1. This is an appeal from a decree and order of the Additional Subordinate Judge of Agra in favour of the plaintiff-respondents. The plaintiff-respondents are the members of the committee of management of the Balwant Rajput High School Agra, and the defendants are the three sons of the late Thakur Dhyan Pal Singh who was secretary of that committee. The circumstances that led up to the suit were briefly these: In 1915 the Government made a grant of Rs. 90,000 to the committee to be expended on the school on condition that the money should be placed in deposit with the Bank of Bengal and should not be utilized till schemes had been prepared (after consultation between the managing committee of the school and Government) to which the committee and Government should have assented. The work was held up during the war but on 16th October 1920, Dhyan Pal Singh, the secretary of the committee represented to them that Rs. 60,000 of this grant had been invested in the three years war loan the period of which had expired and that he had invested Rs. 50,000 in fixed deposit with the Bank of Bengal at 4 per cent, per annum and Rs. 10,000 in current account. He asked for the formal sanction of the committee to this arrangement and further he asked for permission to operate on the account and to draw the money when necessary to meet the expenses of the brick kiln and the acquisition of other building materials. This was sanctioned by the committee. It may be mentioned that Dhyan Pal Singh had drawn on the account before the sanction of the committee was obtained and between 23rd August 1920 and 25th October 1921. he drew in all by various cheques Rs. 60,685. On 13th May 1922 he represented to the committee that the estimate for the proposed alterations and additions to the school building was about Rs. 78,000 according to the current public works rate and that he could get the entire thing done at a cost of Rs. 60,000 if the committee authorized him to do it. He further represented that the committee had in hand the sum of Rs. 70,000. The committee passed a resolution authorizing him to put in hand the alterations subject to some modifications proposed by the Executive Engineer which Dhyan Pal Singh himself had put forward on condition that the total amount expended should not exceed Rs. 60,000.
2. From 15th May 1922 to 30th January 1923, Dhyan Pal Singh got the president of the committee to countersign cheques for sums amounting in all to Rs. 21,597-3-2. It may be observed that there had been changes in the person of the president of the committee during these proceedings, Mr. T.K. Johnston, Mr. J.R.W. Bennett and Dr. E. Bennet in turn assuming that office ex officio as District Judges of Agra. On 7th November 1922 Dhyan Pal Singh asked Dr. B. Bennet to countersign a cheque for Rs. 2,000. This was the first occasion on which Dr. Bennet had anything to do with the matter. He asked Dhyan Pal Singh for vouchers and Dhyan Pal Singh replied that he had not so far been required to submit any but that he would now submit accounts. Accounts of some kind were after some considerable delay submitted purporting to show that a sum of roughly Rs. 50,000 had been spent on the building. Before the matter was cleared up Dhyan Pal Singh died on 30th May 1923. Meanwhile several matters had been arousing the suspicions of Dr. Bennet who happened to be away from Agra when Dhyan Pal Singh died and on his return finding that no cash balance had been left by Dhyan Pal Singh and that the large sums which that gentleman had drawn had not been properly accounted for he applied for an official audit of Dhyan Pal Singh's accounts and as a result of that audit the present suit was filed by the committee on 29th May 1925. No allegation was made against Dhyan Pal Singh's sons personally but it was prayed that they should be made to pay a sum of Rs. 86,863-4-2 or whatever might be found due
from the property left by Thakur Dhyan Pal Singh and also out of the joint family property in their hands.
3. The Subordinate Judge after appointing an expert to value the work done, for he found Dhyan Pal Singh's accounts untrustworthy, decided that a sum of Rs. 48,143-1-2 was due and he gave a decree for this amount without past interest.
4. The Subordinate Judge has calculated that this sum of Rs. 48,143-1-2 represented the balance which Dhyan Pal Singh had not accounted for by deducting the value of the buildings (as calculated by Mr. Daly the expert) viz., Rs. 35,454-2-0 from the total sum which Dhyan Pal Singh had realized from the committee on account of the building which according to the Subordinate Judge came to Rs. 83,597-3-2.
