a declaration that their interest in the property of the joint family in which they were members is not affected by the sale of the property for recovery of damages in Money Suit No. 15 of 1957 and in Title Suit No. 16 of 1960. Their stand was that the decree for damages was against the defendants personally and joint family interest could not have been sold. The suit was decreed. Defendants took the stand in the suit and in the First Appeal that the decree passed against defendant Nos. 17 to 19 were not due to any criminal acts done and the plaintiffs having obtained benefit out of the deity's property which was in posses-sion of defendant Nos. 17 to 19. who are their coparceners in joint family, their share in the scheduled property was also bound by the sale in execution. The plea was found untenable by learned Single Judge affirming similar view of the trial court.
3. Factual position as noticed by the learned Single Judge was as follows:
Case of plaintiffs is that their relationship with the defendants against whom the decrees in Money Suit No. 15 of 1957 and Title Suit No. 16 of 1960 were passed would be revealed from the genealogy as given hereunder:
4. Plaintiff No. 1 is the son of defendant Nos. 17 and 23, plaintiff Nos. 2, 3 and 4 are sons of defendant Nos. 18 and 24. In 1964, plaintiff No. 4 was given in adoption to defendant No. 19 who is unmarried. Properties in Schedules A and B of the plaint have been sold to some of the defendants and their predecessors in interest. Decrees executed were on the basis that defendant No. 1, the diety installed in village Kumar pur has vast properties, defendant No. 2 was hereditary trustee of deity, defendant Nos. 17 to 19 transferred the landed properties of the deity and illegally retained possession of the lands from 1952 to 1959 and misappropriated the usufructs of those lands. For recovery of the profits enjoyed by the defendant Nos. 17 to 19, M.S No. 15 of 1957 was filed for Rs. 1,680/- which was ulti-mately decreed for Rs. 1,400/-. In the other suit, i.e. Title Suit No. 16 of 1960, damage amounting to Rs. 1058/- was decreed. These amounts were sought to be recovered in execu-tion and properties covered under A and B Schedules were sold. The decrees being for damages are personal against the judgment debtors, and interests of plaintiffs are not affected by the same since they were not the judgment-debtors. Stand of defendants has been indicated above. Learned Single Judge noted that there was no dispute that the decrees executed were not specifically against the plaintiffs and therefore, the question for consideration was whether the plaintiffs would be bound by the decrees so that the sale in execution of the decrees would bind them. It was observed by the learned Single Judge that the unlawful occupation of land by a person and enjoyment of usufructs are illegal. Any liability for such illegal action would be personal and such liability would not bind the coparceners of a Hindu Joint Family. Similarly such acts of the Karta of a Joint Hindu Family will not bind the members. That would be in the nature of “Avyavaharika debt”. Sons of Hindu debtors have no pious obligation to discharge such debt. It was noticed that though defendant Nos. 17 to 19 did not incur any debt, yet they were made liable for the amounts decreed on account of their unauthorised possession of the properties of the deity. Thus, the liability incurred for unauthorised possession is “Avyavaharika debt”. In view of the aforesaid conclusion, the appeal was dismissed with observa-tion that once the decretal amount became “Avyavaharika debt”, interest of the plaintiffs in the property sold would not be affected by sale of the joint Hindu family property. Purchasers having purchased the interest of a co-sharer would be deemed to be in joint possession of the properties purchased, since in execu-tion of a decree the purchaser entitled to the right of the judg-ment debtor in the property and has no better right. Court cannot sell the interest of a person who is not liable under the decree.
5. Conclusions of the learned Single Judge are assailed in this appeal on the ground that the conclusions regarding Avyavaharika debt are contrary to the settled position in law. The duty to discharge a pious obligation is inherent. Learned counsel for the respondents supported the judgment stating that on the facts of the case the inevitable conclusion is that the defendants-appellants have no merit in their stand.
6. While considering the liability of the son under the rule of pious obligation in Hindu Law to pay the debt of his father, the facts, the circumstances and the conduct of the father antecedent to the incurring of the debt in question could be looked into to ascertain the nature and the character of the debt so as to be binding on the son as being not “Avyavaharika”.
7. It also appears to be clear on principle, and on authority, that examination of the nature or character of the debt should be made with reference to the time when it originated, in other words, when the liability was first incurred by the father. If on such examination, it is found that its inception the debt was not tarnished or tainted with immorality or illegality, then it must be held that it would be binding on the son. (See Hemraj v. Khem, Chand : A.I.R 1943 P.C 142).
