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Govindprasad Vasudevprasad Tiwari Vs. Raghunathprasad Indraprasad Manolikar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeals Nos. 283 and 308 of 1937
Judge
Reported inAIR1939Bom289; (1939)41BOMLR589
AppellantGovindprasad Vasudevprasad Tiwari;narshya Narshya Korwar
RespondentRaghunathprasad Indraprasad Manolikar;govindprasad Vasudevprasad Tiwari
Excerpt:
hindu law - debt-father's debt-avyavaharika debt-meaning of avyavaharika-son's pious obligation to pay suck debt of father-debt contracted by father to deprive rightful owner of property.;under hindu law, a son is not liable to pay his father's debts which are avyavaharika, that is of a character which is, illegal, dishonest or immoral, thus, he is not liable for his father's debt which is essentially dishonest in character and incurred for a dishonest purpose.;a debt contracted by a hindu father for the purpose of depriving the rightful owner of his property is an avyavaharika debt, which it is not the pious obligation of the son to pay. - - the question turns on what debts are excepted under the word 'avyavaharika'.that word was construed by colebrooke as 'repugnant to good.....john beaumont, kt., c.j.1. this appeal is from an order made by the first class subordinate judge at belgaum in darkhast proceedings, and the material facts are these. one govindprasad died leaving, amongst others interested in the estate, a widow tarabai, a son vasudev, a son balkrishna, who is said to be lunatic, and a daughter who married defendant no. 3. the plaintiff was adopted by the widow of vasudev after her husband's death, and he sued, amongst others, tarabai, defendant no. 1, and defendant no. 3 for possession of the estate of vasudev. tarabai claimed the family property as guardian of balkrishna, and the other defendants supported her. the trial judge held the adoption of the plaintiff proved, that vasudev was separate, and that the plaintiff was entitled to the property he.....
Judgment:

John Beaumont, Kt., C.J.

1. This appeal is from an order made by the First Class Subordinate Judge at Belgaum in darkhast proceedings, and the material facts are these. One Govindprasad died leaving, amongst others interested in the estate, a widow Tarabai, a son Vasudev, a son Balkrishna, who is said to be lunatic, and a daughter who married defendant No. 3. The plaintiff was adopted by the widow of Vasudev after her husband's death, and he sued, amongst others, Tarabai, defendant No. 1, and defendant No. 3 for possession of the estate of Vasudev. Tarabai claimed the family property as guardian of Balkrishna, and the other defendants supported her. The trial Judge held the adoption of the plaintiff proved, that Vasudev was separate, and that the plaintiff was entitled to the property he claimed, and accordingly he made an order that the plaintiff do recover possession of all the move-able and immoveable property claimed from all the defendants, the property including a sum of Rs. 6,500 odd. The defendants appealed to this Court, and the order of the learned trial Judge was upheld, subject to certain variations relating to Balkrishna's rights, which are not material for the present purpose. In the appeal defendant No. 3 separated from Tarabai and claimed that she only was in possession, and that an order ought not to have been passed against him, but the Court of Appeal held that as that point had not been raised in the lower Court, it could not be raised in appeal. The learned Judges considered that the defendants were mere trespassers and that an order for possession against them was right. It is implicit in the order of the trial Court, confirmed in appeal, that all the defendants were in possession of the property in suit. In 1936 the present darkhast was issued to recover the sum of Rs. 6,500 odd, referred to in the judgment, with interest and costs. The darkhast was not only against defendants Nos. 1 to 4, but also against the present respondent, who is the son of defendant No. 3. The executing Court held that defendant No. 3 had transferred all his property sought to be attached to the respondent, and that the respondent was not liable for the debt of his father, defendant No. 3.

2. Upon the first point, the only evidence that defendant No. 3 had transferred all his property to the respondent, his son, is contained in the Record of Rights, which shows that in 1928 defendant No. 3 had acquired an absolute interest in certain immoveable properties on a partition with his brother, and that in 1930 he had given a Vardi that his name should be deleted from the register of khatedars and that the name of the respondent should be entered in its place. It is, in our opinion, clear that a mere direction given by defendant No. 3 that his son should! be treated as the owner of the property would not confer any title on the son, and we think, therefore, that on the first point the appellant must succeed and that the interest of defendant No. 3 in the property which he held jointly with his son, the respondent, is liable to attachment.

