1. This was a suit brought by the plaintiff to recover from defendant 3 and the joint family estate of the other defendants the sum misappropriated by the deceased Bhimashankar Motiram who was the guardian of the minor appointed by the District Judge of Ahmedabad.
2. The learned Subordinate Judge passed a decree against the estate of the deceased Bhimashankar Motiram in the hands of the other defendants and the joint estate of defendants 3 and 4 and a personal decree only against defendant 8 on the ground that he hid signed a statement on 17th August 1925. Defendant 1 is the widow, defendant 2 the son, and defendants 3 and 4 are the brothers of the deceased Bhimashankar. On appeal by the defendants no cross objections were filed by the plaintiff, and the learned Assistant Judge varied the decree of the Subordinate Judge, and passed a decree against defendants I to 4 and made them personally liable.
3. It is urged in this second appeal that the decree, in so far as it made defendants 1, 2 and 4 personally liable in the absence of any cross objections, was erroneous, that defendants 1, 3 and 4 were not liable personally for the debts 01 the deceased, and that the son defendant 2 was not liable to pay the debt of his father as it was tainted with illegality and immorality.
4. The learned Assistant Judge had no jurisdiction to vary the decree of the Subordinate Judge and pass a personal decree against defendants 1, 2 and 4 in the absence of any cross objections. It is contended on behalf of the respondents that the lower appellate Court had jurisdiction Under Order 41, Rule 33, Civil P.C., to pass a personal decree against defendants 1, 2 and 4. It appears however from the plaint that no personal decree was asked for against defendants 1, 2 and 4, but a decree was prayed for against the estate of the deceased Bhimashankar Motiram and against defendant 3. In the absence of any claim made in the plaint for a personal decree against defendants 1, 2 and 4, we think that the order of the Assistant Judge passing a personal decree against defendants 1, 2 and 4 was erroneous.
5. We do not agree with the view of the learned Judge that defendant 3 was liable personally for the money misappropriated by the deceased Bhimashankar simply on the ground that he made a statement in August 1925. There was no consideration for the agreement contained in that statement, and we think that the learned Judge was wrong in passing a decree against defendant 3 personally.
6. We think that defendants 1 and 4 could not be liable personally for any statement made in the written statement. As regards the liability of defendant 2 to pay the debt of his father, there is a conflict of judicial opinion as to the meaning of the word Vyavaharika in the text of Ushanas cited in the Mitakshara in the commentary on verse 47, and Mayukha, Ch. 5, Section 4, pl. 15. In the case of Durbar Khachar v. Khachar Harsur  32 Bom. 348 it was held that the son was not liable to pay the debt of his father which was not Vyavaharika, i.e., a debt which the father ought not 'as a decent and respectable man to have incurred,' and the son is answerable for the debts legitimately incurred by his father and 'not for those attributable to his failings, follies or caprices.' This case has been considered by this Court in the subsequent cases of Ramkrishana v. Narayan  40 Bom. 126 and Hanmant Kashinath v. Ganesh Annaji  43 Bom. 612, and has not met with approval in the decisions of the other High Courts, Chhakauri Mahton v. Ganga Prasad  39 Cal. 862, Venugopala Naidu v. Ramanadhan Chetty  37 Mad. 458, and Sumer Singh v. Liladhar  33 All. 472. Avyavaharika has been translated in Durhar's case  32 Bom. 348 by Knight, J., as unusual or not sanctioned by law or custom, by Mookerji, J., in Chhakauri's case  39 Cal. 862 as not 'lawful, usual or customary,' and by Sadashiva Ayyar, J., in Venugopala's case  37 Mad. 458 as
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.
7. The conflict of opinion is also reflected in the commentaries and translations. Apararka explains it as not righteous or proper, and Balambhatta as not for the benefit of the family. Colebrooke translated it as 'debts for a cause repugnant to good morals,' and Charpure anot legal or capable of being recovered by a suit.' It is unnecessary to decide in the present case the precise meaning of the word ' Vyavaharika.'