8. The obligation of the son to discharge his father's debt depends upon the nature or character of the debt when it originated, and examination of the circumstances before or after the liability is incurred is relevant to ascertain the nature or character of the debt. If there is something illegal or immoral in the act of the father when the liability is incurred, the son is not bound to discharge it. If, however, the father incurs a debt (voluntary or involuntary) to make good a loss caused by his wrongful act, such a debt cannot be said to be illegal or immoral, and the son cannot claim exemption merely becase act in con-sequence of which the obligation to make compensation arose was an illegal or immoral act, or both illegal and immoral. (See Kirit Singh v. Mt. Chandrakali Kuar A.I.R 1951 Pat. 587). In the said decision, the position was illuminated with the following observation:
“Suppose, for instance, a father steals a property, but later on repents, and being unable to restore the stolen property makes good the loss by incurring a debt, such a debt cannot be said to be immoral or illegal in its origin because the purpose of the debt is highly moral. A son cannot be absolved from liability to pay such debt simply because the father was guilty of an immoral act when he committed the theft.”
9. It is now settled that the son is liable for the father's debts ex contractu or quasi ex contractu subject however to the exceptions specified in the texts already referred to. It is equally settled that a son is not liable for his father's liabilities arising out of his criminal acts. Accordingly where a father obtains moneys or goods by the commission of an offence or where as an agent or trustee, guardian or receiver, manager or other employee, he criminally misappropriates moneys or goods that come to his hands, his sons are not liable. It is also well-settled that a son is liable in respect of his father's liability to account for moneys received by him where his failure to account does not amount to a criminal offence. Where a Hindu father has lawfully received moneys, the fact that he subsequently misappropriates them will not change the character of the debt, and the son's liabilty therefor is not affected by the supervening dishonest act of the father.
10. In Chhakauri Habton v. Ganga Prasad: (1912) 39 Cal. 862, Mookerjee, J. said: “Where the taking of the money itself is not a criminal offence, a subsequent misappropriation by the father cannot discharge the son from his liability to satisfy the debt; but the position is different if the money has been taken by the father and misappropriated under circumstances which render the taking itself a criminal offence”. In Ramasubramania v. Sivakami Ammal : A.I.R 1925 Mad. 841, Venkatasubha Rao, J. formulated the rules on the subject thus: “(1) If the debt is in its inception not immoral, subsequent dishonesty of the father does not exempt the son. (2) It is not eyery impropriety or every lapse from right conduct that stamps the debt as immoral. The son can claim immunity only when the father's conduct is utterly repugnant to good morals, or is grossly unjust or flagrantly dishonest”. Probably all that is meant is that it should be clear that it is repugnant to good morals or unjust or dishonest. Venkata Subba Rao, J. objects to the distinction between a crime and a branch of a civil duty as one not recognised by Hindu Law. In the case of Hamraj (supra) the Judicial Committee referred to this decision and have approved of the principle stated as in rule I. Their Lordships observed: “The examination of the nature or character of the debt should be made with reference to the time when it originated, in otherwords, when the liabitity was first incurred by the father. If, on such examination, it is found that at its inception the debt was not tarnished or tainted with immorality or illegality, then it must be held that it would be binding on the son “Their Lordships further expressed their concurrence with the view of the learned Judges in Natasayyan v. Ponnusami : (1938) 16 Mad. 99 that the “son is surely bound to do that which his father himself would do were it possible, viz., to resfore to those lawfully entitled money he has unlaw-fully retained”.
11. In Toshanpal Singh v. District Judge of Agra (1935) 61 I.A 350, the Secretary of a School committee was in charge of a fund deposited in a bank and was authorised to draw upon it only for specific purposes. After his death the committee sued his sons to recover from them the amount of the deficiency in the fund. The sons were held not liable for the amount of drawings by the secretary for unauthorised purposes as they amounted to criminal breach of trust within section 405 of the Indian Penal Code. The Judicial Committee observed: “A father, it was said, who accepts a sum of money to be held for another, or to be applied in a certain way, comes at once under a liability ex contractu or quasi ex contractu, although there may be no right of action against him until he has been guilty of some breach of duty and this right of action may be enforced against his sons, although it appears that ultimately the father has criminally made away with the fund. This contention was supported by elaborate citation of authority. On the other hand it was contended by the appellants, in an argument supported also by a great array of cases, that there were debts of a father with a stigma for short of criminality attached, for which his sons are not liable”. The former contention was characterised as a difficult and doubtful question of law” which didnot call for a decision in that case. But the decision in Hemraj's case (supra) may be said to have solved this rather difficult question. In that case, a Hindu father was bound, according to the terms of a decree passed in a partition suit, to hand over to his brother in time a promissory note allotted to the latter by the decree. But as the father did not do so, he became responsible for the amount due under the promissory note. A decree was passed against him, i.e, in respect of loss or damage caused by the negligence or wrongful act of the father. It was held that the sons were liable. The Judicial Committee observed: “The subsequent dishonest conduct of Danpal (father), which led to the suit and the decree cannot in their Lordships' view affect the nature of the father's debt which at its inception was a just and true debt”.