3. The serious point, which has been argued on this appeal, is whether the share of the respondent in the family property is liable to be attached for the debt of defendant No. 3. The respondent was not a party to the suit, but it is sought to make him liable under the pious obligation of a Hindu son to pay the debts of his father. The obligation imposed by Hindu Law upon a son to pay his father's debts must at first sight strike anyone trained in a different system of law as anomalous and cutting across the general legal principle that no one is bound by a contract or obligation to which he is not a party. Although the obligation under Hindu Law is based, as are many principles of Hindu Law, upon religious considerations, I apprehend that the legislators of old had a practical object in mind and appreciated that in view of the peculiar feature of Hindu society,- the joint family and joint ownership of property-, it would often be impossible to recover the debts of a Hindu with no separate estate unless liability was imposed to some extent on his successors. At any rate, whatever the reasons for the rule, it is firmly established that the sons are liable for the debts of their father with certain exceptions, and it is the nature and limits of the exceptions which give rise to controversy. The texts have been referred to in many of the authorities on this subject, and I may take for my present purpose the two texts as to the exceptions referred to in Durbar Khachar v. Khachar Harsur I.L.R. (1908) 32 Bom. 348 : S.C. 10 Bom. L.R. 297. The first is the text of Brihaspati, which is in these terms:

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 sums for which ha stood surety, or a fine or a toll, or the balance of either (of these).

The second is the text of Ushanas, which is:

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 debts which are avyavaharika.

4. The specifically excepted debts seem to be those due to vices or follies of the father, and no question as to these arises in the present case. The question turns on what debts are excepted under the word 'avyavaharika'. That word was construed by Colebrooke as 'repugnant to good morals,' and that translation is accepted in Sir Dinshah Mulla's work on Hindu Law. In Chhakauri Mahton v. Ganga Prasad I.L.R. (1911) Cal. 862 Mr. Justice Mookerjee preferred to translate the word as 'not lawful, usual or customary.' There are a large number of other translations set out in the judgment of Mr. Justice Tyabji in Bal Rajaram Tukaram v. Maneklal Mansukhbhai I.L.R. (1931) 56 Bom. 36 : S.C. 34 Bom. L.R. 55.

5. The extent of the exemption covered by this word 'avyavaharika' has given rise to a great many cases which cannot, I think, be reconciled, and it will serve no useful purpose to refer to them in detail. The one principle, which is firmly established, is that the son is not liable for a debt incurred by the father in circumstances which would render the father liable to a criminal prosecution, but he is liable for money for which the father has to account in a purely civil capacity. Those principles were recognised by the Privy Council in Toshanpal Singh v. District Judge of Agra . In that case a father had incurred liability to a school committee, of which he was secretary, the total liability amounting to nearly Rs. 43,000. The Privy Council held on the evidence that the father had misappropriated part of this sum amounting to about Rs. 30,000 and for that he could have been prosecuted for criminal breach of trust, and accordingly the sons were not liable for that amount, but they were liable for the balance of the debt which was not shown to be tainted in any manner. Their Lordships left open the question whether the son would be liable for a debt of the father arising from conduct which was blameworthy but fell short of rendering him liable to the Criminal Law. That question, I think, falls for decision in the present case, and, in my opinion, it is not essential for the son to prove criminal liability of the father in order to claim exemption. It seems to me repugnant to good sense to construe ancient texts in the light of a system of criminal jurisprudence developed long after. In many cases it would be very difficult, if not impossible, to establish affirmatively that there was criminal liability in a matter in which no criminal charge was ever made. Moreover one must remember that at the relevant date the father might have been a resident of a Native State, or foreign country where the Indian Penal Code was not in force, and the Court might have to ascertain what were the provisions of the relevant system of criminal law. If the suggested limitation on the son's liability is to hold good, it would really be necessary to construe the word 'avyavaharika' as meaning involving an offence under the criminal law to which the father was subject when he incurred the debt in question, and nobody suggests that that would be an accurate translation of the word.

