1. This is a plaintiffs' appeal and arises out of a suit for a declaration that the property in dispute was not liable to attachment and sale. On 18th August 1936, the District Board of Bulandshahr granted a contract to five persons, including one Khacheru, to run a ferry at Anupshahr and Achrukalan in the district of Bulandshahr. The lease was not signed by Khacheru, but by his cousin- at one place I find him described as a cousin and another as a nephew-Nain Singh. Part of the lease money fell into arrears and the District Board of Bulandshahr requested the Collector of Meerut to attach and sell the property of Khacheru, who lived in Meerut. Not satisfied with this, the District Board also started criminal proceedings against Khacheru and Nain Singh. Nain Singh was sentenced to a term of imprisonment; death intervened to save Khacheru. The present suit was instituted by Khacheru for the declaration mentioned above. He died during the pendeney of the suit and the proceedings have been continued by his sons. The defence of the District Board, principally, was that the suit was barred by Section 233 (m), Land Revenue Act and, Khacheru having benefited by the lease, the present suit was not maintainable. The learned Munsif held that the lease was not executed by Khacheru and he could not, therefore, be visited with the consequences of the default. This was the only point pressed before him, barring the plea of territorial jurisdiction. The learned First Civil Judge, on appeal, held that Khacheru had benefited by the lease and that he accepted the transaction before the Tahsildar on 3rd September 1936, and it, therefore, did not lie in his mouth to repudiate the transaction. He also held that the suit was barred by Section 233 (m), Land Revenue Act.
2. The first point taken before me in second appeal is that, under Section 9, Northern India Perries Act, the only person who could attach the property was 'the Magistrate of the district in which such ferry is situate...' It is not pretended that the ferry is situate outside Bulandshahr. The Magistrate of Bulandshahr was, therefore, it is argued, the only person who could make the attachment and he had no right to invoke the aid of the District Magistrate of Meerut for the attachment of the property. In the view I take it is not necessary to decide this question. The learned Munsif found a finding which has not been disturbed by the learned Civil Judge that Khacheru did not execute the lease. The learned Civil Judge has spelled out some sort of a moral obligation against Khacheru. Obligations flow from a contract or legal status and it is only legal obligations which can be recognised by a Court of law. Their Lordships of the Judicial Committee held so far back as the year 1875 in Ram Tuhul Singh v. Biseswar Lall Sahoo ('75) 2 I.A. 131 that
It is not in every case in which a man has benefited by the money of another that an obligation to repay that money arises. The question is not to be determined by nice consideration of what may be fair or proper according to the highest morality. To support such a suit there must be an obligation, express or implied, to repay.
The principle laid down in the above case was followed in Pheku Ram v. Ganga Prasad : AIR1940All98 and affirmed by their Lordships in a very recent case Man Mohan Das v. Janki Prasad . Khacheru did not execute the deed. There was, therefore, no legal obligation on his part to pay; at any rate, no obligation which could be recognised or enforced by a Court of law. There is yet another aspect of the case which has escaped the attention of both the Courts below. Khacheru brought the suit and died soon after. It is his sons who have continued it. Unless the contrary is established, the presumption of Hindu law shall stand that the sons were members of a joint Hindu family with their father. There is nothing to show that the property was Khaeheru's self-acquisition. It will, therefore, be deemed to be the family property. It was open to the sons of Khacheru to plead and prove-and they have succeeded in proving-that the debt was not of such a character as was binding upon them and its payment could not be enforced by means of an attachment of the family property vide Raghunandan Sahu v. Badri Teli : AIR1938All263 . The suit was, therefore, rightly decreed by the learned Munsif and wrongly dismissed by the lower appellate Court. I, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs in all Courts.