Firm Pirthiraj Ganesh Das vs Kishun Lal and Others

Sinha, J.—This is a second appeal on behalf of defendant 1 from the decision of the learned Additional Judicial Commissioner of Chota Nagpur, reversing that of the Subordinate Judge of Ranchi, in a suit for a declaration that the purchase made by the appellant in Execution Case No. 61 of 1934 did not confer any title on him in respect of the properties contained in Schedule ''C'' of the plaint, and did not affect the right, title and interest of the plaintiffs.

In so far as it is necessary to state the facts of the case, they are as follows: one Bhani Ram had four sons Lachhminarain, Sheonarain, Ganpat and Balmakund. The plaintiffs-respondents are the son''s sons of Balmakund as also his grand-daughter. Defendant-appellant 1 in this Court is a firm carrying on business in Calcutta. Defendant 2 is a firm called Ganpatrai Balabux (Balabux being the son of Ganpat). Ganpat''s three sons are defendants 3, 4 and 5. Balmakund was impleaded as defendant 6. The plaintiff alleged that there was a suit for partition being Suit No. 388 of 1913 in the Court of the Subordinate Judge of Ranchi. The plaintiff in that suit was Balmakund aforesaid. He claimed one-third share in all the joint family properties including a certain firm carrying on business on behalf of the alleged joint family of the parties to that suit; that the sons of Ganpat started a new business under the style of Ganpatrai Balabux (defendant 2); that the plaintiff in that suit (defendant 6 in the present suit) claimed a share of the assets of the firm aforesaid though as a matter of fact that firm was not a joint family business nor was defendant 6 a partner of the firm even in his individual capacity; that in order to deprive defendant 6 of his just share in the admitted joint family properties defendant 1 entered into a conspiracy with defendants 3 to 5 to obtain a false credit against the said firm defendant 2; that in pursuance of that conspiracy they got up a promissory note for Rs. 28,460 in favour of defendant 1 purporting to have been executed by defendant 4 (son of Ganpat) as a partner of the firm defendant 2 on 21st October 1925; that defendant 1 instituted a false suit on the basis of the fictitious debt on the original side of the Calcutta High Court in January 1926 i.e. to say, only a few months after the alleged execution of the hand note. An ex parte decree was obtained in June 1926 against the said firm for Rs. 28,000.

It is further alleged that defendant 6 coming to know of the collusive suit and ex parte decree aforesaid, instituted a suit for setting aside that ex parte decree. That suit (No. 1958 of 1931) on the original side of the Calcutta High Court, was ultimately dismissed for non-prosecution in June 1938. Balmakund''s application for restoration of the suit also stood dismissed in November of the same year. Soon after in January 1934 the decree-holder defendant 1 applied for leave to execute the decree against Balmakund under the provision of Rule 50 of Order 21, Civil P.C. In May 1934 the leave asked for was granted. Balmakund again in order to avoid execution against him applied for setting aside the order of the Calcutta High Court granting the leave aforesaid. That application stood dismissed in January 1935.

In the meantime, defendant 1 took out execution in Ranchi Court, being Execution Case No. 61 of 1934. In that execution, the decree-holder got all the properties obtained by Balmakund as a result of the partition suit aforesaid, attached and ultimately sold in September 1936. When the decree-holder applied for delivery of possession of the property in December 1988, the present suit was commenced by the plaintiffs respondents for the reliefs aforesaid. In short, the plaintiff''s case was, that the entire proceedings ending with the sale of the properties of defendant 6 as aforesaid, were collusive and fraudulent as a result of a conspiracy between the sons of Ganpat on the one hand, and their relations on the other, namely, the members of the firm, defendant 1. The plaintiffs, therefore, claimed that they were entitled to a declaration that their portion of the properties allotted as a result of the final decree in the partition suit of 1913 was not affected by the sale, as also for a permanent injunction restraining defendant 1 from proceeding against those properties.

Defendant 1 alone appeared and contested the suit chiefly on the ground that the decree obtained by the defendant firm against Balmakund was a good decree binding not only upon Balmakund himself but upon the plaintiffs also who were fully represented in the suit, which resulted in the decree and in the execution proceedings, by their ancestor defendant 6. The contention further was that the decree was not tainted with illegality or immorality of which there was no allegation in the plaint and therefore it was the pious obligation of the plaintiffs to pay that judgment-debt. They also claimed that the sale of the properties in execution of the decree in question was effective to convey title to the contesting defendant as against not only Balmakund but the plaintiff also.

