Bhudaram Marwari and Others vs Udai Narayan and Others

Mohamad Noor, J.—This appeal arises out of an execution proceeding. The decree-holders had transactions with one Dwarka Prasad and for the money due from him took a hand-note. After the death of Dwarka Prasad they instituted a suit for the recovery of the amount against his son Udai Narain and Raghubir and Chote, the two minor sons of the latter. An ex parte decree was passed.

Afterwards the defendants made an abortive attempt to get that decree set aside. The applications were dismissed for default. The decree holders appellants now seek to execute the decree and realize it by attaching the salary of defendant 1 Udai Narain, who is in some Government service.

The simple question involved in this appeal is whether under the circumstances, which I have stated above, the decree-holders are entitled to execute the decree against defendant 1 personally. Both the Courts below have answered this in the negative. They have held in effect that the decree obtained against Udai Narain was in his representative capacity and cannot be executed against his person or personal property and the decree-holders must confine themselves to the assets of the joint family which may be found in the hands of Udai Narain. The decree-holders have come up in second appeal and on their behalf Mr. Khurshaid Husnain has raised the following points.

His first contention is that the decree is in general terms and by it the defendants have been ordered to pay the decretal amount to the plaintiffs. No restriction has been placed in the decree as to the property from which the amount is to be realized. He argues therefore that the decree-holder is entitled to execute the decree against the person and such property of the judgment-debtor as he thinks fit. He further contends that the Courts below were not entitled to go behind the decree and investigate as to the basis of the claim on which the suit was based or the circumstances under which that decree was passed.

The obvious answer to this contention is that it is the duty of the Court executing a decree to interpret it and to find out what the decree has really granted; and for this purpose the Courts are entitled to refer to the pleadings, and ascertain to what extent the decree can be executed. This was the view taken by a Division Bench of this Court in the case of Ram Bujhawan Prasad Singh v. Ram Narayan [1921] 2 P.L.T. 396, a decision relied upon by both the Courts below. We sent for the records of that case, and it appears that the facts there were exactly similar to those of the present case. In that case also the debt was incurred by the father and on his death a suit was instituted against the son and decree was obtained against him, which was sought to be executed against his personal property. The decree as in the present case was in general terms. Jwala Prasad and Ross, JJ., held that the executing Court was entitled to look to the basis of the decree in order to execute it and held that only the co-parcenary property was liable for the satisfaction of a decree obtained against a son for the debt of a father. This view was based upon an unreported decision of the Calcutta High Court in Kedar Nath Pal v. Amjed Paik 25 C.W.N. 54. Therefore I am of opinion that in order to find out whether a decree can be executed against a judgment-debtor personally, the Court must find out the basis of the decree and for this purpose they are entitled to refer to the plaint of the suit.

The learned advocate has next placed before us a copy of the plaint written in Roman character and we had the whole of it read to us. No doubt in its prayer portion the plaintiffs asked for a decree against the person of defendant 1 and against the property of all the defendants (the other two defendants being the minor sons of defendant 1), but the suit was entirely on the basis of the liability of a joint Hindu family. The various paragraphs of the plaint clearly show that the claim was that the defendants and Dwarka Prasad formed a joint Hindu family and that the debt was incurred by the father of defendant 1 (Dwarka Prasad) as karta and muntazim (manager) of the joint Hindu family. Then the plaint asserts the pious obligation of the son to pay that debt. There was nowhere in the plaint any allegation on which it can be said that the plaintiffs based their suit upon a personal liability of defendant 1 or any fact from which one can infer that the plaintiffs case was that on account of his being a party to the contract or by his subsequently ratifying it defendant 1 took the burden of the debt upon himself.