5. The plaint states that the cause of action arose in August 1920 when Dhyan Pal Singh began making improper use of the Government grant but there is no mention in it of criminal misappropriation or breach of trust. The notice issued to Dhyan Pal Singh's sons, the present defendants on 19th February 1924 (Ex. B), was to the effect than Dhyan Pal Singh 'committed breach of trust of sums of money as detailed' &c.;, but did not suggest that there had been a criminal breach of trust. The defendants in their written statement did not admit that Dhyan Pal Singh had misappropriated any money or that he had committed any criminal breach of trust. They did not positively deny either that he had misappropriated money or that he had committed criminal breach of trust. Neither allegation had been definitely made it will be observed, in the plaint itself and the plaintiffs' case at that stage apparently was that Dhyan Pal Singh had been acting as the agent of the committee, had made improper use of the Government grant and was liable to account for the whole of the Government grant to the committee. Nevertheless the plaint did refer to the amount of Rs. 21,597-3-2 which had been drawn by Dhyan Pal Singh from the school accounts after the amount of the grant had been exhausted. The fact is that at that stage the legal position of the parties was not understood. When Dr. Bennet went into the witness-box he was certainly induced in cross-examination to say:
The complaint against Dhyan Pal Singh is that Dhyan Pal Singh by misappropriating a portion of this money and other sums detailed in the plaint committed a breach of trust.
6. There was, however, no specific issue on the question of whether Dhyan Pal Singh had committed criminal breach of trust or any other sort of crime. In view of the course taken by the argument this is unfortunate and the result has been curious. Both in the final stages of the suit in the Court below and in argument before us the defence has been based on two alternative and inconsistent theories: (1) that Dhyan Pal Singh had satisfactorily accounted for the whole sum for which he was responsible and (2) that he had committed criminal breach of trust or criminal misappropriation or some crime and that the sons could not be made liable for a debt that was tainted with immorality.
7. It is argued that although it is a pious obligation of the sons to discharge their father's debts it is by no means part of their pious obligation to protect his memory against the allegation of a crime. In fact it has been vehemently argued on behalf of the sons of Dhyan Pal Singh that the evidence discloses that Dhyan Pal Singh acted dishonestly throughout and would have been convicted in a criminal Court. As the defendant-appellants took their stand from the beginning on their alleged ignorance of the proceedings of their father it was, we consider, open to them, to base their defence in the alternative on these irreconcilable pleas.
8. The conclusion arrived at in regard to the first part of the defence by the learned Subordinate Judge was as we have already remarked that Dhyan Pal Singh's accounts were untrustworthy, incomplete and utterly insufficient to dispose of the large sums for which be had made himself responsible to the committee. The alternative argument was perhaps not fully developed in the lower Court if we may judge from the fact that only one authority has been cited. The learned Subordinate Judge pointed out that the committee on 16th October 1920 gave formal sanction to the transfer of the two sums of Rs. 50,000 and Rs. 10,000 to the personal fixed deposit account and the personal current account of Dhyan Pal Singh and concluded that Dhyan Pal Singh could, therefore, not be held guilty of criminal breach of trust and that there was no intention on his part to embezzle the money. As regards the later cheques the Judge remarks:
Although he might be accused of drawing it over and above the amount at the cost of which he undertook to complete the building there was nothing to prove his intention to misappropriate this amount. The fact that the accounts filed by him are not accepted does not necessarily prove that there was any embezzlement by him.
9. He further remarks:
The fact that Rs. 80,016-9-5 out of the amount of Rs. 48,143-1-2 which has been now found due from him was admitted by him to be in his hands on 30th March 1923 shortly before his death excludes all intention on his part to misappropriate the trust money.