It was further contended that the firm Ganpatrai Balabux was a continuation of the business originally carried on by the family of Ganpat and Balmakund in the name and style of Ganpatrai Lachhmi Narain. The defendant also denied the allegation in the plaint regarding any conspiracy between the defendants aforesaid. It was lastly contended that the debt resulting in the decree aforesaid was binding on Balmakund and his descendants including the plaintiffs, and that therefore the suit was not maintainable, and the plaintiffs not entitled to any relief.

The trial Court dismissed the suit holding that it was too late in the day to contend that the decree against the firm defendant 2; did not bind Balmakund or the plaintiffs. He held that the plaintiffs were fully represented by Balmakund in that litigation which ended in the sale of the properties in execution. On appeal by the plaintiffs the lower appellate Court has come to the conclusion that the ex parte decree against the firm defendant 2 passed by the Calcutta High Court could not be said to have been, passed against Balmakund in his representative capacity; that the firm defendant 2 was not a firm of Balmakund and his collaterals;, that the circumstantial evidence in the casa made out the plaintiffs'' case of collusion, between defendant 1 and the other defendants, that is to say, the firm and the sons of Ganpat. The findings of the lower appellate Court, therefore, amount to holding, that defendant 6 was not a partner of the firm defendant 2, and that the debt on the basis of which the appellant recovered judgment against the firm was a fictitious one, and that the suit and the execution proceedings were equally void on account of the fraud and collusion. In that view of the matter, the lower appellate Court decreed the suit with costs declaring the plaintiffs'' title to the properties claimed by them and. restraining defendant 1 from taking possession of the same. Hence this second appeal by defendant 1.

Mr. P.R. Das has vehemently argued that the judgment and decree passed by the lower appellate Court are vitiated by the mistake of law in so far as the Court has gone behind the decree passed by the Calcutta High Court against Balmakund defendant 6. His contention is that the judgment and decree passed by the Calcutta'' High Court against Balmakund is conclusive not only against him but against the plaintiffs in so far as the factum of the debt is concerned. In this connection reliance was placed upon the following observations of Mayne in his Treatise on Hindu Law, Edn. 7, Article 350 at page 468:

,..., Where the decree is against a father it conclusively establishes that there was a debt due by him, and as against his issues, unless the debt founded on immorality, nothing more is necessary.... Where property is sold under such a decree, the purchaser is not bound to go back beyond the decree to ascertain whether the Court was right in giving the decree, or having given it, in putting up the property for sale under an execution upon it.

Mayne appears to have relied upon the decisions of their Lordships of the Judicial Committee in Muddun Thakoor v. Kantoo Lall (75) 14 Beng. L.R. 187 and Bhagbut Pershad v. Mt. Girja Koer (88) 15 Cal. 717. Mr. Das has relied upon the observations to a similar effect at p. 346 of Mulla''s Hindu Law as also upon Mayne''s Hindu Law, 10th Edn., at p. 431 to the following effect:

...or when in execution of a decree for money or on a mortgage by the father, the ancestral property is sold, the sons, not being parties, are entitled to have the nature of the debts tried in a suit of their own.

Mr. Das further relied upon the foot-note apparently added by the Editor of this edition (10th Edn.) at pages 431 and 432, which runs as follows:

Some of the dicta of the Privy Council and of the Courts in India would entitle the son to dispute the fact of the debt also. Nanomi Babuasin v. Modum Mohun (86) 13 Cal. 21, Ramasamayyan v. Viraswami (98) 21 Mad. 222, Kishun Pershad v. Tipan Pershad (07) 34 Cal. 735. It is fairly clear from the more recent decisions that in a suit upon a debt against the father, he represents the sons when they are not made parties so far as the factum of the debt is concerned and the judgment against the father itself creates the debt. Fraud or collusion, of course, will always be an exception. When a decree is passed against the father for a debt proved against him, it is not easy to see how the sons can dispute the father''s liability under it except of course in respect of the nature of the debt regarding which the rather could not represent the sons. Natesayyan v. Ponnusami (93) 16 Mad. 99, Joharmal v. Eknath (1900) 24 Bom. 343, Periaswami v. Seetharama (04) 27 Mad. 243, Karansingh v. Bhup Singh (05) 27 All. 16, Indar Pal and Another Vs. The Imperial Bank, , Mohan Lal v. Balaprashad AIR 1922 All. 310, Abdul Karim Vs. Ram Kishore and Others and Chander Pershad v. Sham Koer (06) 33 Cal. 676.