Therefore by reading the plaint along with the prayer portion of it one is bound to come to the conclusion that the suit against the defendants was in their capacities as members of a joint Hindu family for a debt incurred by its late karta for the benefit of the family and the decree against them was in the same capacity and can only be executed as such. Mr. Khurshaid Husnain asks us to confine ourselves to the prayer portion of the plaint and leave aside the grounds on which that prayer was based. Obviously this is not the correct way of interpreting a document. One must construe a document as a whole and should not confine himself only to a few words. In my opinion in order to understand a relief sought in a suit one has to see the facts on which that relief is based. The next contention of the learned advocate is that even if the decree is taken to be in the representative capacity still defendant 1 as a son both under the Hindu law and also under the general law is bound to pay the debt incurred by his father. No authority has been placed before us for this wide proposition which the learned advocate advances. No son under any system of law is bound to pay the debt of his father unless he has inherited or has got in his hands the assets of the father. In this respect I do not think there is any difference between Hindu law and any system of law may it be Mahomedan law, or Christian law or any other law. A Hindu son is rather in an advantageous position. General law is that a debt incurred by a person is to be made good by his son or by any other heir up to the extent of the heritage which comes into his possession. A Hindu son has got this advantage: that he is not bound to pay the debt of his father out of the co-parcanary property if the debt is for illegal or immoral purposes.

The learned advocate bases his argument upon the principle of benefit and contends that if a Hindu son is benefited by a debt incurred by the father, he is personally liable. I fail to understand what difference "benefit" makes in the case of a Hindu son; and if he can be made liable on the principle of benefit why not also other sons governed by other systems of law. It will be too much to lay down that by simply getting some benefit from a debt incurred by a father a son is bound to pay it up and is personally liable to the extent of being sent to the Civil prison to satisfy it. As I have said no authority for this proposition has been placed before us.

It is settled law that for a debt incurred by a manager or karta of a joint Hindu family within his authority, the co-parcenary property is liable provided that the debt was incurred for legal necessity of the family or, at any rate, if the creditor made bona fide inquiries at the time of advancing the loan as to the existence of the necessity. The liability of a son is some what larger. Even if there be no legal necessity but the debt is not tainted with illegality or immorality, the son is bound to pay it up as it is his pious duty; but this pious duty to pay it is limited to the extent of the assets in his hands. There is no personal liability. This was the decision of this Court in the case of Sukhdeo Prasad Narayan Singh and Others Vs. Madhusudan Prasad Narayan Singh and Others, to which I was a party, and in the case of Jwala Prasad Vs. Bhuda Ram, to which my learned brother Macpherson was a party. It is needless to refer to other decisions on the point. As I have said this is the settled law. In order to make a person personally liable for a debt something more than mere benefit to him must be alleged and proved. For instance it must be shown that he was a party to the contract of the loan or that he took upon himself its personal liability.

The learned advocate has relied upon Section 70, Contract Act, which runs thus:

Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit there of, the latter is bound to make compensation to the former in respect of, or to restore, the things so done or delivered.

I fail to understand how this section applies to the facts of the present case. It was not the appellant''s case in the plaint that the money covered by the hand-note was delivered to defendant 1 or that be received it. As I have already stated, the suit was based on the basis of the liability of the defendant not for his personal act, but as a member of the joint Hindu family of which his father was the karta; and therefore his liability must be determined on the basis of his legal position in that joint family.

The last contention of the learned advocate is that the decree being general in its terms and defendant 1 having acquiesced in that decree, i.e., he not having appealed against it and having allowed the application for setting it aside dismissed for default, has taken upon himself the responsibility of that decree and therefore he must pay it up. This, in my opinion, is the first point already dealt with put in another form. The question again is "is the decree a personal one?" If it is, according to the interpretation put upon it after referring to the pleadings, then certainly defendant 1 is liable whether he has acquiesced in it or not. But if, on the other hand, the decree against him as interpreted is not a personal one, I do not understand how it can become so by acquiescence. I do not think there is any force in this contention.

In my opinion the Courts below have rightly decided the case and the appeal must be dismissed with costs.

Macpherson, J.

I agree.