Rameshwar Singh Bahadur vs Durga Mandar and Others

Das, J.—This appeal is directed against the judgment of the Subordinate Judge of Bhagalpur, dated the 26th of May 1922, and arises out of a suit instituted by the appellant, the Maharaja of Darbhanga, to enforce a mortgage bond executed by one Adhik Lal Mandar in his favour on the 4th of April 1916.

The plaintiff''s case as made out in the plaint is as follows: One Jag Narayan Lal Das was his Patwari and he owed the plaintiff Rs. 1,231-15-9 in respect of the collection made by him on behalf of the plaintiff. The Patwari being unable to pay the amount arranged with Adhik Lal Mandar to execute the mortgage bond in question in favour of the plaintiff. The plaintiff states that there were money lending transactions between Adhik Lal Mandar and Jag Narayan and that Adhik Lal paid Rs. 200 in cash to the plaintiff and executed a mortgage bond for Rs. 1,031-15-9 in favour of the plaintiff. Adhik Lal Mandar is dead and the suit is now brought against defendant No. 1, the minor son of Adhik Lal, and Billo Mandar his brother. The allegation in the plaint is that the defendants were members of a joint family of which Adhik Lal Mandar was the karta and that, as such the plaintiff is entitled to enforce the mortgage bond as against the members of the joint family.

The learned Munsif found that the mortgage bond was in fact executed by Adhik Lal Mandar for valuable consideration. According to him Jag Narain Lal misappropriated the sum of Rupees 1,231-15-9 and Adhik Lal executed the mortgage bond in question in consideration of the plaintiff abstaining from taking criminal proceedings as against Jag Narain. On this finding he thought that the mortgage bond could not be enforced as against the defendants, and he dismissed the plaintiff''s suit with costs. On the question whether defendant No. 2 the brother of Adhik Lal Mandar, was in any event liable, he came to the conclusion that Billo Mandar was separate from Adhik Lal and could not in any case be liable on a bond executed by Adhik Lal. The plaintiff appealed to the learned Subordinate Judge. That learned Judge agreed with the finding of the Court of first instance on the question whether Billo was joined with Adhik Lal. He thought that there was no consideration for the mortgage bond and that, were Adhik Lal Mandar alive, the plaintiff could not enforce the mortgage bond against him. He also agreed with the finding of the learned Munsif that the defendants could not be made liable on the bond in question, and dismissed the appeal. The plaintiff now comes to this Court.

The finding of the Courts below that Billo Mandar was separate from Adhik Lal Mandar is a finding of fact which is binding on us in second appeal. The plaintiff''s suit as against Billo Mandar must accordingly fail.

The next question is whether the plaintiff is entitled to recover the money covered by the mortgage bond from the defendant No. 1. The solution of this question depends on whether what Adhik Lal undertook to pay was tainted with illegality or immorality. The argument on behalf of the respondents in this Court was to the effect that Jag Narayan Lal was guilty of a criminal offence and that, if he had executed the mortgage bond in question, it could not be enforced as against his sons; and that, that being so, and Adhik Lal having undertaken to pay the money tainted with illegality or immorality, his son defendant No. 1 cannot be called upon to pay the debt of his father. There are many decisions in the books on the question how far a Hindu son is under a pious obligation to discharge a debt of his father when such debt consists of money misappropriated by the latter. Here the mortgage bond was not executed by the Patwari, but by Adhik Lal Mandar, who certainly was not guilty of any criminal misappropriation. But the problem is exactly the same, namely, is there any illegality or immorality involved in a transaction of this nature. There is a divergence of judicial opinion on this question; but, as was pointed out by Mookerjee, J., in Chhakauri Mahton v. Ganga Prasad (1912) 39 Cal 862 "the cases might possibly be reconciled if we recognize the distinction between a criminal offence and a breach of civil duty." That learned and distinguished Judge discussed the various cases on the point and came to the conclusion that "Where the taking of the money itself is not a criminal offence, a subsequent misappropriation by the father cannot discharge the son from his liability to satisfy the debt; but the position is different if the money has been taken by the father and misappropriated under circumstances which render the taking itself a criminal offence." I entirely agree with the view taken by Mookerjee, J., in the case to which I have referred which is founded on the decision of the Madras High Court in Medai Tirumalayappa Modaliar v. Veerabadra (1909) 19 MLJ 759.

What then is the position? Jag Narayan was the plaintiff''s Patwari. It was his duty to make collections on behalf of the plaintiff and the taking of the money was in the ordinary course of his employment as Patwari and was in no sense a criminal offence. Now what was the position when the money originally came into the hands of Jag Narayan? It was his duty to account for it to the plaintiff and the failure to do so involved on his part a breach of civil duty. It is said that he misappropriated the money; but if he did so, it was subsequent act, for as I have said, it was part of his duty to make collections on behalf of the plaintiff. That being so, the son is clearly under a pious obligation to discharge the debt incurred by Adhik Lal Mandar. The plaintiff is however not entitled to a mortgage decree, lot he has not shown that the debt was incurred for the benefit of the family. He is entitled to a, decree lot the sum of Rupees 1,031-15-9 with interest thereon at 12 per cent per annum up to the date of this decree. The plaintiff is also entitled to interest at 6 per cent per annum on his decree up to the date of realization. He is entitled to recover the money out of the entire ancestral property now in the hands of defendant No. 1. The plaintiff will also get his costs throughout from the defendant No. 1.

Ross, J.

I agree.