6. This question was discussed in great detail by a bench of the Madras High Court in the case of Ramasubramania v. Sivakami Ammal AIR [1925] Mad. 841. Mr. Justice Venkatasubba Rao in that case expressed the view that it was not essential for the son to prove criminal liability against the father in respect of the debt in question in order to claim exemption from payment of such debt, and, after an exhaustive examination of the authorities, he suggests the following two rules (p. 845):

(1) If the debt is in its inception not immoral, subsequent dishonesty of the father does not exempt the son.

(2) It is not every impropriety or every lapse from right conduct that stamps the debt as immoral. The son can claim immunity only, when the father's conduct is utterly repugnant to good morals, or is grossly unjust or flagrantly dishonest.

With regard to the second proposition, I am not sure that the adverbs materially strengthen the statement of the rule. I would rather myself express the rule as being that the son can claim immunity, when he proves that the debt of the father was of a character which was illegal, dishonest or immoral, though I appreciate that difficult cases may arise in the application of such a rule. With regard to the first suggested rule, I am not sure that I appreciate its meaning. I apprehend that there can be only one relevant date to consider, and that is the date on which was incurred the liability of the father, which is sought to be enforced against the son. The question must be whether at that date the liability was of the nature alleged.

7. Now, applying those principles to the present case, it is, I think, impossible to say with certainty on the material before us whether the father could have been prosecuted criminally in respect of his possession of this property; we do not really know enough about the facts to enable us to express an opinion on that point. But, as I have said, the judgment of the trial Court and of the Court of Appeal is based on the view that defendant No. 3, amongst the other defendants, was in possession of the property to which the plaintiff was entitled, and it is plain that he never had any sort of right to such possession. He was not a member of the joint family at all. He was the husband of one of the daughters of the original head of the family. According to the judgment of the Court of Appeal, most of these moneys had been spent in criminal proceedings and in litigation, and in my judgment there could be no sort of justification for that conduct on the part of defendant No. 3. I think, therefore, that the claim against him was in respect of a liability essentially dishonest in character, and incurred for a dishonest purpose. That being so, I think it is a class of debt for which the son is not liable under the pious obligation to pay his father's debts.

8. In my opinion, therefore, the appeal must be allowed to that extent. The darkhast can proceed against the share of defendant No. 3 in the joint property of himself and his son, but the share of the son, the present respondent, is not liable for the debt.

9. Each party to bear their own costs.

Wassoodew, J.

10. The facts.of this case and the relevant texts on the subject have been fully stated in the judgment just delivered by my Lord the Chief Justice. With no hope of improving that statement, but as foundation for my agreement with the conclusion reached, I propose to state shortly what I consider the legal position to be. The Hindu Law relating to the liability of a son for the debts of the father illustrates the subordination of legal to moral obligations under certain circumstances. In that respect it is an exception to the law applicable to contracts and torts prevalent in this country. It has to be remembered that the liability of the son for the personal debts of the father under the Hindu Law is not based upon the ordinary rule of agency or the latter's position as head of the family, but on a moral or religious duty. That again is not imposed in an unqualified form, for the observance of that duty is conditioned on the acquisition of legal rights in ancestral or family property. Indeed there is nothing in the discharge of the pious obligation to prevent the son from paying the debts of the father without enquiring into their character. That perhaps would be the highest form of filial duty. Under these peculiar conditions the Court has to consider the nature of the other qualifications which limit the son's liability. Those qualifications are based upon the ancient Smritis. The text which is invoked in the present case before us is the text ascribed to Ushanas, which is referred to in the Mitakshara in the commentary of Yajnavalkya, Chapter II, Verse 47, and the Vyavahara Mayukha, Chapter V, Section iv, pl. 15. After laying down the general rule of the son's liability to pay the father's debts, there is a classification of certain exceptions which include a debt that is 'avyavaharikam' or not 'vyavaharikam'. The controversy before us centres round the true rendering of that term, for it is admitted that the exception implicit in the term ' avyavaharikam ' sets a limit to the liability of the son. We were referred to various translations of that term, including those suggested in the several judicial decisions which have attempted to define the son's liability. In my opinion the question does not turn merely upon the etymological meaning of the Sanskrit word. It is something more than that, for we are attempting to attach a significance to that word in the hope that we may interpret what centuries ago the law-givers precisely intended by the use of that word. Therein, in my opinion, lies the real difficulty which I fully appreciate has given rise to so much difference of judicial opinion in India.

