Darbeshwari Singh vs Raghunath Pd. Singh and Others

Ramaswami, J.—In the suit out of which this appeal arises the plaintiff alleged that Tejan Tewari as the nearest agnate has succeeded to the properties of one Bishundayal Tiwari; that on 11th December 1924 Tejan Tewari sold, the properties to defendant 1, who obtained possession thereof, Several years after, that is on 1st June 1933 Sarjug Prasad, the father of the plaintiff, obtained a fraudulent and collusive sale deed from Bamphal Dubey who claimed to be the daughter''s son of Bishundeyal. Sarjug having failed to obtain possession brought a title suit against defendant 1 for recovery of possession of the lands alleged to have been purchased. The Munsif granted a decree, but on appeal the District Judge set aside the decree. The High Court dismissed the second appeal and awarded costs amounting to Rs. 795, to defendant 1. In execution of the decree the entire joint family property was sold by the executing Court for a sum of Rs. 325 and purchased by defendant 1. Defendant 2 filed an objection under Order 21, Rule 90, Civil P.C., for setting aside the sale. The petition was dismissed, the sale was confirmed and defendant 1 was granted dahhaldehani. The plaintiff brought the present suit alleging that the decree for costs was an immoral debt and the share of the plaintiff in the joint family property was not liable to be sold for payment thereof. The plaintiff prayed for a declaration that the auction sale was illegal and sought recovery of possession of his share. In reply to the plaintiff''s claim, defendant 1 contended that the plaintiff was under a pious obligation to pay the decree for costs made against his father, and the entire joint family property was liable for the payment thereof. On these rival contentions, the Subordinate Judge held that Sarjug Prasad had based the previous suit on a deliberately false claim that the decree for costs was an avyavaharika debt and the plaintiff''s share in the joint family property was not liable to be sold in execution of the decree. The Subordinate Judge accordingly granted a decree to the plaintiff declaring his title to half share in the family estate and for recovery of possession thereof.

Against this decree defendant 1 has instituted this appeal.

On behalf of the appellant, Mr. G.P. Das concentrated his argument on the ground that Sarjug Prasad had bona fide prosecuted the previous title suit and that the decree for Costs was not avyavaharika and the son''s share in the family estate was validly sold in execution thereof.

In Hindu law the doctrine of pious obligation on which the son''s liability is based is not absolute, but ''u related to the nature and character of the debt. Since the duty cast on the son is religious or moral, it is obvious the character of the debt should be examined from the standpoint of morality and justice. In chap. II, verse 47, Yajnavalkya lays down the exceptions to the general rule relating to the son''s liability to pay the father''s debts.

The son has not to pay in this world his father''s debt incurred for spirituous liquor, for gratification of lust or in gambling, nor a fine or what remains unpaid of a toH; nor (shall he make good) idle gifts.

In his commentary on this verse, Vijnaneswara refers to the text of Ushanas which is,

A fine or the balance of a fine, likewise a bribe or a toll or the balance of it are not to be paid by the son, neither shall he discharge a debt which is not lawful.

This verse is attributed to Ushanas in Apararaka also (page 648, Anandasrama edition) but to Vyass in Vivadaratnakara (p. 58) and in Jagannatha (I. 5 203),

On the precise meaning of the term "avyavaharika" there has been much difference of opinion in the commentaries.

Apararka explains the phrase "na vyavaharikam" to mean "what is not just"

Smriti Chandrika and Viramitrodaya explain it as "not due to wine" Balambhatta as "what was not used for the family", Yivada Chintamoni as "what is not admissible in law or under normal conditions". Reference may be made to Mandlik who translates it to mean "not proper" and to Colebrooke who translates it as "debt for a cause repugnant to good morals".

On the meaning of the phrase there has been an equally great divergence of opinion in judicial decisions.