12. Where a father brought a suit in forma pauperis and was ordered to pay the costs due to Government on the ground that the claim was false to his knowledge, it was held that the debt was tainted with immorality and that the sons were not liable. (See Rama Iyangar v. Secretary of State: (1910) 20 M.L.J 89). So too, where a father bribed a widow to induce her to adopt his son, it was held that it was an immoral debt, not binding on the son. (See Sitaram Pandit v. Harihar : (1922) 35 Bom. 189). And where a father conducts an illegal lottery, his liability to refund the subscriptions collected by him is not one which would attach to his sons. (See Muthusami Mytkeen Pichai : (1937) 1 ML.J 231). So also a debt incurred by the father to pay a fine inflicted for a criminal offence is not binding upon son. (See Savumian v. Narayanan Chetty : (1914) 15 M.L.T 372). Similarly, a debt incurred by the father to provide his concubine with funds to meet the expenses of her granddaughter's marriage is not binding on the sons. (See Lakshmanaswami v. Raghavacharyulu : I.L.R (1943) Mad. 717). Where the plaintiff's father used to raise petty loans in order to meet out of his expenses to foster his vices, the sons would not be responsible to pay off the alleged debt. (See Ningappa Advivappa Desai v. Madivalappa*: A.I.R 1991 N.O.C 40 (Karn.)).
13. Under pious obligation, the sons liability extends only to such amount of the father's debt which was sufficient to meet the legal necessity, i.e, for the maintenance of the minors and that of the estate. (See Omkar v. Babu Ram; A.I.R 1981 All. 128). Starting from the theory that it is a pious duty on the part of the son to pay his father's debts, the Hindu law liability of sons has proceeded step by step till the debts of the father, not being illegal or immoral, have become in every sense a liability of the joint estate of the father and sons.
14. Pious obligation of son grandson and great-grandson to pay ancestor's debts arises in the following cases, as highlighted in Mulla's Principles of Hindu Law.
(1) Where the sons (which expression throughout inclu-des son's sons and son's son's sons) are joint with their father, and debts have been contracted by the father in his capacity of manager and head of the family for family purposes, the sons as members of the joint family are bound to pay the debts to the extent of their interest in the coparcenary property. Where the sons are joint with their father, and debts have been contracted by the father for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for an illegal or immoral purpose. The liability to pay the debts contracted by the father, though for his own benefit, arises from an obligation of religion and peity which is placed upon the sons under the Mitakshara law to discharge the father's debts, where the debts are not tainted with immorality. The fact that the father was not the karta or manager of the joint family or that the family consisted of other coparceners besides the father and sons does not affect the liability of the sons in any way. It exists irrespective of these facts.
(2) The pious obligation of sons, grandsons, greatgrandsons to pay the ancestor's debts to the extent of their interest in the joint family property is not abrogated by the Hindu Succession Act, 1956.
(3) The liability of the son, grandson and greatgrandson to pay the debts of their ancestor is not a personal one, that is to say, the father's creditor is not entitled to proceed against their person or their separate property. It is limited to their interest in the joint family property, unless there is acceptance of personal liability in the course of judicial proceedings such as Insolvency proceedings.
(4) The pious obligation of the sons to pay the father's debts lasts only so long as the liability of the father subsists. If the debts are saved from limitation by the father's acknowledge-ment, the son is bound to pay even though the acknowledgment by the father is after a partition between the father and the son. The sons liability is neither joint nor joint and several as those terms are ordinarily understood in English law.
Thus if the father is adjudicated an insolvent for debts contracted by him, and he afterwards obtains his discharge, the effect of the discharge is to release the father from those debts. No suit can therefore be maintained against the father for those debts and since no suit can be maintained against the father, none can be maintained against the sons in respect of those debts.