11. Now according to the dictionary meaning of the term, 'vyavahar' means 'business or commerce'. In the secondary sense it implies 'custom and morals'. Bohtling and Roth, Wilson and Monier Williams have rendered the term as 'relating to an action at law or legal process, customary or usual'. Among the judicial interpretations I might refer to the important ones which bring out a sharp diversity of views on the point. Referring to the earliest case of this Court, which is known as Durbar Khachar v. Khachar Harsur I.L.R. (1908) 32 Bom. 348 : S.C. 10 Bom. L.R. 297, the term was translated by Knight J. as 'unusual, or not sanctioned by law or custom', and he therefore concluded that the debt in that case which was the result of a tort committed by the father ought not to have been incurred by the father as a decent and respectable man. He said it was a debt attributable to his failings, follies or caprices. It may be noted that Sir Narayan Chandavarkar, an eminent Hindu lawyer and scholar, was a party to that decision. But the later cases such as Ramkriskna Trimbak v. Narayan I.L.R. (1915) Bom. 126 : 17 Bom. L.R. 955 and Hanmant Kashinath v. Ganesh Annaji I.L.R. (1918) 43 Bom. 612 : 21 Bom. L.R. 435 do not seem to have approved of the interpretation in its entirety, for they were, in my opinion, grave cases of impropriety. It may be noted that the other High Courts in India have extended the limit of the liability and have therefore not expressed approval of Durbar Khachar's case. See Chhakauri Mahton v. Ganga Prasad I.L.R. (1911) Cal. 862, Venugopala Naidu v. Ramanandhan Chetty I.L.R. (1912) Mad. 458 and Gursarn Das v. Mohan Lal I.L.R. (1922) Lah. 93. Mookerjee J. in Chhakauri Mahton's case translated the word as 'not lawful, usual, or customary.' Mr. Justice Sadashiva Ayyar in Venugopala Naidu v. Ramanadhan Chetty went a step further and thought that 'ayavaharikam' meant 'not supportable as valid by legal arguments, and on which no right could be established in the creditor's favour in a Court of Justice.' I need not refer in detail to the interpretations of the different writers and commentaries such as Apararka and Balambhatti and Vivada Chintamani and Viramitrodaya and Smrutichandrika. The last two describe it as 'incurred for spirituous liquor,' whilst Balambhatti as 'not for the benefit of the family'. The latter views the duty from the standpoint of the benefit derived from the debt, that is, he attaches greater importance to its purpose and object. But I might refer to the translation of Mandlik who says that 'avyavaharika' means 'not proper'. Gharpure in his Commentary has translated it as 'not legal, or capable of being recovered by a suit'.I might here refer to the translation of Colebrooke which is 'a debt for a cause repugnant to good morals'. It seems to me that that definition is in consonance with the spirit and the letter of the text. The sharp cleavage of views among different writers on the subject is one more proof, if proof were needed, of the difficulty of evolving a definition which might conform to the basic connotation of the term. Some of the writers do not think, having regard to the context, that 'avyavaharikam' can be placed in an independent category of its own. They have tried to attach a meaning to that term by reference to the preceding clause. But the application of the rule of ejusdem generis would be out of place in view of the fact that the rule containing the exception in question purports to assimilate the views of the different Smriti writers in a compendious form.

