Tikait Gayan Nath Sahi and Another vs Pandit Malhjyi Vaidya and Others

Mullick, J.—The facts out of which this appeal arises seem to be as follows. In or about 1314 F. Tikait Koshalesh Nath Sahi Deo, the father of the appellants Tikait Gayan Nath Sahi and Pertap Nath Sahi, became liable for a sum of Rs. 15,000 to one Heramba Nath Banerji of Benares under a decree with the result that his ancestral properties were brought to sale in execution. The debtor thereupon on the 8th November, 1913 borrowed Rs. 20,000 from the respondent Pandit Malhjyi Vaidya by a mortgage of the ancestral joint family property and got the sale set aside. The appellants, who were born after the mortgage, were not parties to the transaction, although it appears that they were at that time members of the joint family. Whether the debtor''s brother Dina Nath Sahi was also a member of the joint family is not clear.

Thereafter the debtor borrowed more money from the respondent and having defaulted in the payment of the same as well as the interest for two years upon the mortgage, a suit was brought against him by the mortgagee in 1915 and on the 29th January, 1917 a decree was obtained for a sum of Rs. 9,162-4-0. Neither the brother Dina Nath Sahi nor the two sons of the debtor were parties to this decree. Execution was taken out against the debtor in the Court of the Subordinate Judge of Daltonganji; but the case which was registered as No. 45 of 1917, was struck off on the 8th March, 1918 without any realisation being made. The second execution case was registered as case, No. 7 of 1919 and the debtor having died Dina Nath Sahi, Partab Nath Sahi and Gayan Nath Sahi were impleaded in it as his representatives. That case was dismissed on the 30th March, 1920.

An appeal was taken against the order to the High Court and on the 28th May, 1923 it was ordered by that Court that the name of Dina Nath Sahi should be struck off the record as a party to the execution and that the execution should proceed against the mortgagor''s two sons who had raised no objection to the execution proceedings.

The present execution case, which has been registered as No. 106 of 1923, was filed on the 4th August, 1923, against the two minor sons, who preferred an objection on the 22nd December, 1923 denying their liability for the decretal amount and objecting to the valuation put upon the properties. That objection was disposed of on the 24th March, 1924, it being held by the Deputy Magistrate Subordinate Judge that as the debts were neither illegal nor immoral the objectors were under a pious obligation to pay them.

Against this decision the present appeal was filed on the 24th April, 1924.

In the meantime the execution proceedings continued. On the 24th March, 1924, an order was made for the issue of sale proclamations fixing the 15th May, 1924. On the 14th May, 1924 an objection was filed contesting the valuation of the properties. The Court held that the objection was made too late and on the 21st May, the sale was completed and the decree-holder with the permission of the Court was declared to be the purchaser for a total sum of Rs. 7,610. In consequence of the present appeal it does not appear that the sale has yet been confirmed.

It is to be noticed at the outset that Dina Nath Sahi is not a party to the present execution proceeding and we are not concerned to inquire what will be the rights of the auction-purchaser against him. All that we are concerned with in the present appeal is to see whether the appellants by reason of their not having been parties to the mortgage-decree of the 29th January, 1917, are entitled in the execution proceedings to deny liability.

If their father was sued in a representative capacity, then they are certainly bound. If he was not sued in representative capacity, then by reason of the doctrine of pious obligation they are bound to satisfy the decree provided it was not for an illegal or immoral debt. The creditor might have brought a fresh suit for the enforcement of his charge against their interest in the property or he might have, as he has done in the present case, left it to them to take whatever objections they chose in the execution proceedings. This has been settled by a long series of cases of which it is necessary only to cite the following: Suraj Bansi Koer v. Sheo Prasad Singh (1880) 5 Cal. 148. A. 88, Luchman Das v. Giridhur Chowdhry (1880) 5 Cal. 855, Hira Lal Sahu v. Parmeshar Rai (1899) 21 All. 356, Lal Singh v. Pulandar Singh (1905) 28 All. 182, Chander Prashad v. Sham Koer (1906) 33 Cal. 676, Ram Singh v. Sobha Ram (1907) 29 All. 544, Amar Chandra Kundu v. Sebak Chand Choudhury (1907) 34 Cal. 642, Kishun Pershad Chowdhury v. Tipan Pershad Singh (1907) 34 Cal. 735, Indar Pal v. The Imperial Bank (1910) 37 All. 214 and Kuldip Sahay and Others Vs. Ram Bujhawan Mahto and Others, . This last-named authority which is a recent judgment of this Court clearly lays down that if the sons and the grandsons of the mortgagor cannot show the debt to be illegal or immoral, they are bound to satisfy the claim out of the ancestral properties in their hands. It further decides that it is not sufficient to show that the transaction was extravagant or reckless or that the money might have been got at a cheaper rate of interest. Indeed as the doctrine of antecedent debt is a compromise between the rule that the father cannot alienate ancestral property for his own purposes and the rule that the son is under a pious obligation to discharge his father''s debts it is difficult to see how any objection could be taken by the son on the ground that the interest was excessive, He might perhaps take an objection that the stipulation for interest was in the nature of a penalty but that is not the case before us here.