In Durbar Khachar v. Khachar Harsur 32 Bom. 348 , the learned Judges held that it meant unusual or not sanctioned by law or custom; that under the texts the son was not liable for debt which the father ought not, as a decent and respectable man, to have incurred; that he is only answerable for debts legitimately incurred by his father and not for those attributable to his failings, follies or caprice. This interpretation was not approved in two later Bombay cases, Ramkrishna Trimbak Nadkarni Vs. Narayan Shivrao Aras, and Hanmant Kashinath v. Ganesh Annaji A.I.R.1918 Bom. 18. In the Calcutta case, Chhakauri Mahton v. Ganga Prasad 39 Cal. 862, Mookerjee J. also dissented from the earlier Bombay case and observed that it placed too restricted a construction upon the term "vyavaharika" and excluded debts for which the son might be held legitimately liable. On the other hand, the decision of the Madras High Court, Venugopala Naidu v. Ramanadhan Chetty A.I.R.1911 Mad. 654, appears to construe the phrase "avyavaharika" to an unduly wide extent. In that case a Hindu father had a3 a member of a devastana committee spent without due authority out of the funds of the devasthanam and was directed by the Court to pay costs out of his own private funds. The Madras Judges held that this constituted a debt which his sons and grandsons were under a pious obligation to discharge. They observed that the expression "avyavaharika debt" meant a debt which was not supportable as valid by legal arguments and on which no right could be established in the creditor''s favour in a Court of justice. They quoted an observation from the previous Madras case Natasayyan v. Ponnusami 16 Mad. 99 to the following effect:

Upon any intelligible principle of morality, a debt due by the father by reason of his having retained for himself money which he was bound to pay to another would be a debt of the most sacred obligation and for the non discharge of which punishment in a future state might be expected to be inflicted, if in any.

But in AIR 1934 238 (Privy Council) , the Judicial Committee drew a distinction between the liability of a father for a civil debt and that for a criminal breach of trust and held that the son was liable to discharge the former debt but not the latter. In that case the father, who was secretary of a school committee, withdrew certain sums without authority and misappropriated them and in respect of certain sums withdrawn he failed to render an account. In the case of the former, the son was not held liable to discharge his father''s debt, while in the case of the latter, he was held liable for the amount not properly accounted for.

In a later case AIR 1943 142 (Privy Council) , the Judicial Committee approved Colebrooke''s translation of "avyavaharika" as "debt for a cause repugnant to good morals." The Judicial Committee observed that the translation of Colebrooke made the nearest approach to the true conception of the term as used in the Smriti text. In that case, a partition decree had been passed in terms of an award which had allotted to Hemraj among other items of a promissory note executed in favour of Danpal for money which he had advanced to the promisors out of the family funds. Danpal did not file the promissory note in Court within seven days of the decree, as required by the award and when he did file it the promissory note had become time-barred. A subsequent suit by Hemraj for the amount due under the handnote was decreed against Danpal and the proceedings showed that the latter had allowed the promissory note to become time-barred by acting fraudulently towards Hemraj. On an application by Hemraj for execution of the decree by sale of the ancestral property in the hands of the respondents whose father had also died they objected that they were not liable as the debt was created by "misconduct and stupidity" of their father. But the Judicial Committee held that the father''s debt was at its inception a just and true debt and his subsequent dishonest conduct would not make it avyavaharika or render the shares of the son exempt from execution of the decree for payment of the debt.