12. But apart from the different definitions of the term 'avyavaharikam', one common factor, in the trend of the discussion on the subject, which stands out prominently is that the word is intended to denote the character of the debt and not the character of the liability of the son. The question therefore is what is the correct interpretation which should be placed on that word for exempting the son from liability for his father's debts. It will be seen from the different interpretations given to the word that there is noticeable agreement in the acceptation of the primary sense of the word, that is, that it lays down a standard of moral conduct. The sharp difference, as I interpret the decisions, is in the decree of turpitude which should limit the application of the rule. Here the conflict is apparent. The extreme view is that nothing short of the father's criminality ought to save the son. Whilst the counter supposition is that a slight lapse from strict rectitude is enough (see Durbar Khachar v. Khachar Harsur). I am inclined to think that the better opinion would be to adopt the mean. I think the definition of Colebrooke contains a workable rule. Their Lordships of the Privy Council in Toshanpal Singh v. District judge of Agra were dealing with the embezzlement by the secretary of a school committee of a fund in his charge which was deposited in a bank and upon which he could draw for specific purposes. The Judicial Committee observed (p. 360):

A father, it was said, who accepts a sum of money to be held for another, or to be applied in a certain way, comes at once under a liability, ex contraictu or quasi ex contractu, although there may be no right of action against him until he has been guilty of some breach of duty, and this right of action may be enforced against his sons, although it appears that ultimately the father has criminally made away with the fund. This contention was supported by elaborate citation of authority. On the other hand, it was contended by the appellants, in an argument supported also by a great array of cases, that there were debts of a father with a stigma far short of criminality attached, for which his sons are not liable.

Their Lordships held that illegal debts, that is, debts which do involve the father in criminal liability, would certainly fall within the classification of exempted debts. It seems to me upon the authority of that case that the qualification introduced by Mr. Justice Mookerjee in Chhakauri Mahton v. Ganga Prasad goes much beyond the requirements of the rule. He has stated that (p. 872):

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.

13. That decision does not, in my opinion, conform to the view of the Privy Council in Toshanpal Singh v. District Judge of Agra. There Lord Blanes-burgh in delivering the judgment of the Board made the legal position clear where monies coming to the hands of the father by virtue of a particular jural relationship were subsequently misappropriated. In that case the sons were not held liable because up to the moment of misappropriation the father had fulfilled his duty and there was no accrual of the right of action for recovering the amount against the father, I think it can reasonably be said that that case is an authority for the view that where the right of action accrues against the father as a result of his criminal acts, the son is exempted from liability. That decision does not serve as an authority for holding that where an act giving the right of action against the father is in itself not criminal, the son is liable. The question which arises here did not arise there and was not decided. In my opinion the answer to that question must depend upon the nature and character of the act itself which results in the liability enforceable at law. The Court has to consider whether at the point of time when the accrual of the right takes place the act is 'avyavaharika' which I agree in describing, for the reasons stated, as 'immoral, illegal or dishonest.' Mr. Justice Venkatasubba Rao has, in a very learned judgment in Ramasubramania v. Sivakami Ammal : AIR1925Mad841 , attempted to state the rule by saying that 'the son can claim immunity only when the father's conduct is utterly repugnant to good morals, or is grossly unjust or flagrantly dishonest.' I think the attributes of morality, justice or honesty simpliciter, without more, forcibly convey the implications of the word 'avyavaharikam' I think that interpretation of the word is the nearest approach to the intention of the law-giver, and does no violence to the rule of strict interpretation of an exception to a general rule according to Hindu Law. In my opinion there is no warrant for restricting its application to criminal acts of the father. The word, according to my interpretation of the text, is used in a comprehensive sense, and there is nothing to fetter the discretion of the Court in applying a proper standard of morality, legality or honesty in deciding the question of the son's liability. In fact no better or more elastic formula can be devised in the application of the rule to the circumstances of each case. Consequently I agree that in this case it can reasonably be said that the action of the son-in-law in depriving the rightful owner of his property cannot be defended upon the ordinary standard of honesty, and therefore I agree with the order proposed.

Lokur, J.