According to Mr. Das, the fact that a judgment has been given against the father in respect of an alleged debt owing from him binds the sons or grandsons who are not impleaded in the suit, and is conclusive against them on the question of the factum of the debt. His contention further is that the sons or grandsons of the judgment-debtor could only prove in a suit of their own that the judgment-debt was tainted with illegality or immorality, and that because in this case there was no allegation that the debt was so tainted, it must be held that the plaintiffs had no cause of action for the suit.

Hence, the only question in controversy between the parties in this appeal is whether it was open to the plaintiffs to prove that in spite of the judgment of the Calcutta High Court against the firm defendant 2, which must be deemed to be a decree against Balmakund defendant 6 also there was no debt owing from defendant 6, the payment of which could be enforced against the coparcenary properties. If the legal position has been correctly stated by Mr. Das that it is not open to the plaintiffs to prove that there was no debt, it must be held that the plaintiffs have no cause of action for the suit.

If, on the other hand, the correct legal position is that the issue of Balmakund could go behind the decree which is binding at least upon Balmakund himself, the finding of the lower appellate Court, which is clear to the effect that Balmakund owed no debt to defendant 1, the appellant, must be upheld as correct in law. This finding was attempted to be challenged by Mr. N.N. Sen who addressed us in reply to the arguments placed before us on behalf of the plaintiffs-respondents. Mr. Sen contended that the finding aforesaid, of the lower appellate Court was not based on legal evidence, but, in my opinion, this ground is not open to the appellant at this stage specially because no such ground was taken in the memorandum of appeal, namely, that there was no evidence in support of the finding aforesaid, of the lower appellate Court. This case must, therefore, be decided on the footing that there is a finding of fact arrived at by the lower appellate Court that there was no debt owing from Balmakund which could be enforced against the coparcenary properties in which the plaintiffs are admittedly interested. Mr. Das''s argument in the form presented by him is certainly very attractive, but, in my opinion, as will presently appear on a consideration of the authorities, not sound in law.

It is now settled beyond any controversy that it is incumbent upon the sons to pay their father''s debts even though they may not be incurred for the legal necessity of the joint family or for the benefit of the estate. Hence, once it is proved that there is a debt owing from the father, the only ground on which the sons could escape liability for payment would be that the debt had been incurred for illegal or immoral purposes. Hence, where the creditor recovers judgment against the father alone, that judgment can be enforced even against the interests of the sons or grandsons unless they discharge the heavy onus which lies upon them to prove that the debt in question was tainted with illegality or immorality. But this liability of the sons is based on the doctrine of Hindu law which enjoins it as the ''pious obligation'' of the sons to pay their father''s debt so as to avoid his being thrown into hell. But it cannot be said that simply because a judgment had been recovered against the father for payment of money the sons are bound by that judgment in the sense that the father fully represented them for all purposes. If that were so, many a designing professional money-lender-could recover judgment against a foolish and negligent father by questionable methods, and enforce that judgment against his sons, who will be left helpless in the matter except where they can prove the illegality or immorality of the debt, which is not an easy matter.

In any case, it may be easier for the sons to allege and prove that there was no debt than to prove that the debt had been incurred and the money thus borrowed spent upon illegal or immoral pursuits. The decisions, relied upon by Mr. Das, all appear to have proceeded on the assumption that there was a debt owing from the father and only the nature of the debt had to be investigated. The father could be held to have been sued in his representative capacity only where it could be shown that the transaction was entered into by him as the leading member of the family, that is to say, where it could be shown that the transaction was for the benefit of the family or for the legal necessity of the family as a whole. Simply because he was the father of the family, and he was sued by a creditor cannot necessarily lead to the inference that the father had been sued in his representative capacity.