10. This admission is to be found in a letter addressed to Radhey Lal, the head clerk of the Balwant High School, and is certainly of importance. The Judge might also have referred to the fact that on 13th May 1922 in applying to the committee for sanction to get the repairs done at a cost of Rs. 6,000 Dhyanpal Singh remarked that the committee had in hand a sum of Rs. 70,000 although we know as a matter of fact that by that date he had entirely exhausted the grant of Rs. 60,000. These, however, are details which will have to be considered latter. The final conclusion of the Judge was that there was not evidence sufficient to prove a charge of criminal breach of trust against Dhyanpal Singh but that there was a balance of money due by him to the committee which he was bound to account for and the sons must be held to be liable to discharge it.
11. In opening the legal argument on behalf of the appellants Sir Tej Bahadur Sapru remarked in the first place that the plaintiffs had not in their plaint alleged and had not brought evidence to prove that there were any assets of Dhyanpal Singh's that had come into the hands of the defendants or that there was any joint family property which might be made liable for the debt. Even if the sons would be legally liable to the extent of the joint family property yet the debt would be a personal debt and before their personal liability could be alleged it was incumbent on the plaintiffs to show the existence of the property out of which the liability would arise. The plaintiffs did, however, allege the existence of joint family property and this was not denied in the written statement nor has it been suggested before us that no such property exists. The plea is a purely technical one and we think that the plaintiffs have done all that was necessary.
12. The exact nature of the debts that must be held to be avyavaharika has given some difficulty to the various High Courts in India, but the necessity for making a pronouncement on the subject has never, we believe, arisen in an appeal before the Privy Council. Their Lordships have in several cases in which this precise issue did not arise referred to debts which were incurred for an immoral or an illegal purpose and in one or two passages to debts which were 'tainted with immorality.' But there is nothing in any of their pronouncements, so far as we know, to show that a debt which is incurred by means of a crime is to be distinguished from a debt which has been incurred in order to spend the money on an immoral object. The difference between these two kinds of debts is obvious on the face of it. But there is authority both in the commentators on Hindu law and in the decisions of the Courts in India for holding that debts of both kinds are to be considered debts which a son is under no pious obligation to discharge on behalf of his father.
13. In the view of Hindu lawyers a debt is not merely an obligation but a sin, the consequences of which follow the debtor into the next world (Mayne's Hindu law, para. 302.) The duty of relieving a debtor from the evil consequences of this sin falls on the male descendants and it is for this reason that there is a moral and religious obligation on the son to pay his father's debt. But Mayne remarks that the obligation does not arise in two cases: (1) when the debt is of an immoral character and (2) when it is of a ready money character; and the instances of immoral debts given by that learned commentator are sums due for spirituous liquor, for losses at play, for promises made without consideration or under the influence of lust or wrath or sums for which he (the father) was a surety or a fine or a toll or the balance of either and generally any debt for a cause repugnant to good morals. There is a great diversity of opinion among the commentators in regard to the descriptions of debts by which the son is not bound, a diversity which as Mukerji, J., has remarked, has been faithfully reproduced in the decisions of the Courts. But the early commentators appear to have been unanimous in holding that a fine or a toll or the balance of either is included in such debts. The payment of a fine is a penalty and although it is a penalty for an immoral act, the payment itself is not immoral and it is no doubt for this reason that the Courts in India have been practically unanimous in holding that a debt arising out of a criminal transaction is not binding on the son.
