1. In 1878 a decree was obtained against the father of the present respondent. Certain Talukdari lands of his were placed under attachment, and execution was thereafter effected through the instrumentality of the Collector, who retained the management of the lands in his hands and paid the decree-holder the profits accruing therefrom.
2. In 1901 the judgment-debtor died, the decree being still unsatisfied, and the estate passed to his son, the respondent, by survivorship. The decree-holder caused his name to be brought upon the record under Section 234, Civil Procedure Code, as the legal representative of the judgment-debtor, and sought to proceed with the execution. But the respondent objected, inter alia, on the ground that the obligation embodied in the decree was one which did not bind him. This objection he was entitled to raise under Section 244: see the similar case of Umed Hathising v. Goman Bhaiji ILR (1895) 20 Bom. 385
3. After delays arising from remands and other causes, the lower appellate Court eventually held that the objection was good, and ordered the darkhast to be dismissed. A gainst this order the decree-holder has now appealed.
4. The decree was obtained for damages to the decree-holder's property caused by a dam erected by the judgment debtor which obstructed the passage of water thereto. The learned Judge of the Appeal Court has described that act, in words of perhaps unnecessary strength, as ' illegal, wrongful and malicious. ' Looking to the accountof the act on whichhe bases these epithets, we may define it as no more or less than a civil wrong. It was one which, the learned Judge finds, did not confer any benefit upon the ancestral estate (or was not proved to have conferred any benefit); and these we must accept as-the findings of fact in the case.
5. Now the question is whether the ancestral estate in the hands of the son may be held to the satisfaction of a decree so obtained against the father. Some confusion has obscured the discussion of questions of this nature owing to the inaccurate description of the paternal debts which the Hindu law does not expect a son to pay as those which are tainted by illegality or immorality. From debts so tainted the son is indeed exempt; but the maxims of Hindu law demand a less restricted interpretation than the words suggest. The texts are :-
Vrihaspati:-'The sons may not be compelled to pay sums due by their father for spirituous liquors, for losses at play, for promises made without consideration, or under the influence of lust or anger, or suras for which he stood surety, or a fine or a toll, or the balance of either (of these) ', (Oh. XI, 51).
Ushanas:-' A fine, or the balance of a fine, likewise a bribe or a toll or the balance of it, are not to be paid by the son, neither shall he discharge improper debts.' (Mitakshara II, 48- see Bhattacharya's Hindu Law p. 247, Ed. 2).
6. The word translated improper in the concluding sentence of the latter text is avyavahara, which may perhaps be better rendered as unusual, or not sanctioned by law or custom,. It is this word that has crept into our text books under the guise, or disguise, of illegal or immoral; and it will be seen that it really bears a wider significance. Put into simple English, the texts amount to this : that the son is not to be held liable for debts which the father ought not, as a decent and respectable man, to have incurred. He is answerable for the debts legitimately incurred by his father: not for those attributable to his failings, follies, or caprices.
7. Applying these maxims to the case before us, we must conclude that the son is not liable under the decree. His father's act in obstructing the passage of water to the decree-holder's lands may not have been illegal in the usual sense of the term, that is to say, it may not have been committed in contravention of any express provision of the law; but the result of the suit shews that it was wrongful, and for a liability so incurred the son cannot be held answerable when the estate that has come to his hands has derived no benefit from the act.
8. It has been further contended before us that the suit in which the decree was passed was one which in virtue of the provisions of Act XII of 1855 could have been maintained against the son, and that a fortiori the execution of the decree against him can be prosecuted. This however is erroneous; for the Act relates only to suits brought against the heirs of a deceased person for a wrong committed by the latter within the year preceding his death. As at the date at which respondent was brought upon the record many years had elapsed since the tort committed by the judgment debtor, the decree-holder could not have derived, and cannot now derive, any advantage from the special provisions of this Act. Nor can we discern any force in the argument that the respondent is estopped from raising this objection by his acquiescence in the execution of the decree during the life-time of his father. The estate was then in his father's hands, and he was under no obligation to seek for a declaration that in the event of his father dying with the decree still unsatisfied execution could not proceed against himself.
9. For these reasons we must confirm the order of the lower appellate Court and dismiss the appeal with costs.