In other words, the father''s representative capacity would be ascribed only to such transactions as could be justified with reference to the benefits and the needs of the family. Hence, on first principle, it cannot be held that in every case where the father is sued in respect of an alleged debt, and he suffers a judgment to be given against him, he has acted in his representative capacity. Now, let us see if there is precedent in favour of the contention that a judgment given against the father in respect of an alleged debt is conclusive not only against him but against his issue also. The observations in Mulla''s Edn. 7, referred to above, appear to have been based upon the decisions of their Lordships of the Judicial Committee in Muddun Thakoor v. Kantoo Lall (75) 14 Beng. L.R. 187 and Bhagbut Pershad v. Mt. Girija Koer (88) 15 Cal. 717. Let us see if those cases are authority for the proposition contended for on behalf of the appellant. In those cases before their Lordships, the facts were that ancestral property had passed out of the family either by virtue of a sale-deed executed by the father or as a result of a sale held in execution of a decree against the father alone; and the sons sued to recover their shares of the ancestral property. Their Lordships held that it had not been proved that those debts, which ultimately led to the sale, were either immoral or illegal. Hence, they enforced the pious obligation of the sons to pay their father''s debt. In none of those cases was it alleged that no debt had been really owing from the father. The allegations of the sons in each case challenging the transaction amounted to averring that the father had acted extravagantly or immorally in incurring those debts. Hence, in each of those cases, the Court decided on the footing that there was a debt owing from the father, the payment of which was incumbent upon the sons. The following observations of their Lordships indicate the basis for the decision in Muddun Thakoor v. Kantoo Lall (75) 14 Beng. L.R. 187:

...The bond bad been substantiated in a Court of justice; there was nothing to shew that it wag given for an immoral purpose; and the holder recovered a decree upon it. There is no suggestion either that the bond or the decree was obtained benamee for the benefit of the father, or merely for the purpose of enabling the father to sell the family property and raise money for his own purpose. There is nothing of the sort suggested, and nothing proved.

The following observations of Bhashyam Ayyangar J. in Periaswami v. Seetharama (04) 27 Mad. 243 have been very strongly relied upon by Mr. Das in support of his contentions.

In cases, therefore, where a decree for money has been obtained against the father, but he dies before execution of the same, the creditor has besides executing the same against the son as legal representative, the option of suing the son either on the original cause of action--if it be one in respect of which the son as such would be liable--or to enforce payment of the decree amount as a debt of record due by the father. In the former case the judgment against the father cannot be relied upon by the creditor as binding the son and he must prove and establish the cause of action or the alleged debt just as if no such suit had been brought against the father and judgment obtained. In the latter case, the judgment as such would not bind the son and it will be admissible only to prove the existence of a judgment-debt due by the father at the date of the judgment; and the only defences open to the son will be either that the decree-debt is not one which is binding upon him--as being illegal or immoral under the Hindu law-- or that the same has been discharged whether such discharge (by payment or adjustment) has been recorded as certified (vide Section 258, Civil P.C.), or not.

On reference to the facts of that case it will appear that those observations, weighty as they are in the nature of obiter dicta. No such question, as has been raised in the present case, was mooted in that case. It will appear that a judgment had been obtained against the father but execution of the decree was refused against the joint family property. Thereupon, a second suit was instituted against the whole family including the sons after the father''s death. Upon the second suit, the main question in controversy between the parties was whether the second suit was in time and maintainable. Hence, in my opinion, it cannot be said that the point, directly arising for decision in the present case, was at all present in the mind of the learned Judge who decided that case. Mr. Das also relied upon the decisions of the Allahabad High Court in Karansingh v. Bhup Singh (05) 27 All. 16 . Full Bench, Indar Pal and Another Vs. The Imperial Bank, , Mohan Lal v. Balaprashad AIR 1922 All. 310 and Abdul Karim Vs. Ram Kishore and Others ; and of the Calcutta High Court in Chander Pershad v. Sham Koer (6) 33 Cal. 676. All these cases have been referred to in the foot-note in Mayne''s book, 10th Edn. quoted above. But it will be observed that in none of those cases the exact question in controversy in this case was raised for the determination of the Court. In all those cases the existence of a debt owing from the father had not only been found in a suit against the father but had not been challenged by the sons. Hence, the only question in controversy in those cases was whether the sons could escape liability for payment of their father''s judgment-debt in a suit to which they were not parties. Naturally, therefore, the Court in each case decided that the sons could escape liability only if they established that the debt in question was tainted with illegality or immorality. Mr. Das also relied upon a recent decision of a Division Bench of the Lahore High Court in Prithvi Raj v. D.C. Ralli AIR 1945 Lah. 13. On reference to that decision it will be found that that case came before the High Court on the question of court-fees. Their Lordships had to decide whether the sons were entitled to ignore a mortgage decree passed against their father and thus to claim only a declaratory relief. It was contended on behalf of the Revenue that the suit really came under the provisions of Section 7(iv)(c), Court-fees Act inasmuch as the sons were bound to avoid the decree. Mahajan J., who delivered judgment of the Court, observed in the course of his judgment, that it was a well-established proposition of Hindu law that a decree against the father is a good decree against the son though the latter has a special remedy for setting aside the decree on a few special defences open to him. He observed further that such defences were open to the sons as were not open to the father himself, and that in other matters the father effectively represented the whole family.