8. With regard to the pious obligations of the son to pay the debt of his father, the matter has been fully considered by this Court in the case of Hanmant Kashinath v. Ganesh Annaji  43 Bom. 612, where a distinction is made between the liability of the sons to pay the father's debt in respect of money which was misappropriated by the father and money for which the father was liable on account of breach of civil duty. The son is not liable to pay the debt when such debt consists of money misappropriated by the father, and in support of the proposition the cases of Mahabir Prasad v. Basdeo Singh  6 All. 234, Pareman Dass v. Bhattu Mahton  24 Cal. 672 and McDowell & Co v. Ragava Chetty  27 Mad. 71 are pertinent. On the other hand, where the debt is incurred by the father on account of breach of civil duty, the son would be liable to pay the said debt though the father may be subsequently liable to be prosecuted for criminal misappropriation, according to the case of Natasayyan v. Ponnusami  16 Mad. 99, Kanemar Venkappayya v. Krishna Chariya  31 Mad. 161, Gurunatham Chetty v. Raghavalu Chetty  31 Mad. 472 and Tirumalayappa Moodelliar v. Veerabudra  4 I.C. 1090. The decision in the case of Darbar Khachar v. Khachar Harsur  32 Bom. 348 has been criticized in Chhakauri Mahton v. Ganga Prasad  39 Cal. 862 where it was held that the distinguishing line must be drawn between a criminal offence and a breach of civil duty and where the taking of money is not in itself a criminal offence, a subsequent misappropriation by the father cannot discharge the son from the liability. It would follow from the decided cases that if the liability arises directly from a criminal act, i.e. an act for which the father may or may not have been successfully prosecuted, but which can be presumed or proved to be criminal on the evidence on the record, the son would not be bound to pay the father's debt. I may, in this connexion, refer to the case of Jagannath Prasad v. Jugal Kishori : AIR1926All89 . In the present case the plaintiff alleged in the plaint that the amount was misappropriated by Bhimashankar. The removal of the money from the safe was in itself a criminal offence. In the case of Hanmant v. Ganesh  43 Bom. 612 a decree was passed against the father for his failure to account as a trustee and there was no evidence that the property not accounted for was criminally misappropriated by the father who admitted his position as a trustee and the receipt of the property, and the conduct of the father amounted merely to a breach of civil duty as trustee.
9. The liability in the present case appears on the facts proved in the case to be the direct consequence of an act of the father which would be clearly an offence of criminal misappropriation, and therefore it would1 follow that the son, defendant 2 would not be liable to pay the debt of the father incurred by him by means of criminal offence.
10. I think therefore that the decrees, of both the Courts must be reversed and a decree will be passed in favour of the plaintiffs for the amount claimed from the estate of the deceased Bhimashankar Motiram in the hands of defendants 1 to 4. The plaintiffs and defendants 1 to 4 will bear their own costs throughout arid defendants 1 to 4 will pay the costs of defendant 5 throughout.
11. The plaintiffs sued to recover from defendant 3 and the joint family estate of the other, defendants, who are the widow and the son of Bhimashankar Motiram and his brothers, the sum which they alleged had been misappropriated by the deceased. The only question of fact at the trial was whether the deceased Bhimashankar had misappropriated money belonging to the plaintiff. The money had been in his charge. The plaintiff is a minor and the deceased was his guardian and the money admittedly was kept in the locked box. The deceased on 20th July 1925, suddenly tell ill and went on leave and died three days later. The news of his death was received at the taluka kacheri on 23rd, Saturday. The box containing the plaintiff's money was opened on the 25th. In the interval between Bhimashankar's going on leave and the opening of the box, it had been in the keeping of one of the mamlatdar's clerks. In these circumstances it is contended by the learned Counsel for the appellants, i.e. The members of Bhimashankar's family that there can be no inference that it was Bhimashankar who had abstracted the money from the box. It may be conceded that on this evidence a criminal Court would probably riot have found as a fact that Bhimashankar had abstracted the money. But this is not a criminal case and the onus of proof on a private plaintiff is not nearly so heavy as the onus oil the Crown. We cannot say therefore that no inference is possible from the evidence which is recorded in the case. That being so it is not permissible for us to interfere with the finding of fact.
12. For the purpose of this case, then, we must hold that Bhimashankar committed a criminal offence, and the only question before us is as to whether the members of his family, his widow, son and bro there, are personally liable as found by the learned Assistant Judge. I agree entirely with my learned brother that there can be no personal liability on them. One person cannot be personally liable for the debts of a deceased person. I agree also that the liability can be placed only on the estate of the deceased.
13. The principal question which we have to decide concerns the liability of the deceased's son's share in the family property. A son though under a pious obligation to pay the lawful debts of his father, is not bound to pay debts duo to certain specific causes specified in the texts, and in particular is not bound to pay such as are termed Avyavaharika. This has been interpreted to mean:
such debts as his father as a decent and respectable man ought not to have incurred, Durbar Khachar v. Khachar Harsur  32 Bom. 348,
and the defendants respondent's learned advocate has tried to bring the debt in suit within this category on the strength of a passage quoted in Hanmant Kashi nath v. Ganesh Annaji  43 Bom. 612, from the case of Natasayyan v. Ponnusami  16 Mad. 99 where it was stated that
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.
14. But in that case the retention of the money did not amount to criminal offence arid in Hanmant v. Ganesh  43 Bom. 612, Scott, C.J. adopted the view of Mookerjee, J., in Chhakauri Mahtm v. Ganga Prasad  39 Cal. 862, that a distinction must be made between such acts as amount to offences and mere civil breaches of trust. In consequence the estate of the minor appellant is not liable for the debt due to his father's criminal breach of trust.
15. I agree that the decree of the lower Court must be modified as indicated by my learned colleague.