(5) It is well settled that the liability of the sons to pay the father's debts exists whether the father be alive or dead. This liability exists where by a custom in the Punjab, the son cannot enforce partition during the father's lifetime.
There arose a conflict of opinion amongst various High Courts whether there was any pious obligation on the part of the sons to pay the father's debts in the lifetime of the father, or whether the obligation arose for the first time after the father's death. The conflict arose out of sons observations of the Judicial Committee in Sahu Ram v. Bhup Singh : (1917) 44 I.A 126. In a later case, that of Brij Narain Rai v. Mangla Prasad. (1950) 51 I.A 129, their Lordships of the Privy Council held that the observations in Sahu Ratn's case (supra) were not necessary for the decision of the case, and that the sons were liable for the father's debts whether the father was alive or dead when the liability attached.
(6) The son is not liable for a debt contracted by the father after partition.
(7) A son is liable, even after the partition, for the pre-partition, debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition. Question, however, often arises: How is this liability to be enforced by the creditor?
(i) If the suit is filed against the father before partition, - the son is liable for a debt contracted by the father before partition.
(ii) Bur if the suit is filed after partition against the father the decree cannot be executed against the son. The decree against the father after the partition cannot be taken to be a decree against the son and no attachment and sale of the son's separate share would be permissible under section 60 of the Civil Procedure Code. A separate and independent suit must be instituted against the son before his share can be reached. This was the view taken in a large number of cases all of which recognised the liability of the son to pay the pre-partition debts of the father. In Pannalal v. Nareini: A.I.R 1952 S.C 170, the Supreme Court observed that the principles underlying those decisions were sound.
15. In Pannalal's case (supra) it was observed that the posi-tion had been correctly stated by the Nagpur High Court in Jainarayan v. Sonaji : (1938) Nag, 138 in the following passages “.
“To say a son is under a pious obligation to pay certain debts is one thing; to say his property can be taken in execution is another. In our view, property can be attached and sold in execution if it falls within the kind of property that can be attached and sold. What that is, is found by looking at section 60. When one looks at section 60 one finds that the property in question should either belong to the judgment-debtor or he should have a disposing power over it. After partition, the share that goes to the son does not belong to the father and the father has no disposing power over it. Therefore such property does not fall within section 60. It by no means follows that a son cannot be made liable. He could be made liable for his father's debts if he had become a surety; he can be made liable under the pious obligation rule. In neither of the cases put could his liability take the form of having his property seized in execution and sold without any prior proceedings brought against him, leaving him to raise the question whether his liability as surety or under the pious obligation rule precluded him from claiming in execution.”
16. It has been held in Jayantilal v. Shrikant : A.I.R 1980 Gujarat 67 (F.B) (a Full Bench decision) that during the pendency of insolvency proceedings against the father in which he has been adjudged an insolvent, a pre-partition debt incurred by him, not tainted with immorality or illegality is not recoverable out of the assets which have gone to his sons upon partition among them.
(iii) Another class of cases that falls under this head is where the suit in respect of a pre-partition debt is filed after partition but the father dies pending the suit and his separated son has been brought on record as his legal representative. The question arises whether the liability of the son under the pious obligation rule can be determined in execution proceedings or a separate suit has to be brought for this purpose. The position, here, would be materially different from that under the proposi-tion stated immediately above. In Pannaall's case (supra) the Supreme Court expressed disapproval of the view taken by a majority of judges in a Full Bench decision of the Patna High Court, Atul Krishna v. Lala Nandanji, (1935) 14 Patna 732, and held that the remedy of the decree-bolder in any such case against the share obtained by the son on partition lies in the execution proceedings and not by way of a separate suit. The son would in such proceedings be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by executing Court under section 47 of the Civil Proce-dure Code.
17. On a careful consideration of the position in law as has been discussed above, the inevitable conclusion is that, while considering the liability of the son under the rule of pious obligation in Hindu Law to pay the debt of his father, the facts, the circumstances and the conduct of the father antecedent to the incurring of the debt in question could be looked into to ascertain the nature and the character of the debt so as to be binding on the son as being not ‘Avyavaharika’. That being the position in law, the appeal is without any merit and deserves dismissal, which we direct without costs of this appeal.
P.K Misra, J.:— I agree.
18. Appeal dismissed.
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