Hence, in that case also, the exact question to be determined in the present case did not arise, and, therefore, those observations of their Lordships of the Lahore High Court must be read in the context in which they were made. These are all the authorities which have been relied upon by Mr. Das on behalf of the appellant, for his contention that it was not open to the sons to question the factum of the debt itself in the face of the judgment given against their father. I have already pointed out that none of those decisions render any assistance to the appellant. The observations, either of Mayne himself or of the subsequent editors of his Book, having been based on those decisions, are clearly not authority for the proposition contended for.

On the other hand, as will presently appear, there are decisions of the different High Courts in India clearly recognising the right of the sons in a suit of their own to show not only that the debt which resulted in a decree against the father was tainted with illegality or immorality but also that there was no such debt as could have formed the basis of a decision against the father for payment of a debt binding on the sons also. On first principle, as already observed, in order to compel the sons to pay their father''s debt, it must be found that there was a debt owing from the father, and simply because the father suffered a judgment against himself on an alleged transaction of loan could not prevent the sons from having the factum of the debt investigated in their presence.

Their Lordships of the Judicial Committee of the Privy Council have made the following observations, which have almost become classical, in the course of their judgment in Nanomi Babuasin v. Modum Mohun (86) 13 Cal. 21:

...Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father''s alienation for an antecedent debt, or against his creditors'' remedies for their debts, if not tainted with immorality.

Mr. Das lays stress on the concluding clause of the sentence suggesting thereby that their Lordships intended to lay down that the sons could escape liability only if they succeeded in proving that the debt in question was tainted with immorality. But the following observations in the course of the judgment are more pertinent to the present discussion:

...If his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit, or the creditor might legally procure a sale of it by suit. All the sons can claim is that, not being parties to the sale or execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit or their own.

From these observations of their Lordships, obiter dicta as they are, it will appear that the sons are not precluded from having the factum of the debt in question tried in a suit of their own. In the beginning of the paragraph, where the observations quoted above are found, their Lordships have made it clear that that question did not arise in the case before their Lordships. They observed:

The circumstances of the present case do not call for any inquiry as to the exact extent to which sons are precluded by a decree and execution proceedings against their father from calling into question the validity of the sale, on the ground that the debt which formed the foundation of it was incurred for immoral purposes, or was merely illusory and fictitious.

These observations also make it clear that there may be cases where the sons would be entitled in a suit of their own to establish a case that the debt in question resulting in a decree against the father "was merely illusory and fictitious." In Bhagbut Pershad v. Mt. Girija Koer (88) 15 Cal. 717, their Lordships had to decide the question as to whether in a decree against the father alone the entire joint family estate is liable to be sold, and the circumstances in which the sons could escape liability under that decree.

In the course of the judgment, their Lordships make the following observations:

...It appears, therefore, from the decisions, that in a case like the present, where sons claim against a purchaser of an ancestral estate under an execution against their father upon a debt contracted by him, it is necessary for the sons to prove that the debt was contracted for an immoral purpose, and it is not necessary for the creditors to shew that there was a proper inquiry, or to prove that the money was borrowed in a case of necessity.

I have already observed that these two cases before their Lordships of the Judicial Committee were not cases in which the exact question arising in the present case was at all discussed. Hence, though the observations of their Lordships in Nanomi Babuasin v. Modum Mohun (86) 13 Cal. 21, may tend to support the contention on behalf of the respondents, it cannot be said that their Lordships decided that question. In a recent case, which went up to their Lordships of the Judicial Committee reported as AIR 1945 91 (Privy Council) , their Lordships make the following observations at p. 174:

...To make the ancestral property liable, there must in reality be a debt due by the father. In the present case, the security bond was executed not for the payment of any debt due by Uttam Chand (the father), but for payment of a debt which was due from third parties. Unless there was a debt due by the father for which the security bond was executed, the doctrine of pious obligation of the sons to pay their father''s debt cannot make the transaction binding on the ancestral property.