In the present case, it is maintained on behalf of the appellant that the claim of Sarjug in the previous title suit was not fraudulent or dishonest. But in my opinion, this contention is untenable. Both the oral and the circumstantial evidence conclusively indicates that the claim of Sarjug was deliberately fraudulent. Two witnesses, P.W. 1 and P.W. 4, were examined on behalf of the plaintiff to show that at the time Sarjug made the purchase he had known that Rarnphal was not daughter''s son of Bishun Deyal. P.W. 1 stated that he told Sarjug that a kebala by Rarnphal would be illegal and would not stand; but Sarjug replied that he was taking a baira. P.W. 3, Madhai Misra, stated that he dissuaded Sarjug from taking a kebala from Rarnphal saying that it would lead to dispute. Sarjug, however, paid no attention to his protest. It is true that P.W. 3 is a purohit of the plaintiff and P.W. 1 had figured 88 a defendant in a suit instituted by Darbeshwari Singh. But the oral evidence is supported by important circumstances. D.W. 1 himself admitted that Bishun Deyal had no daughter and upon his death the property devolved on his son Ram Charan Tewari and then to his wife Mt. Murat Kuer, after whose death Lalji succeeded to it. After Lalji, Tejan succeeded and in 1924 the defendant purchased the property from him. D.W. 1 admitted that in 1933 Sarjug obtainad a kebala from Bamphal, but he never came in possession of the property. In the next place, it is admitted that Sarjug was a co-sharer landlord in Sonbarsa and Paharpur and his patti is contiguous to that of Bishun Dayal. This circumstance would also suggest that Sarjug had fully known that Bishun Deyal had no daughter and that his properties were in possession of his agnate. On behalf of the appellant, it was argued that in the previous title suit the plaintiff had succeeded in the Munsif''s Court and there was no finding either by the District Judge or by the High Court that the claim of Sarjug was deliberately false. But the question at present in issue was not debated or necessary to be decided in the previous suit. On the evidence adduced in the present case I am satisfied that before instituting the previous suit Sarjug knew that Bishun Dayal had no daughter and that Ramphal was not the latter''s grandson, and that he had no valid title to the properties conveyed by the kebala. In my opinion the Subordinate Judge correctly reached the finding that the claim of Sarjug in the title suit was fraudulent and dishonest.

On this conclusion of fact, the question of law is whether the debt is avyavaharika and whether the plaintiff''s share in the joint family estate was validly sold in execution of the decree. On behalf of the appellant reference was made to Prayag Sahu v. Kasi Sahu 11 CRI.L.J. 599, hhakauri Mahton v. Ganga Prasad 39 Cal. 862 and Ramasubramania Pillay v. Sivakami Ammal A.I.R.1925 Mad. 841. In the first case it was held that in a Mitakshara family the sons were liable for the amount of cost decreed against their father, who was an unsuccessful party to a litigation. But the learned Judges did not find that the claim of the father was false or dishonest though they observed that he might have been imprudent or ill advised. In the second case, a decree was obtained against the father on account of damage done to his crops by the obstruction of a channel from which the plaintiff was entitled to irrigate his lands. Mookerjee J. held that it could not be said that the decree obtained against the father was due to an act of the judgment debtor which was a wanton interference with the rights of the decree-holder or that the liability imposed thereby on the judgment-debtor was an illegal or immoral debt. In the third case, a decree for mesne profits had been passed against the father and in the execution thereof the shares of the son in the joint family property were attached and sold. The learned Madras Judges held that the debt was not avyavaharika and the son''s shares in the joint family property were liable for the debt. But all these cases must be distinguished for the reason that there was no finding that the debt incurred by the father was in its inception immoral or dishonest.

