Dhondopant Madhavrao Inde vs Ashok Haribhau Patil

Vaidya, J.—The above First Appeal is directed against the judgment and decree, dated November 7, 1969, passed by the Civil Judge, Senior Division, Bhir, decreeing the suit, filed by respondent No. 1, against the appellant, who was defendant No. 1; and his father, defendant No. 2, for declaring that the sale-deed, dated March 8, 1965, executed by defendant No. 2, in favour of defendant No. 1, was ineffective and not binding on the plaintiff, to the extent of his interest in the property; and that the plaintiff should be put in possession of the suit-land, to the extent of half, bearing S- No. 104, measuring 19 acres 16 gunthas, assessed at Rs. 39.64 p., situated in village Pimpalner, Taluka Bhir, District Bhir, partition in respect of which had to be made by the Collector, or his gazetted subordinate, u/s 54 of the Civil Procedure Code; and directing further an inquiry under Order XX, Rule 12(i)(c) of the Civil Procedure Code, for mesne profits, from the date of the suit, till delivery of possession; and to pay costs.

The sale was set aside, on the ground that the consideration of Rs. 15,000, paid by defendant No. 1 to defendant No. 2, was tainted by imorality, inasmuch as defendant No. 2 had sold the suit-land, for the purpose of paying the amount embezzled by him in respect of the Seva Sahakari Society, Pimpalner, while he was the chairman of that society. The learned Judge, in arriving at the conclusion, followed the decision in Bai Mani and Others Vs. Usafali Bhudar and Others, and particularly, the decision in Widya Wanti v. Jai Dayal AIR[1932] Lah. 541.

The only ground urged, in support of the appeal, by Mr. Deshpande, the learned counsel for the purchaser-defendant No. 1, who is the appellant in the above First Appeal, was that the defendant No. 1 had made a bona fide inquiry; and at the time when he purchased the property, there was no immorality about the debt, which the defendant No. 2 had incurred, as a result of his embezzlement of the funds of the society. The contention must be rejected, having regard to the well-settled principle that a son cannot be held liable for the ''Avyavaharika'' debts of his father.

Mr. Deshpande submitted that the present debt cannot be said to be ''Avyavaharika'', because, if what was embezzled was not paid by the defendant No. 2, the defendant No. 2 would have been liable to be prosecuted and punished; and he was, in fact, convicted; and he was not imprisoned, merely because he had paid the amount to the society, by selling the land to the defendant No. 1. Mr. Deshpande is, however, not able to cite a single decision of any High Court in this country or of the Supreme Court, where the view propounded by him has been accepted, that a son would be liable, in respect of amounts admittedly embezzled by the father, for which the father had to sell the property to pay the embezzled amount, as in the present case.

The learned Civil Judge was quite right in holding that the facts of Widya Wanti v. Jai Dayal, were also that the father had criminally misappropriated; and it was laid down that debt, which resulted from a criminal act of the father, could not, by any stretch of language, be held to be lawful or customary.

In S.M. Jakati and Another Vs. S.M. Borkar and Others, , the Supreme Court observed about the term ''Avyavaharika'' (p. 286):

...This term has been variously translated as being that which is not lawful or what is not just or what is not admissible under the law or under normal conditions. Colebrooke translated it as ''a debt for a cause repugnant to good morals''. There is another track of decision which has translated it as meaning ''a debt which is not supported as valid by legal arguments''. The Judicial Committee of the Privy Council in (1943) 13 AWR 31 (Privy Council) held that the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the term used in the ''Smrithis'' texts and may well be taken to represent its correct meaning and that it did not admit of a more precise definition.

In AIR 1934 238 (Privy Council) the Judicial Committee held that drawings of monies for unauthorised purposes, which amounted to criminal breach of trust u/s 405 of the Indian Penal Code, were not binding on the sons, but a civil debt arising on Recount of the receipt of monies by the father which were not accounted for could not be termed "A vyavatiariku.

In our opinion, what is stated above by the Privy Council and the Supreme Court is enough to show that, where the father is convicted in respect of the embezzlement, as in the present case and avoided imprisonment, by selling the property, it cannot be said that the son''s share in the property is also bound, because the debt is ''vyavaharika''''.

The law is stated, with respect, very precisely and authoritatively in Luhar Amrit Lal Nagji Vs. Doshi Jayantilal Jethalal and Others, by Gajendragadkar J. (as he then was), in the course of the discussion of the doctrine of pious liabilities of the sons, as under (p. 966):

This doctrine inevitably postulates that the father''s debts which it is the pious obligation of the sons to repay must be vyavaharik. If the debts are not vyavaharik or are avyavaharik the doctrine of pious obligation cannot be invoked. The expression ''avyavaharik'' which is generally used in judicial decisions has been based on the text of Usanas which has been quoted by Mitakshara in commenting on the relevant text of Yajnavalkya, (Yajnavalkya, ii, 47), According to Usanas, whatever is not vyavaharik has not to be paid by the son. ''Navyavahaarikam'' are the words used by Usanas, and put in a positive form they mean ''avynvaharik''. Colebrooke has translated these words as meaning ''debt for a cause repugnant to good morals''. These words have received different interpretations in several decisions. Sometimes they are rendered as meaning ''a debt which as a decent and respectable man the father ought not to have incurred'', Durbar Khachar v. Khachar Harsur ILR(1908) 32 Bom. 348 : 10 Bom. L.R. 297, or, ''not lawful or customary'', Chhakauri Mahton v. Ganga Prasad (1911) ILR 39 Cal. 862 a, or, ''not supportable as valid by legal arguments and on which no right could be established in a Court of justice in the creditor''s favour'', Venugopala Naidu v. Ramanadhan Chetty ILR(1912) Mad. 458 : AIR [1914] Mad. 654 . But it appears that in AIR 1943 142 (Privy Council) the Privy Council has, on the whole, preferred to treat Colebrooke''s translation as making the nearest approach to the real interpretation of the word used by Usanas; but whatever may be the exact denotation of the word, it is clear that the debt answering the said description is not such a debt as the son is bound to pay, and so as soon as it is shown that the debt is immoral the doctrine of pious obligation cannot be invoked in support of such a debt.

Applying the above principles to the facts of the present case, there can be no doubt that the embezzlement and the consequent selling of the property for the amount, which was embezzled, is undoubtedly ''Avyavaharika'', as the entire transaction is tainted with immorality, or it is for a cause repugnant to good morals, as explained by Colebrooke.

As no other point was urged or could be urged, in the facts and circumstances of the case, the judgment and decree, passed by the learned Civil Judge, are confirmed; and the above appeal is dismissed with costs.