In this case, though the point was not raised in the form in which it has been raised in this appeal, their Lordships had to consider the question whether the sale of an ancestral property in execution of a decree against the father is binding on the sons and grandsons of the judgment-debtor. Their Lordship went behind the decree against the father, and inquired into the question of whether the security bond given by the father contained any stipulation binding the father personally. On a construction of the document, their Lordships held that there was no such personal liability contemplated by the deed. Their Lordships held that the entire sale was void as against the other members of the family.

Hence, it may legitimately be said that this recent decision of their Lordships of the Judicial Committee supports the contention raised on behalf of the respondents. So far as this Court is concerned, no reported decision of this Court directly bearing on this question has been brought to our notice. The two cases in Raghunandan Singh and Others Vs. Parmeshwar Dayal Singh, and Dukhit Ojha v. Janki Singh AIR 1923 Pat. 443 do not directly decide the question though they make passing observations tending to support the contention that it is open to the sons in a suit of their own to challenge not only the nature of the debt but also the factum of the debt. But there is an unreported decision of the Division Bench of this Court to which my learned brother Manohar Lall J. was a party: vide Kanti Mohan v. Ramballabh Das First Appeal No. 158 of 1935 decided on 15th August 1940, in which the question was mooted. The judgment runs into more than 100 pages. On the question in controversy, in the present case, my learned brother, Manohar Lall J., made the following observations:

An elaborate argument was addressed to us on behalf of the parties as to the placing of the onus in such eases. It was argued on behalf of the respondents that the creditor is only required to prove the existence of the judgment-debts and that he paid them, that the sons cannot be allowed to go behind the decree and show that no debt existed for which the decree was passed, and that they can only be allowed to show that the decree-debts were incurred for immoral or illegal purposes. The appellants, on the other hand, argued that it is also open to the sons, who have not been impleaded in the suits which resulted in the judgment-debts, to challenge the debts for which the decrees were passed against the fathers as illusory and nonexistent and that the onus was therefore on the creditor to establish by good evidence the existence of the debts paid by him. A large number of cases were cited by the parties in support of their respective contention but in my opinion the matter is really concluded by the observations of Lord Hob-house in Nanomi Babuasin v. Modum Mohun (86) 13 Cal. 21 where it is pointed out that all that the sons can claim is that being parties to the suits in which the decrees under execution were passed, they should be entitled to try in a suit of their own the fact or the nature of the debt. It is true that this observation is followed by the words ''assuming that this is so,'' but this observation of their Lordships has been treated in some decisions in India though not in others as laying down the law that the sons can go behind the decrees. But in the circumstances of the present case the materials are so abundant that the question-is only of academic importance. I am of the opinion that the onus is on the creditor to prove the existence of the judgment-debts and that he paid them, and after this has been done the onus is on the sons to prove that those judgment-debts which consisted of decrees in favour of the mortgagee creditor himself could not be binding on the sons because the original debt itself was illusory and non-existent, but so far as the mortgagee has bona fide paid third party creditors, relying on the representation of the father that a judgment-debt existed in favour of other creditors, he is protected if he paid these judgment-debts, and is not at all affected if these decrees were obtained for debts which did not exist at all.

On the other hand, Dhavle J. made the following observations in this connection:

...I am, however, by no means satisfied that as regards the antecedent judgment-debts the appellants were entitled to go behind the decrees. Apart from fraud or collusion, which can always be proved u/s 44, Evidence Act, but which cannot be said to have been the case of the appellants, the decrees would themselves seem to create or constitute debts which would be binding on the judgment-debtors'' sons by reason of their pious obligation unless it is shown that the loans were contracted for immoral and illegal purpose.

After referring to the decisions of their Lordships of the Judicial Committee in the case reported in Nanomi Babuasin v. Modum Mohun (86) 13 Cal. 21 and Sripat Singh v. Prodyot Kumar AIR 1916 P.C. 220, Dhavle J. proceeded to observe as follows:

...The question how far it is open to the son to go behind the decree in the case of a judgment-debt of his father and show that the decree was not founded on a real debt does not seem to have been decided in any Privy Council case.

Further, after referring to the cases in Chander Pershad v. Sham Koer (06) 33 Cal. 676 and Beni Parshad v. Puran Chand (96) 23 Cal. 262, and observing that they appeared to have laid down contrary propositions, Dhavle J. took the view that the question in the case before their Lordships was academic in the view which their Lordships took that the sons did not succeed in proving that any of the original debts on which the decrees were founded were unreal. Hence, the unreported decision of the Division Bench of this Court does not appear to have determined this controversy.