On the other hand there are authorities which establish that if the father''s claim was false or fraudulent, the decree for costs would be avyavaharika and sons would not be liable for payment thereof. In Ramaiengar v. Secy of State 20 M.L.J. 89 , a Hindu father brought a suit in forma pauperis as next friend of one of his sons to establish his adoption; and the suit was dismissed on the ground that the adoption set up was false with a direction that the father should pay the costs to Government. The learned Judges held that the liability to pay the costs was imposed as a penalty for the father''s misconduct in bringing a false case and the debt so incurred was tainted with immorality and that the sons were not bound to pay the same. Again in AIR 1928 10 (Oudh) , it was held by the Oudh Court following the Madras case that if a father based his claim on false and on dishonest grounds, the sons were not liable to pay costs for which decrees were passed against the father. In that case Dayal had sold to Sheikh Mohammad Ali a four annas share in village Cbaurasi out of the seven annas share in the possession of Mt. Menda and Mt. Dhanu. Sheikh Mohammad Ali agreed to sue jointly with Dayal for the recovery of the entire seven annas share and was defraying expenses of the litigation. They brought the suit and eventually the claim was decreed by the Court. Six years later Dayal sued Sk. Mohammad Ali for possession of a seven and half pies share which the latter had got under a compromise filed in the former suit. Dayal''s suit against Sh. Mohammad Ali was based on the allegation that the sale deed executed by him in favour of Sh. Mohammad Ali was void as it was without consideration and an unconscionable transaction. Sheikh Mohammad Ali also brought a suit against Dayal for possession of a three annas four and half piesshare on the ground that he was entitled to a four annas share under the terms of the sale deed executed by Dayal, but had obtained possession over a seven and half piesshare only. Dayal''s suit was dismissed, but Sh, Mohammad Ali''s suit was decreed by the Courts. Costs were awarded to Sh. Mohammad Ali against Dayal in both the suits. Sh. Mohammad Ali took out execution of the decree for costs and attached an eight annas zamindari ahare to realise the decretal amount, Jhao Lal, son of Dayal and Babu Lal, grandson of Dayal, then brought the present suit for a declaration that the zamindari share was not liable to attachment and sale in execution of the'' decrees for costs obtained by Sh. Mohammad Ali against Dayal. The suit was dismissed by the first Court, but decreed by the lower appellate Court on plaintiff''s appeal. But the Oudh Judges dis. missed the appeal holding that the debt was avyavaharika and the sons were not liable. Again, in Govindprasad Vasudevprasad Tiwari Vs. Raghunathprasad Indraprasad Manolikar, a Pull Bench held on similar facts that where a father in possession of properties to which he was not entitled disposed of the properties and deprived the rightful owner thereof, his conduct was dishonest and the son was not liable for the debts arising out of such conduct. Lastly in Vedula Lakshminarasimhamurti styled as Nittala Lakshminarasimhamurti and Others Vs. Meduri Venkata Jogisomayajulu and Others, a father in defending a suit on behalf of his minor daughter had set up a false will and for that reason the Court ordered him personally to pay the cost of the plaintiff although he himself was not a party to the suit. The learned Judges held that though the father himself was not a party to the suit, such debt must be deemed to be a debt tainted with illegality or immorality for which the sons could not be held to be liable.

Applying the ratio of these cases it is patent that the costs incurred by Sarjug in the present case in prosecuting the previous suit was avyavaharika debt for which the son is not (liable and his share cannot be sold for payment of the decretal amount.

The respondents have filed a cross-objection that even the share of the father is not liable to be sold in execution of the decree. This argument is unsound and cannot be supported by authority or principle. In Vishwanath Prasad Pathak Vs. Parkash Chandra and Another, , the proved facts were that the property was joint and ancestral, that the debt borrowed by the father had been borrowed for an immoral purpose and, therefore, tainted with illegality, that hence the son was in no way bound to pay such debt. But the learned Judges held that the father could not repudiate his liability to pay the amount which he borrowed and there was no bar against attachment of the father''s interest in the joint property in execution of the decree which had been obtained against him. Reference may also be made to the decision of the Judicial Committee in Sripat Singh v. Prodyot Kumar A.I.R.1916 P.C. 220. In execution of a mortgage decree against the father of a joint Mitakshara family who alone was a party to the mortgage, the decree and the execution proceedings, his two sons, the other members of the family objected that only one-third of a patni taluk forming the joint family property could be sold, on the allegation that the debts in respect of which the decree had been made were contracted for illegal and immoral purposes and thereupon the order for sale was amended by adding the words "right, title and interest" of the judgment-debtor as indicating what was to be sold. In a suit by the sons to have it declared that only one-third of the property passed by the sale the Judicial Committee affirmed the decree of the High Court that the proper construction of the order for sale, as amended, was that, if the plaintiffs succeeded in establishing that the debts had been incurred for immoral purposes, only one-third of the property would be affected by the sale, while if they failed in that contention the whole of the property would be held to have passed by the sale.

In the present case it is impossible to accept the argument of the respondents that the father''s share is not liable for being sold in satisfaction of the decree. The cross-objection must therefore fail in this respect.

It was, however, urged on behalf of the respondent that the learned Subordinate Judge ought to have awarded him costs to the extend of half of his claim. The decree states "that the suit should be dismissed to the extent of half share with costs and pleader''s fee 5 per cent, and it be decreed to the extent of the remaining half but without costs." It is manifest that this portion of the decree is improper and must be set aside. I would direct that the parties should bear their costs in the trial Court and in the Court of appeal.

Upon these grounds I would dismiss the appeal and the cross-objection subject to the modification indicated above.

Imam J.

I agree.