14. I agree and I have very little to add.

15. A son's pious obligation to satisfy his father's debt, even though he may not have derived any benefit from it for himself, is a departure from the ordinary rule, and hence certain exceptions have been imposed upon that obligation. The text of Ushanas which lays down that a son is not bound to pay his father's debt which is not 'vyavaharika' is one of such exceptions, but as to the precise significance of the expression 'na vyavaharika', there is a considerable divergence of opinion. That divergence is really attributable to the anxiety to take an equitable1 view, from the standpoint of the creditor as well as that of the debtor's son who is sought to be held liable, in the application of the rule to the facts of each case. So far as the Bombay High Court is concerned, I do not think there is really much divergence of opinion. In Durbar Khachar v. Khachar Harsur I.L.R. (1908) 32 Bom. 348 : 10 Bom. L.R. 297 Knight J. rendered the expression 'na vyavaharika' as 'unusual, or not sanctioned by law or custom'; but he explained it by saying 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 and that he is answerable for the debts legitimately incurred by his father : not for those attributable to his failings, follies or caprices. This is only an explanation of Colebrooke's translation of the expression 'avyavaharika debts' as 'debts for a cause repugnant to good morals'. No fault can be found with this interpretation, though sometimes it may be found difficult to determine whether the cause of a debt in a particular case is or is not repugnant to good morals. In Durbar Khachafs case, where a dam erected by the father caused obstruction to the passage of water, the son was held not liable to pay damages adjudged against the father. This case was referred to in Ramkrishna Trimbak v. Narayan I.L.R. (1915) 40 Bom. 126 : S.C. Bom. L.R. 955, but was not disapproved of. It was assumed for the purposes of argument that the case of Durbar Khachar v. Khachar Harsur was correctly decided. In a later case Hanmant Kashinath v. Ganesh Annaji I.L.R. (1918) 43 Bom. 612 : 21 Bom. L.R. 435, although the case of Durbar Khachar v. Khachar Harsur was referred to, it was not discussed or disapproved of either by Scott C. J. or Shah J. In that case the father's debt arose out of a breach of civil duty as a trustee, and his sons were held liable to pay it. Shah J. observed (p. 623) :

It is clear that it is quite proper for a man to accept a trust; such acceptance I cannot be treated as being outside uyavahara. And any liability directly arising out of such acceptance, and not attributable to any act or omission amounting to a criminal breach of trust cannot be held to be avyavakanka.

16. Bai Mani v. Usafali (1930) 33 Bom. L.R. 435, was a clear case of criminal misappropriation by the father, and his son was held not liable. Patkar J., though he referred to several decided cases, observed (on p. 133) that it was unnecessary to decide the precise meaning of the word 'vyavaharika' in that case. In Bal v. Maneklal3 both Patkar J. and Tyabji J. discussed the various meanings attributed to the word 'avyavaharika', and held on the evidence that the father's debt was not the result of any reckless or imprudent act on his part. The leading case of the Calcutta High Court is Chhakauri Mahton v. Ganga Prasad I.L.R. (1911) Cal. 862. In that case Mookerjee J., after reviewing all the previous cases, came to the conclusion that Durbar Khachar's case placed too restricted a construction on the expression 'na vyavaharika', and held the son liable to satisfy a decree against the father for damages for injury done to a third man's, crops. The Allahabad High Court in Chtmdrika Ram, Tiwari v. Narain Prasad Rai I.L.R. (1924) All. 617 followed the ruling in Chhakauri Mahton's case and held the son liable for damages for wrongfully cutting down trees and demolishing houses. It was regarded as done for the benefit of the family. In each of these cases the decision was really based on the peculiar facts of those cases. On the other hand the Madras High Court went too far in Natasayyan v. Ponnusami I.L.R. (1892) Mad. 99, and in Venugopala Naidu v. Ramandhan Chetty I.L.R. (1912) Mad. 458, in considering the son liable almost in all cases in which the father could be held civilly liable for the debt. It was observed in Natasayyan's case (p. 104):

Upon any intelligible principles of morality a debt due by the father by reason of his having retained for himself money Which he was bound to pay to another would be a debt of the most sacred obligation, and for the non-discharge of which punishment in a future state might be expected to be inflicted, if in any.