Hence, so far as this Court is concerned, the present case is the only one in which this question and only this question has been directly raised, and requires a considered decision. In the Calcutta High Court the exact question was mooted in Beni Parshad v. Puran Chand (96) 23 Cal. 262. Prinsep and Ghose JJ. had to consider the question whether a decree, of the year 1875 passed against the father for mesne profits at the instance of his collaterals, could be binding upon the sons who were not parties to the decree, in the sense that the latter in a suit of their own were precluded from showing that their father was not really liable for mesne profits even though he had suffered a judgment against himself in the suit resulting in the decree. After referring to the decision of the Lordships of the Judicial Committee in Suraj Bunsi Koer v. Sheo Peshad Singh (80) 5 Cal. 148 and Muddun Thakoor v. Kantoo Lall (75) 14 Beng. L.R. 187 their Lord-ships came to the conclusion that the sons who were the plaintiffs in the subsequent suit were not precluded by the decree against their father from questioning the reality of the debt on which the decree was founded, and that that question could be gone into in the subsequent suit and decided on evidence in that suit. Their Lordships on a consideration of the evidence held that the plaintiffs'' father was not liable for mesne profits for which a decree had been passed against him, and that therefore the sale which took place in execution of the decree against the father-did not affect the interests of the other members of the family than the father himself. Hence, it must be held that the decision of the Calcutta High Court, referred to above, is a clear authority in favour of the decision of the lower appellate Court to the effect that the grandsons in the present case could go behind the decree against their grandfather, and show that there was no debt of the father for which a decree could have been passed against him. The later decision of the same Court in Chander Pershad v. Sham Koer (06) 33 Cal. 676 did not raise the exact question to be decided in this case; and the earlier decision, in Beni Parshad v. Puran Chand (96) 23 Cal. 262 was not even noticed in the later case. The only question raised and decided by their Lordships in the1 later case was whether the son who took the ancestral property by Survivorship could be proceeded against in execution of a mortgage decree against the father alone. The son never alleged that there was no debt owing from the father.

In the Madras High Court, a Division Bench of that Court held in Ramasamayyan v. Viraswami (98) 21 Mad. 222 that, in a suit by one of the sons of the mortgagors who had not been impleaded in a previous suit on the mortgage, the plaintiff was entitled to have the question tried whether there was really a debt owing by the father to support the mortgage. The decision of the Madras High Court in Thiruvenkata Mudaliar v. Muthu Aiyar (04) 14 M.L.J. 431 would seem to support the same conclusion. Their Lordships of the Madras High Court in that case have taken the same view of the Full Bench decision of that Court in Periaswami v. Seetharama (04) 27 Mad. 243 as I have suggested. In the Allahabad High Court, a Division Bench is reported to have decided in Bhagwant v. Tursi Ram AIR 1919 All. 378 that to render a son liable for his father''s debt the creditor must prove the existence of a debt due by the father; and that the fact that there was a decree against the father, obtained in a suit to which the son was a not party, is not evidence against the son.

The decision of a Division Bench of the Allahabad High Court in Indar Pal and Another Vs. The Imperial Bank, also would appear to have lent support to the contention that a son, who is not a party to the suit in which a decree is obtained against the father, is entitled to have an opportunity in the execution stage, if the entire family property is threatened, of contesting both the factum and the nature of the debt. Hence, it must be held that whenever the question in controversy between the parties in the present case has been directly raised in the Calcutta or the Madras or the Allahabad High Court, it has been answered in favour of the view taken by the lower appellate Court.

In the Lahore High Court, a Single Judge is reported to have decided in Kasturi Mal v. Lajja Ram (21) 60 I.C. 751 that in Hindu law in order to render a son liable for his father''s debts, the creditor must prove the existence of a debt due by the father, and that the mere existence of a decree is not evidence against his son who was not a party to the suit in which the decree was obtained. In a recent Full Bench decision of the same Court in Maha Deo v. Ranbir Singh AIR 1944 Lah. 220 the majority of the Judges appear to have taken the view that where a decree is obtained against the father and is executed against the sons by reason of their pious obligation, the sons are entitled to challenge the existence of the debt on which the decree is based and insist upon proof of the same as against them. The dissentient judgment of Teja Singh J. took the contrary view to the effect that the debt or the obligation must exist qua the father and not qua the son, and that therefore the proof of the debt against the father is sufficient to make the sons liable on account of their pious obligation. These are all the cases which have been brought to our notice on either side.

