Debendra Kumar and another vs Fyzabad Bank Ltd. <BR> Fyzabad Bank Ltd. Vs Debendra Kumar and another

Kulwant Sahay, J.—This is an appeal on behalf of defendants Nos. 3 and 4, who are the minor sons of defendant No. 1, against the decree of the Subordinate Judge of Arrah modifying the decree of the Additional Munsif. The suit was brought by the respondent for recovery of a sum of money found due on an adjustment of account from the defendant No. 1. The learned Munsif made a decree as against the defendant No. 1 alone and dismissed the suit as against the other defendants. The plaintiff preferred an appeal before the Subordinate Judge and the learned Subordinate Judge has modified the decree to this extent that he has passed a decree in favour of the plaintiff not only as against the defendant No. 1 but also as against his minor sons (defendants Nos. 3 and 4).

The only point raised in this appeal is that the minor sons of the defendant No 1 are not liable in the lifetime of their father. It has been found by both the Courts below that the minor defendants were joint with the defendant No 1 and formed members of a joint family. It has been also found that the sums advanced to the defendant No. 1 by the plaintiff were not required for legal and justifying necessity of the joint family and that there was no proper enquiry by the plaintiff before making the advances. The learned Munsif further found that the defendant No. 1 was a man of immoral habits but there is no finding that the debt in question was incurred for immoral purposes.

Now the facts found being that the debts were not incurred for legal and justifying necessities of the joint family or for the benefits of the defendants Nos. 3 and 4, and it also not being found that the debts were incurred for immoral purposes, the learned Subordinate Judge has held that the minor sons of the defendant No. 1 were bound to satisfy their father''s debt on the theory of the pious obligation of the sons to pay their father''s debt He has accordingly made a decree as against the defendants Nos. 3 and 4 and has limited their liability to the extent of the coparcenary property of the joint family.

It has been argued by the learned Vakil for the appellants that the learned Subordinate Judge was wrong in making the sons liable during their father''s life time on the theory of the pious obligation of the sons. He contends that the question is settled by the Privy Council in the case of 21 CWN 698 (Privy Council) and the later case of 67 Ind. Cas. 569 (Privy Council) . On the other hand, it has been contended by the learned Vakil for the respondent that these decisions of the Privy Council do not settle the law on the subject, that their Lordships'' observations on the question of the pious obligation of the son to pay his father''s debt in the life-time of his father were obiter dicta and their Lordships did not mean to lay down definite propositions of law contrary to what has been the settled law in this country for nearly half a century. In my opinion, the contention of the learned Vakil for the respondent is correct.

In the case of Girdharee Lal v. Kantoo Lal [1874] 1 I.A. 321 - 14 B.L.R. 187 - 22 W.R. 56 (P.C.), their Lordships of the Privy Council laid down the proposition that ancestral property in the hands of a son is liable to be seized and sold for payment of his father''s debt under the pious obligation of the son to pay his father''s debt unless the debt is illegal or has been contracted for an immoral purpose. This was in the year 1874 and their Lordships rely on the observations of Lord Justice Knight Bruce in the case of Hunooman Per shad Pawl ay v. Mt. Babooee Munraj Koonweree [1856] 6 M.I.A. 393 - 18 W.R. 81 - 2 Suther. 29 - 1 Sar. 552 (P.C.) where the rule is thus stated by the learned Lord Justice:

Unless the debt was of such a nature that it was not the duty of the son to pay it, the discharge of it, even though it affected ancestral estate, would still be an act of pious duty in the son. By the Hindu Law the freedom of the son from the obligation to discharge the father''s debt has respect to the nature of the debt and not to the nature of the estate whether ancestral or acquired by the creator of the debt.

This principle was re-affirmed by their Lordships of the Privy Council in the case of Nanomi Babuasin v. Modhun Mohun [1885] 13 Cal. 21 - 13 I.A. 1 - 4 Sar. 682 (P.C.). Mow these decisions have always been followed by all the Courts in India and no distinction has ever been made that the pious obligation of the son to pay his father''s debt arises only in the event of the death of the father. In the case of 21 CWN 442 (Privy Council) , Baranashi Dassi Vs. Papat Velji Rajdev and Others which was decided in 1916. the Lord Chancellor delivering the judgment of their Lordships of the Judicial Committee observes as follows :

The grounds for that action were these : The property in question was joint property, governed by the Mitakshara law. By that law a judgment against the father of the family cannot be executed against the whole of the Mitakshara property, if the debt in respect of which the judgment has been obtained was a debt incurred for illegal or immoral purposes. In every other event it is open to the execution creditor to sell the whole of the estate in satisfaction of the judgment obtained against the father alone.

These observations were made in connection with the claim of the son in a joint Mitakshara family to recover possession of his interest in the joint family property sold in execution of a decree on a simple money debt incurred be the father and had evidently proceeded on the pious obligation of the son to pay the father''s debt.

The question is whether the law so established has been upset by their Lord-hips in the case of Sahu Ramchandra v. Bhup Singh (1) and the case of Chet Ram v. Ram Singh (2).

In my opinion their Lordships never intended to do so. In Sahu Ramchandra''s case (1) their Lordships proceeded to settle the conflict of decisions on the question of the validity of the alienation of the ancestral joint property for an antecedent debt of the father, and the long series of decisions on the question of the pious obligation of the son to pay the father''s debt was never considered by their Lordships. Unless there is a more definite pronouncement of their Lordships on this point, I am not prepared to say that their Lordships intended to overrule this long series of decisions on this point. The case of Sahu Ramchandra has been considered by the Indian Courts in a number of cases, and I need only refer to the observations of their Lordships of the Madras High Court in the case of Peda Venkanna v. Sreenivasa Deekshatulu [1917] 41 Mad. 136 - 33 M.L.J. 519 - 22 M.L.T. 334 - 6 L.W. 619 - (1918) M.W.N. 55 - 43 I.C. 225 where their Lordships deal exhaustively with this subject. I may also refer to the discussion of Sahu Ramchandra''s case in the case of Hanmant v. Ganesh Annaji [1918] 43 Bom. 612 - 21 Bom. L.R. 435 - 51 I.C. 612. In the case of Chet Ram v. Ravi Singh (2) the question for consideration of their Lordships was practically the same as that in Sahu Ramchandra''s case namely, the question of antecedent debt. and the observations made by their Lordships in the case as regards the pious obligation of the sons or grandsons to pay the debts of their father or grandfather stand on the same footing as their Lordships'' observations in that respect in the case of Sahu Ramchandra.

I am, therefore, of opinion that the question has been correctly decided by the learned Subordinate Judge and this appeal must be dismissed with costs.

Foster, J.

I agree.