Satya Charan Chandra vs Satpir Mahanty

Reginald Roe, J.—The appellant in this case is a decree-holder, who in execution of his decree against the father of a Mitakshara family purchased the whole property of the family. The sons brought the present suit for a declaration that by the auction purchase the share only to which the father would have been entitled on partition passed by the sale. The Courts below decreed their suit, on the ground that the debt for which the father''s share was sold was not an antecedent debt incurred by himself, but a liability incurred in a surety bond given by him for the good behavior of a stranger as Tahsildar to the decree-holders. In appeal it is argued that the lower Courts were not competent to go into the question of the nature of the debt beyond an enquiry as to its illegality or immorality, and in this regard the decision in the case of 21 CWN 442 (Privy Council) was quoted. We do not propose to dispute for a moment the suggestion that this decision contains a dear exposition of the law that where a property has been sold in execution of a decree against the father, and where it is clear upon the whole of the proceedings in the Court making the decree that the decree was made against the whole joint family property, the sons can only succeed on showing that the debt upon which the decree was made was taken for illegal or immoral purposes. But in the case before us it will be observed that prior to the passing of the decree there was no debt due from the father of this family at all, and in the second place, when the debt did fall due, that is to say, when the party for whom the father stood surety failed to make good the sum misappropriated by him, the Courts were required to ascertain whether the debt was an illegal or immoral debt. It is not of course an immoral debt, but in the view taken by Mr. Justice Chatterjee in Appeal from Appellate Decree No. 3811 of 1910 of the Calcutta High Court the debt incurred in the circumstances in which the appellant has obtained his decree is an illegal debt, and this view is not inconsistent with that taken in the decision of Mr. Justice Mookerjee in Chhakauri Mahton Vs. Ganga Prasad, . The point under discussion in the latter case was whether a debt incurred by a criminal action was an illegal debt, and it was decided that the act under which the liability was incurred in that case amounted to a civil tort and not to a criminal act, and that, therefore, the debt was not an illegal debt. There can be no doubt upon the text that the sons are not liable for a liability incurred by a father''s crime. There can be no doubt also that a Hindu father is not allowed by the text to stand surety pledging himself to bear the consequences of another''s crime. There are three kinds of sureties mentioned in the text: (1) surety for appearance, (2) surety for good behavior, and (3) surety for money. The action of the father in standing surety for good behavior and pledging the property of the family for good behavior of the stranger would be in the eyes of the Hindu Law unlawful as affecting the son. This point was developed by Mr. Justice Chatterjee in the case to which I have referred, and it seems to me an easy step in deduction to say that if a father''s debt, incurred by his own breach of the law, is an illegal debt, then the father''s debt, incurred by a stranger''s breach of the criminal law, is also an illegal debt.

It is, however, contended before us that the debt upon which the present decree was made was not necessarily a debt incurred by the criminal action of a stranger. The Courts below have concurred in finding as a fact that the surety bond given was a security against embezzlement. The translation of the phrase creating a lien on the property of the family shows that this is a correct construction. That phrase runs:--

If the Tahsildar fails to make good the money which may be found due from him after the rendition of accounts, then the said Babu will be at liberty to realise the amount so Misappropriated from the properties mortgaged by way of surety.

This seems to me to be a provision solely against the taking of money in circumstances which would amount to criminal misappropriation. In my view it was unlawful for a father to stand surety for such moneys and the debt incurred by him in so standing surety was an illegal debt. I would, therefore, dismiss this appeal with costs.

Chapman, J.

I agree.