Bennet, Ag. C.J.
1. This is an execution second appeal by a decree-holder whose application for execution of his decree has been dismissed by both the lower Courts. The facts are as follows : On 21st February 1930 one Shyamanand executed a registered sale deed in favour of Bageshar who is the deceased father of the respondent Jagdish Tewari. Subsequently one Ram Lal brought a suit against Shyamanand as defendant 1 and Bageshar as defendant 2 claiming that six days prior to the sale deed, that is on 15th February 1930, Shyamanand had executed a written but unregistered agreement to sell the same-property to the plaintiff Ram Lal. Ram Lal sued for specific performance of his alleged agreement. The trial Court dis. missed the suit finding that Bageshar was a purchaser for value without notice from an ostensible owner under Section 41, T.P. Act. On appeal the lower Appellate Court reversed that finding. The decision turned on the question as to whether the Court should or should not believe the evidence of the scribe, Sri Narain Lal, of the sale-deed and this scribe alleged that he had told Bageshar at the time of drawing up the sale deed that there was this previous written agreement with Shyamanand. On this evidence the Court found that Bageshar was not protected by Section 41. The Court appeared to have treated the previous agreement as if it had been a sale deed and made no decision on the point as to what degree of reasonable care it would be necessary for Bageshar to take, if he had been given the information mentioned by the scribe. The Court does not in its judgment dated 11th July 1934 come to any finding that there was anything contrary to good morals in the action of Bageshar. Consequently a decree for costs was passed, against Bageshar as he was the sole defendant who contested the suit and it is this decree which is now under execution. Bageshar died and the question is whether this decree can be executed against his son. The execution Court in a very brief judgment of less than a page stated as regards Bageshar:
The grounds upon which ha resisted the suit were false and dishonest. It is thus clear that sons cannot be made liable for the costs of that suit.
2. In the judgment of the lower Appellate Court we have references to a number of rulings and no consideration at all as to the question of fact as to whether the action of Bageshar was contrary to good morals (avyavaharika). Now it is not denied that the consideration given by Bageshar for the sale deed of the land in question was money which belonged to the joint family consisting of Bageshar and his son, Jagdish. That being so, the property acquired was joint family property. A suit is brought claiming joint family property and the father of the joint family is a defendant. Is there not a natural duty of this Hindu father to defend that suit? Surely the son, Jagdish, could have claimed that his father was negligent in failing to defend joint family property against a claim by a stranger. This aspect of the matter does not seem to have occurred to either of the Courts below but it is a very obvious one. Bageshar naturally and properly defended the suit and the grounds which he took are the natural and proper grounds to defend such a suit. Even if the lower Appellate Court was correct in holding that evidence of the scribe should be believed and the manner in which it reversed the finding of the trial Court which heard the evidence, there remains the point as to whether the mere statement of the scribe was one which would prevent a purchaser from purchasing the property. Had there been a previous sale deed by Shyamanand, the case might have been different. But what Section 41, T.P. Act, looks to is an ostensible owner and there is no doubt that Shyamanand was the ostensible owner.
3. The next point in the Section is whether the transferor had power to make the transfer. Now Bageshar might well have thought that Shyamanand not having executed a registered sale deed still had power to make the transfer to Bageshar. Whether his view of law was correct or incorrect does not appear to be of importance. It is a view which an ordinary man, not a legal expert, might have taken and the standard of conduct demanded from a Hindu father does not imply that he must be a legal expert. All that is required is that he should act like a prudent man under such circumstances. We do not think that it can be said that the conduct of Bageshar in defending the suit was in any way contrary to good morals. Reference has been made to various rulings, some of them apparently recent, for example Raghunandan Sahu v. Badri Tell (1938) 25 A.I.R. 330 in which a Bench of this Court had a case of a decree for damages for malicious prosecution. It was held there that the action of a Hindu father in initiating a malicious prosecution was contrary to good morals. Similarly in Brij Behari Lal v. Phunni Lal : AIR1938All377 there was a case of a Hindu father who had committed a criminal breach of trust. In this case naturally it was held that the sons were not bound to pay the decree passed for damages against the father for such immoral actions. On the other hand in Shyam Behari v. Amanet Al Exn. First Appeal No. 197 of 19363, decided by us on 28th April 1938, there was a case of a purchase by a father which eventually involved him in a decree for costs. But this Court held that although the case ultimately failed in all the three Courts, it was a sound investment as there appeared to be a good prospect of success and the sons were liable for the decree of costs passed against their father. In Sumer Singh v. Chauble Liladhar (1911) 33 All. 472 there was a case where a father borrowed money to defend a suit for defamation and it was held that such a purpose was not immoral and sons were bound to pay that debt. For these reasons we consider that it has not been shown that the action of this Hindu father was in any way contrary to good morals and accordingly his sons are, in our opinion, liable to pay the decree for costs granted by the Court against him. We allow this second appeal, set aside the orders of the two lower Courts with costs throughout and we direct that the application of the decree-holder for execution of his decree against Jagdish should proceed according to law.