Mahanth Shib Narain Das vs Pandey Jamuna Prasad and Others

Wort, J.—This is an appeal from the decision of the Subordinate Judge arising out of action on a mortgage bond, dated 1st October 1929. The defendants (father and two sons) were the members of a joint Hindu family. The learned Judge in the Court below has held that the father alone is responsible for the debt, and has therefore given a decree for sale against one-third share of the mortgaged properties. In those circumstances the plaintiff appeals.

The only question that arises is whether the debt was tainted with immorality or illegality which would release the sons from their obligation to discharge that debt. I repeat that the appeal has been made to depend upon that question and that question alone. The fact was that the father was a vakil appointed on behalf of a certain estate and had been responsible for collection of decretal amounts and rents from tenants. In the course of the business of the estate he employed two karpardaz for the purpose of this collection. It is said that they were not the servants of Mahendra, the father, but the servants of the estate; but that in my judgment makes no difference to the case. It is contended by Mr. Mitter on behalf of the defendant-respondents that the sons were not liable as the debt was incurred by the father Mahendra as surety for the honesty of others. In putting forward that argument Mr. Mitter relies upon the statement in Mulla''s Principles on Hindu Law, para. 298(5). It is contended in the first instance, a contention which is based upon the observation of the learned Judge in the Court below, that Mahendra was criminally liable. This contention cannot be supported by the evidence in the case. There may have been a threat against Mahendra, but it was nothing more than a threat, and there is nothing in the evidence of this case upon which this Court could come to the conclusion that Mahendra was criminally liable. That point therefore must be ruled out of the case for the purpose of the conclusion at which we are to arrive. It is perhaps desirable to notice the evidence of the defendants themselves with regard to this question. The first witness for the defence says in the course of his evidence speaking of Mahendra:

He was authorized to receive decretal amounts from judgment-debtors and receive money from tenants and was responsible for the money. There were two karpardaz under him for the estate. Mahendra Babu did not remit all the money realized by him to the estate.

Later the witness says:

He was not authorized to keep the decretal amount realized by him as long as he liked.

The second witness for the defence states in the course of his examination-in-chief:

Money was defalcated by the karpardaz, but he (Mahendra) was responsible for the money realized;

and in cross-examination he mentions the fact that in 1925 or 1926 it was found that Rs. 7,000 had been defalcated by his two karpardaz. Now, that evidence discloses at the most a case of negligence on the part of Mahendra in allowing the two karpardaz to retain the money which they had collected as Mahendra''s agents although perhaps they were not, as I have already pointed out, his own servants. But that state of affairs discloses a civil and not a criminal liability, nor is it, in my judgment, possible to hold that Mahendra was in any way a surety for these two karpardaz. If we are to take the evidence of the defence witnesses, the evidence to which I have referred, had an action been brought against Mahendra, it must have been held that Mahendra was himself responsible for the moneys collected by the karpardaz: there is no question of his being a surety. He was primarily and solely liable for the money so collected, and in the circumstances it would have been no defence to Mahendra to have stated that the money had been collected by the karpardaz and had been misappropriated by them.

Several cases were referred to in the course of the argument. One of them is the case in AIR 1934 238 (Privy Council) where their Lordships of the Judicial Committee of the Privy Council held that in so far as the father in the case retained certain sums of money and was guilty of criminal misappropriation or breach of trust, to that extent the sons were not liable. It may therefore be said that the authority of the decision in Natasayyan v. Ponnusami (1893) 16 Mad 99 is doubtful. There the decision was that although a Hindu had dishonestly retained sums of money, the debt was not of such an illegal or immoral nature as to exclude the pious obligation of the sons to discharge the debt. But I would dispose of the case on the short point that there is nothing in the evidence to indicate or to establish that Mahendra was criminally responsible for the money which had come into the hands of the karpardaz. In my judgment that is sufficient reason for coming to the conclusion that the decision of the learned Judge in the Court below was erroneous and therefore in my opinion the appeal succeeds and the plaintiff is entitled to a mortgage decree against the whole of the property, the subject matter of the bond. The appeal is allowed with costs throughout.

Agarwala, J.

I agree.