This was approved of in Venugopala Naidu's case and it was observed that the test of the son's liability was whether the father would be civilly liable for the debt. With all respect, if this test is to be accepted, whenever a decree is passed against the father the son would be bound to pay it, whatever be the nature of the debt for which the decree was passed. These two cases have been disapproved of by the same High Court in a later case Muthusami Servai v. N.K. Mytheen Pichai Rowther I.L.R. [1937] Mad. 344. It is now well settled that where the debt arose out of the criminal liability of the father the son is not bound to pay it. But if the ratio decidendi of the ruling in Natasayyan's case and Venugopala Naidu's case is accepted, then the son would be liable to pay even the debt arising out of the father's criminal act. In certain cases where a trustee or manager has taken possession of the property entrusted to him and he has subsequently failed to account for it, his liability is held to be binding upon his son, and in all such cases where the father was in the position of a trustee or manager, a distinction was made between his liability for a breach of civil duty and that for his criminal breach of trust, and the son was held liable to discharge the former debt, but not the latter. This is illustrated by the decisions in Hanmant Kashinath v. Ganesh Annaji I.L.R. (1918) Bom. 612 : 21 Bom. L.R. 435, Venkatacharyulu v. Mohana Panda I.L.R. (1920) Mad. 214, and Gursarn Das v. Mohan Lal I.L.R. (1922) Lah. 93. This distinction is recognized by the Privy Council in Toshanpal Singh v. District Judge of Agra . In that case the father who was the secretary of a school committee withdrew certain sums unauthorisedly and misappropriated them and in respect of certain other sums withdrawn he failed to render an account. In the case of the former the son was not held liable to discharge his father's debt, while in the case of the latter he was held liable for the amount not properly accounted for. In Ramasubramania v. Sivakami Ammal : AIR1925Mad841 , after discussing the various rulings, Venkatasubba Rao J. has deduced two rules, viz., (1) if the debt is in its inception not immoral, subsequent dishonesty of the father does not exempt the son, and (2) it is not every impropriety or every lapse from right conduct that stamps the debt as immoral. The son can claim immunity only when the father's conduct is utterly repugnant to good morals, or is grossly unjust or flagrantly dishonest. It is difficult to understand what is meant by a debt not being immoral in its inception. With all respect I should think that the first rule is somewhat misleading, and it is possible to conceive cases where it will be difficult to decide whether a debt was immoral in its inception or became so at a later stage. Thus for instance, if the father takes a bicycle on hire promising to return it, and if he dishonestly disposes of it and misappropriates the sale-proceeds, it will be difficult to say whether he took it on hire with a dishonest intention from the beginning or was subsequently tempted to sell it dishonestly. Similar instances can be multiplied. The real test ought to be whether the debt arose out of any act of the father repugnant to good morals or illegal or dishonest. To exempt the son from liability, the father's act which gave rise to the debt need not be necessarily criminal. Thus when a father borrowed a loan to pay money to a widow to induce her to adopt one of his sons, it was held that the bribe to the widow was immoral, though not criminal, and his other sons were, therefore, under no pious obligation to discharge the debt Shri Sitaram Pandit v. Shri Harihar Pandit : (1910)12BOMLR910 . This shows that criminality is only one of the reasons for regarding the father's act as 'repugnant to good morals'. As regards the second rule laid down by Venkatasubba Rao J. it is more or less an elaboration of the interpretation of the expression 'na vyavaharika' as given by Colebrooke, but the adverbs used in that rule are likely to tend unnecessarily to narrow the exception, After all, the application of that rule must depend on the facts of each case. I think that the most reasonable interpretation to be placed on the expression 'na vyavaharika' is that suggested by my Lord the Chief Justice, viz. 'illegal, dishonest or immoral', and the application of this interpretation in each case should be left to be decided on the facts of that case.

17. Applying this principle to the facts of the present case, it is obvious that defendant No. 3 who had no interest in or right to the moveables which came into his possession knew that there was a dispute as regards the title to them, and he should not have disposed of them or made it impossible for their being returned to the rightful owner. His mother-in-law had at least some right to them as representing her lunatic son, and her conduct may not be regarded as opposed to good morals, but defendant No. 3 needlessly intermeddled with another's property and made it disappear. His conduct was certainly 'opposed to good morals' and the respondent cannot be held liable for the debt arising out of such conduct of his father.

18. I therefore agree with the order proposed by my Lord the Chief Justice.

First Appeal No. 308 of 1937

Jhon Beaumont, Kt., C.J.

19. In view of the decision in Jayappa Lokappa v. Shivan-gouda Dyamangouda,1 it is clear that this appeal is not sustainable. It is, therefore, dismissed with costs.

Lokur, J.

20. I agree.


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