14. The Allahabad High Court in 1884 in the case of Mahabir Prasad v. Basdeo Singh  6 All. 234, held that where a father had embezzled money and the debt had arisen on account of that embezzlement it would not be binding on the son. In this case the embezzlement was clearly established. In 1906, in the case of Jai Kumar v. Gauri Nath  23 All. 718, the circumstances were such as to suggest an embezzlement but the father executed a promissory note to which his son also attached his name, for the payment of the sum for which he was responsible. In this case the debt was hold to be binding on the son, but the issue argued was whether the promissory note had been executed in order to stifle a prosecution and as it was not proved to have been executed for that purpose it was held that the debt could not be considered to be immoral because the pronote was executed as security for a just claim. In view of the distinction that has been made between a criminal liability and a civil obligation it is worth noticing that in this case the civil liability arose after the transaction which was said to amount to an embezzlement. In 1916 in the case of Niddha Lal v. Collector of Bulandshahr  14 A.L.J. 610, an agent who had realized Rs. 4,000 on account of his principal misappropriated it. The exact circumstances of that case are not before us, but it was held that the son would be liable for repayment of the amount because it was not exactly a case of criminal misappropriation. If it had been definitely proved that there had been an embezzlement or that the amount had been taken to avoid a criminal prosecution the decision might have been different. In 1924 in the case of Chandrika Ram Tiwari v. Narain Prasad Rai 4), it was held that the damages on account of trees which had been wrongfully cut by the father constituted a debt binding on the son because it was not an illegal or immoral debt, in spite of the fact that the father had done wrong in cutting the trees. The learned Judges who decided this case differentiated it from the case of Durbar Khachar Odha v. Khachar Harsur  32 Bom. 348 in which the facts were somewhat similar because in the case before them the family had benefited by the tortuous act of the father. In 1925 it was held in the case of Jagannath Prasad v. Jugul Kishore : AIR1926All89 that where criminal misappropriation by the father had been admitted in his pleading by the applicant who claimed to bind the son the debt was not binding because on the admission of the applicant the debt was infected with an element of criminality. The father had as a matter of fact been acquitted by the criminal Court. From these decisions the principle may be deduced that where a crime is definitely proved against the father and the debt arises from that transaction it would not be binding on the sons. Where the question whether there was an actual crime or not is doubtful the Court was reluctant to hold that an element of criminality existed even where there was considerable evidence to prove it.
15. In Madras the line has perhaps been more clearly drawn between a criminal act and a civil liability. In the case of Natarsayyan v. Ponnusami  16 Mad. 99, where the father had dishonestly retained money due to another person though he had not been convicted of a crime it was held that as he had been guilty of a breach of a civil obligation the sons must be bounds whereas in the case of McDowell & Co. Ltd. v. Ragava Chetty  27 Mad. 71, where the evidence showed that the father had been guilty of criminal misappropriation though he had not been convicted by a criminal Court the sons were held not liable. In the later cases of K. Venkappayya v. Krishna Chariya  31 Mad. 161, E. Gurunatham Chetty v. A. Raghavalu Chetty  31 Mad. 472, and Venhatacharyulu v. Mohana Panda A.I.R. 1921 Mad. 407, the same reasoning appears to have been followed. Where the father had been convicted of a crime or where the evidence clearly showed that he had been guilty of criminal misconduct the sons were not bound but where the evidence was only sufficient to show a civil obligation the sons were bound.
16. In Bombay in the case of Durbar Khachar Shri Odha Ala v. Khachar Harsur Oghad  32 Bom. 348, where the father had been guilty not of a criminal act at all but of an act involving him in civil damages, the son was held to be not liable but the ratio decidendi appears to have been that the sons wore not benefited by the tortuous act. If the sons had been benefited it would apparently have been held as it was in the case of Chandrika Ram Tiwari v. Narain Prasad Rai A.I.R. 1924 All. 745 that the sons were liable. In the case of Hanmant Kashinath v. Ganesh Annaji  43 Bom. 612 the father as trustee committed a breach of civil duty and it was held that the debt was not immoral and was binding on the son. Mukerji,, J. in the case of Chhakauri Mahton v. Ganga Prasad  39 Cal. 862 reviews the case-law on the subject and suggests that the distinguishing line must be drawn between a criminal offence and a breach of civil duty and he remarks that where the taking of the money is not in itself a criminal offence, a subsequent misappropriation by the father cannot discharge the son from liability. The learned Judge quotes with approval a passage from the case of Natarsayyan v. Ponnusami  16 Mad. 99, to the effect that the son is not bound to do anything to relieve the father from the consequence of his own vicious indulgences, but he is surely bound to do that which the father himself would do to discharge a civil obligation if it were possible.