It is contended before us now that the appellant should have been permitted to show that there was no necessity for the debt covered by the decree of 1917. It appears that this debt was composed of a sum of Rs. 5,348 on account of interest for two years and Rs. 3,204-10-7 for a loan taken to pay mukarrari rent on certain properties and the interest there upon. How a mortgage-decree was passed with regard to the latter loan is not known, but we have to take the decree under execution as it stands and it is clearly a mortgage-decree and as no appeal was made against it, the decree must be executed as a mortgage decree.

It is open to the appellants to show that Heramba Nath''s debt was for an immoral consideration but this they did not do. They have confined their attack to the sum of Rs. 5,000 left over out of the Rs. 20,000 borrowed from the respondent after Heramba had been paid off

Secondly, it is open to the appellants to take the ground that the sum of Rs. 3,000 odd borrowed for paying mukarrari rent was not in fact borrowed but it is not open to them to show that there was no necessity for the borrowing.

Thirdly, it is open to them to contend that the sum of Rs. 5,348 on account of interest on the respondents'' bond was not in fact due, but it is not open to them to contend that the rate of interest was too high and that it was not necessary to borrow at this rate from the respondents in order to pay off Heramba Nath Banerji''s decretal amount.''

The appellants have failed to give any evidence in support of the last two grounds. But it is contended before us that the sons are liable to pay the father''s debt upon the mortgage but not the interest thereupon. This position cannot be maintained in view of the Full Bench decision in the Allahabad High Court in Lachman Das v. Khunnu Lal (1896) 19 All. 26.

Turning now to the evidence adduced in the case, I can find nothing to indicate that the debt incurred to Heramba Nath Banerji was illegal or immoral; therefore in regard to the respondents'' mortgage the sum of Rs. 15,000 which went to pay off Heramba Nath Banerji, cannot be challenged. There remains a sum of Rs. 5,000 which is said to have been spent by Koshalesh Nath Sahi, on liquor and women. Three witnesses were called to prove this, but I agree with the Subordinate Judge that their evidence cannot be accepted because they are all interested persons and their statements are of the vaguest kind. They cannot give any details showing what particular sums were spent by Koshalesh Nath Sahi on dancing girls, nor can they fix the times and the places for this expenditure.

The result, therefore, is that the objection that the appellants are not liable for the judgment-debt has been rightly dismissed.

With regard to the objection made on the day before the sale repeating in part the objection taken on the 22nd December, 1923, as regards the valuation of the properties, no appeal lies against the order of the Subordinate Judge declining to reopen the valuation. If the appellants have any grievance, it may be open to them to have the sale set aside on the ground of material irregularity in publishing the sale notifications and consequent inadequacy of price.

A point has been taken as to res judicata. It was argued that as in the last execution the appellants did not take the point that they were not liable for the debt they cannot take it in the present execution. The answer to this is that the former execution was dismissed for default. There was no adjudication which could even by implication be held to constitute a decision adverse to the appellants. In my opinion the principle which is applicable to suits upon a party''s failure to raise an issue, which he might have raised, is not applicable to execution cases, but even if it were, the final order in the last execution case was made not in consequence of the conduct of the appellants but inspite of it. The doctrine of res judicata does not apply.

The result therefore is that the appeal is dismissed with costs.

Ross, J.

I agree.