On a consideration of those authorities, the balance of judicial opinion is in favour of the view taken by the lower appellate Court, namely, that it is open to the sons to challenge not only the nature but also the factum of the debt alleged to have been the foundation of a decree passed against the father alone. That being so, it must be held that the plaintiffs respondents in this case were entitled to show that Balmakund did not owe any debt to the appellant firm, and that, therefore, the plaintiffs'' interest in the ancestral property was not affected by the decree and the sale in execution of the decree.

The appeal must, therefore, be dismissed with costs.

Manohar Lall, J.

I have had the advantage of perusing the judgment prepared by my learned brother where he has exhaustively dealt with the case law. I find that the view arrived at by my learned brother is in conformity with the view which I expressed in the unreported case--Kanti Mohan v. Ramballabh Das First Appeal No. 158 of 1985, decided by a Division Bench consisting of Dhavle J. and myself on 18th August 1940. In that case I took the view that the matter was really concluded by the observations of Lord Hobhouse in Nanomi Babuasin v. Modum Mohun (86) 13 Cal. 21,

where it is pointed out that all that the sons can claim is that not being parties to the suits in which the decrees under execution were passed, they should be entitled to try in a suit of their own the fact or the nature of the debt. It is true that this observation is followed by the words ''assuming that this is so'', but this observation of their Lordships has been treated in some decisions in India though not in others as laying down the law that the sons can go behind the decrees.

Dhavle J. in his concurrent judgment was not inclined to agree with that view. It is to be observed that the materials were ample in that case for us to give a decision adverse to the sons. Therefore, the decisions are not an authority for the view which I think is the proper view to take of the matter. But having listened to the elaborate argument in this case, I am of opinion that the view there expressed by me is the correct view to be taken, and I am glad that my learned brother has arrived at the same result by an elaborate examination of the authorities. I entirely agree with his reasons and conclusions. If the matter is examined on principle, I do not see any escape from the conclusion at which we are arriving. The pious obligation of the son arises, in my opinion, only when there is in reality a debt in existence which has been incurred by the father provided of course this is not immoral or illegal. Let it be supposed that there is no debt but somehow or other a judgment has been passed against the father, either on contest or without contest. The son under the pious obligation doctrine is not bound to pay the decretal dues as the debt ex hypothesi has never been incurred by the father. The rule of res judicata cannot apply in such cases, because the son does not claim through his father and I know of no principle under which it has been suggested in some cases that so far as the factum of the debt is concerned, the father must be taken to represent the whole family. With great respect, the father may be taken to represent the whole family only when there is in fact a debt incurred for the purposes of the family. But where a debt does not exist in fact how can it be suggested that for the purposes of that suit in which the son is not a party it must be held or assumed that the father represented the son so that a decision that there was a debt is binding upon the son? Take the most authoritative decision of their Lordships of the Judicial Committee in Brijnarain v. Mangla Prasad AIR 1924 P.C. 50, where their Lordships examined a large number of authorities and laid down? five propositions. The second proposition is:

If he is the father and the reversioners are the sons, he may by incurring debt so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt.

The words ''by incurring debt'' and ''of that debt'' have been underlined (in italics here) by me. It will be observed that the pious obligation of" the son in such a case arises where a father has incurred a debt but the existence of a decree against the father does not mean conclusively that he has incurred the debt. While considering the evidence in the unreported case of this Court noted above, the onus was thrown by me on the creditor to prove the existence of the judgment-debts in the first place and that he paid them, and after that has been done, the onus was thrown on the sons to prove that those judgment-debts which consisted of decrees would not be binding on the sons because the original debt itself was illusory and non-existent. In Kripal Singh v. Balwant Singh (13) 40 Cal. 288, their Lordships of the Privy Council had to consider the right of the father to alienate the ancestral property for his just debts so that the alienation may be binding upon the son. Sir John Edge in delivering the judgment of their Lordships observed at p. 295 that

it must mean a debt which is actually dm and is not immoral, illegal or opposed to public policy and has not been contracted as an act of reckless extravagance or wanton waste, or with the intention of destroying the interests of the reversioners.

Again the words "debt which is actually due" have been underlined (in italics here) by me. These further considerations support me in the view which I expressed in the unreported case, and I have, therefore, no hesitation in agreeing with the judgment just delivered by my learned brother.