17. We think that we may safely derive the following propositions from the case law. 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 the evidence on the record is sufficient to prove to have been criminal, the son is not bound. On this all Courts are agreed. Secondly if there is a civil liability and subsequently the transaction becomes a criminal one the son is bound to meet the civil liability to the extent of the family property but he is not concerned with the criminal matter. This is a more doubtful proposition and the decisions of the Courts are not unanimous. But we think that it may be supported by reference to the nature of the religious obligation which arose potentially as soon as the civil liability occurred. If there had been no crime the son would undoubtedly have been responsible on account of the civil liability. The subsequent crime may involve the father in further difficulties in the next world, but these are beyond the control of the son and they are, so far as we know, distinct from the penalties arising from a civil obligation. If this be so the son's obligation to discharge the civil liability is in no way altered by the subsequent crime. In coming to this conclusion we do not think that we are in any way dissenting from the judgment in the case of Jagannath Prasad v. Jugul Kishore : AIR1926All89 , which is the latest pronouncement of this Court on the subject. There the obligation itself was held to be infected with criminality. But where it is possible to separate the civil liability from a criminal action we consider that the civil liability itself is not so infected.
18. We have already given a summary account of Dhyanpal Singh's transactions so far as they appear from the evidence on the record. Much that is now obscure might have been made clear if Dhyanpal Singh had lived and had been able to explain what he did and what his motives were. (The judgment then discussed the evidence and concluded as follows). To return to the legal aspect of the case and the conduct of Dhyanpal Singh, we think it is clear that when he applied for and obtained the sanction of the committee to draw cheques up to the value of Rs. 60,000 in order to provide bricks and other materials for the building, there is nothing to show that he had any dishonest purpose. He assumed the character of an agent to the committee and from that date, that is to say from 16th October 1920, he became responsible to account to them for this amount. He has failed to do so. It appears to be not unlikely that owing to slack supervision very large sums of money were wasted, but we can find no clear evidence of any deception until the date when, having exhausted Rs. 60,000, he began to draw on the ordinary school account for which he had to obtain the counter-signature of the president of the committee.
19. We think that there can be no doubt that he intentionally misled Mr. J.R.W. Bennett and later on Dr. Bennett in regard to the position. He had spent all the money with which he had been entrusted, but he still had to go on with the building, and he raised the money in what was most unquestionably an irregular way. It would be difficult to say, however, that in so doing he committed a crime The argument addressed to us on behalf of the appellants, to show that his actions were 'infected with criminality,' was directed to proving that from the beginning he had acted in a dishonest way. This as we have held is not proved and is not even likely. If he acted at first in perfect good faith as we believe to be the case, and subsequently got into difficulties and dishonestly drew on the ordinary school accounts, he may or may not have been guilty of some criminal offence. It is not proved that he was, because the position is not clear and we do not know how he was able to draw on this ordinary school account or what his ultimate intentions were. It is as any rate clear that he acknowledged liability for about Rs. 30,000 when he wrote in March 1923 to Radhey Lal, and that he knew then that he would have to account for this amount. We can only say that this part of his conduct was suspicious and was probably dishonest, but in the view that we have taken of the law it does not affect the son's liability in regard to the civil obligation which he undertook on 10th October 1920. The position is somewhat complicated by the fact that in drawing these later cheques after the Rs. 60,000 Dhyanpal Singh was drawing money with which he had, so far as we know, not been specifically entrusted by the committee, but we do not think it is necessary to insist on the distinction. He realized the money under colour of the authority given him by the committee, and he admitted his responsibility to account for it.
20. The final result is that we modify the decree and order of the lower Court to this extent that the amount of the decree is reduced by a sum of Rs. 5149-13-0 and will therefore be Rs. 42,993-4-2. For the rest the appeal is dismissed and as the appellants have substantially failed in all their grounds of appeal, we direct that they pay the costs of this appeal.